ADJ13239935 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; WCJ's Findings of Fact dated January 5, 2022, affirmed.

Petition for Reconsideration filed by defendant challenging the WCJ's finding that the applicant's injury during travel to the worksite is not barred by the "Going and Coming Rule." The WCAB panel denies reconsideration and affirms the WCJ's findings.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedhead

The injury occurred during an on-call period where the applicant was rendering service and was compensated, thus the going and coming rule does not bar recovery under the exceptions recognized by case law and supported by the WCJ's credibility findings.

From the decision · page 10The facts at hand are straightforward and undisputed. The Applicant was working an "on call" shift over the weekend. For the Applicant's job classification, being "on call" means being available by telephone to handle any issues that arise at the worksite that could be addressed telephonically. The Applicant also has the discretion to return to the worksite and address any issues in person. If the Applicant is required to return to the worksite, he is compensated for that travel time. (Applicant's Exhibit 8, Page 23). The shift lasted until Monday morning, at 8:00 a.m. The Applicant was on his way to the physical worksite on Monday morning, June 10, 2019, when he rear ended another motorist. (Applicant's Exhibit 7). The Applicant was injured in this accident and sustained injury to his head, with other complaints noted in medical reporting. (Applicant's Exhibits 1 § 6). He then subsequently filed a workers' compensation claim. The issue at hand is whether the Applicant's injury during travel to the worksite is barred by the "Going and Coming Rule."

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant was on call for the entire weekend until the start of his normal shift and was compensated for that time and work performed.

Favours Applicant prevailed

This established a continuous employment relationship during travel, negating the going and coming rule bar.

From the decision · page 6Notwithstanding the foregoing, the Applicant was "on call" for the duration of the weekend and received compensation for that extra time and the work performed therefrom. The Collective Bargaining Agreement acknowledges from additional compensation available for travel into the job site as well.

Applicant's travel to the worksite was not a normal commute but was to perform additional work related to the on-call period, supported by credible testimony including Dr. Taylor's.

Favours Applicant prevailed

This showed the travel was compensable under exceptions to the going and coming rule.

From the decision · page 7In analyzing the first factor, the location, it is uncontroverted that the Applicant was returning to the job site to perform the "additional" work of reviewing the charts and preparing for the meeting. This fact weighs against the work being deemed extraordinary, but is far from conclusive. In analyzing the difference between the usual schedule and the time of the extra work, the undersigned again notes that the Applicant was "on call" for the duration of the weekend all the way until his normal shift was slated to start. The Applicant had a subjective need to arrive early and be prepared for a meeting to go over the events of his on call shift. Dr. Taylor's credible testimony establishes an objective analysis that the meeting itself was important, as she indicated it was expected that the presenting individual be prepared. It is generally well-established that the special mission exception is inapplicable when the only special component is the work shift beginning earlier or ending later.8 That is not the case here, as the Applicant's on call shift, which was the duration of the entire weekend, created a subjective and objective need to continue the work by reviewing charts/notes and being prepared for the meeting. Essentially, there is more here than just the Applicant leaving for work earlier than usual. This factor weights in favor of applying the exception to the rule.

Applicant was rendering service for the employer during travel as he was on call and available to return to the worksite if needed.

Favours Applicant prevailed

This fact supports the exception to the going and coming rule that the employment relationship continued during travel.

From the decision · page 11The California Supreme Court has explained the reasoning for the "Going and Coming Rule" is "since the employee, during the time he is going to or coming from work, is rendering no service for his employer."17 The relationship of this employer and the Applicant was not suspended during this travel as the Applicant was still on call while he was in his vehicle. The Applicant herein was rendering service for his employer, and his claim for injury should not be barred by the rule. He was available all weekend, available by being "on call" when the accident itself occurred, and per his own testimony arriving early to review charts from the weekend and be prepared for the meeting.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 3600

Labor Code section 3600 imposes liability on an employer for workers' compensation benefits only if its employee sustains an injury arising out of and in the course of employment.

