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Heriberto Hernandez was an employee of Thermal Structures Inc. As part of his job, he used a power press to shape sheet metal. The press was not supposed to operate unless two buttons were pushed simultaneously. The buttons were mounted on a pedestal, three and a half feet apart from each other The pedestal was separate from the main body of the press, though connected to it by a cable. Hernandez suffered a gruesome on-the-job injury when his hands were crushed in the power press.

Under the worker’s compensation exclusivity rule (Lab. Code, § 3600, subd. (a)), and under the power press exception to that rule (Lab. Code, § 4558), Hernandez cannot recover against his employer in the tort action he filed against Thermal Structures, Inc. unless he can show that the accident occurred because Thermal either removed or failed to install a point of operation guard on the press.

The trial court granted the employer’s summary judgment ruling that there was no triable issue of fact that would cause this exception to the exclusive remedy to apply. Hernandez appealed, and the Court of Appeal sustained the dismissal in the unpublished case of Hernandez v Thermal Structures Inc.

When the accident occurred, the press did have a point of operation guard — two buttons, mounted on a pedestal; the press was not supposed to operate unless both buttons were pushed simultaneously. Hernandez’s theory was that Thermal “removed” the guard by adding wheels to the pedestal, which allowed the pedestal to move so close to the main body of the press that he could push the buttons with his elbows while his hands were still dangerously close to the press.

The problem with this theory was that, in discovery, Hernandez admitted that (1) Thermal did not remove a point of operation guard, (2) no changes were ever made to the press, and (3) the buttons were not being pushed when the accident occurred. Hernandez argues that the questions he was asked on this topic — and hence his responses — were ambiguous. The Court of Appeal reviewed his question and answer. “So as far as you know, no changes were ever made to the machine?”; he answered, “That I know of, no.” The Court concluded that this “was unambiguous and flatly inconsistent with his later testimony that Thermal added wheels.”.

Accordingly, the trial court properly granted summary judgment in favor of the employer.