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Wharton v. Hawaiian Electric Co.11/15/1995
k leave. And of course, such misconduct has nothing to do with the work he was hired to do, i.e., maintaining and repairing electronic controls. Instead, he committed a prohibited act similar to the alleged forging of signatures in Pacific Tel. & Tel. Co., supra. We therefore hold that Wharton's misconduct fell outside the "boundaries defining ultimate work."
2.
Two exceptions to the foregoing rule have been made. One is when the employer has previously accepted the benefit of the forbidden practice with knowledge that the prohibition has been violated. 1 Larson, supra, § 27.14, at 5-221. Here, there is no evidence that HECO has previously accepted the benefit, if any, of altering time cards from sick leave to industrial to invoke the exception. Moreover, the evidence simply does not show that HECO should have reasonably foreseen Wharton's disregard of the timekeeping procedure policy not to alter time cards.
A second exception that allows compensation even though the claimant engaged in prohibited conduct is "when a prohibition is so general in its terms that it is readily outweighed by the specific benefit to the employer [of the doing of the prohibited act]." 1 Larson, supra, § 27.14, at 5-222. Illustrative of this rule is Hayes v. Ambassador Court, Inc., 58 N.J. Super. 215, 156 A.2d 11 (1959). In Hayes, a building superintendent slipped and fell while washing windows for a tenant of a furnished flat. The court held that the employer's statement that the claimant was not supposed to do anything for tenants was a mere "blanket interdiction" insufficient to prove that the employee was forbidden from washing the windows, and therefore allowed the compensation. Id. at 219, 156 A.2d at 13.
In the instant case, the prohibition was not a mere "blanket interdiction." The prohibition was specific -- employees were not to alter time cards -- and should have been well understood by all employees. Moreover, Wharton's conduct did not further HECO's business. Indeed, the opposite is true because Wharton for his own benefit attempted to change his absences from sick leave to industrial. Accordingly, we hold that neither of the exceptions applies.
3.
Noting that "the claimed injury was not sustained directly during the course of the alleged criminal activity but sustained as a consequence of that accusation, investigation, and termination of [the employee]," the court in Pacific Tel. & Tel. Co. further held that if the employee "in fact engaged in the criminal act of forgery, his injury [as a consequence of the employer's accusation, investigation, and discharge of him] cannot be held compensable under the Workers' Compensation Act, [because] his injury would not be a consequence of his employment but incidental to his criminal conduct." 112 Cal. App. 3d at 246-47, 169 Cal. Rptr. at 285.
The hearing testimony of HECO's supervisors, Thomas Paresa and Alden Ishii, provides reliable, probative and substantial evidence to support the Board's finding in this case that Wharton's conduct -- alteration of time cards -- was "unauthorized" and a prohibited act. Likewise, because we deem Pacific Tel. & Tel. Co., supra, persuasive, we hold that Wharton's disciplinary-induced stress injury did not arise out of and in the course of his employment.
III. Conclusion
For the foregoing reasons, we affirm the decision and order of the Board denying Wharton's claim for workers' compensation benefits.
Ronald T.Y. Moon
Robert G. Klein
Steven H. Levinson
Paula A. Nakayana
Mario R. Ramil
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