In a recent WCAB decision, a Board Panel denied the defendant’s Petition for Reconsideration on the issue of “arising out of employment,” (AOE), and confirmed compensability for injuries caused by a third-party assault which were perpetrated for unknown motives. In Bustamante v. Community Warriors 4 Peace, 52 CWCR 162, the applicant, who was a former gang member, was sent into a dangerous neighborhood in Los Angeles which was known to be an area active with gang activity. While working, the applicant was shot multiple times by two assailants. The claim was denied noting that the applicant’s injuries had not arisen out of his employment and contended that the applicant was the only victim and that he was personally targeted due to his former gang affiliations.

At trial, the applicant testified that he did not recognize the individuals that shot him, he was uncertain as to whether the assailants were gang members and did not why he was shot. The applicant also offered evidence in the form of police reports that the applicant told officers that he had not seen the suspects and did not understand why he was targeted. The police reports also noted details which confirmed the randomness of attack.

The defendants were not able to offer rebuttal evidence and the judge was asked to infer that the shooting was personally motivated because the applicant was the only one who was shot. (52 CWCR 163).

Ultimately, the judge concluded that the applicant had sustained an injury arising out of and in the course of employment. The judge invoked the neutral risk doctrine and observed the employee was assaulted while at work and that the reason for the attack was unknown or unrelated to the employee’s personal life. The fact that the injury occurred while the employee was exposed to a place of harm by his employment was and is the basis for compensability.

The Panel denied reconsideration noting the applicant was at the location of the shooting because of his employment and was performing his regular duties at the time of the attack. There was no evidence that the applicant knew the reason for the shooting and there was no evidence that the applicant was actually targeted. It was further noted that had the applicant not been working at the locale, it is highly unlikely that he would have been shot and injured. The applicant’s employment took him to the place of a violent, apparently random attack (Ibid.) In the absence of additional evidence clarifying the motive, the applicant’s credible testimony that he did not know why he was shot was enough to establish a compensable injury.

The evidence also demonstrated that the employer was aware they were sending employees into high-risk areas and was aware of risks involved. It was further noted that the employer held training meetings to address the dangers associated with working in these “hot zones.” Based on the above, the injury was found compensable.

The neutral risk doctrine in California applies when an employee’s injury occurs under unexplained or mysterious circumstances at the workplace. In this case, the applicant provided evidence that his employment put him in a high-risk location where he was injured. At that point, the defendant had, and has, a burden to provide evidence to support its claim that the applicant’s injury was not related to his employment or that he was targeted for reasons other than his employment. Failure to do results in a compensable injury.