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another reversal on 'going and coming'

Another Reversal on ‘Going and Coming’

California’s 2nd District Court of Appeal has reversed a Workers’ Compensation Appeals Board (WCAB) decision, which had in turn reversed a decision by a workers’ compensation judge (WCJ) on a “going and coming rule” case. In Shultz v WCAB (Joint Test Tactics and Training (JT3)), the court ultimately determined that the employee was operating his motor vehicle within the course and scope of employment. So, the going and coming rule, which defines the ordinary commute as not being part of the work day, was inapplicable.

Craig Schulz was a civilian employee working on a secure U.S. Air Force base not open to the public. On the day in question, he drove his personal vehicle to the base and passed through the secure gate using the security pass issued by his employer. Approximately one mile past the gate, he was involved in a motor vehicle accident (MVA) and sustained injuries. He claimed they were in the course and scope of employment. His employer denied the claim, saying he had not yet reached the employer’s premises. The employer also argued that the applicant had sustained injuries because of an idiopathic seizure related to his diabetes, so the injuries did not arise from his employment.

Extensive testimony was taken at trial as to the employee’s duties, his need to travel to various locations on the base during the course of the day and whether his employer expected him to use his personal vehicle. The employee testified that he commonly used his own vehicle to travel from location to location on the base. The employer presented testimony that it provided vehicles for employees to travel around the base and that it did not require the employee to use his own car. Multiple witnesses, however, confirmed that Schulz did, in fact, use is own vehicle on multiple occasions. Schulz provided compelling documentation from his own log (kept for tax purposes) of his vehicle usage. There was also general agreement that, while vehicles were typically available, on occasion they were not. Schulz’s side argued both that he had entered the employer’s “premises” when he went through the secured gate and that his vehicle was used in the course of his employment, based on custom and practice.

The WCJ ruled in Schulz’s favor, relying principally on the use of his personal vehicle on the job site. The judge did not address the premises issue raised by Schultz, nor was there any compelling evidence (at least according to the court) to support the claim of idiopathic causation. On appeal, the WCAB reversed, based on the employer’s evidence of availability of its vehicles and the policy that work could be postponed until a vehicle was available. The WCAB held that the injury was outside the course and scope of employment. The WCAB did not address the applicant’s argument that he was on the employer’s premises at the time of injury.

The appeals court did not focus on either the WCJ’s line of thought nor that of the WCAB but instead focused on the premises argument. The court noted:

“Although Schultz was assigned to a particular building on Edwards, it is undisputed that he and other employees of JT3 performed work at multiple locations at the base at various times. Edwards is a secure location, and JT3 controlled Schultz’s access to the base, which he could only enter with a security pass issued by JT3 and approved by the Air Force. Because JT3 controlled Schultz’s access to Edwards, and Schultz worked throughout the base on assignments, he was on the premises of his employer once Schultz entered Edwards, and his injury therefore occurred during the course of that employment for purposes of the workers’ compensation law. “

The court cited Smith v IAC, a California Supreme Court case, as support for the concept of an understanding of the expanded-workplace concept. The court found that the Schulz case was even “more compelling” than Smith on defining the premises of the employer as beyond the actual buildings where the work was performed. The court found that the discussion as to whether Schultz was required to provide his vehicle was irrelevant once it was determined he was on the premises:

“For purposes of the premises line rule, it does not matter whether Schultz was permitted to use his own car to perform work, as he contended, or if that was not permitted, as maintained by JT3, as the record clearly shows that Schultz was required to work throughout Edwards at times, and his work was not confined merely to Building No. 1440. Schultz was on JT3’s premises for purposes of employment when injured.”

The court summarized as follows:

“We hold that the premises line rule applies to an employee injured in a single-car traffic accident where (1) the employee was a civilian working on a secure U.S. Air Force base not generally open to the public, (2) the employee entered the base in his personal vehicle after passing a guard gate using a security pass issued by his employer with the approval of the Air Force, (3) the employee had traveled one mile inside the base when the accident occurred and (4) the undisputed evidence established although the employee worked out of a fixed location, the employer had multiple locations on the Air Force base and the employee traveled sometimes in his own vehicle, as needed, throughout the base to perform work assigned by his employer.”

Comments and Conclusions:

If we were ever under the illusion that the “going and coming” rule was an inflexible legal concept, this case should certainly dispel the notion.

