Injuries Barred by Criminal Convictions Under LC 3600(a)(8)

Sure S. Log
July 2024

Labor Code § 3600(a)(8) is an affirmative defense that bars a claim for compensation when the injury is “caused by the commission of a felony, or a crime which 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.” That defense was enacted in 1986 and originally barred an employee’s injury “caused by the commission of a felonious act by the injured employee, for which he or she has been convicted.” The statute was amended to its current form in 1993.

Although the statute unambiguously bars injuries caused by the commission of a felony, for more than 30 years the courts never fully defined what constitutes a crime punishable by Penal Code 17(b). That section states, “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 ….” The statute then defines the circumstances under which a crime is a misdemeanor.

Now this issue has been clarified in Johnson v. Lexmar Distribution dba LDI Trucking, Inc., in which the WCAB held that Penal Code 17(b) applies to “wobblers,” crimes that may be prosecuted either as a misdemeanor or a felony. So LC 3600(a)(8) bars injuries caused by the commission of a felony or a wobbler.

FACTS OF THE CASE AND PROCEDURAL HISTORY

In Johnson, the applicant worked as a truck driver. He was stopped for making an illegal U-turn by the Arizona State Police. He cursed at the officers and demanded to speak to a supervisor. He also refused to identify himself or provide his driver’s license, registration or insurance cards. He was forcibly removed from the cab of the semi-truck and pulled to the ground.

The applicant pleaded guilty to two charges in Arizona: one for failure to provide a driver’s license, and one for refusal to comply with the lawful order or direction of a police officer. Both crimes were classified as misdemeanors carrying the potential of jail time and fines. The applicant also pursued workers’ compensation benefits for his injuries from the altercation.

The WCAB originally concluded that LC 3600(a)(8) barred his claim because he pleaded guilty to a crime that was punishable by a “fine or imprisonment in the county jail” as specified in Penal Code 17(b).[1] After the applicant filed a petition for writ of review, however, the Court of Appeal granted the WCAB’s request to remand the matter so that it could further analyze the meaning of LC 3600(a)(8) in light of its reference to Penal Code 17(b).

On June 4, 2024, the WCAB issued an Opinion and Decision After Remand, finding that the applicant’s claim was not barred by LC 3600(a)(8).

THE WCAB’S DECISION

The WCAB explained that, generally, if a statute calls for imprisonment in state prison, the offense is a felony. But if the statute calls for imprisonment in the county jail or a fine, it’s a misdemeanor. It added that there were also “wobbler” offenses, which are crimes that, in the trial court’s discretion, may be sentenced either as felonies or misdemeanors.

The WCAB found that Penal Code 17(b) authorizes a court to designate “wobbler” offenses to misdemeanors by imposing a punishment other than state prison or by declaration as a misdemeanor after a grant of probation. Because LC 3600(a)(8) bars compensation if the injury was caused by the commission of a felony or a crime punishable under Penal Code 17(b), the WCAB concluded that LC 3600(a)(8) prohibits compensation when the injury was caused by the commission of a felony or a misdemeanor that was re-designated as such from a felony. Because the applicant was convicted of two misdemeanor statutes under the Arizona law, LC 3600(a)(8) did not apply.

The WCAB added that LC 3600(a)(8) requires a causal relationship between the injury and the crime. It found that although the interaction between the applicant and police officers was confrontational and heated, the applicant never made any overt actions toward the officers, and never threatened them. The WCAB questioned whether the officer’s decision to forcibly pull the applicant out of the truck was necessarily the result of his confrontational and uncooperative attitude. So, it concluded that there was not a causal relationship between the applicant’s attitude and his injuries.

ANALYSIS OF THE DECISION

Johnson is the first case that has effectively addressed the criminal activities that are barred by LC 3600(a)(8). The statute doesn’t bar all injuries arising out of criminal convictions, only those resulting from commission of a felony or from a misdemeanor that was re-designated as such from a felony. Although the decision limits the criminal activities that fall under LC 3600(a)(8), the WCAB’s interpretation is consistent with the language of that statute and Penal Code 17(b).

Even before LC 3600(a)(8), the courts recognized, “Employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery under workers’ compensation law.” (Westbrooks v. WCAB (1988) 203 Cal. App. 3d 249, 253.) But that doesn’t necessarily mean that criminal activity is covered by workers’ compensation just because it’s not barred by LC 3600(a)(8). An injury resulting from criminal activity still might be barred “when it constitutes a deviation from the scope of employment” (Westbrooks v. WCAB).

If an employee’s criminal activity cannot be found to be directly or indirectly serving the employer, an injury sustained during the criminal conduct can be barred. (Pacific Telephone & Telegraph Co. v. WCAB (Blackburn) (1980) 45 CCC 1127.) It has proved to be difficult, however, to bar a claim based on an employee’s misconduct, even if it rises to the level of criminal conduct. Generally, if an employer can be found to have benefited from the employee’s actions, the courts will allocate the risk for resulting injury to the employer.

See Johnson v. Lexmar Distribution dba LDI Trucking, Inc., 2022 Cal. Wrk. Comp. P.D. LEXIS 190.