HAMILTON v. WORKERS COMPENSATION APPEALS BOARD (1986)

The principal issue in this case is whether respondent Workers' Compensation Appeals Board (Board) erred in concluding that a residential employee of the California Conservation Corps (CCC) living at a remote location and injured after work hours while returning to the vicinity of the bunkhouse following a purchase of cigarettes did not sustain industrial injury.   We conclude that the Board erred in overturning the determination of the Workers' Compensation Judge (WCJ) that under California's bunkhouse rule the injury arose out of and occurred in the course of employment.   We further conclude that federal regulations concerning performance of duty by members of the federal Young Adult Conservation Corps (YACC) of which applicant was also an employee do not preempt application of California workers' compensation law in the circumstances of this case.   Because the Board erroneously determined that the bunkhouse rule did not apply, we will annul the Board's decision.

PROCEDURAL AND FACTUAL BACKGROUND

On June 18, 1980, applicant, aged 19, was a residential employee of the CCC and was a member of the YACC at the Placer Fire Center.   CCC employees were paid by the state, which received federal funding for the YACC portion of the program.   Dan Waters, director of the Placer Fire Center, testified that there was a handbook “indicating the conduct that was expected of [CCC] members” and “a policy extending control outside of the work in the form of a Code of Conduct.” ¹  Applicant resided at the Placer Fire Center in housing provided by the state at a rate less than required for other housing in the area.   CCC employees were generally not on 24–hour call, but could be called for fire fighting duty at any time if they were at the center or were otherwise located.²

Mr. Waters observed applicant operating a motorcycle at the center on June 18, 1980, and told him to park it because he did not have a license or helmet.   Applicant complied.   Mr. Waters admonished applicant because one is not allowed to operate a motor vehicle on state property without being properly licensed, but he would have advised applicant not to drive the motorcycle off the premises had he seen him do so because it is unsafe to drive a motorcycle without a helmet.   Later that day applicant sustained an injury as a result of a collision that occurred while applicant was driving a motorcycle from Auburn to the center.   The injury resulted in paraplegia.

Applicant had left the center after work hours to purchase cigarettes and beer at a store in Auburn because those items were not sold at the center.   He testified that personal items such as shaving cream also could not be purchased at the center.   Although applicant did not have a driver's license, he was experienced in operating a motorcycle.

Mr. Waters testified that there had earlier been a cigarette machine at the center, but that in 1978 “someone had hopped the back and broken in and removed all the cigarettes, which was a serious problem.”   After the vendor removed the machine, Mr. Waters did not attempt to replace it.

The employees were not permitted to drink beer on the employer's premises, and drinking in town was a ground for discharge from the program.   Mr. Waters testified that CCC did not otherwise prohibit 19–year-old employees from drinking beer.   A co-employee purchased beer at the store, and applicant planned to join a group of co-employees in drinking beer near the employer's premises.

Several times a week employees were driven into Auburn in a CCC van.   However, on those occasions, they were expected to limit themselves to “wholesome activity.”   When employees were not scheduled for work, they were permitted to leave the premises, but were expected to behave in accordance with the code of conduct.   Mr. Waters testified in effect that it was understandable that an employee would not want to remain on the premises when off duty since he also would not want to stay there all the time.

The collision occurred 1.8 miles from the Placer Fire Center.   Although there is a convenience store approximately 5 miles from the Placer Fire Center, applicant believed that Auburn, which is approximately 17 miles from the center, was the closest place at which cigarettes and beer could be purchased.

Before trial, CCC and its insurer filed a motion contending that, if applicant suffered permanent disability as a result of his alleged industrial injury, any compensation should be reduced pursuant to Labor Code section 4551 because of serious and willful misconduct by applicant.³  In the motion CCC and its insurer asserted that applicant engaged in serious and willful misconduct by intentionally attempting to pass a slower vehicle at a high rate of speed on a sharp curve.   At trial applicant testified that the collision occurred after he passed a vehicle that was traveling on the wrong side of the street.   He did not recall whether he was on the correct side of the road when the motorcycle was struck, but he believed that he was driving on a straightaway.   Michael Miles, a co-employee and a passenger on the motorcycle, testified that applicant attempted to “overtake” a car on a blind curve and that he warned applicant to slow down before reaching the curve.

