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No, Virginia, Overtime is Not a “Special Mission”

It’s the holiday season, dear readers!  Channukah; Hannukah; Hanukah; the Festival of Lights, Christmas, New Years, and, of course, Festivus!

And, in the holiday spirit, your humble blogger brings you the case of Bitkarim v. Edible Arrangements.  Therein, applicant sustained an injury while on the way home from work.  Now, I know what you’re thinking, dear readers, “going and coming rule” right? Obviously, door-to-door doesn’t get you a workers’ comp claim.  Well, applicant had an interesting theory to defeat the going and coming defense.

During the Christmas season, Edible Arrangements, at least according to applicant, had employees working lots and lots and lots of overtime, to the point that exhausted employees got into car accidents on the way home.  In fact, after working overtime (“near doubling of the applicant’s normal shift duration” applicant was left “tired, apparently to a much greater degree than her normal shift.”)  The theory, according to applicant, was that these extra hours left applicant “unable to come to a complete stop due to her tired feet” resulting in an auto collision, and applicant’s injuries.

As we all know, the going and coming rule has exceptions… and lots of them.  One of them is the “special mission” exception, which provides that that when an injured worker is assigned to a special task, typically at a different location or at different hours than the usual job, going to or coming from the special assignment, and any injuries sustained during the commute tend to be compensable.

So, applicant in this case argued that the extra hours were a “special mission” and resulted in the exhaustion that caused the collision.  After all, how could you deny such an argument around Christmas time…?  What kind of a Grinch of a defense attorney would try to resist such a claim…?

Well, the WCJ was not persuaded.  Applicant testified to often working overtime around the Holiday season, including around Christmas time.  The WCJ opined that “[a]pplicant working overtime at the time of the injury on 12/15/2008 is not extraordinary or in any way outside of the normal course of business for this employer… [i]n fact, it appears to be rather expected.”

Applicant also argued that Labor Code section 3202 and the “liberal construction” provision of the same, requires a finding of compensability, or at least of the “special mission exception” being applied.  The WCJ disagreed there as well, finding that applicant’s frequency in working overtime and being tired negated the “special” component of the “special mission” exception.

Although not mentioned in the WCJ’s report, it should be noted that the Lantz case, a Court of Appeal decision effectively held that the “liberal construction” provision of 3202 does not apply when AOE/COE has not been established.  So, when AOE/COE is in question and has not been established, liberal construction has no more place than conservative  construction, communist construction, or even libertarian construction (where buildings are made out of marijuana and privately constructed roads).

The WCAB adopted the WCJ’s report and the Court of Appeal denied review.

From the bottom of my cold, hard, barely-human defense attorney heart, I wish my beloved readers, from the frequent commenters to the silent lurkers, and everyone in between, a very Merry Christmas and a very happy New Year!

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