Tharpe: An Unpaid Lunch Injury Turned on Who Controlled the Property

If you are hurt during a lunch break near work, it may be hard to understand why the insurer treats the location as outside your employment—especially when your boss owns it or work equipment is kept there. A claim review needs to establish which business owned or controlled the place and how the break related to your job.

In Tharpe v. Arcata Forest Products, No. ADJ17462575 (WCAB Jan. 29, 2024), a mill worker claimed a right-ankle injury during an unpaid lunch visit to a friend on nearby property. His boss’s connection to that property, and disputed evidence of equipment there, failed to establish that it was his employer’s premises. The Workers’ Compensation Appeals Board corrected the finding identifying his employers but otherwise left the denial of his injury claim in place.

The lunch visit took him away from the mill

Justin Tharpe claimed that he injured his right ankle on January 30, 2023. He worked as a mill worker and bucksaw operator for Arcata Forest Products. During an uncompensated lunch break, he visited his friend Joe Zavala on the Figas Construction property.

The location was nearby but not adjacent to the mill’s property. The record described in Tharpe included map images showing that separation. The dispute concerned whether the injury location nevertheless qualified as his employer’s premises.

The trial judge found that it did not and ordered that Tharpe take nothing on his claim. Tharpe sought reconsideration, arguing that the property was owned or controlled by his employer. That argument required more than showing that the same person had interests in both businesses.

The Board first identified both employers

The filings had been inconsistent about naming Barrett Business Services or Arcata Forest Products as the employer. The Board’s employer analysis in Tharpe identified a general-special employment relationship. Barrett handled payroll, tax and workers’ compensation benefits; Arcata was the business for which Tharpe performed his mill work.

The testimony of Arcata’s owner and operations manager described Barrett’s role. Tharpe and the operations manager identified the work he performed for Arcata. The Board amended the finding to recognize both as employers at the time of the claimed injury.

That correction resolved who employed him. The separate coverage question still depended on the location and circumstances of his injury. An accurate employer finding and a successful injury claim were different steps in this proceeding.

The property’s business identity mattered

Labor Code section 3600(a)(2) requires service growing out of and incidental to employment, performed within the course of employment. The Tharpe panel’s discussion examined the time, place and circumstances of the injury and the necessary connection to the employment.

The panel considered the premises-line rule: Injuries while going to or from work on premises owned or controlled by the employer are generally treated as arising out of and in the course of employment. It applied that rule to Tharpe’s claim that his unpaid lunch visit remained on employment premises. Ownership or control by the employer was the disputed link.

Robert Figas owned Arcata Forest Products and also had an ownership interest with his wife in the Figas Construction business. But the ownership evidence in Tharpe established that the construction property belonged to a separate business entity. It was not property owned by Arcata Forest Products. The Board therefore rejected the argument that the boss’s ownership alone made it Arcata’s premises.

For a worker evaluating a similar denial, distinguish the individual owner from each business. The name used in everyday conversation may differ from the entity that owns a lot, employs the worker or directs activities there. Those connections need evidence rather than an assumption that everything the boss owns is part of the workplace.

Conflicting equipment evidence did not establish control

Tharpe also argued that Arcata controlled the property because equipment was kept there. The testimony examined in Tharpe was more complicated than an agreed storage arrangement.

Tharpe said his boss stored machines near Zavala’s trailer. Zavala did not think Arcata stored anything on the lot except perhaps a water truck. The owner and operations manager testified that Arcata did not use the property for equipment storage.

The trial judge considered those differences. Even if Arcata occasionally stored equipment there or lent a forklift to the construction business, the judge found that connection insufficient to make it Arcata’s premises. The Board agreed that the occasional presence of equipment did not establish Arcata’s control of this property for purposes of the premises-line rule.

The burden was to prove the employment connection by a preponderance of the evidence. Labor Code section 3202.5 describes that standard in terms of the evidence’s convincing force and greater probability of truth. It directs attention to the evidence’s weight rather than the number of witnesses. In a property-control dispute, identify what each witness actually knows about use of the site, access and directions given to workers.

The amended employer finding left the denial in place

The Board granted reconsideration for a limited purpose: amending the employer finding to include Barrett and Arcata. It otherwise affirmed the November 2, 2023 findings and order. Tharpe had not met his burden to establish an injury arising out of and in the course of employment, so the take-nothing result remained.

This explains why an order headed “granting reconsideration” must be read through its final findings. Here, the successful correction concerned employer identity. The evidence about the lunch visit and control of the injury location still failed to establish coverage.

Our analysis of Sarian concerns a meal arranged for supervisory work. Delgado concerns retrieving lunch from an employer-designated parking area. Tharpe addresses a different record: An unpaid personal visit on a separate property, with ownership and control left unproved.

Review the location and the break together

Keep the injury report, work schedule and break arrangements with a map or photographs identifying exactly where the injury occurred. Record the reason for being there, any work instructions and the route between that location and the usual workplace. Identify the employing businesses separately from the people who own them.

If equipment or work activity connects another property to the employer, preserve the details: What was there, who placed it there, how often it was used, who could enter and who directed employees’ activities. Obtain available ownership or use records and identify witnesses with firsthand knowledge. These are practical ways to investigate control; a single item’s presence should be considered in the context of the whole record.

Bring that information and any denial for review. We can examine whether the decision accurately identifies the employers, the injury location and the claimed work connection. Our workers’ compensation team can help evaluate those issues without treating the word “lunch” or the boss’s name on a property as the entire answer.