The traffic collision report by the California Highway Patrol indicates that applicant was cited for speeding in violation of Vehicle Code section 22350, improperly passing another vehicle in violation of Vehicle Code section 21650, and driving without a license in his immediate possession in violation of Vehicle Code section 12951, subdivision (a).   The record does not reflect whether applicant was convicted of any of these offenses or any other related offense.

The WCJ found that applicant's injury arose out of and occurred in the course of his employment.   He based this finding on the bunkhouse rule and the personal comfort doctrine and opined that applicant's errand was reasonable in light of the remoteness of the residential location and the lack of availability of beer and cigarettes on the premises.

The WCJ found that applicant was temporarily totally disabled and consequently made no ruling on the Labor Code section 4551 motion.   He made no finding as to whether applicant was speeding or improperly passing another vehicle.

In its decision after reconsideration the Board found that applicant's injury did not arise out of and occur in the course of his employment.   The Board reasoned that the bunkhouse rule did not apply, because applicant was off the employer's premises and not under the employer's control at the time of injury.   The Board concluded that the personal comfort doctrine was not applicable because the off-duty purchase of beer and cigarettes was not beneficial to the employer and was similar to purchase of lunch during an uncompensated lunch break.   A dissenting member of the panel opined that, since it was not possible to purchase cigarettes at the facilities, the bunkhouse rule and personal comfort doctrine applied.

DISCUSSION

IJurisdiction

 CCC contends that the Board lacked jurisdiction to determine whether applicant's injury arose out of and occurred in the course of his employment by CCC because federal regulations provide for exclusive federal jurisdiction of the question whether a YACC enrollee was in the performance of duty when injured.   We conclude that the Board had jurisdiction to determine whether applicant sustained industrial injury.

An amendment to the federal statute that established the YACC provided that YACC enrollees were federal employees within the meaning of the Federal Employees Compensation Act (FECA) (5 U.S.C. § 8101 et seq.).  (Act of Oct. 27, 1978, Pub.L. No.95-–524, 92 Stat. 2015, former 29 U.S.C.S. § 995.) ⁴  Public Law Number95-– 524 provided in pertinent part:

“[§ ]805 (a) Except as otherwise specifically provided in this subsection, Corps members shall not be deemed Federal employees and shall not be subject to the provisions of law relating to Federal employment ․:

“․

“(2) For purposes of subchapter 1 of chapter 81 of title 5 of the United States Code, relating to compensation to Federal employees for work injuries, Corps members shall be deemed civil employees of the United States within the meaning of the term ‘employee’ as defined in section 8101 of title 5, United States Code, and provisions of that subchapter shall apply, except that the term ‘performance of duty’ shall not include any act of a Corps member while absent from the member's assigned post of duty, except while participating in an activity (including an activity while on pass or during travel to or from such post of duty) authorized by or under the direction and supervision of the Secretary [of Labor].”

Title 5 United States Code section 8102(a) of FECA provides in pertinent part:  “The United States shall pay compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty, unless the injury or death is—[¶ ] (1) caused by willful misconduct of the employee․”  Section 8116(c) provides in pertinent part:  “The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee․”  (Italics added.)

Federal regulations provide that the question “[w]hether a residential enrollee [in the YACC] is in ‘performance of duty’ shall be determined by the [federal] Office of Workers' Compensation Programs (OWCP)” (36 C.F.R. § 215.4(l )(4)(i) (1985);  43 C.F.R. § 32.4(l )(4)(i) (1985)) ⁵ and require that the state investigate any injury in the performance of duty and “see that required forms are submitted to the Regional/Area Offices [of the Forest Service and Interior Departments] for appropriate action” (36 C.F.R. § 215.4(l )(4)(iii) (1985);  43 C.F.R. § 32.4 (l )(4)(iii) (1985)).  Neither CETA nor the related federal regulations mention state workers' compensation.   However, FECA provides that the United States is entitled to offset its liability to pay workers' compensation against money received by the federal employee because of “a legal liability in a person other than the United States to pay damages” (5 U.S.C. § 8132) arising out of the circumstances relating to the industrial injury.⁶

In University of Fla., Institute of Agr. v. Karch (Fla.App.1981) 393 So.2d 621, a state employee was injured in a program that received federal funding and regarding which the federal government had accepted the responsibility for paying FECA benefits.   The court held that the phrase “legal liability in a person other than the United States to pay damages” (5 U.S.C. § 8132) includes liability of a state to pay workers' compensation benefits (University of Fla., supra, 393 So.2d at p. 622), and noted that “it does not appear that the legislative intent in enacting FECA was to preclude concurrent jurisdiction with state workers' compensation laws.”  (Ibid.)  We agree with the Florida court's construction of FECA.

