In the case of Jose Mireles v. SOS Steel applicant alleged a specific injury on April 21, 2017. The applicant alleged that his injury occurred, as a result of a fall while working at a construction site in Atherton, California. A detailed investigation was conducted including review of accident video footage. After internal investigation with assistance of defense counsel it was determined that the case warranted a good faith denial based on the lack of injury AOE/COE and also the affirmative defense of Horseplay/Skylarking.
After multiple depositions including the depositions of persons most knowledgeable for the defendant and a co-worker, applicant was deposed in September of 2017. After completing deposition testimony the matter was prepared for AOE/COE trial and proceeded to trial on February 22, 2018.
During trial under cross-examination the applicant could not explain inconsistencies in his story or the chain of events, which he had previously claimed to attempt to justify his work falling within the scope of his employment. Applicant had during a period of down time elected to climb a three story vertical steel tube column. Applicant claimed that he was attempting to plumb the column however no video surveillance or testimonial support could be obtained to support that allegation. Practice and procedure for the iron worker industry contradicted the applicant’s claims. In addition, rumors had circulated that the applicant was climbing the column to take a photograph with his smartphone.
These testimonial events combined with the video accident footage collaboratively proved the defense of injury. The WCJ found the injury did not occur within the scope or course of the employment. The horseplay defense was raised as well and testimony supported the horseplay defense through witnesses stating the applicant had no purpose on that column and was being rambunctious. In the end the affirmative defense was not found needed due to the fact that the injury did not satisfy as a compensable claim.
A take nothing decision was issued by the Stockton Workers’ Compensation Appeals Board on March 23, 2018.
For further information contact Christian Colantoni handling defense attorney.
Opinion and Decision: Click here.