CONDITIONS OF COMPENSATION - Intoxication defense–Labor Code §3600(a)(4)–Intoxication of an employee causing injury is an affirmative defense, and the burden of proof rests with the employer to establish that affirmative defense. To carry the burden of proof, the employer must prove not only that the injured employee was intoxicated, it must also show that the worker's intoxication was a proximate and substantial cause of the injury. (See Douglas Aircraft Co. v. Industrial Acc. Com. (McDowell) (1957) 42 Cal.2d 903.) Ross Stores, Incorporated v. Workers' Compensation Appeals Board (Jagdav Pandher) 10 WCAB Rptr. 10,128 [Writ Denied]

CONDITIONS OF COMPENSATION - Post-termination defense-Labor Code §3600(a)(10)-The post-termination defense refers to actions taken by the employer to terminate a worker. A resignation by the worker does not constitute a termination. [Writ Denied]

CONDITIONS OF COMPENSATION - Off-duty recreational, social or athletic activity–Labor Code §3600(a)(9)–When an employee is injured during voluntary off-duty participation in a recreational, social or athletic activity, Labor Code §3600(a)(9) precluded compensability unless the activity causing the injury was a reasonable expectancy of the employment or it was expressly or impliedly required by the employment. (See Ezzy v. Workers' Comp. Appeals Bd. (1984) 146 Cal.App.3d 252.) Gary James Ricco, Jr. v. Workers' Compensation Appeals Board, City of South Gate 9 WCAB Rptr. 10,335 [Writ Denied]

CONDITIONS OF COMPENSATION - Post-termination claim–Labor Code §3600(a)(10)–The date of injury in cases of occupational diseases or cumulative injuries is that date on which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his recent or prior employment. In this case the injured worker's cumulative injury was not barred by the post-termination defense when he was laid off before he knew that his health problem was a heart attack. Virginia Surety, Inc. v. Workers' Compensation Appeals Board (Henry Diaz) 9 WCAB Rptr. 10,316 [Writ Denied]

CONDITIONS OF COMPENSATION - Post-termination injury–Labor Code §3600(a)(10) creates a rebuttable presumption that an injury is not compensable but is not considered an affirmative defense. (See Golden Eagle Insurance Company v. Workers' Comp. Appeals Bd. (Jenkins) (1999) 1 WCAB Rptr. 10,043.) United State Fire Insurance Company v. Workers' Compensation Appeals Board (Pedro Urzua) 9 WCAB Rptr. 10,191 [Writ Denied]

CONDITIONS OF COMPENSATION - Post-termination defense–Labor Code §3600(a)(10)(D) expressly permits post-termination cumulative injury claims where the date of injury, as established under Labor Code §5412, occurs after termination. Leprino Foods v. Workers' Compensation Appeals Board (David Owens) 9 WCAB Rptr. 10,167 ___Cal.App.4th___

CONDITIONS OF COMPENSATION - Horseplay exclusion–The general rule is that participants in employee horseplay or skylarking are not entitled to workers' compensation benefits for injuries resulting from the horseplay or skylarking. The rationale for denying compensability to participants is that the injury does not arise out of the employment because the acts constitute pranks or a frolic and, therefore, are not an element of the employment bargain. (See Hodges v. Workers' Comp. Appeals Bd. (1978) 82 Cal.App.3d 894.) [In this case, the act of engaging in an unauthorized and unconsented simulation of sexual intercourse upon an unwitting co-employee who happens to be bending down to retrieve some coins from the floor was found to fit the definition of horseplay.] Carlos Hernandez v. Workers' Compensation Appeals Board, Advanced Mobility, Inc. 9 WCAB Rptr. 10,161 [Writ Denied]

SUICIDE - Labor Code §3600(a)(6)–The Appeals Board did not err in finding that the suicide was not the consequence of an irresistible impulse caused by a nexus between the industrial injury. [In this case, the decedent did not commit suicide until three years after his industrial injury, following the unraveling of his relationship with his wife, his brother's cancer, his alienation from his children and other family relationship issues.] Nazmi Toshi (Deceased) v. Workers' Compensation Appeals Board, Western Contract Furnishers 9 WCAB Rptr. 10,107 ___Cal.App.4th___