In light of FECA's provisions regarding offset, the language in the regulations requiring that determination of performance of duty be made by the federal Office of Workers' Compensation Programs simply clarifies the method by which such a determination shall be made in the federal workers' compensation proceedings and does not deprive the Workers' Compensation Appeals Board of jurisdiction to determine whether a YACC member is entitled to state workers' compensation benefits.  (See Wardair Canada v. Florida Dept. of Revenue (1986) 477 U.S. 1, 106 S.Ct. 2369, 2371, 91 L.Ed.2d 1, 8.)   To construe the language of the regulations regarding determination of performance of duty by the federal Office of Workers' Compensation Programs as providing for exclusive federal jurisdiction would defeat the obvious purpose of 5 United States Code section 8132—the reduction of federal liability to pay workers' compensation.   We therefore conclude that the Board had jurisdiction to determine whether applicant sustained industrial injury.

II

Bunkhouse Rule

Title 36 Code of Federal Regulations section 215.4(l )(4)(i) (1985), which implements CETA, provides in part:  “Residential [YACC] enrollees shall be generally considered in ‘performance of duty’ at all times, during any and all of their activities, 24 hours a day, 7 days a week, except when they are absent without authorization from their assigned post of duty.”  (Accord, 43 C.F.R. § 32.4 (l )(4)(i) (1985).)   Applicant contends that these regulations set a minimum standard for determination whether a residential CCC employee's injuries arose out of and occurred in the course of employment.   We disagree.

 Except where Congress expressly provides for preemption, the test for preemption is whether there is evidence of congressional intent to preempt the field or the state law actually conflicts with the federal law.  (Wardair Canada v. Florida Dept. of Revenue, supra, 477 U.S. at p. ––––, 106 S.Ct. at 2371, [91 L.Ed.2d at p. 8];  see KVUE, Inc. v. Austin Broadcasting Corp. (5th Cir.1983) 709 F.2d 922, 931–932.)   The provisions of CETA regarding performance of duty and the regulations implementing those provisions do not expressly or implicitly preempt application of California workers' compensation law to Workers' Compensation Appeals Board cases involving CCC employees.   The context of CETA's discussion of performance of duty by YACC members is a provision that YACC members shall be deemed federal employees for federal workers' compensation purposes.  (Act. of Oct. 27, 1978, Pub.L. No. 95–524, 92 Stat. 2015, former 29 U.S.C.S. § 995.)   Neither CETA nor the federal regulations implementing that provision mention state workers' compensation proceedings.   For this reason as well as the reasons mentioned, ante, part I, their purpose is not to establish how the states should conduct their workers' compensation proceedings.  (Compare 5 U.S.C. § 8102 [employee's willful misconduct may bar recovery of federal workers' compensation] with Lab. Code, § 4551 [employee's serious and willful misconduct may reduce compensation].)   Rather, their purpose is to clarify what constitutes performance of duty by YACC enrollees for determination of that issue in federal workers' compensation proceedings.

Division 4, part 1, chapter 9 of the Labor Code (Lab. Code, §§ 4201–4229) applies to enrollees in certain federal economic opportunity programs.  Labor Code section 4206 reads:  “Except as provided in this chapter, an enrollee within a given economic opportunity program shall have no right to receive compensation from sponsoring or participating agencies, entities, and institutions, public or private.”  Labor Code section 4207 provides in pertinent part:  “Compensation shall be furnished an enrollee for injury ․ occurring in the course of his duties for a sponsoring agency within an economic opportunity program if the following conditions occur:  [¶ ] (a) Where, at the time of injury, the enrollee is performing services and is acting within the scope of his duties as a recipient of aid within an economic opportunity program.”

