ADJ11726217 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied, affirming the WCJ's finding that the injury is barred by the going and coming rule and no exception applies.

Applicant seeks reconsideration of the Findings of Fact issued by a WCJ on April 6, 2021, which found no compensable injury due to the going and coming rule; the WCJ recommended denial of the petition for reconsideration.

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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/COEDefendant prevaileddeath

The WCJ and WCAB found that the injury did not arise out of and in the course of employment because it was barred by the going and coming rule, and applicants failed to prove an exception applied.

From the decision · page 1Applicant seeks reconsideration of the Findings of Fact (Findings) issued by a workers' compensation administration law judge (WCJ) on April 6, 2021. The WCJ found that the applicant (decedent) did not sustain injury arising out of and in the course of his employment resulting in death on June 29, 2018, because the decedent's injury 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.

The rules the panel named

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

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

Going and coming rule bars compensation for injuries sustained while commuting to or from work unless an exception applies.

Applied to bar the claim in this case.

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).) "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].)

Hinojosa v. Workers' Comp. Appeals Bd. (1972) 8 Cal.3d 150

Required vehicle exception to the going and coming rule applies when employer requires employee to provide own transportation.

Considered but found not supported by evidence in this case.

From the decision · page 2Applicant contends that this case falls within the "required vehicle" exception to the going and coming rule, which applies when an employer either expressly or impliedly requires or expects an employee to furnish transportation to perform the job. (Hinojosa, supra, 8 Cal.3d. at p. 160 citing Smith, supra.) "The exception `arises from the principle that an employee "is performing service growing out of and incidental to his employment" (Lab. Code, § 3600) when he engages in conduct reasonably directed toward the fulfillment of his employer's requirements, performed for the benefit and advantage of the employer.' (Smith, supra, at pp. 819§ 820.)" (Zhu v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1039 [82 Cal.Comp.Cases 692].)

ADJ11726217 · June 18, 2021

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