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CALIFORNIA COMPENSATION CASES
Vol. 88, No. 9 September 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
The “going and coming” rule is a deceptively simple one. There is no reference to the “going and coming” rule concept in the Labor Code. However, the rule has developed over time by case law, essentially holding that the employer is not liable for injuries which occur during an employee’s routine commute. However, it is the exceptions to this rule that catch practitioners unaware and lead, in many cases, to unintended consequences.
I. Background for “Going and Coming” Rule
The rationale for the rule is easy to grasp. The test for an industrial injury has two prongs:
1. AOE – The injury arises out of employment; and
2. COE – The injury occurs in the course of employment.
The second prong of this test is not met for an injury that occurs in the course of a routine commute, because the injury has not occurred in the course of employment. The rationale is that the employee is not providing a “service” to the employer, and the employer is not receiving a “benefit” from the employee. But what if the employee is providing a benefit or service to the employer during this commute time? Does that convert a non-industrial injury into an industrial one? Perhaps. And that is where the many exceptions to the “going and coming” rule come into play.
(Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.)
II. Hinojosa and the “Required Vehicle Exception”
The case of Hinojosa v. WCAB (1972) 8 Cal. 3d 150, 501 P.2d 1176, 104 Cal. Rptr. 456, 37 Cal. Comp. Cases 734 [37 CCC 734] (Supreme Court in Bank) is perhaps the most famous case in this long line of exceptions to the “going and coming” rule. In Hinojosa, the California Supreme Court (in Bank) carved out the “required vehicle exception.” This means if the employer requires a worker to provide their own transportation as a condition of employment, then any injuries that occur during the commute to or from work are compensable.
A. Facts - Hinojosa Case
Miguel Hinojosa was a farm worker who was paid on an hourly basis. He was paid for all time that he worked, including the time it took for him to travel between the ranches at which he worked on any given day. As a requirement of employment, Mr. Hinojosa was to secure his own transportation between the different ranches. He made travel arrangements with a co-worker in order to comply with this mandate. On June 8, 1970, Mr. Hinojosa was seriously injured, on his way home in his co-worker’s vehicle, when they were involved in a car accident. His employer argued that no industrial liability attached to this accident, since it occurred during Mr. Hinojosa’s commute time and recovery was barred by the “going and coming” rule.
B. California Supreme Court’s Rationale
The California Supreme Court disagreed and explained,
“In conclusion, we hold that the instant case clearly differs from the normal routine commute. It is, instead, the extraordinary situation in which the job is structured, and dependent upon, transportation from one place of work to another so that the use of an instrument of such transportation is a requisite of employment. The employer could have provided, at his own expense, company vehicles to transport the workers between his various farms during their workday. His failure to do so made it necessary for the workers to supply their own on-the-job transportation. Thus petitioner made use of the car from his residence to the first ranch, and thereafter from ranch to ranch and finally from ranch to his residence, because the car was an essential requirement of the job, the presence of the car was requisite to performance of the job, the worker was impliedly required to bring the car to the job and to take it from the job. Thus the injury suffered in the car was covered by the Workmen's Compensation Act.”
III. Noteworthy Panel Decisions – “Going and Coming” Rule
Recent WCAB noteworthy panel decisions (NPDs) have tweaked the exceptions to the “going and coming” rule even further. Exceptions to this rule seem to be based on whether the employee was providing some sort of benefit or service to their employer when the injury occurred, while travelling to or from the work place.
A. Betts v. YMCA – “Required Vehicle Exception”
One such case is Betts v. YMCA of the East Valley (SCIF), 2015 Cal. Wrk. Comp. P.D. LEXIS 248 [2015 Cal. Wrk. Comp. P.D. LEXIS 248]. Ms. Betts worked two shifts each day as a YMCA child care site director. The first was from 6:30am to 8:30am, and the second shift was from 1:30pm to 6:30pm. Her employer required that she provide her own transportation between her worksite and the YMCA’s main office, as she often had to travel between the two locations during the work day.
On August 21, 2013, Ms. Betts was injured in a car accident at 8:05am, while en route from her workplace to an “off site” business meeting. As in the Hinojosa case, defendant denied liability and claimed applicant was barred from recovery by the “going and coming” rule since the accident occurred off site.
The WCAB denied defendant’s Petition for Reconsideration from the WCJ’s decision holding in favor of the applicant and stated,
“In this case, the required vehicle exception applies because it was an express condition of employment for applicant to use her car to travel between the main office and her site, for which she was paid mileage and to use her car to run other errands including delivery of snacks to her cite for the afternoon shift.”