Labor Code section 4201 expressly limits application of the provisions of chapter 9 to “enrollees in [an] economic opportunity program [ ]” (Lab.Code, § 4201), which is defined in Labor Code section 4202 as “any program adopted pursuant to Public Law 88–452, including, but not limited to, work training and work study.”   Public Law Number 88–452 (Act of Aug. 20, 1964, Pub.L. No. 88–452, § 110, 78 Stat. 511) provided for the creation of a Youth Conservation Corps.   However, applicant was hired under a federal economic opportunity program created by a different statute.  (Act. of Aug. 5, 1977, Pub.L. No. 95–93, 91 Stat. 627.)

 The Board asserted for the first time at oral argument that the YACC program in which applicant enrolled may have been an economic opportunity program within the meaning of Labor Code section 4202 since it was a successor program to the Youth Conservation Corps program authorized by Public Law Number 88–452.   Inasmuch as the YACC program was not adopted pursuant to Public Law Number 88–452, chapter 9 does not apply, and the Board's decision must be reviewed in light of general principles of California workers' compensation law.

 Under California workers' compensation law, where the employee is in effect required to reside on the employer's premises either because of lack of adequate housing facilities within a reasonable distance from the workplace or because of the necessities of the work, the employee's injuries sustained during reasonable use of the premises are compensable under the bunkhouse rule.  (Union Oil Co. v. Industrial Acc. Com. (1931) 211 Cal. 398, 403–404, 295 P. 513;  Aubin v. Kaiser Steel Corp. (1960) 185 Cal.App.2d 658, 661, 8 Cal.Rptr. 497;  2 Hanna, Cal. Law of Employee Injuries & Workmen's Comp. (2d ed. 1986) Course of Employment, § 9.02[3][c], pp. 9–16–9–17.)   The rule also applies when housing is furnished as part of the employment contract even if the employee originally had a choice whether or not to live on the employer's premises.  (Truck Ins. Exchange v. Ind. Acc. Com. (1946) 27 Cal.2d 813, 816–819, 167 P.2d 705.)

In determining whether an injury sustained off the employer's premises or while the employee was leaving the bunkhouse is compensable under the bunkhouse rule, the courts have considered the following factors:  (1) whether the employer attempted to control the activities of the employee when the employee was not on duty;  (2) if so, whether the employee was authorized to leave the premises and engage in the intended activity;  (3) the remoteness of the location of the bunkhouse;  and (4) whether, in light of the location of the bunkhouse and the nature of the facilities provided by the employer, the employee's errand was reasonable.   In Liberty Mut. Ins. Co. v. Ind. Acc. Com. (Dahler) (1952) 39 Cal.2d 512, 247 P.2d 697, the court held that an injury sustained by a residential employee while swimming in a stream off the employer's premises was not compensable within the bunkhouse rule because it occurred while the employee was in an area over which the employer had no control.  (Id., at pp. 515–518, 247 P.2d 697.)   In reaching this holding, the court relied on Arabian etc. Oil Co. v. Ind. Acc. Com. (1949) 94 Cal.App.2d 388, 210 P.2d 732, a case in which Division Three of this court held that a residential employee's injury sustained when she was driven into a sand dune by a co-employee was not compensable.  (Id., at pp. 392–395, 210 P.2d 732.)   The court noted that the trip was unnecessary since there was a swimming pool in the company town and further noted that the record did not show that the employer directed or attempted to control the recreation of its employees.  (Id., at pp. 394–395, 210 P.2d 732.)