SUICIDE - Labor Code §3600(a)(6)—Did the Appeals Board err in finding that the suicide was not the consequence of an irresistible impulse caused by a nexus between the industrial injury and the suicide and finding that Labor Code §3208.3 does not apply to suicide cases when there is an accepted industrial physical injury? Nazmi Toshi (Deceased) v. Workers' Compensation Appeals Board, Western Contract Furnishers 8 WCAB Rptr. 10,334 [Writ Granted]

CONDITIONS OF COMPENSATION-Suicide–Labor Code §3600(a)(6)–Suicide found to be hasty and impetuous, without deliberation and without advance planning, is not a defense to death benefit claim. Robert Liening, Jr. v. Pacific Lumber Company 8 WCAB Rptr. 10,259 [Writ Denied]

CONDITIONS OF COMPENSATION-Initial physical aggressor-Labor Code §3600(a)(7) bars an employee's claim for compensation where the injury arises out of an altercation to which the injured employee is the initial physical aggressor. To "arise out of an altercation," an injury must result from an exchange between two or more persons characterized by an atmosphere of animosity and a willingness to inflict bodily harm. An altercation is distinguishable from "horseplay" or "skylarking," neither of which involves such animosity, although either may result in bodily harm. Labor Code §3600(a)(7) imposes the necessity of selecting one overt act out of a series of hostile verbal, psychological, and physical acts as the one that, for compensation purposes, caused the quarrel and elicited the ultimate injury. (See Mathews v. Workers' Comp. Appeals B. (1972) 6 Cal.3d 719.) [Writ Denied]

CONDITIONS OF COMPENSATION-Initial physical aggressor-Labor Code §3600(a)(7)-The legislature's use of the word "physical" indicates that it was primarily concerned with the increased risk of injury that arises when a quarrel moves from an exchange of hostile words and nonviolent gestures to a trading of physical blows. One is not an initial physical aggressor so long as he confines his antagonism to arguments, epithets, obscenities or insults. An "initial physical aggressor" is one who first engages in physical conduct that a reasonable man would perceive to be a real, present and apparent threat of bodily harm. (See Mathews v. Workers' Comp. Appeals B. (1972) 6 Cal.3d 719.) [In this case, applicant, who was employed as a bus driver, blocked the bus exit and the passenger physically attacked him. The mere blocking the exit was found not to be an action that would put a reasonable person in fear of bodily harm and the injured bus driver was not found to be the initial physical aggressor.] Robert C. Hicks v. Workers' Compensation Appeals Board, Los Angeles County Metropolitan Transit Authority 8 WCAB Rptr. 10,247 [Writ Denied]

CONDITIONS OF COMPENSATION- Initial physical aggressor defense–Labor Code §3600(a)(7)–The use of the word "physical" initial aggressor indicates the increased risk of injury that arises when a quarrel moves from an exchange of hostile words and nonviolent gestures to a trading of physical blows. One is not an initial physical aggressor so long as he confines his antagonism to arguments, epithets, obscenities or insults. An "initial physical aggressor" is one who first engages in physical conduct that a reasonable man would perceive to be a real, present and apparent threat of bodily harm. (See Mathews v. Workers' Comp. Appeals Bd. (1972) 6 Cal.3d 719.) Robert C. Hicks v. Workers' Compensation Appeals Board, Los Angeles County Metropolitan Transit Authority 8 WCAB Rptr. 10,149 [Writ Denied]

CONDITIONS OF COMPENSATION¬ Initial physical aggressor defense–Labor Code §3600(a)(7)–The use of the word "physical" initial aggressor indicates the increased risk of injury that arises when a quarrel moves from an exchange of hostile words and nonviolent gestures to a trading of physical blows. One is not an initial physical aggressor so long as he confines his antagonism to arguments, epithets, obscenities or insults. An "initial physical aggressor" is one who first engages in physical conduct that a reasonable man would perceive to be a real, present and apparent threat of bodily harm. (See Mathews v. Workers' Comp. Appeals Bd. (1972) 6 Cal.3d 719.) Robert C. Hicks v. Workers' Compensation Appeals Board, Los Angeles County Metropolitan Transit Authority 8 WCAB Rptr. 10,149 [Writ Denied]

SUICIDE– Labor Code §3600(a)(6) –Once a prima facie showing is made that the suicide flowed from unrelenting pain of an industrial injury, the burden of showing willfulness shifts to the employer. (See Donovan v. Workers' Comp. Appeals Bd. (138 Cal.App.3d 323, see also Burnight v. Ind. Acc. Comm. (1960) 181 Cal.App.2d 816.) Timec Acquisition Corp. v. Workers' Compensation Appeals Board (Raquel Linares) 7 WCAB Rptr. 10,111

