If you ask an applicant attorney about the “going and coming rule,” 9 out of 10 will tell you “oh yeah, it means you’re going to find this claim compensable, and I’m coming for your money!”  Well, probably not, but, maybe after this blog post, they’ll start saying that.

The going and coming rule stands for the premise that employees engaged in their commute to or from work are not “working” yet, and so injuries sustained during the commute are not industrial (nor is harm done to third parties the liability of the employer via respondeat superior).

However, the exceptions are many to this rule, such that it’s barely a rule at all, but more of a notion.

That’s why it’s always so refreshing to see the rule used to bar a claim.  Such cases are the carrots seen in an ocean of sticks.  Thus, dear reader, your humble blogger respectfully submits for your consideration the case of Lapesarde v. State of California, Department of Corrections, which was recently denied review by the Court of Appeal.

Applicant, a nurse, was involved in an MVA while driving home from work.  Nonstarter, right?  Going and coming; coming and going; open and shut case.  Well, if that were so, what would I write a blog post about?

Applicant argued the claim was not barred by the going and coming rule because of the “special mission” doctrine.  That is, when an injured worker must go on a “special mission,” one that does not apply to the regular commute, the going and coming rule does not apply.  The special mission (should you chose to accept)?  Applicant worked his regular shift from 6am to 2pm, and then worked a second shift from 2pm to 10pm.  After this second shift, applicant spent 30 minutes in the car and drove home, stopping for gas and coffee so that he could stay awake for his 90 minute drive.  He woke up in the hospital after his MVA with no memory after that pit stop.

So, what do you think, dear readers?  Was the shift a “special mission” or was the regular commute but at an irregular time going home just your typical going and coming?

Well, the WCJ at the trial opined that the claim was compensable, and defendant appealed.  In addressing defendant’s petition for reconsideration, the WCAB panel considered the “special risk” rule, which “states that if a condition on or off the employer’s premises creates a special risk of harm to an employee who is about to enter or who has just left the premises, the injury is within the course of employment.”

However, the “special risk” theory was rejected by the WCAB because applicant made it to a gas station for a stop, and was not exposed to any risk that the general public did not face, a test that can defeat the “special risk” theory exception to the going and coming rule.

In reviewing the WCJ’s opinion, the WCAB specifically rejected reasoning that “applicant was fatigued when he left work and started his drive home.”  The WCAB’s reasoning instead turned on the fact that “applicant was driving on the road on his usual commute in his personal vehicle.  Nothing in that route that he drove or the conditions that he experienced was any different than any other driver on the road at that time.”

Based on this opinion, it would appear that being particularly tired from overtime does not defeat the going and coming rule by itself.  Nor does the change in time to an additional shift following a regular shift defeat the defense either.

Do you think the same result would be reached if applicant had some in for a second shift rather than stayed at work to do a second shift?  Would coming in for an irregular shift at the regular location have been enough to make this a “special mission”?  Are there any job duties that might make a worker particularly susceptible to a “special risk”, such that driving might be particularly dangerous as compared to the dangers visited on the public?

Let me know your thoughts dear readers – I have plenty of pennies to share.