Delgado: A Lunch-Trip Forklift Injury Remained Work Related

Being hurt during an unpaid lunch break can leave you wondering whether you still have a workers’ compensation claim. That uncertainty can deepen if the employer says you broke a safety rule. The review should examine why you were there, what you were doing and how the activity connected with your work.

In Delgado v. FCEC/MSG, No. ADJ12410207 (WCAB May 3, 2024), a convention-center worker was injured while riding a forklift through a flooded parking lot to retrieve his lunch. The Workers’ Compensation Appeals Board upheld the industrial-injury finding. Its reasoning focused on the lunch trip’s work connection and the absence of horseplay, while removing findings that improperly relied on negligence.

The lunch trip began with an ordinary workday need

Alfredo Delgado helped set up and dismantle convention-center events and clean up afterward. On May 23, 2019, he parked where the employer directed. He kept his lunch in his car because food had been stolen from workers’ lunch bags.

The crew stopped work together for lunch, and employees had to clock out. When Delgado went outside, heavy rain had left ankle-deep water in the parking lot. He asked a coworker operating a forklift for a ride to his car so he could retrieve lunch without soaking his feet.

The account of the accident in Delgado described him standing on the forks and holding a crossbar. After about 20 feet, the forklift struck a parking bump hidden beneath the water, tipped and threw him off. The injury finding addressed his left ankle and left arm.

Delgado testified that he had not ridden that way before and had received no instruction prohibiting it, although he acknowledged that he should not have done it. The operations manager testified that the practice was prohibited. Those facts formed part of the record; the Board’s coverage analysis addressed the purpose and circumstances of the activity.

Personal comfort connected the lunch trip with employment

Labor Code section 3600 requires an injury arising out of and in the course of employment. The Board examined both the source of the danger and the circumstances of the lunch trip.

The employment-risk analysis in Delgado connected the injury with an authorized 30-minute lunch break, a car in the employer-designated parking area and Delgado’s intention to return to the employer’s breakroom to eat. The flooded lot and the trip to retrieve food were part of that setting.

The Board applied the personal-comfort doctrine described in Price v. Workers’ Compensation Appeals Board, 37 Cal.3d 559, 567–568 (1984). Activities necessary for an employee’s life, comfort and convenience at work can remain incidental to employment even when they serve a personal need.

The personal-comfort discussion in Delgado therefore treated the lunch trip as within employment. Clocking out was one fact in the analysis. The authorized break, designated lot, reason for getting the food and intended return supplied the concrete connection.

The horseplay defense turned on the purpose of the ride

The employer argued that riding the forklift was horseplay and a substantial departure from employment. The Board examined what made the conduct play, rather than treating the unsafe method as the answer.

It discussed Hodges v. Workers’ Compensation Appeals Board, 82 Cal.App.3d 894, 899, 900 footnote 1 (1978), through the reasoning in Sanchez v. Universal Lumpers. The horseplay examples involved amusement or daring: throwing rolls, chasing coworkers, sparring or taking a bet to dive into a pool.

The comparison with those cases in Delgado focused on a different purpose. Delgado was getting food from his car and coping with the flooded lot so he could return to lunch and work with dry feet. The Board found no evidentiary basis to characterize that ride as fun, play or a dare.

The employer also relied on Dalsheim v. Industrial Accident Commission, 215 Cal. 107, 114 (1932), involving an attempt to ignite supposedly nonflammable cleaning liquid in front of laughing coworkers. The Board distinguished that activity from Delgado’s lunch retrieval. The analysis examined the origin and purpose of the risk, rather than simply labeling an unusual act “horseplay.”

Unsafe conduct and comparative fault were different questions

The trial judge had reasoned partly from the forklift operator’s superior knowledge and negligence. On reconsideration, the employer disputed whether the operator knew more about the prohibition than Delgado did.

The negligence discussion in Delgado rejected that comparison as irrelevant to this coverage analysis. Workers’ compensation operates without regard to ordinary negligence. The Board removed the judge’s negligence findings while preserving the industrial-injury result.

The Board also applied Williams v. Workers’ Compensation Appeals Board, 41 Cal.App.3d 937 (1974), to the employer’s rule-violation argument. On these facts, the forbidden method of riding the forklift did not remove the lunch-related activity from employment. The reason for the trip and the absence of play remained central.

That distinction helps frame a claim review. Identify the actual work connection and the conduct said to establish the defense. A dispute about who showed worse judgment does not resolve whether the injury arose from an activity incidental to employment.

The order upheld the injury finding and removed faulty reasoning

The formal order in Delgado affirmed the February 5, 2021 findings and order except for specified amendments. It rescinded and deleted Findings 5 through 9 and amended Findings 1 and 3.

The substituted findings identified an injury arising out of and in the course of employment to the left ankle and left arm from the May 23, 2019 forklift fall. They also stated that Delgado had been thrown off the forklift. The May 3, 2024 decision preserved that injury finding while correcting the reasoning supporting it.

The Board gave substantial weight to the trial judge’s opportunity to observe the witnesses and found no sufficiently substantial evidence to overturn the credibility determinations. It evaluated the credited facts under its own employment-connection and horseplay analysis.

Preserve the lunch purpose, conditions and actual rules

Keep the parking instructions, work schedule, break arrangements and incident report. Describe why you went to the car, where you intended to eat and what conditions affected the route. If photographs or witnesses can establish flooding, an obscured parking bump or the sequence of the ride, identify them and preserve the available records.

Obtain the actual rule and training records on which the employer relies. Keep your own account accurate, including an unsafe choice or an admission about it. The legal analysis needs the activity’s purpose and circumstances, alongside what the employer says brought it outside employment.

Our Lucero analysis concerns the separate initial-aggressor defense after a work-driving collision. Sarian concerns a meal arranged for actual supervisory business. Delgado examines a personal-comfort lunch trip and why the evidence failed to establish horseplay.