WCDefenseCA

Happy Wednesday, dear readers!

It appears your humble blogger was misinformed with his post from last Friday.  Mr. Juan Pedro Gaffney, now, Commissioner Gaffney was confirmed by the senate on August 29, 2018, with 25 Ayes and 11 Noes.

Commissioner Gaffney will now serve for a term of six years.

That being said, I now bring you today’s blog post which will hopefully distract you from your humble blogger’s most embarrassing misstep…

Since it’s Wednesday, dear readers, I’ve decided I will grant you most dearly held wish.

For those of you tuning in from outside the swamp that is our beloved workers’ compensation system, I’m going to let you in on a little secret.  If you work your way into the confidence of any member of California Comp, and you offer him or her three wishes, without missing a beat each would tell you honestly: “If I had three wishes, I would wish for three blog posts on the going and coming rule.”

Well, your humble blogger lives to please, so here we go!

As is well known, the going and coming rule is one that applies inside and outside of workers’ comp: if you’re on your way to work or coming home from work, injuries sustained during the commute are not considered “industrial” and are not compensable.  Nor is damage caused to third parties by employees during the commute to or from work triggering of the doctrine of respondent superior.

That being said, there are more exceptions to this rule than reasons to use cast iron skillets (as opposed to, let us say, more pedestrian cooking methods, such as Teflon or stainless steel).

So, today’s blog post is about one of those times when none of the exceptions applied.  Raquedan v. WCAB, a writ denied case, was decided earlier in September, denying review of the WCAB’s decision to affirm a WCJ’s take nothing order.

Decedent’s widow sought death benefits after her husband was killed in an MVA returning to work from a lunch break he had taken at home.  Decedent worked as an accountant and sometimes took work home with him while he ate lunch at home.  The WCJ found the claim to be barred by the going and coming rule, but applicant appealed arguing that the “personal comfort” and “dual purpose” exceptions, one or both of them, should have rendered the claim compensable.

The WCAB disagreed.  The personal comfort doctrine might make a commuting injury compensable if applicant was rendering a service to his employer.  However, as the lunches were unpaid and applicant could have eaten lunch at work, and it would have been all the same to the employer, the exception did not apply.

With respect to the “dual purpose” exception, the WCAB was not convinced either.  But the only element of “work” in applicant going out for lunch was that the decedent sometimes worked at home.  But working at home for the pure convenience of the employee is insufficient to trigger the dual purpose exception.

The Court of Appeal denied review of the WCAB’s decision.

One of the key pieces to take away from this is that the employer-provided testimony that there was no work that applicant needed to do at home – all work could be done in the office.  Many employers allow their employees to occasionally work from home as a matter of convenience to them.  It would be very disappointing if cases like this went the other way, and employers realized they shouldn’t offer the option to their workers lest they become general insurers for all injuries that occur at or away from work.

Onward to Friday, dear readers!