The WCAB dismissed defendant’s argument that applicant was “off the clock” at the time of the accident and explained,
“The dispositive facts are that defendant required applicant to have and insure her own car at work and that when the accident occurred applicant was en route to a work related meeting for her employers benefit.”
The WCAB also dismissed defendant’s argument that applicant’s trip to work related meeting (which happened to be at a Del Taco restaurant) to meet with a co-worker was a “substantial material deviation from her employment.” According to the WCAB, this argument would only be relevant if the “special mission exception” was being asserted, rather than the “required vehicle exception.”
Clearly, in this case, the employer received a benefit from mandating that the applicant provide her own transportation to various work related meetings during the day. Otherwise, the employer would have had to arrange for some sort of transportation between locations. Therefore, the “required vehicle exception” applies and the WCAB held the employer liable for Ms. Betts’ workers’ compensation benefits.
B. Bloxham v. Lithia Ford – “Personal Comfort Exception”
The NPD of Bloxham v. Lithia Ford Mazda Suzuki, 2015 Cal. Wrk. Comp. P.D. LEXIS 271 [2015 Cal. Wrk. Comp. P.D. LEXIS 271] also dealt with an employee who seriously injured his back in a car accident, while driving his personal automobile during work hours. Instead of the “required vehicle exception,” Mr. Bloxham argued that the “personal comfort and convenience exception” applied.
Applicant worked at a car dealership where it was common for employees to take short breaks during the day to drive to a local convenience store for snacks and cigarettes. This practice was condoned by the employer, since the employees frequently brought “back coffee, snacks or other objects of convenience for coworkers who remain behind working—all inuring to the employers benefit.”
On May 2, 2012, Mr. Bloxham asked his supervisor for permission to run to the local store for cigarettes. He also graciously asked if any of his co-workers needed anything from the store. The car accident occurred on the way back to work from the convenience store.
Defense denied liability based on the “going and coming rule.” They argued that this was a personal errand of applicant’s and the errand did not provide a benefit or service to his employer. The applicant argued that the employer did receive a benefit and a service from his “personal errand” to buy cigarettes. He argued that the “personal comfort and convenience doctrine” applied. The “personal comfort doctrine” is applicable where an employee is injured while engaged in an act of “personal comfort,” usually on the employer’s premises. This particular incident occurred off premises, but case law has held that “the personal comfort doctrine is not strictly limited to injuries suffered on the employer’s premises.”
The Judge cited the writ denied case of Chapter 7 Trustee John Wolf v. WCAB (Akian Aleong, Jr) (2005) 70 Cal. Comp. Cases 1143 [70 CCC 1143], in support of her holding in favor of the applicant. In the Aleong case, the applicant went out for lunch and was in the processing of bringing lunch back for his co-worker when he was seriously injured in a motorcycle accident. The WCAB held in favor of applicant based on the “personal comfort exception,” since the employer did benefit from the applicant’s excursion. The WCAB explained,
“Applicant had been asked by a co-worker to bring lunch back to her, that, while the request was in part personal to the co-worker, Applicant's compliance with the request allowed the co-worker to stay at Defendant's premises and work for the benefit of Defendant.”
The Judge in the NPD of Bloxham found a similar logic should be applied, especially since it was the employer’s policy to condone the “convenience store errands” and inured benefit by this policy since the co-workers could remain behind working while the applicant purchased their requested items from the store. The employer also drew benefit from applicant’s “cigarette run,” since the applicant was cultivating future business for the dealership by passing out his business cards to people at the store.
Defendant also tried to argue liability was barred on grounds of morality and requested the WCAB analyze the “morality of smoking cigarettes in determining whether the personal comfort doctrine” should be applied. The WCAB found this argument irrelevant, since in this case, the employer chose to provide employees with smoke breaks. In response to defendant’s “moral” argument, although Labor Code Section 6404.5 [LC 6404.5] generally prohibits smoking in the workplace, the WCAB recognized that the code section does permit smoking in the workplace under certain circumstances. (See Lab. Code, § 6404.5(d)(13) & (14).)
Query: Would the result have been different if Mr. Bloxham had been injured while smoking in the workplace contrary to Labor Code Section 6404.5, rather than on an errand to purchase cigarettes?
In any event, the WCAB found no need to address the issue further and affirmed the WCJ’s finding in favor of Mr. Bloxham.
Over the years, case law has created a myriad of exceptions to the “going and coming” rule, most of which revolve around whether the employee’s injury during his or her commute time occurred while providing some sort of benefit or service to the employer. If so, practitioners should carefully analyze the various exceptions to the “going and coming” rule to ensure they have covered all bases when working the case up for trial.
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