ADJ18125440 · January 22, 2025

Applicant was performing a service growing out of and incidental to employment by using his own vehicle for business development and marketing duties, including a minor deviation to pick up doughnuts for clients, which falls under exceptions to the going and coming rule.

From the decision · page 1Defendant seeks reconsideration of our November 4, 2024 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration (O&O) wherein we granted reconsideration of a July 31, 2024 Findings and Order and reversed the workers' compensation administrative law judge's (WCJ's) finding that applicant's August 4, 2022 claim of injury to the neck, back, psyche, sleep, internal, left knee, bilateral shoulders, head and other body systems was barred by the going and coming rule, post termination defense per Labor Code1 section 3600(a)(10), and six-month rule for psyche claims under section 3208.3(d).

Applicant was required to use his own vehicle for business development and marketing duties and was reimbursed for mileage.

Favours Applicant prevailed

This fact supports the required vehicle exception to the going and coming rule, establishing the injury arose out of employment.

Applicant was performing a service growing out of and incidental to employment by making a stop to deliver doughnuts to a client as a business development activity.

Favours Applicant prevailed

This activity was reasonably directed toward fulfilling employer's requirements and benefits the employer, fitting an exception to the going and coming rule.

The stop to pick up doughnuts was a minor deviation from the route to the worksite, covered under the minor deviation exception to the going and coming rule.

Favours Applicant prevailed

The minor deviation exception allows coverage for injuries sustained during brief stops reasonably related to employment duties.

From the decision · page 8Lastly, we continue to find that applicant's doughnut stop would also be covered under the "minor deviation" exception to the going and coming rule, as contemplated in Scripps Home Healthcare v. Workers' Comp. Appeals Bd. (2001) 67 Cal.Comp.Cases 94 (writ den.). Like the applicant in Scripps, the car applicant used was his own, as required by his employment. Further, as in Scripps, applicant was on his way to one of the multiple sites he visited as a part of his duties for work when he made the brief visit to pick up a box of doughnuts. As explained previously, the fact that applicant was not on call at the time of the injury is not dispositive. Ultimately, based upon the overall facts of the case, the stop was at most a minor deviation. Accordingly, we deny defendant's Petition.

Smith v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 814; Hinojosa v. Workers' Comp. Appeals Bd. (1972) 8 Cal.3d 150; Scripps Home Healthcare v. Workers' Comp. Appeals Bd. (2001) 67 Cal.Comp.Cases 94

Going and coming rule under Labor Code section 3600(a) and exceptions including required vehicle and minor deviation exceptions.

The Board found that applicant's injury arose out of and in the course of employment because he was performing a service incidental to employment using his own vehicle and making a minor deviation to pick up doughnuts for clients.

From the decision · page 7II. Turning now to the merits of the Petition, defendant argues that applicant is not a credible witness, and applicant's injuries did not arise out of and in the course of employment, as contemplated under section 3600(a), as applicant was simply commuting to work rather than "performing a service growing out of and incidental to his employment." (Petition, p. 6.) As such, defendant continues to believe that applicant's claim should be barred under the going and coming rule. As explained in our November 4, 2024 O&O, under the 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. Appeals Bd. (Smith) (1968) 69 Cal.2d 814, 815-816 [33 Cal.Comp.Cases 771] citing Zenith Nat. Ins. Co. v. Workmen's Comp. Appeals 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.

Applicant's testimony about his job duties and use of his own vehicle for business development and marketing, including purchasing doughnuts for clients.

From the decision · page 2Applicant filed an Application for Adjudication of Claim on August 23, 2023. On June 12, 2024, the parties proceeded to trial. Applicant raised the issue of injury arising out of and in the course of employment and defendant raised the issues of the going and coming rule, post termination defense, and section 3208.3(d). Applicant testified in relevant part as follows: [H]e was a Marketing Director Liaison. He was hired June, 2022. He was hired by the administrator Romyn Patel. His job duties were marketing 70 percent of the time. He would talk to case managers and any family members of potential patients that needed the facility. The facility he worked at was a nursing facility and rehab, and they did long-term care and subacute care. The rehab was for patients with slip- and-fall injuries to recover and regain full function to go back home.