California: Labor Code 3600(a)(8) Explained: The Crime Exception to Employer Liability

What exactly is a crime that is punishable as specified in Section 17 of the Penal Code?

It goes without saying that the exceptions to employer liability for compensation for an injury sustained by their employee that arises out of and occurs in the course of employment are quite limited. Those exceptions are listed in Labor Code section 3600(a)(4) to (10). Among the most familiar include where the employee’s injury was intentionally self-inflicted, or caused by the employee’s intoxication, or where the employee was the initial physical aggressor. Another common-sense exception is where the employee’s injury is caused by the commission of a crime that is a felony, or a crime that is punishable as specified in subdivision (b) of Section 17 of the Penal Code by the injured employee, for which he or she has been convicted (Lab. Code § 3600(a)(8). At first glance, subdivision (a)(8) sounds like a no-brainer. After all, why should an employee injured in the course and scope of their employment while committing a felony be entitled to compensation? The logic of this exception is undeniable; to wit, application of this exception should be straight forward. But that has not always been the case. A recent Appeals Board panel decision dissects and explains the meaning of the phrase, “or a crime that is punishable as specified in subdivision (b) of Section 17 of the Penal Code by the injured employee, for which he or she has been convicted.” The case is Christopher Johnson v. Lexmar Distribution dba LDI Trucking, Inc., ADJ14203968, July 1, 2022.

Christopher Johnson (applicant), a truck driver, sustained an injury on January 3, 2021 arising out of and occurring in the course of his employment as the result of an altercation with Arizona State Police. As part of his regular job duties, applicant drove a truck from California to Arizona. On the day of the injury applicant was stopped by the Arizona State Police for making an illegal U-Turn. The traffic stop did not go well, and applicant was forcibly removed from the cab of the semi-truck by police officers and pulled to the ground. Applicant filed an application for adjudication of claim alleging an industrial injury as the result of the incident. Defendant contested the claim, asserting that any claim of injury was barred because applicant was the initial physical aggressor and, further, that if an injury occurred it was not compensable under Labor Code § 3600(a)(8). The case then proceeded to trial.

At trial video footage of the incident in question was admitted into evidence. The footage showed applicant arguing with the police, refusing to identify himself, and refusing to provide his driver’s license, registration or insurance card. When applicant failed to comply with the police officers’ instructions, he was forcibly removed from the cab of the semi-truck by the officers and pulled to the ground, sustaining an injury. Documentary evidence was also admitted into evidence revealing that applicant was taken into custody, charged with five misdemeanors, and spent one night in jail. Records from an Arizona Court relevant to applicant’s arrest were also admitted into evidence. Those records showed that applicant plead guilty to two misdemeanor counts, both of which carried the possibility of jail time and fines. Applicant pled guilty to a violation of Arizona Statute 28-1595(b), which provides in relevant part, “… the operator of a motor vehicle who fails or refuses to exhibit the operator’s driver license …or a driver who is not licensed and who fails or refuses to provide evidence of the driver’s identity on request is guilty of a class 2 misdemeanor. … .”

Applicant also pled guilty to a violation of Arizona Revised Statute 28-622(A), which states in relevant part, “ A person shall not willfully fail or refuse to comply with the lawful order or direction of a police officer invested by law with the authority to direct, control or regulate traffic.”

Following trial, the WCJ issued a decision in which he found that defendant failed to establish that applicant was the initial physical aggressor and also failed to rebut substantial medical evidence that applicant sustained an injury as a result of the altercation. However, the WCJ also found that applicant’s claim of injury was barred by Labor Code § 3600(a)(8). In reaching his decision, the WCJ explained that applicant was not a credible witness and, further, that trustworthy documents from the Arizona court confirmed that applicant pled guilty to two distinct misdemeanor charges that each carried the possibility of confinement in the county jail and a fine. Applicant sought reconsideration, contending that Labor Code § 3600(a)(8) only applies to injuries sustained during the commission of a felony.

A unanimous panel affirmed the WCJ’s decision that Labor Code § 3600(a)(8) bars compensability in this case. The panel’s opinion is significant because it provides a clear explanation of the meaning and applicability of the phrase, “…or a crime which is punishable as specified in Section 17 of the Penal Code …”(Lab. Code § 3600(a)(8)). Admittedly, applicant was not charged with, nor was any evidence presented, that he was injured in the course of committing a felony. Thus, the question is what exactly is a crime that is punishable as specified in Section 17 of the Penal Code? The panel addresses that question by reviewing Penal Code Section 17. That statute provides:

(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances . . . . (Penal Code § 17(b), emphasis added.)

The panel found unequivocal and unrebutted evidence that applicant pled guilty to two misdemeanors involving unlawful actions that precipitated his injury. Both of those misdemeanors, Arizona Statute 28-1595(b) and Arizona Revised Statute 28-622(A), are punishable by confinement in the county jail or a fine. Thus, the crimes that precipitated applicant’s injury are ones that are punishable as specified in Section 17 of the Penal Code, making Labor Code § 3600(a)(b) a bar to applicant’s claim of compensable injury.

While the panel’s decision may not be the last word on this case, its interpretation of Labor Code § 3600(a)(8) is compelling and make good common sense.

Reminder: Board Panel Decisions are not binding precedent.

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