Department of Water and Power of City of Los Angeles v. Workmen's Compensation Appeals Bd.

• Decision Date: 24 July 1967
• Citation: 60 Cal.Rptr. 829,252 Cal.App.2d 744
• Court: California Court of Appeals Court of Appeals
• Parties: DEPARTMENT OF WATER AND POWER OF the CITY OF LOS ANGELES, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Robert Antrobus, Respondents. Civ. 31279.

Page 829

60 Cal.Rptr. 829

252 Cal.App.2d 744

DEPARTMENT OF WATER AND POWER OF the CITY OF LOS ANGELES, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Robert Antrobus, Respondents.

Civ. 31279.

Court of Appeal, Second District, Division 3, California.

July 24, 1967.

Roger Arnebergh, City Atty., Los Angeles, Gilmore Tillman, Chief Asst. City Atty., for Dept. of Water and Power of City of Los Angeles.

Ned Flusty, Deputy City Atty., for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian and Nathan Mudge, Los Angeles, for respondent Appeals Board.

Jaffee, Mallery, Thompson, Talbott & Lemaster and George D. Thompson, Pamona, for respondent Robert Antrobus.

McCOY, Associate Justice pro tem. ^*

The Department of Water and Power of the City of Los Angeles seeks review and annulment of an award of workmen's compensation benefits to an employee, a meter reader, who sustained injury when, while off work on a Saturday, he participated in an agility test given by the City of Los Angeles as a part of an open competitive test for a position with the department as a cable splicer helper.

There is no dispute as to the facts. Robert Antrobus, the applicant, entered the employment of the Department of Water and Power, a department of the City of Los Angeles, as a meter reader on May 1, 1965. His regular work was from Monday through Friday; he did not work on Saturdays unless expressly authorized. Prior to his employment he had applied for the position of cable splicer helper in the department and had passed the written examination for that position. The position of cable splicer helper is in a separate division of the department and the work is unrelated to the work of a meter reader. Examinations and tests for all positions in the department are given by the civil service commission of the city based on job descriptions supplied by the department. On May 29, 1965, a Saturday, applicant went on his own time and at his own expense to the Police Academy, the property of the city, where he participated in the test conducted by the city civil service commission and sustained injury in the course thereof. He testified that he took the test because the opportunity for advancement appeared greater for a cable splicer helper than for a meter reader. He was not advised or encouraged to take the test by anyone in the department.

The appeals board, noting that municipal and state agencies as well as business concerns encourage employees to seek advancement and give examinations to employees to qualify for better jobs, concluded that the injury was compensable because it was sustained in the course of an activity which was for the joint benefit of the employer and the employee. The department contends that the injury is not compensable because it did not arise out of or occur in the course of the applicant's employment as a meter reader. It argues that the work of meter reader did not expose the applicant to risks of the activity in which he sustained injury and that his position was therefore no different from that of any other individual applying for the position of cable splicer helper.

It is frequently stated that for an injury to occur in the course of employment the employee must be engaged in the work he has been hired to perform or some expectable personal act incidental thereto and the injury must occur within the period of his employment and at a place where he may reasonably be for that purpose. (See, e.g., Robbins v. Yellow Cab Co., 85 Cal.App.2d 811, 813--814, 193 P.2d 956.) However, the mere fact that an injury is sustained outside regular working hours does not preclude an award if the activity is in furtherance of the employer's business. (Gardner v. Industrial Acc. Com., 73 Cal.App.2d 361, 166 P.2d 362 (bartender, after working hours, injured while ejecting man); Scott v. Pacific Coast Borax Co., 140 Cal.App.2d 173, 294 P.2d 1039 (gas station attendant returned to station after working hours for personal reasons injured while helping fellow employee fix gas pump); Bethlehem Steel Co. v. Ind. Acc. Com., 70 Cal.App.2d 382, 161 P.2d 59 (employee injured while calling for war savings bond at company window after working hours).) On the other hand, injury sustained outside of working hours is not compensable if the activity causing it is a strictly personal matter, whether on or off the employer's premises. (State Dept. of Inst. v. Ind. Acc. Com., 46 Cal.App.2d 439, 442, 116 P.2d 79 (employee returning to premises to wait for co-employee); Robbins v. Yellow Cab Co., 85 Cal.App.2d 811, 193 P.2d 956 (employee...