Toohey v. Workmen's Compensation Appeals Board

Opinion

STEPHENS, J. On April 20, 1972, the Workmen’s Compensation Appeals Board issued its award and findings that applicant sustained multiple injuries arising out of and occurring in the course of his employment and that applicant had sustained a permanent disability of 71 percent. The [100]applicant and the respondent employer both filed petitions for reconsideration: the applicant contended that the referee had failed to set forth all of the factors of disability as required by law, and that there was no substantial evidence to support the referee’s finding that applicant had sustained only a 71 percent permanent disability; the respondent employer contended that applicant’s injury did not arise out of and occur in the course and scope of his employment because he was crossing the street to obtain his lunch from his car on a paid beer break at the time he was injured. On July 6, 1972, the board issued an opinion and orders denying applicant’s petition for reconsideration and granting respondent’s petition; the board found that applicant did not sustain an injury arising out of and occurring in the course and scope of his employment.

Applicant petitions for a writ of review, contending: (1) that the board acted without and in excess of its powers in reversing the trier of fact on the issue of whether or not applicant’s injury arose out of and occurred in the course and scope of his employment; (2) that the opinion and orders denying his petition and granting respondent’s petition for reconsideration and the board’s decision after reconsideration are unreasonable; (3) that the opinion and orders are not supported by substantial evidence.

On the date of his injury, petitioner was employed by the Pabst Brewing Company. During working hours and at the time of one of his seven-minute hourly beer breaks which were authorized and paid for by respondent employer, petitioner decided to go to his car, which was parked directly across the gate from the respondent’s premises, to retrieve his lunch. Petitioner testified that at the time of this beer break he saw his foreman, McGinnis, and requested and obtained permission from McGinnis to obtain his lunch from his car. Petitioner then proceeded to leave his work station, walked out through the gate, and started to cross the street, when he was struck by a hit-and-run driver and sustained multiple injuries.

Foreman McGinnis testified that he had knowledge of the fact that some of the employees would leave and “go past the plant gate” during the lunch break, or any other break. He did not recall that petitioner had asked permission of him to go to his car to get his lunch, and was sure that he would have remembered it had petitioner requested permission to leave the premises. He testified that had petitioner, at the time of his break, requested permission to “run across the street and get [his] lunch,” he probably would have given his permission. McGinnis was asked if he himself ever went out the plant gate during working hours, either lunch, or break, and he replied that he did, and that he later received a “verbal reprimand.”