It is interesting that neither the WCJ nor the WCAB seemed to focus on the ultimate legal issue relied upon by the appellate court, namely whether the employee had entered the employer’s premises once he had passed through the secured gate. Some understanding as to why that may have occurred can be found in some of the court’s discussion as to whether the applicant had raised this issue in proceedings below the appellate level. One of the arguments raised by the defense included the assertion that the applicant was raising the premises rule for the first time on appeal and therefore had forfeited the right to raise the argument. The appellate court rejected that argument, finding the applicant had included a discussion of the issue in the trial brief, thereby preserving it for consideration on appeal. However, it is certainly possible that, with all the testimony on whether and how often the applicant used his vehicle, the parties may have simply overlooked the premises issue. The court certainly found enough evidence in the testimony to make a finding on the issue, so the factual basis was available for everyone to see.

In the grand scheme of things, this case does not increase exposure very much. The number of cases where an employee enters a third party’s premises that will also be considered the employer’s premises and then continues to drive several miles will likely be very limited. The fact that the court relied upon the secured nature of the location also makes expansion of this concept somewhat questionable.

Two Looks at the ‘Going/Coming’ Rule

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.

Where To Park The Liability – On Parking Lots And Workers' Comp

Employees sometimes drive to work,
And then they find a parking spot,
Sometimes on a busy street,
Sometimes in a parking lot,
But injuries can still occur,
Between their cars and the front door,
And who will pay for slips and falls,
Will always be the Judge’s call.

Such is the nursery rhyme sung to children of applicants’ attorneys and defense lawyers in the dark and murky world of California workers’ compensation.

This issue came up recently while I was having lunch with my brother-in-law, Jasper. Jasper had been doing well recently in the wheelbarrow industry, and wanted to expand his operations from his garage to a real factory. He invited me to lunch to present me with some exciting investment opportunities in the wheelbarrow industry. Currently, Jasper had his eye set on one location in particular because it came with a parking lot.

His plan was to set up a series of obstacles in the parking lot, in the hopes that the employee with poor agility and balance would sustain injury outside his factory and shield him from workers’ compensation liability. Thus, only the workers that could swim faster than sharks, swing over quicksand pits, and tightrope over mine fields would actually make it to work.

Without getting into issues of serious and willful misconduct, for those readers out there that aren’t Jasper, when you’re facing a claim of injury in or near a parking lot, are you on the hook? Let’s start with the basics.

In order for an injury to fall within the scope of California’s workers’ compensation system, as opposed to general civil tort, the injury must arise out of and occur within the course of employment (See Labor Code section 3600). This is commonly referred to as AOE/COE (Arising Out of Employment, in the Course of Employment). Generally speaking, injuries sustained during the regular commute to or from work are not compensable, unless they fit into one of several exceptions.

But what about that last stretch of travel, between the car door and the building door?

In the case of Lewis v. WCAB, Lewis parked in a lot leased for employees. Walking down the street to her office, three blocks away, she fell. In finding the claim compensable, the Supreme Court reasoned that there is a “reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done” included within the scope of employment.

The Court went further, noting that once the employee enters the premises under the control of the employer, including employer-owned parking lots, the commute has ended and the scope of employment has begun (See Santa Rosa Junior College v. WCAB, footnote 11).

By providing an employee parking lot, Jasper could very well find himself increasing his liability with every square foot of parking under his control.

At this, Jasper got nervous and decided his plan would have to be changed. Instead, he would have his employees park on the street and use the entire lot for more obstacles. After all, he read an article in Wheelbarrows and Workers’ Comp, a very limited-circulation magazine which only exists in this story, which discussed a similar idea. There, the article’s author discussed two cases.

The first, an unpublished decision by the Court of Appeal, was Sharp Coronado Hospital v. WCAB. There, the Court held that an employee asked by its employer to park on the street instead of the parking lot was precluded from recovering for an injury sustained while walking from the employee’s parked car to the hospital. The other, General Insurance Co. v. WCAB, held that an employee struck while crossing the street from his parked car to work could not recover because of the going and coming rule.

Furthermore, he had heard his friend, an applicants’ attorney, grumbling about the panel decision in the case of Sharon Ewegemi v. Oakland Unified School District. In that case, he understood, a teacher had parked her car on the street and was just a few feet from the door of her school when she turned back to get some papers from her car. Walking to her car, she tripped and fell in the street.

In denying her application, the Workers’ Compensation Appeals Board reasoned that, until she entered the school and began working, she was still engaged in her commute, even up to a few feet away from the school.

Jasper’s new plan could put all this into use, he thought, by having his employees cross the obstacle course before entering the front door.