In Reinert v. Industrial Acc. Com. (1956) 46 Cal.2d 349, 294 P.2d 713, a residential employee was injured while horseback riding off the employer's premises with her supervisor's permission after completion of her work duties.   The court distinguished Liberty Mut., noting that there the employee had not obtained permission to swim, and held that the injury sustained while horseback riding was compensable.  (Reinert, supra, 46 Cal.2d at pp. 355–357, 294 P.2d 713;  see Rausch v. Workmen's Comp. App. Bd. (1969) 274 Cal.App.2d 357, 364, 366–367, 79 Cal.Rptr. 148 [off-premises horseback riding injury at closest riding facility compensable;  employer in essence controlled employee's activities even on days off].)   Relying on Reinert, the Court of Appeal in Aubin v. Kaiser Steel Corp., supra, 185 Cal.App.2d 658, 295 P. 513, held that a residential employee's injuries sustained while the employee was en route to a restaurant and bar located near another area where co-employees were housed was compensable under the bunkhouse rule.  (Id., at pp. 660–663, 295 P. 513;  see Blythe Growers, Inc. v. Workmen's Comp. Appeals Bd. (1966) 31 Cal.Comp.Cases 152, 154 [bunkhouse rule extends to trip by residential employee in remote location to nearby store for purchase of beer];  but see Henein v. Workers' Comp. Appeals Bd. (1985) 50 Cal.Comp.Cases 279 [residential employee's injury during personal errand to shopping center not compensable;  no discussion whether employer attempted to control off-duty activities of employees].)   In State Comp. Ins. Fund v. Workmen's Comp. App. Bd. (Cardoza) (1967) 67 Cal.2d 925, 64 Cal.Rptr. 323, 434 P.2d 619, a nonresidential employee was injured while swimming in a canal off the employer's premises during work hours.   Noting that swimming in the canal was tolerated by the employer, the court again distinguished Liberty Mut. and held that the injuries were compensable under the personal comfort doctrine.   (State Comp. Ins. Fund, supra, 67 Cal.2d at pp. 927–928, 64 Cal.Rptr. 323, 434 P.2d 619.) ⁷

 In the present case the injury was sustained while applicant was absent from the center with the employer's authorization.   Unlike the situation in Liberty Mut., in the present case CCC employees had permission to leave the premises after work hours and on days when they were not scheduled for work, and they were actually encouraged to make trips to Auburn by the CCC's providing transportation to Auburn several times a week.   Unlike Arabian etc. Oil Co. v. Ind. Acc. Com., supra, 94 Cal.App.2d 388, 394–395, 210 P.2d 732, the record in the present case established that the employer had a policy to control the employees' conduct even when they were not scheduled for work.   Control was exercised by means of a code of conduct that regulated the employees' behavior at all times.   Sanctions for violation of the code of conduct included discharge from the program.

 Since cigarettes and other personal items were not sold at the center, it was within the contemplation of the parties that employees would leave the center after work hours to purchase those items.   As noted, the director of the Placer Fire Center testified that he would not want to stay at the center all the time.   Because of the remoteness of the Placer Fire Center from stores at which cigarettes and other personal items could be purchased, it was reasonable for applicant to travel to Auburn, the closest town, to purchase cigarettes and thus the injury arose out of applicant's employment.   Under these circumstances, applicant's injury is compensable under the bunkhouse rule.  (Cf. State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 643, 653, 656, 184 Cal.Rptr. 111 [although death of employee making reasonable use of bunkhouse occurred in course of employment, it did not arise out of employment since death occurred as result of personally motivated assault by third party and bunkhouse was not isolated so as to expose employee to peculiar risk].)   The fact that purchase of beer was a second reason for applicant's trip to Auburn does not render the injury noncompensable since one purpose of the trip—the purchase of cigarettes—was contemplated and implicitly authorized by the employer.  (Cf. Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 156–158, 144 Cal.Rptr. 105 [dual purpose exception to going and coming rule].)

 The facts that applicant drove without a license and in disobedience of his supervisor's instructions and may have driven at an excessive speed, improperly passed another vehicle, or both do not preclude recovery.   (Lab.Code, § 4551;  Williams v. Workmen's Comp. Appeals Bd. (1974) 41 Cal.App.3d 937, 941, 943, 116 Cal.Rptr. 607 [driving at excessive speed, passing on hill, and failing to stop at stop sign do not remove employee from course of employment];  Auto Lite etc. Corp. v. Ind. Acc. Com. (1947) 77 Cal.App.2d 629, 631–633, 176 P.2d 62 [disobedience of foreman's orders did not remove employee from course of employment].)   However, if in subsequent proceedings the trier of fact determines that applicant drove at an excessive speed or improperly passed another vehicle, that the manner in which applicant drove the motorcycle or the fact that he drove without a license or in disobedience of his supervisor's instructions caused the injury and constituted serious and willful misconduct, and that applicant has permanent disability of less than 70 percent, applicant's compensation may be reduced by one-half.   (Lab.Code, § 4551;  Williams, supra, 41 Cal.App.3d at p. 941, fn. 2, 116 Cal.Rptr. 607;  Auto Lite, supra, 77 Cal.App.2d at pp. 631–633, 176 P.2d 62.)

