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COA: Commute for Civilian Ends at Security Gate of, Not Building on Airforce Base

Hello, dear readers!

I welcome you to “hump” day Wednesday with a published Court of Appeal decision on the topic of going and coming.  As my readers will recall, this blog has had occasion to touch on this topic before, and the rule itself has riddled California tort and workers’ compensation law since the first lawyers emerged to torment civilized society.

The case in Schultz v. WCAB, where Mr. Schultz was employed by Joint Test Tactics and Training as a technical drafter at Edwards Airforce Base in 2010.  The Court of Appeal held that a civilian contractor had finished his commute and started working when he entered the general air force base by passing through a security gate not open to the public, and not when he would have otherwise arrived at the building where he performed most of his work located inside the base.

Your humble blogger was able to secure some footage from the base, although the accident itself was not captured on video:

Apparently, on the date of the injury, applicant was to report to Building 1440 to commence work.  Although defendant argue that applicant had not reached the premises line of where he was to start working because he had not yet reached Building 1440 when the injury occurred, applicant argued the premises line should be identified as the border of the Airforce Base, but also that applicant’s occasional use of his personal vehicle for work should constitute the entire commute as exempt from the going and coming rule.

At trial, the WCJ concluded the injury was compensable because applicant testified to having to work, on occasion, at different locations within the base, and because applicant was using his personal car to get to, around, and from work.  “[I]f the commuting employee uses a method of transportation that benefits the employer by facilitating the employee’s work, an injury during the commute may be compensable where the employee’s use of the vehicle although not expressly or impliedly required by the employer was an accommodation to the employer.”

Defendant sought reconsideration, arguing that the going and coming rule should bar compensability.  The WCAB agreed with defendant, reasoning that “[t]he problem with the WCJ’s analysis is that it focuses on how the employer might possibly benefit by having applicant bring his car to work instead of considering why applicant was in his car on [the DOI] and what he was actually doing at the time he crashed.”  To wit, at the time of the injury, the car was not being driven for any purpose other than a commute.

So, the Court of Appeal took a completely different take.  The COA focused on the fact that work was done mostly in Building 1440, but also around the base.  Furthermore, applicant’s access to the base was granted only because he was an employee of the defendant.

In effect, applicant argued, the entire base was the employer’s premises.  “Because [the employer] controlled Schultz’s access to Edwards [Airforce Base], and [applicant] worked through the base on assignments, he was on the premises of his employer once [applicant] entered Edwards [Airforce Base], and his injury was compensable.

So, dear readers, what do you think – next stop: Supreme Court?  Your humble blogger thinks this may be the end of this case, but who knows?

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