Now, bear in mind, dear readers, this is my brother-in-law, so things had to be stated delicately, or else every Thanksgiving dinner would include Jasper mumbling about how he hopes I come see his snake-pit. So, I had to explain that his new idea wouldn’t exactly work, either.

So, as I side-stepped the issue of intentionally exposing workers to snake-pits, quicksand, and landmines, I gently pointed out that he might still be liable for injuries sustained in his parking lot because of the “special risk” doctrine, which makes injuries sustained during travel to work compensable if the employee is exposed to a risk of injury, for the benefit of the employer, to which the general public is not exposed.

For example, the applicant in the case of Sandra Parks v. Workers’ Compensation Appeals Board, was attacked two car lengths down the street from the employer-provided parking lot, as she was boxed in by school children crossing the street and other cars behind her. In finding the injury compensable, the Court of Appeal reasoned that the car’s immobility caused by school children crossing the street was a special risk, and thus compensable.

Similar results were reached in R. G. Greydanus v. Industrial Accident Commission and John Freire v. Matson Navigation Company. In Greydanus, a dairy employee who had to turn left across a busy road to pull into the dairy farm was found to be exposed to a special risk because of the dangerous turn.

Likewise, in Freire, a janitor who worked aboard a steamship could only reach the ship by walking across a public bulkhead. The walk across the bulkhead was found to be a special risk, and the injury, though sustained some distance away from the ship itself, was found compensable.

Jasper looked deeply saddened as his eyes became watery and he glanced down at his blueprint. Where, before, the set of American Gladiator was reborn in his parking lot, now remained only painted lines between which employees could park their cars before proceeding to work.

Frustrated, Jasper shoved his blueprint aside and decided he wouldn’t have a parking lot at all. As he angrily stared out the window, no doubt jealously glaring at the restaurant’s parking lot, your humble author felt compelled to give some good news.

“Cheer up,” I told my brother-in-law, Jasper. “Not all injuries sustained in parking lots are compensable.” At that, Jasper seemed to rekindle the possibility of a parking lot obstacle course and he began to listen closely.

For example, in the case of Jessica Rodgers v. Workers’ Compensation Appeals Board, an employee took a break from work to go to the bank. She then returned to the work parking lot and arranged her money before stepping out of her car and returning to work. In between her car and the building, however, a “biker,” who had followed her from the bank, attacked her and stole her money.

Even though the injury was sustained during work hours, between starting and finishing the day’s shift, and in the employer parking lot, the Court of Appeal held that the injury was not compensable because the cause of the injury was formed independent of any work-related activity — the biker just wanted to rob her, regardless of where she worked or who she was.

Likewise, in the panel decision of Basil Perkins v. City of Los Angeles, the applicant, a city animal control officer, was shot while napping in his work vehicle, while parked in the employer-owned lot, and wearing his uniform. As his home was over 130 miles away, he made a regular practice of napping in his car after a shift had ended.

Initially, the workers’ compensation judge found the injury compensable, but the Workers’ Compensation Appeals Board reversed, finding the injury was not compensable, as the shift had ended, and the employee was only in the parking lot for his convenience. In other words, the scope of employment cannot be artificially extended by dallying on the employer’s premises.

The same occurred when a worker arrived to work too early, as in the writ denied case of Paul Grove (Dec’d), Sharon Grove (Widow) v. Miller Coors, LLC. In that case, the employee had arrived to work early and had used the restroom at work less than two hours before the start of his shift, when he sustained an injury in the restroom. There, the workers’ compensation Judge found the injury to be non-compensable.

Fortunately, Jasper never got to try out his obstacle course idea — the wheelbarrow industry took a downturn, and he decided expanding beyond his garage was not a good idea at this time. Regardless, here are some takeaway rules:

  1. Arriving at an employer-owned or provided parking lot begins the scope of the employment relationship and ends the commute, so long as the arrival is within the regular time for employment.
  2. If travel to the employer or the employer’s parking lot presents a “special risk” to the employees, then the time during which the employee is exposed to the risk will not be barred by the Going and Coming Rule.
  3. Injuries sustained in an employer-provided parking lot are subject to AOE/COE analysis, so injuries sustained for reasons unrelated to work, such as robberies, will not be compensable, unless the special risk doctrine applies.
  4. Whatever the liability for workers’ compensation, the “Going and Coming” rule is not subject to the premises rule for civil liability and respondeat superior, as found by the Court of Appeal in Dean Hartline v. Kaiser Foundation Hospitals.
  5. Do not invest in the wheelbarrow market if the president of your company is busy planning an obstacle course for his employees trying to get to work.