Since the Board's decision rescinding the WCJ's findings and award is erroneous as a matter of law on the undisputed facts, its decision must be annulled.  (See Perez v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 60, 65, 199 Cal.Rptr. 280.)

DISPOSITION

The November 22, 1985 decision of respondent Board is annulled.

I concur with the holding of the majority that federal regulations concerning performance of duty by members of the Federal Young Adult Conservation Corps of which Hamilton was also an employee do not preempt application of California's workers' compensation law in these circumstances.   I respectfully dissent from the majority conclusion that the Workers' Compensation Appeals Board erroneously determined that the bunkhouse rule did not apply, and agree with respondent Board that Hamilton's injury is not compensable under either California's bunkhouse rule, in that the injury did not arise out of or occur in the course of employment, or the personal comfort doctrine, in that in these circumstances the errand was not beneficial to the employer.   I would affirm the Board's decision.

Employees of the California Conservation Corps at Placer Fire Center were paid by the State of California.   Residential employees generally were not on 24–hour call but could be called for firefighting duty at any time if they were at the Center or could be located.   The employer attempted to control their activities while not on duty indicating the conduct that was expected of them—they were to limit themselves to “wholesome conduct”—and a policy extending control outside of work and off premises in the form of a Code of Conduct.   The only regulation regarding drinking was that employees may not drink on the premises, and drinking beer in town was a ground for discharge from the program.   The purchase of cigarettes and beer could not be made in the Center, but there was a convenience store within five miles of the Center.   When employees were not scheduled to work, they were permitted to leave the premises;  several times a week employees were driven to Auburn in a CCC van.

Hamilton was 19 years old;  the morning of the day of the accident the Administrator of the Center, after observing him ride his motorcycle around the camp while off duty, told him “to park it because he didn't have a license or a helmet and it was dangerous”;  “since he was on State property, he could tell [Hamilton] not to ride the bike but even had he not been, he would have advised him against it because he looked upon the corp members as ‘children’, and felt it would be bad judgment to ride without proper equipment and a helmet.”   Later that day, Hamilton drove the motorcycle from the Center to Auburn, 17 miles away, “to go to the liquor store to get beer and cigarettes”;  he had neither a license from D.M.V. nor a helmet.   Another employee accompanied him, seated on the rear of the motorcycle;  they planned to join a group of co-workers in drinking the beer in the mountains off the employer's premises.   When they arrived in Auburn, Hamilton circumvented California law by sending “someone in to buy the beer because they were under 21.   He got a 12–pack of beer.”   Hamilton was seriously injured while on his return to the Center, within 1.8 miles of the camp, when he hit a moving vehicle on the highway;  his passenger jumped off before the collision.

All references aside as to whether Hamilton's failure to have a driver's license and wear a helmet contributed to the accident and to his injuries, or whether he engaged in serious and willful misconduct by intentionally attempting to overtake a slower vehicle at a high rate of speed on a sharp blind curve, or whether he was traveling on the wrong side of the road, and conceding the remoteness of the residential location, the lack of available beer and cigarettes on the premises and the implied authorization or encouragement of employees by the employer to leave the premises and buy, among other things, cigarettes and beer, even providing a van for that purpose, and the attempt of the employer to control the employees' activities off the premises while not on duty, it seems to me wholly unreasonable to hold that it was beneficial to the employer and in the contemplation of the employment for this employee, a 19–year-old, who had no license, to drive a motorcycle into a town 17 miles away to a liquor store to purchase, besides cigarettes, beer which he legally could not buy.

