WCDefenseCA

Hello, dear readers!  Thank you all for your kind notes of concern – your humble blogger barely survived being washed away by the storm that slammed into the Bay Area this past Thursday and Friday.  The devastation is heartbreaking, but, rest assured, your humble blogger is determined to march onward!

Just as the skies let forth their blessings on the reluctant recipients of San Francisco and the surrounding areas, so, too, your humble blogger will rain down his wrath upon his luckless readers in the form of another blog post.

The case I bring to your attention today is that of Coon v. Swift Transportation.  Applicant was a student long-haul truck driver out on assignment when he took a dinner break, only to be viciously assaulted after parking the truck and walking to get dinner.  The employer’s policy was to have drivers stay with the trucks in “high theft areas,” which, apparently, includes the entirety of Southern California.  (By contrast, Northern California is regarded as an area of high awesomeness, so there!)

Even after the arrest of the assailant, there had been no allegations of any personal connection between the assailant and applicant.  So, in all likelihood, this was “nothing personal” and really about either hurting an unfortunate victim, or effecting a robbery through extremely violent means.

The WCJ and the WCAB both found the injuries sustained as the result of the assault to be compensable.  Applicant was a commercial traveler, in that he was traveling with the truck on the way to a delivery.  So, even when he stopped to rest, sleep, or eat, he was still “on the job.”  Furthermore, he was following his employer’s instructions to stay with the truck to prevent theft.  In fact, it is entirely possible (and probably likely) that had he left the truck in a parking lot and retired to a hotel for the night, he and the assailant would not have crossed paths.

Another point of interest in this case, however, is that the defense apparently cited to the case of County of San Bernardino v. WCAB (Tuttle), a 1997 Court of Appeal case that was NOT Published.  In Tuttle, the Court of Appeal ruled that the victim of an assault failed to carry his burden in showing that the assault was related to his employment.  Presumably, when taken with the Court of Appeal’s ruling that Labor Code section 3202 is inapplicable when the compensability of an injury has not yet been determined, the defense had an argument against compensability.

In its opinion, the WCAB cautioned the defense against relying on unpublished opinions, as such behavior is expressly prohibited by California Rules of Court 8.1115.  However, in this case, does it matter?  Even if the injury were not otherwise compensable – even if the assault were of a personal nature completely unrelated to his job duties… he’s a commercial traveler!

May you have an easy week, dear readers, and, of course, Happy Channukah!

By now we’re all familiar with the going and coming rule, and also its exception of the “commercial traveler.”  A commercial traveler is one that is on a trip for business purposes (think conferences, special projects, recruiting events) and is thereby taken away from hearth and home, sometimes for days at a time.  When an employee is a commercial traveler (not to be confused with a Travelers commercial) it is generally considered that he or she is always on the clock, and therefore the going and coming rule does not apply.

Enter the case of Antonio Parvool v. Tony’s Food Service (coincidentally insured by Travelers).  Mr. Parvool, the poor, unfortunate man, had the difficult job of going to Hawaii to assist in providing catering services to movie production crews.  While he was not handing out whole-wheat extra-thin bagels to movie stars, he got to enjoy the surrounding area, including the employer-provided hotel and swimming pool.

Despite your humble blogger’s valiant efforts, workers’ compensation Judges in California are reluctant to grant change-of-venue motions to Hawaii – some nonsense about state jurisdiction.  Rest assured, when your humble blogger is finally in charge, workers’ compensation trials will be held on the beaches of Hawaii in casual attire, and applicants will immediately realize there is more to life than hounding an employer over a paper cut.  Objections will be made with Mai-Tai in hand, and all permanent disability indemnity will be paid in macadamia nuts.  Someday…

Having spent too much time around action movie stars and their stunt doubles, applicant decided to dive head-first into the shallow portion of the hotel swimming pool, and sustained injuries to his neck, upper extremities, lower extremities, psyche, and digestive system.  Defendant pointed out that applicant wasn’t on the clock when he took his dive, but applicant’s counsel responded by pointing out that the commercial traveler rule applied.

Persuaded by defendant’s arguments, the workers’ compensation Judge held that Labor Code section 3600(a)(9) rendered this injury non-industrial, as applicant’s injury arose “out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties.”

Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration and, having rubbed the lamp in just the right way, the applicant’s wish was granted.  The WCAB reasoned that section 3600(a)(9) does not apply to the commercial traveler exception, but rather to routine injuries.  So, if a hotel worker were to take a lunch break and go for a swim in the hotel pool, sustaining the exact same injury as the unfortunate Mr. Pavool, the injury would not be compensable under section 3600(a)(9).

In its reasoning, the WCAB points out that it is unreasonable to expect an employee to remain cooped up in a hotel room.  Even this, we have seen, may not spare a traveling employee an injury.

So, if you’re sending your employee on a trip, see if you can find a hotel with a swimming pool that only has deep ends!

If an employee “lives” far away from where he “works” is he ever off duty?  The answer, according to the Workers’ Compensation Appeals Board and the Court of Appeal, is yes!

In the case of Dann Peter Shubin v. Workers’ Compensation Appeals Board, applicant worked as a pilot for Southwest Airlines, and was based in Oakland, even though he and his wife “lived” in Pasadena.  Applicant would arrange his schedule to have weekends off and would stay with friends or in his van between flights.

Under Southwest Airlines’ scheduling scheme, after a flight, reserve pilots like Mr. Shubin would receive a 9-hour “rest” period during which they could not be recalled for more work.  Applicant had just started one of these rest periods and decided to visit friends in Winters, a town roughly an hour away.

En route, applicant was in a car collision, and subsequently filed a claim for workers’ compensation benefits.  The Workers’ Compensation Judge found the injury AOE/COE (arising out of employment and within the course of employment), and defendant filed a petition for reconsideration.

Because the WCJ did not submit a report on recommendation, we will never know his reasoning.  Never the less, the WCAB studied the issue and granted reconsideration, recognizing that the coming and going rule applied to this case.  [If the going and coming rule does not apply to an employee who, by company-wide policy, can not under any circumstances be assigned any tasks for the next 9 hours, I don’t know where it would apply.]

The “going and coming” rule is one of those rare instances where common sense and reasonability poke their way through the shroud of California’s Workers’ Compensation system.  Essentially, the rule provides that injuries sustained going to or coming from work are not covered by workers’ compensation.

There are exceptions to this rule, of course.  These exceptions include “special missions” and “commercial travelers,” the details of which are the subject of a future post.  Because applicant was officially and actually off-duty for the next 9 hours, the going and coming rule applied and applicant’s claim was barred.

Applicant was a free man living in a nation of laws – he chose to “live” in Pasadena, he chose to “work” in Oakland, and he chose to visit Winters on the night of his unfortunate car accident.  The only alternative outcome for this case would have been to hold that if an employee works outside the four walls of his home, he is always on duty by virtue of being on the other side of his front door.

Dear readers, by no means am I the type of man to tell others how to run their businesses.  But it is worthy to note that in this case, Southwest was saved by having a company-wide policy of duty/off-duty pilots and sticking to that policy.  No doubt if applicant could have offered evidence that pilots were occasionally called back to duty during their “rest” period, in violation of this rule, the case would have turned out quiet differently.