Wednesday, June 21, 2017
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C.A. Takes Narrow View of ‘Going and Coming’ Rule
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that the “going and coming” rule does not bar workers’ compensation coverage to an in-home caretaker who was injured while riding her bicycle from one workplace to another.
Writing for Div. Five, Acting Presiding Justice Sandy Kriegler disagreed with the assertion of the state Department of Social Services that its employee, Yu Qin Zhu, was not entitled to benefits any more than an employee is who encounters harm when going to or from work. The very time that she was not commuting between her home and a worksite precluded application of the rule, he said.
He also disagreed, however, with the position of the Workers’ Compensation Appeals Board—reached, upon reflection, after the Court of Appeal granted a writ or review—that the “required vehicle” exception to the going and coming rule applied, and benefits are owed. The exception applies where an employee uses his or her own vehicle in the course of employment, providing an incidental benefit to the employer.
Part of Duties
Rather than adopting the board’s view, by applying an exception to a rule which he found inapplicable, Kriegler said that “[u[nder the circumstances, a reasonable person would conclude that transiting between homes was part and parcel of Zhu’s job.”
She had been employed by the department for 12 years, he noted, and it had to realize that she needed some form of transportation to go from one house to another to provide care. Kriegler wrote:
“But there is more than the Department’s passive knowledge that Zhu was traveling between homes she was servicing. The Department was a direct beneficiary of this since it allowed Zhu to service more than one home per day. This directly increased the Department’s ability to service persons in need. Given the length of time that Zhu worked for the Department and that the Department knew that Zhu traveled between the homes she was servicing, it is a reasonable inference that the Department at least impliedly required Zhu to provide for her own transportation between homes so that she could service more than one home per day.”
Benefit to Department
He continued:
“In other words, since the Department did not furnish Zhu with transport, the only way the Department could obtain the benefit of multiple homes being serviced in a day was to require Zhu to furnish her own transportation. The benefit obtained by the Department distinguishes Zhu’s case from those where the employees chose to work at home solely for the employees’ own convenience.”
The WCAB’s previous decision denying benefits was annulled and was remanded for a new decision.
The case is Zhu v. WCAB, B278696.
F. Michael Sabzevar represented Zhu; Anne Schmitz and Allison J. Fairchild argued for the WCAB; Jeffry A. Miller, Arezoo Jamshidi, Jonna D. Lothyan, Catherine M. Asuncion, Sebastian E. Lee, and Caroline E. Chan of Lewis Brisbois Bisgaard & Smith were the lawyers for the Department of Social Services.
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