ADJ13210964 · June 13, 2023

The injury occurred while applicant was driving her own vehicle to a caregiver shift at a non-fixed location and time, and she was required to have reliable transportation, which benefited the employer. This fits the 'required vehicle' exception to the going and coming rule, making the injury compensable.

From the decision · page 1Defendant seeks reconsideration of a Findings & Award & Order (F&O) issued by a workers' compensation administrative law judge (WCJ) on March 20, 2023, wherein the WCJ found in pertinent part that applicant sustained industrial injury arising out of and in the course of her employment.

Applicant was required to have reliable transportation to caregiver shifts, which benefited the employer.

Favours Applicant prevailed

This fact supported applying the required vehicle exception to the going and coming rule, making the injury compensable.

From the decision · page 2[E]ven though Applicant selected the shifts she would work, travel to these shifts was not "fixed", [sic] and the shifts did not start at "fixed" hours. The shifts were in different places depending on where the client's home was, and the shifts could start at any time of day. Applicant was not required to have a car, but was required to have reliable transportation, and she testified at trial that she "didn't know if the employer required her to use a certain type of transportation, but how else would she get there, except by using her own car."

Applicant's injury occurred while driving her own vehicle to a client location at a non-fixed time and place.

Favours Applicant prevailed

This fact showed the injury was not a normal commute to a fixed place at fixed hours, supporting compensability under the exception.

From the decision · page 3Applicant was not required to have a car available at work, but she was specifically required to have "reliable transportation", [sic] and even though the employer testified at trial that a bus pass would suffice, considering that the work shifts did not start at fixed times, and applicant did not travel to a fixed location, it was not unreasonable for her to assume that the way to best serve the employer's interests was to use her own vehicle when she traveled to and from clients' homes, and applicant's injury occurred while driving her own vehicle. (Report, pp. 4-6.)

Lab. Code, 3600, subd. (a)

Injuries arising out of and in the course of employment are compensable under Labor Code section 3600(a).

The court applied this standard to determine compensability of the injury.

From the decision · page 2Liability for workers' compensation accrues for an injury "arising out of and in the course of the employment." (Lab. Code, § 3600, subd. (a).) "[A]ny reasonable doubt as to whether the act of the employee is contemplated by the employment should be resolved in favor of the employee in view of the policy of liberal construction of the workmen's compensation laws." (Tingey v. Industrial Acci. Com. (1943) 22 Cal.2d 636, 641; see also Lab. Code, § 3202 and Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 733 [48 Cal.Comp.Cases 326].)

Smith v. Workmen's Comp.App.Bd. (1968) 69 Cal.2d 814

The going and coming rule excludes injuries sustained during an employee's commute to or from work unless an exception applies.

The court considered this rule and its exceptions in evaluating the claim.

From the decision · page 2"Under the well established going and coming rule, an employee does not pursue the course of his employment when he is on his way to or from work." (Smith v. Workmen's Comp.App.Bd. (1968) 69 Cal.2d 814, 815-816 [33 Cal.Comp.Cases 771] (Smith) citing Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd. (1967) 66 Cal.2d 944, 946.) Thus, injuries sustained while an employee is "going and coming" to and from the place of employment do not normally arise out of and in the course of employment because the employee is neither providing benefit to the employer nor under the control of the employer during that commute. (Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 345, 351§ 352 [1985 Cal. LEXIS 410]; Hinojosa v. Workers' Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 [37 Cal.Comp.Cases 734] (Hinojosa).) It applies to a `local commute enroute to a fixed place of business at fixed hours.' (Hinojosa, supra, 8 Cal.3d at p. 157.)" (Zhu v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1038 [82 Cal.Comp.Cases 692].)

Smith v. Workmen's Comp.App.Bd. (1968) 69 Cal.2d 814

The required vehicle exception applies when an employee is required to have reliable transportation that benefits the employer.

The court applied this exception to find the injury compensable.

From the decision · page 92d 814; 33 CCC 771, on page 775 that an employee "is performing service growing out of and incidental to his employment when he engages in conduct reasonably directed toward the fulfillment of his employer's requirements, performed for the benefit and advantage of the employer." In Smith, the employer required the worker to furnish a vehicle of transportation on the job and the Court found that this "curtails the application of the going and coming exclusion." The Court went on to say on page 776 that, "Indeed, an employer must be conclusively presumed to benefit from employee action reasonably directed towards the execution of the employer's orders or requirements.

Applicant was required to have reliable transportation to caregiver shifts, which was found to benefit the employer.

From the decision · page 2[E]ven though Applicant selected the shifts she would work, travel to these shifts was not "fixed", [sic] and the shifts did not start at "fixed" hours. The shifts were in different places depending on where the client's home was, and the shifts could start at any time of day. Applicant was not required to have a car, but was required to have reliable transportation, and she testified at trial that she "didn't know if the employer required her to use a certain type of transportation, but how else would she get there, except by using her own car."

Applicant's injury occurred while driving her own vehicle to a client location at a non-fixed time, which was found compensable under the required vehicle exception.

From the decision · page 3Applicant was not required to have a car available at work, but she was specifically required to have "reliable transportation", [sic] and even though the employer testified at trial that a bus pass would suffice, considering that the work shifts did not start at fixed times, and applicant did not travel to a fixed location, it was not unreasonable for her to assume that the way to best serve the employer's interests was to use her own vehicle when she traveled to and from clients' homes, and applicant's injury occurred while driving her own vehicle. (Report, pp. 4-6.)