WCDefenseCA

Hello there dear readers! I hope everyone is staying safe, washing their hands, and hoarding as much toilet paper as humanly possible.  In the meantime, since we’ve all decided to shelter in place, limit social interaction, and revel in the bitter-sweet euphoria that is working from home while all the schools are closed, let me provide a bit of distraction by something completely unrelated to Corona Virus – reasonable commuting distance!

That’s right, dear readers – California Code of Regulations section 10133.34 provides that regular, modified, or alternative work must be a “reasonable commuting distance” from the employee’s residence at the time of injury.

Well, in chatting with one of the gentle giants of workers’ compensation the other day, he raised this issue and had your humble blogger stumped: what constitutes a “reasonable commuting distance”?

Now, you might wonder why this is so important, but let’s not forget this is more than litigation over a $6,000 voucher: this is the opportunity to terminate temporary disability benefits and avoid the obligation to estimate and make PD advances!  As is the case with a flying cow – the stakes/steaks are high!

So, without the benefit of legal research, your humble blogger had a few initial thoughts:

1. Anything that is the same distance as applicant’s pre-injury location from his or her home would be a reasonable commuting distance;
2. Since California Labor Code section 4658.1 allows the modified work to pay as little as 85% or the pre-injury wages, I would submit at least a 15% increase in commuting distance from the pre-injury commute would likewise be reasonable;
3. A general survey of commuting conditions in the area should be taken into account – if it is typical for employees to commute one hour each way (or 45 miles each way) in the surrounding counties, then it should not be unreasonable for applicant to be required to go with the [traffic] flow.

Subsequently, your humble blogger decided to see if any panel cases touched on this.  Sure enough, I found the case of Perry v. Direct TV, a 2016 panel decision (remember 2016, dear readers?  I sure do. In the somber words of Andy Bernard, “I wish there was a way to know you’re in ‘the good old days’ before you’ve actually left them.”)

Applicant lived about 35 miles from his office location in Manteca.  That location had policies restricting the use of company vehicles for personal trips and also required all “light duty” modified work employees to leave the vehicles on company property, rather than use them to commute home.  As a DirectTV employee, applicant regularly went from location to location in his work vehicle, only occasionally coming to the Manteca office to restock or receive training.

After applicant sustained an industrial injury, he was offered light duty at the Manteca office which would not require a company vehicle.  But therein lies the rub – he had no vehicle of his own.

The parties proceeded to trial on, essentially, the sole issue of whether the light duty offered at the Manteca office qualified as a reasonable commuting distance given that applicant had no transportation of his own.

Well the WCAB ordered further development of the record, rescinding the WCJ’s award of temporary disability benefits.  On retrial, the WCJ again found applicant entitled to TTD benefits (presumably finding the offer of modified work as invalid due to the commuting issue).  As summarized by the panel, “the WCJ reasoned that an offer of light work without the continued use of a company vehicle made to an employee that had never required a personal vehicle due to the employer’s provision of a company vehicle was not a valid offer of light work.”

The WCAB concurred, although limiting its decision to this set of circumstances.

But what are we to take from this?

Well for one thing it pointed to a helpful case for this issue.  Tuivai v. Links Electrical Service (2015 Panel Decision) held that since applicant’s regular duties required long distance travel on a regular basis to various job sites, continued long distance travel as part of modified work was within reasonable commuting distance.  There, no specific distance was necessary – just the fact that applicant traveled long distances already.

Also, we can look at the Perry case in terms of pre-injury and post-injury change.  In this case, applicant’s pre-injury work provided him with transportation to do his job (although it was going to client homes/offices rather than the main office).  The light duty not only took away his company transportation, but would have imposed the burden of commuting on applicant (whether in cost for public transportation or car purchase/rental).  In fact, the value of the company transportation likely could have factored into the average weekly wage calculation.

In other words, like with all legal inquiries, the answer is going to be “it depends.”  It depends on the facts of the case and the impact the injury has had on applicant.  If the injury results in a loss of access to transportation, that’s probably going to affect what’s “reasonable” for a proposed commute.

Here is another consideration – there are places in California where driving 20 miles to the East takes 30 minutes, but driving 20 miles to the West might take 90 minutes.  Since the regulations provide for a reasonable commuting distance, do we factor in the time spent in the commute or just the miles?  Likewise, if modified work is farther away in terms of distance but a shorter commute in terms of time, is it still “reasonable”?

If this has distracted you, dear readers, then I regard my job is well done. 

Stay safe out there!