Two Looks at the 'Going/Coming' Rule

Here are two peeks at the surgical distinctions the rule often calls for -- and at the continuing evolution of the law.

Now, your humble blogger knows what beloved subscribers, Twitter followers and random Google search visitors (who keeps Googling, "humble logger"?) are collectively thinking: “I am so desperately craving a blog post on the going and coming rule – that’s my favorite rule of all! Don’t disappoint me, Greg.” In fact, I'll give you two. The First Incident For those not in the know, the going and coming rule basically sets a giant wall between coming to (or from) work and work itself. Like all good rules, this one is riddled with giant exceptions through which elephants can comfortably march in rows of four, but in certain instances the rule kicks in to shield the employer from liability. And, it’s not just workers’ compensation liability; the rule can also shield employers from liability to third parties caused by the negligence of employees. So, I bring to your attention the recently writ-denied case of Aguilar v. BHS Corrugated North America. Therein, a worker gingerly hopped into a car rented by his employer to go off-site for an unpaid half-hour lunch break. A co-worker was at the wheel. As you can imagine, on the way back, the worker sustained an injury and filed a claim for workers’ compensation benefits. The matter proceeded to an AOE/COE trial, and the judge was persuaded by the applicant’s position – that the employer benefited by having the driver/co-worker have a car available for personal and business reasons. Defendant sought reconsideration (as defendants often must). In a split panel, the WCAB granted reconsideration, reasoning that the “lunch rule” would lead to a take-nothing order -- in other words, that even if the applicant won he would not be entitled to damages. Of special interest here is that the WCAB majority rejected the argument that the fact the employer rented the car for the co-worker-driver makes this incident compensable: “[T]he applicant’s personal decision to travel off premises in that rental car as a passenger during an unpaid lunch break did not render service to the employer and, therefore, did not grow out of or was incidental to employment.” Had this been a split decision that favored the applicant, I would, of course, say you should read the dissent. Being a hopelessly biased defense hack, I have no need to say such a thing. I will note that the dissenting opinion pointed out some fairly relevant facts: The lunch was at the insistence of co-workers whom applicant considered his supervisors; the lunch was spent discussing work matters; and the lunch was paid for on a company card. In short, it is a reasonable interpretation that the employer was receiving benefit from the employee’s presence in the car and attendance at the lunch. Now, a panel decision makes for weak authority before a workers' compensation judge, and a split panel makes for even weaker one, but it is interesting to get this peek at the surgical distinction the going and coming rule often calls for, and the continued evolution of this law. The Second This case for you to hold and cherish comes from the Court of Appeal: Lantz v. WCAB/SCIF. Applicant Lantz was a correctional officer who was, tragically, killed after a car crash on the drive home from work. Now, this would not be a blog post if we could simply say “going and coming rule – take nothing!” The facts in this case complicate the matter to the point where the Court of Appeal felt an opinion was warranted. Applicant was not just driving home from work on any day – he was required to work an extra shift after his regular shift. So, while he would normally be commuting home, he was working, and when he would normally be home and not working, he was driving home. The question is whether requiring an employee to work an additional shift at the same location constitutes a “special mission” that defeats the going and coming rule. The Court of Appeal recognized the special mission exception but also noted that the special mission exception requires: (1) extraordinary activity, as opposed to routine duties; (2) AOE/COE; and (3) activity that was undertaken at the express or implied request of the employer and for the employer’s benefit. Using this standard, the COA readily conceded that prongs 2 and 3 were satisfied – working an additional shift is, no doubt, within the course of the duties of the employee, and the activity was required by the employer for its benefit. On the other hand, the first prong is not so easily satisfied. Is working another shift truly extraordinary? The test is whether the location, nature or hours of the work deviates from the norm. In this case, the COA deferred to the WCAB’s determination that the extra supervisory duties did not rise to the level of extraordinary. Of interest here is the ready recognition by the Court of Appeal that it is possible that a sudden change in work hours would be extraordinary duty. The image comes to mind of a deputy suddenly yanked from dispatch to work intake and processing, or a maître d' asked to help unload a truck. One other nugget to consider here: The Court of Appeal addresses the argument oft cited by lien claimants, applicants’ attorneys and crazies roaming the streets of San Francisco: “Liberal Construction!” No, no, dear readers, this isn’t in reference to a bunch of long-haired college hippies building houses out of recycled milk bottles but, instead, a quote from Labor Code section 3202: “This division and Division 5 … shall be liberally construed by the courts with the purpose of extending their benefits for the protections of persons injured in the course of their employment.” Okay, calm down. I know you’re pounding your keyboard and thinking, “Why is Greg wasting my time with this? I’m not running a prison; why is this case relevant?” Well, here it is, the nugget you can take to every case in the workers’ comp system that is set for an AOE/COE trial: “The policy of liberality is predicated upon there being a person who is ‘injured in the course of [his or her] employment’ and therefore, when given its plain meaning, does not aid in deciding the threshold question of whether the employee was injured in the course of his or her employment.” So, the next time there is a question of whether the injury is compensable at an AOE/COE trial, if there is any effort to use the liberal construction language of 3202 to lower the standard of proof the applicant must otherwise meet, Lantz should be at the ready to negate the argument, as a citeable, binding, published decision.

Gregory Grinberg

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Gregory Grinberg

Gregory Grinberg is a Workers Compensation Defense Attorney representing Northern California employers and insurers in all matters before the Workers’ Compensation Appeals Board. As a sole practitioner, he leverages technology to provide effective representation and excellent client service while maintaining his commitment to efficiency.


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