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Workers' Compensation

Has the Going and Coming Rule Become Outdated?

A well-known personal injury attorney once said, “If I have to explain away more than three concerns in my own mind when deciding to take a case, then it is probably not a case I want to take”. Another way of saying this would be, when there are three exceptions to a rule, maybe the reliability of the underlying rule should be seriously questioned.

This axiom has never been more true than when looking at the “going and coming” rule. The general “going and coming” rule is that injuries that occur going to or coming from work during a normal commute are non-compensable. The courts have generally concluded that when an employee is engaged in their commute, the employee is not rendering any service to the employer. In short, the theory is that the employment relationship is suspended from the time the employee leaves the work premises until the employee returns the following day.

However, while the general rule is not hard to understand, its application can be very difficult. Recently, several decisions have been issued by the California Workers’ Compensation Appeals Board (WCAB) addressing the “going and coming” rule.

In Gellman v. Goldman, Magdalin & Krikes, 2012 Cal. Wrk. Comp. P.D. LEXIS --, a panel of commissioners addressed the “special mission” exception to the “going and coming” rule. In Gellman, applicant worked as a defense attorney for Goldman, Magdalin & Krikes. After making her afternoon appearances, applicant brought a banker’s box full of files home. The following morning, while leaving her apartment carrying the box full of files, she slipped and fell when stepping onto the sidewalk. The panel of commissioners acknowledged that one of the exceptions to the “going and coming” rule is the “special mission” exception. Under the “special mission” exception, an injury sustained by an employee during his or her regular commute is compensable if he or she had been performing a special mission for the employer (citing General Ins. Co. v. Workers’ Comp. Appeals Bd. (Chairez) 41 Cal. Comp. Cases 162). The panel further noted that one of the factors that the employee had to prove for this exception to apply is that the activity being performed is extraordinary in relation to applicant’s customary duties. Based on the applicant’s testimony that she routinely worked at home on a weekly basis after completing her afternoon appearances, the panel concluded that there was nothing extraordinary about her carrying a banker’s box full of work documents at the time of her fall.

In Ryan Lee (Dec’d), Cynthia Valenzuala (Widow) v. State of California, Department of Corrections and Rehabilitation, 2012 Cal. Wrk. Comp. P.D. LEXIS --,  a panel of commissioners with the WCAB rescinded a workers’ compensation administrative law judge’s (WCJ) finding that the decedent’s death was compensable. In Lee, the decedent was a correctional officer who was involved in a motor vehicle accident on his way home from work. He suffered a severe head trauma as a result of the accident and ultimately died as a result of his injuries. The panel first analyzed the “special risk” exception to the “going and coming” rule and concluded that there was nothing unique about the conditions of his drive home that day. The panel next looked at the “special mission” exception. The panel noted that the decedent was driving home from an overtime shift that day. However, the panel noted, it was unclear whether applicant had worked a “double shift” prior to this shift and whether the decedent’s work on that day was routine or extraordinary. Accordingly, the panel in Lee returned the matter back to the WCJ for further proceedings.

In Hasan v. American Shield Private Security, 2012 Cal. Wrk. Comp. P.D. LEXIS --, a panel upheld a prior WCAB decision. In Hasan, the applicant was struck by a car while going out for coffee after signing in on her timesheet and with the knowledge of her supervisor. The panel noted that given that applicant “was on her employer’s premises, had signed in and had spoken to her supervisor before the accident occurred, she was clearly not in the course of an ordinary commute”. Accordingly, the panel concluded, the “going and coming” rule did not apply to the facts of this case. The panel further observed that going out and getting coffee was incidental to applicant’s employment and impliedly within its contemplation, and as such, the employee’s injury was compensable consistent with the “personal comfort and convenience” doctrine.

These cases highlight the difficulties the WCJ’s, WCAB and even the appellate courts have in applying the “going and coming” rule. Perhaps the problem is that the “going and coming” rule is simply outdated. Unlike the times when a fixed and ordinary commute was perhaps the norm, in the present time of increased traffic congestion, increased telecommuting, and increased dependence on computers and the internet, the application of the “going and coming” rule often results in illogical and unfair outcomes. It may be time to consider an alternative threshold for compensability in these types of cases that better reflects present realities. 

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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