CONDITIONS OF COMPENSABILITY– Post termination claim– Labor Code §3600(a)(10)– Because there were no medical records in existence prior to the notice of termination that contain any evidence of any injury or industrial condition, psychiatric or otherwise, the injury was barred by Labor Code §3600(a)(10). Gary Couch v. Workers' Compensation Appeals Board, Valenzuela Engineering Inc. 5 WCAB Rptr 10,231

CONDITIONS OF COMPENSATION– Cumulative trauma claim subsequent to termination– Labor Code §3600(a)(10)(D)– An injured worker is entitled to make a claim for compensation, and the employer will have liability for the claim, where the injured worker can demonstrate by a preponderance of the evidence that his date of injury for a cumulative trauma injury is subsequent to the date of notice of termination or layoff. Highlands Insurance Group v. Workers' Compensation Appeals Board (Jorge Luis Torres) 5 WCAB Rptr. 10,100

CONDITIONS OF EMPLOYMENT– Intoxication defense– Labor Code §3600(a)(4)– The employer has the burden of proving intoxication as a proximate cause of injury. (See Douglas Aircraft Co. v. Industrial Acc. Comm. (MacDowell) (1957) 47 Cal.2d 903.) [In this case blood alcohol test results were excluded from evidence when the chain of possession of the blood sample was clearly broken by the venipuncturist's failure to initial the vial after the blood sample was drawn.] Lockheed Advanced Development Company v. Workers' Compensation Appeals Board (Peter Nichols) 5 WCAB Rptr. 10,037

WCAB PROCEDURE– Claim presented after notice of termination or layoff– Labor Code §3600(a)(10)– In this case, the applicant was injured while attending the Deputy Sheriff's Academy. She did not pass probation in the status as a Deputy Sheriff but exercised her re-employment rights with the County Water Department. Accordingly there was no evidence that applicant lost her employment with Riverside County. The post-termination defense did not apply since she remained an employee of the County. County of Riverside v. Workers' Compensation Appeals Board (Beverly King) 4 WCAB Rptr. 10,347

CONDITIONS OF COMPENSATION–Labor Code §3600(a)(10)–When the claim for compensation benefits is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that the employee's records, existing prior to the notice of termination or layoff, contain evidence of the injury, or the employer has notice of the injury prior to the notice of termination or layoff. [In this case, the employer had not been advised of a claim until approximately three years after termination or layoff and no medical records in existence at the time of layoff pertinent to the parts of the body allegedly injured.] Esthela Zamora v. Workers' Compensation Appeals Board, Cosmetic Manufacturing Resources. 4 WCAB Rptr. 10,204

CONDITIONS OF COMPENSATION–Claim after termination or layoff–Labor Code §3600(a)(10)– When the claim for compensation is filed after notice of termination or layoff and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation will be paid unless among other conditions the employee's medical records existing prior to the termination or layoff contain evidence of the injury. [In this case the claim form was not requested until three years after termination and there were no medical records in existence at the time of layoff pertinent to the part of the body for which injury was being claimed.] Allistar Insurance Company v. Workers' Compensation Appeals Board (Dan Bryant) 4 WCAB Rptr. 10,187

CONDITIONS OF COMPENSATION–Labor Code §3600(a)(10)–In this case the injured worker failed to demonstrate by a preponderance of the evidence that any of the statutory exceptions to a claim presented after termination for an injury occurring prior to the time of notice of termination. [There was a lack of any documentation regarding applicant's low back injuries by any of the contemporaneous physicians examining and treating the applicant, coupled with applicant's lack of credibility and the fact that applicant, despite experiencing what he categorized as excruciating pain, did not see a physician until he was terminated.] Fernando Cuen v. Workers' Compensation Appeals Board, Gregory Bragg & Associates. 4 WCAB Rptr. 10,110

CONDITIONS OF COMPENSATION-Initial physical aggressor-Labor Code §3600(a)(7)–Initial physical aggressor is not an affirmative defense that must be separately pleaded and proved, It is a condition of compensation that if it exists prohibits an employee from sustaining an injury arising out of and in the course of employment since the employee removes himself from the employment bargain when he initiates a fight. The burden is on the defendant to prove by a preponderance of the evidence that the applicant was the initial physical aggressor. D & G Plumbing v. Workers' Compensation Appeals Board (Pedro Cervantes) 4 WCAB Rptr. 10,071

