California: Going and Coming Rule; Required Vehicle Exception

Grey v. Comfort Keepers Health Care

This case could have been decided either way—compensable or a regular commute from home to work. The fact that the employee could select or reject the assignment for home health care leads one to believe that the assignment was optional in the first place. Why place liability for workers’ compensation benefits when an assignment is entirely optional by the employee? Driving a car at midnight is risky since the bars are closing soon. Going to a job where the employee is only required to “provide transportation” is not any more of a risk to the general public who happen to be driving at midnight. However, from the holdings of going and coming rule cases, the case law has narrowly denied benefits. Only in clear situations where the employee drives to a fixed location and back does the going and coming rule apply to deny benefits. Any deviation from a regular commute to and from a fixed location will result in a finding that the going and coming rule does not apply and an injury occurs in the course and scope of employment. This case is one of those exceptions to the rule since the Applicant was placed at risk by the employer’s requirement she provide her own transportation, it was uncertain if public transportation was available at 11:00 p.m. or later, and the Applicant did not drive to and from the same fixed location for every shift.

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Reminder: Board panel decisions are not binding precedent. Always check for subsequent history of a decision to see if an appeal was filed.

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CA - NOTEWORTHY PANEL DECISIONS

Copyright 2023 by Matthew Bender & Company, Inc.

Skye Gray, Applicant v. Comfort Keepers Home Care, Starstone Torus, adjusted by TPA Sedgwick, Defendants

W.C.A.B. No. ADJ13210964—WCJ Lois Owensby (LBO); WCAB Panel: Commissioners Capurro, Snellings, Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed June 13, 2023

Publication Status:  CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].  LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition:  Defendant’s Petition for Reconsideration of the March 20, 2023 Findings & Award & Order is denied.

Injury AOE/COE—Going and Coming Rule—Required Vehicle Exception—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant, while employed by defendant as caregiver, sustained injury AOE/COE in automobile accident shortly before midnight on 7/16/2019 while driving to client’s home in her personal vehicle, and WCAB determined that applicant’s injury was not barred by “going and coming” rule as there was substantial evidence to apply “required vehicle” exception to rule pursuant to Hinojosa v. W.C.A.B. (1972) 8 Cal. 3d 150, 104 Cal. Rptr. 456, 501 P.2d 1176, 37 Cal. Comp. Cases 734, when applicant did not travel to fixed locations for her work nor did her shifts start at fixed hours, and WCAB found that although applicant was not expressly required to have car available at work, she was specifically required to hold valid driver’s license and automobile insurance, and to have “reliable transportation” to travel to clients’ homes, that employer’s preference was that her “reliable transportation” was her own car rather than public transportation, and that applicant’s use of her own vehicle was ultimately for defendant’s benefit and advantage. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.155; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05[3][d][ii].]