The purchase of beer was an illegal activity for Hamilton, and he knew this for he testified, “[t]hey sent someone in to buy the beer because they were under 21.   He got a 12–pack of beer” which he was taking back to drink with co-employees off premises.   He testified on cross-examination that he was 19 on the date of the accident, he knew he had to be over 21 to buy beer, but he decided to buy beer anyway, and he did not recall testifying at his deposition that he went into the store himself.   It is true that an employee is free to leave the Center to engage in such activity, encouraged, even authorized to do so, and that, because of the circumstances, it is within the contemplation of employment for an employee to go into town, either in the van or by private transportation, to buy cigarettes and beer;  but not this employee.   I think it is unreasonable to say that Hamilton, only 19 years old, was encouraged or authorized by his employer, the State of California, to leave the Center on a motorcycle he was not licensed to drive under state law (Veh.Code, §§ 12500, 12951(a)), to buy beer, an activity made illegal by state law (Bus. & Prof.Code, § 25658).   Given the State's policy of prohibiting the sale of liquor to minors, how could this be in reasonable contemplation of state employment?   How could it directly or indirectly serve his employer for an underage employee to go to town to buy beer?   How could there be a connection between this boy's injury and his employment?

As stated in State Compensation Insurance Fund v. WCAB [Castellanos and Vargas], 133 Cal.App.3d 643, 652–653, 184 Cal.Rptr. 111.  “In our opinion, the bunkhouse rule does not dispense with the requirements of Labor Code Section 3600.   We find no cases in California indicating that an injury sustained by an employee in a bunkhouse is per se compensible.   Our review of these cases reveals that invocation of the bunkhouse rule establishes that the injury occurred in the course of the employment but there also must be some connection between the employment and the injury or an injury arising out of the reasonable use of the premises, or the bunkhouse must place the employee in a peculiar danger.”

I would affirm the Board's decision.

FOOTNOTES

1.   The handbook itself was not introduced into evidence.

2.   Respondent Board's contention that applicant violated California Rules of Court, rule 57, by incorrectly asserting that applicant was on 24–hour call was not raised until after this court had issued a writ of review.   The return, of course, provides this court with a complete record.

3.   Labor Code section 4551 provides in pertinent part:“Where the injury is caused by the serious and willful misconduct of the injured employee, the compensation otherwise recoverable therefor shall be reduced one-half, except:“․“(b) Where the injury results in a permanent disability of 70 percent or over.”

4.   Public Law Number 95–524 was part of the Comprehensive Employment and Training Act (CETA) (former 29 U.S.C.S. §§ 801–999) and was repealed in 1982.  (Act of Oct. 13, 1982, Pub.L. No. 97–300, § 184, 96 Stat. 1357.)

5.   Title 36 Code of Federal Regulations section 215.4 (l ) (4)(i) (1985) provides:  “Residential enrollees are generally considered under Federal Employees Compensation Act to be Federal employees from the time each begins Government authorized travel to the assigned YACC camp, to the time each completed Government authorized travel after termination from the program.   Residential enrollees shall be generally considered in ‘performance of duty’ at all times, during any and all of their activities, 24 hours a day, 7 days a week, except when they are absent without authorization from their assigned post of duty.   Whether a residential enrollee is in ‘performance of duty’ shall be determined by the Office of Workers' Compensation Programs (OWCP).”  Title 43 Code of Federal Regulations section 32.4(l )(4)(i) (1985) has substantially the same language.

6.   Title 5 United States Code section 8132 provides:  “If an injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as the result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the costs of suit and a reasonable attorney's fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable to him for the same injury.   No court, insurer, attorney, or other person shall pay or distribute to the beneficiary or his designee the proceeds of such suit or settlement without first satisfying or assuring satisfaction of the interest of the United States.   The amount refunded to the United States shall be credited to the Employees' Compensation Fund.   If compensation has not been paid to the beneficiary, he shall credit the money or property on compensation payable to him by the United States for the same injury.   However, the beneficiary is entitled to retain, as a minimum, at least one-fifth of the net amount of the money or other property remaining after the expenses of a suit or settlement have been deducted;  and in addition to this minimum and at the time of distribution, an amount equivalent to a reasonable attorney's fee proportionate to the refund to the United States.”

7.   Under the personal comfort doctrine, injuries sustained during acts done for the employee's personal comfort may be compensable.   (Ibid.;  Whiting-Mead Co. v. Indus. Acc. Com. (1918) 178 Cal. 505, 507–508, 173 P. 1105 [injury during work break taken to smoke cigarette compensable under personal comfort doctrine].)   However, because we conclude that applicant's injury is compensable under the bunkhouse rule, we do not determine whether it is compensable under the personal comfort doctrine as well.

THOMPSON, Associate Justice.

JOHNSON, J., concurs.