Applied to determine compensability of injury during travel to worksite.

From the decision · page 1Labor Code section 3600 imposes liability on an employer for workers' compensation benefits only if its employee sustains an injury "arising out of and in the course of employment." The "going and coming" rule excludes from compensability injuries that occur while the employee is going to or returning from work in the routine commute. (Ocean Acc. & Guarantee Co. v. Industrial Acc. Com. (Slattery) (1916) 173 Cal. 313.) "The rule provides that an injury suffered `during a local commute en route to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances is not within the course of employment.'" (Price v. Workers' Comp. Appeals Bd. (Price) (1984) 37 Cal.3d 559, 564§ 565 [49 Cal.Comp.Cases 772] quoting Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 [37 Cal.Comp.Cases 734].) The rationale for this judicially created doctrine is that during an ordinary commute, the

Ocean Acc. & Guarantee Co. v. Industrial Acc. Com. (Slattery) (1916) 173 Cal. 313; Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559; Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150; Zenith National Ins. Co. v. Workmen's Comp. App. Bd. (1967) 66 Cal.2d 944; Kobe v. Industrial Acc. Com. (1950) 35 Cal. 2d 33

The "going and coming" rule excludes injuries during routine commute unless exceptions apply, such as employer furnishing transportation or compensating travel time.

Applied to analyze whether the going and coming rule bars the applicant's claim given the on-call status and compensation for travel time.

From the decision · page 1Labor Code section 3600 imposes liability on an employer for workers' compensation benefits only if its employee sustains an injury "arising out of and in the course of employment." The "going and coming" rule excludes from compensability injuries that occur while the employee is going to or returning from work in the routine commute. (Ocean Acc. & Guarantee Co. v. Industrial Acc. Com. (Slattery) (1916) 173 Cal. 313.) "The rule provides that an injury suffered `during a local commute en route to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances is not within the course of employment.'" (Price v. Workers' Comp. Appeals Bd. (Price) (1984) 37 Cal.3d 559, 564§ 565 [49 Cal.Comp.Cases 772] quoting Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 [37 Cal.Comp.Cases 734].) The rationale for this judicially created doctrine is that during an ordinary commute, the

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Credibility determinations of the WCJ given great weight as the WCJ observed witness demeanor; no substantial evidence to reject credibility.

From the decision · page 2Moreover, we have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.)

Testimony and credibilityfavours Applicant prevailed

Applicant's unrebutted testimony about prior reimbursement for travel time after on-call shifts at a different location supports compensability.

From the decision · page 6request at the current location, where the injury happened, because the situation had not yet arisen. Moreover, the Applicant indicated he would have made the request, but for having been in the car accident. With respect to the discrepancy between what Dr. Taylor "would have done" if the Applicant "had" requested reimbursement, the undersigned looks to the unrebutted testimony from the Applicant's prior experience as the only evidence of how such a request is handled. The testimony from Dr. Taylor and the Applicant that deals with hypotheticals essentially cancels each other out, but the testimony regarding a prior reimbursement from Tehachapi was unrebutted and persuasive. This testimony lends credibility to the fact that an early return to the job site to finish up work from an on call period would be compensable and therefore defeat the "Going and Coming Rule."

work activityfavours Applicant prevailed

Applicant was on call without a break until the start of his normal workday, conferring a benefit to the employer during travel time.

From the decision · page 11Moreover, the undersigned notes that the Applicant was "on call," without a break, until the start of his normal workday on Monday. He was therefore conferring a benefit to the employer by being on call and was on call during the travel. Dr. Taylor's testimony was that the Applicant needed to be available to return to the work site if the need arose during an "on call" period; this testimony is backed up by the Union Agreement. (Applicant's Exhibit 8, Page 23). The Applicant is also paid for his time during his "on call" period. (Id.) This alone restricts Applicant's freedom to be out and doing other non-work related things, since he would have to be physically available to arrive at the worksite if needed.

ADJ13239935 · December 29, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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