CONDITIONS OF COMPENSATION–Claim after notice of termination or layoff–Labor Code §3600(a) (10)–The provisions of Labor Code §3600(a)(10) apply to seasonal employees. The ending of seasonable employment is in fact a layoff and/or termination of employment within the meaning of section 3600(a)(10). The ending of the employment relationship is an employer-instigated separation. (See CJS Company v. Workers' Comp. Appeals Bd. (Fong) (1999) 74 Cal.App.4th 294, 1 WCAB Rptr. 10,006.) Miguel Gil v. Workers' Compensation Appeals Board, Anacapa Berry Farm 3 WCAB Rptr. 10,354

CONDITIONS OF COMPENSATION–Labor Code §3600 (a)(10)–When a claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of the notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one of the following conditions apply: (1) the employer had notice of the injury prior to the notice of termination or layoff, (2) the employee's medical records, exiting prior to the notice of termination, contain evidence of the injury, (3) the date of a injury as specified in Labor Code §5411 is subsequent to the date of the notice of termination or layoff, but prior to the effective date of termination or layoff, or (4) the date of injury of a injury as specified in Labor Code §5412 is subsequent to the date of the notice of termination or layoff. Romualdo Chavarria v. Workers' Compensation Appeals Board, Polcyn Paving Corporation 3 WCAB Rptr. 10,325

CONDITIONS OF COMPENSATION–Labor Code §3600 (a)(10)–When a claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of the notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one of the following conditions apply: (1) the employer had notice of the injury prior to the notice of termination or layoff, (2) the employee's medical records, exiting prior to the notice of termination, contain evidence of the injury, (3) the date of a injury as specified in Labor Code §5411 is subsequent to the date of the notice of termination or layoff, but prior to the effective date of termination or layoff, or (4) the date of injury of a injury as specified in Labor Code §5412 is subsequent to the date of the notice of termination or layoff. Steven Bermudez v. Workers' Compensation Appeals Board, Peerless Building Maintenance 3 WCAB Rptr. 10,325

CONDITIONS FOR COMPENSATION–Initial Physical Aggressor–Labor §3600(a)(7)–Recovery of workers' compensation benefits is precluded if the worker who claims benefits for an injury in an altercation was the initial physical aggressor. The initial physical aggressor is the first person engaging in conduct amounting to an assault. (See Mathews v. Workers' Comp. Appeals Bd. (1972) 6 Cal.3d 719.) Tomas Regalado, Jr. V. Workers' Compensation Appeals Board, Golden Eagle Insurance Company 3 WCAB Rptr. 10,294

CONDITIONS OF COMPENSATION– Suicide– Labor Code §3600(a)(6)– For suicide to be compensable one must have an underlying accepted workers' compensation injury that renders the applicant unable to resist the impulse to harm himself or that the pain was so bad that death was a viable option. (See Burnright v. Industrial Acc. Com. (1960) 25 Cal.Comp.Cases 121.) [In this case the applicant committed suicide by an overdose of medication, but there was no evidence that he took the medication because of his industrial back injury.] Rosemarie Cota v. Workers' Compensation Appeals Board, Autozone, Inc. 5 WCAB Rptr. 10,260

CONDITIONS OF COMPENSATION–Initial physical aggressor–Labor Code §3600(a)(7)–The person who by physical conduct first places the opponent in reasonable fear of bodily harm is the "initial physical aggressor." (See Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719.) [In this case, the employee was a bus driver who advanced on a passenger with a weapon at his side in response to loud radio music and repulsive language.] Malcolm Criner v. Workers' Compensation Appeals Board, Los Angeles Metropolitan Transportation Authority 5 WCAB Rptr. 10,278

CONDITIONS OF COMPENSATION–Off-duty recreational, social or athletic activity–Labor Code §3600(a)(9)–Off-duty social activities are compensable when the activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment. There is a two-pronged test: (1) whether the employee subjectively believes his or her participation in an activity is expected by the employer, and (2) whether the belief is objectively reasonable. (See Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal.App.3d 252.) Shekzad Akhtar v. Workers' Compensation Appeals Board, Alamo Rent-A-Car 5 WCAB Rptr. 10,279