'Going and Coming Rule' Doesn't Apply to Worker Commuting Between Job Sites
Thursday, June 22, 2017 | 0
A California appellate court this week overturned a denial of benefits to an in-home caretaker who suffered injuries in an accident while traveling between the residences of two different clients.
Although accidents that occur during the course of a worker’s commute to or from work are generally not compensable, the 2nd District Court of Appeal said the “going and coming rule” is applicable only when a worker is traveling between her home and her workplace, at a fixed time.
Since Yu Qin Zhu was traveling between workplaces when she was hurt, the court said the question was whether her transit bestowed a direct benefit on her employer and was done at the employer’s request.
The court noted that the California State Department of Social Services “obviously knew that Zhu was providing home care to more than one home per day,” and it derived a benefit from Zhu working at multiple homes in one day.
The court said Zhu’s travel had to be viewed as being performed at the “implied request” of the department and was therefore “part of her employment relationship.”
Zhu began working for the California State Department of Social Services as an in-home caretaker in 2003. Over the course of the next 12 years, she provided care in multiple homes, and she received a bi-weekly paycheck from the department for all the work she performed.
The department did not pay Zhu for her transportation to, from or in between the houses where she worked.
On Dec. 16, 2015, Zhu provided care to a couple living in Monterey Park from approximately 8:30-11:30 a.m. She was scheduled to provide care for a woman living in neighboring Alhambra that afternoon.
Zhu was struck by a car while riding her bicycle from Monterey Park to Alhambra, suffering injuries requiring hospitalization and ongoing care.
An administrative law judge found Zhu’s injuries were compensable because her travel between the clients’ homes was “a mandatory part of the employment.” A divided Workers’ Compensation Appeals Board, however, panel reversed the judge last fall.
Commissioners Frank Brass and Kathy Zalewski found Zhu’s accident had not occurred in the course of her employment because it had occurred while she was commuting to her workplace.
Commissioner Jose Razo dissented, saying he thought the required-vehicle exception to the going and coming rule was applicable. This exception exists when an employer requires that an employee bring a car to and from work for use in her employment duties, Razo explained.
Since Zhu’s job entailed travel between clients, Razo said he thought there was an “implied requirement” that Zhu “furnish and use her own transportation to travel between clients, whether by car or bike or some other means of conveyance.”
Zhu appealed the board’s decision in November and the 2nd DCA granted review in January. The WCAB filed a brief indicating it had given further consideration to the merits of Zhu’s case and believed the required-vehicle exception brought her accident within the course of her employment. The WCAB requested that its ruling be annulled.
The 2nd DCA on Tuesday agreed that the WCAB’s decision had to be set aside, but not because of the applicability of the required-vehicle exception to the going and coming rule. The court said the WCAB was wrong to find the going and coming rule applicable in the first place.
In a 1972 case called Hinojosa v. WCAB, the California Supreme Court ruled that the going and coming rule applies to a “local commute en route to fixed a place of business at fixed hours,” the 2nd DCA said.
As Zhu undisputedly was not commuting between home and the workplace at a fixed time for that commute when she was injured, the 2nd DCA said the going and coming rule was inapplicable to her.
The court acknowledged that the going and coming rule has been invoked in prior cases when an employee was hurt while in transit between points other than the home and workplace, but the court said, “(in) these cases the real issue is not whether the going and coming rule applies, but whether the transit is part of the employment or the employment relationship.”
In this case, the court reasoned, the department “was fully aware of Zhu’s workload,” and it was “ineluctable that Zhu would have to transit from one home to another” to do her job.
The court said the department “was a direct beneficiary of this since it allowed Zhu to service more than one home per day,” and Zhu’s travels “directly increased the department’s ability to service persons in need.”
Since the department did not furnish Zhu with transportation, the only way the department could obtain the benefit of multiple homes being serviced in a day was to require Zhu to furnish her own, the court added.
Although the department claimed it did not require Zhu to service more than one patient per day, the court noted that the department “accepted the benefit provided by Zhu servicing multiple homes in one day, and it did so for a number of years.”
In such a situation, the court said, “a reasonable person would conclude that transiting between homes was part and parcel of Zhu’s job.”
Attorney Michael Sabzevar represented Zhu before the WCAB and the Court of Appeals. He said Wednesday that he saw the court’s ruling as “very good news for employees working in multiple locations” because it establishes that they have coverage for their travel from site to site.
He said he had not heard whether the department plans to appeal the case.
Jeffrey A. Miller, Arezoo Jamshidi, Jonna D. Lothyan, Catherine M. Asuncion, Sebastian E. Lee and Caroline E. Chan of Lewis Brisbois Bisgaard & Smith represented the department. Miller declined immediate comment on the court’s decision, saying he wished to consult his client before he would speak publicly about anything related to the case.
Joseph Capurro, an executive board member of the California Applicants’ Attorneys Association and co-chair of the CAAA amicus committee, said he saw the Zhu decision as “an excellent review of the issue of work-related transit by an employee.”
Zhu’s travel “clearly was a benefit to the employer as determined by the WCJ, the dissenting commissioner and now the court,” Capurro said. “Whether it also benefited the employee is simply not relevant,” and the court “properly rejected the employer's attempt to shift the benefit argument to the employee,” he opined.
Tim Kinsey, a defense attorney with Stander Reubens Thomas Kinsey, said he didn’t see the decision as particularly surprising or groundbreaking.
“Given the department's knowledge and willingness to allow applicant to work at multiple job sites,” he said, the department was “aware that applicant had to get between her client's homes somehow,” and “clearly the Court of Appeal didn't think that a bicycle was unreasonable” as a mode of transit.
Fellow defense attorney Louis Larres of Bradford & Barthel said he had considered the WCAB decision “somewhat of an oddity for its reasoning and result.” By contrast, he said, the 2nd DCA’s analysis was “focused on whether there was an implied requirement to have a vehicle to perform the work,” and “in that sense, the case is very similar to Hinojosa.”
Applicants’ attorney Julius Young of Boxer Gerson said he agreed with the 2nd DCA’s reasoning and its ruling, but he thought the case was “procedurally interesting” because of the WCAB’s change of position.
“It may happen from time to time, but I am not aware of other instances in which the WCAB has appeared to reverse a panel decision once the case goes up on a writ,” he said. “One wonders if the 2-1 panel just had a change of heart or if they took some sort of en banc vote before asking the DCA to annul or remand.”
To read the court’s decision, click here.
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