Zhu v. Workers' Comp. Appeals Bd. etc. ( 2017 )

Filed 6/20/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
YU QIN ZHU, No. B278696
Petitioner, (W.C.A.B. No.ADJ10324875)
v.
WORKERS’ COMPENSATION
APPEALS BOARD and
DEPARTMENT OF SOCIAL
SERVICES,
Respondents.
PROCEEDINGS to review a decision of the Workers’
Compensation Appeals Board. Annulled and remanded with
directions.
Law Offices of F. Michael Sabzevar and F. Michael
Sabzevar for Petitionier.
Anne Schmitz and Allison J. Fairchild for Respondent
Workers’ Compensation Appeals Board.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller,
Arezoo Jamshidi, Jonna D. Lothyan, Catherine M. Asuncion,
Sebastian E. Lee, and Caroline E. Chan, for Respondent
Department of Social Services.
__________________________
The petitioner, an in-home caretaker, was riding her
bicycle from one private home where she worked to another
home where she was scheduled to work when she was struck
and injured by a car. Her employer, the California State
Department of Social Services (Department), paid the
petitioner for working at both of these locations.
A majority of the Workers’ Compensation Appeals
Board (appeals board) concluded that the going and coming
rule1 barred the petitioner’s claim for workers’ compensation
benefits. However, the dissent and the workers’
compensation judge (WCJ) found that the required vehicle
1 “In substance the courts have held non-compensable
the injury that occurs during a local commute enroute to a
fixed place of business at fixed hours in the absence of
special or extraordinary circumstances. The decisions have
thereby excluded the ordinary, local commute that marks
the daily transit of the mass of workers to and from their
jobs; the employment, there, plays no special role in the
requisites of portage except the normal need of the presence
of the person for the performance of the work.” (Hinojosa v.
Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157
(Hinojosa).)
2
exception2 to the going and coming rule applied because the
petitioner was impliedly required to provide her own
transportation between patients’ homes.
After we granted the petition for a writ of review, the
appeals board filed a brief stating that upon further
consideration the appeals board has concluded that the
required vehicle exception applies with the result that
petitioner’s injury arose out of and in the course of
employment. The appeals board requests that we either
annul its earlier decision and affirm the WCJ’s decision or
remand the matter to the appeals board for a new opinion
and decision. The Department, however, insists that the
required vehicle exception does not apply and that the going
and coming rule bars recovery. Since we do not agree with
the Department, we annul the appeals board’s decision and
remand with directions to issue a new decision and opinion
consistent with this opinion.
2 The “required vehicle” exception to the going and
coming rule “‘“arises where the [employee’s] use of [his or her
own] car gives some incidental benefit to the employer.
Thus, the key inquiry is whether there is an incidental
benefit derived by the employer.”’” (Moradi v. Marsh USA,
Inc. (2013) 219 Cal.App.4th 886, 895, italics in original; see
also Smith v. Workers’ Comp. Appeals Bd. (1968) 69 Cal.2d
814, 819–820 (Smith).)
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THE FACTS
After an interview with the Department, petitioner Yu
Qin Zhu (Zhu) was hired as a home caretaker by the
Department. The Department added Zhu to the registry of
qualified workers. Zhu reviewed the registry of patients,
contacted persons on the registry, and then interviewed her
selections so that both parties could decide whether Zhu
would work as their caretaker. The patients Zhu cared for
set the schedule and told her what her duties were for each
day.
Zhu worked as a caretaker for the Department from
2003 through 2015. Zhu was paid by the Department every
two weeks with one paycheck for all the work performed.
She was not paid for transportation to, from, or in between
locations.
On December 16, 2015, Zhu cared for a couple living in
Monterey Park from approximately 8:30 a.m. to 11:30 a.m.
Zhu was scheduled to care for a woman in Alhambra in the
afternoon. While she was riding her bike from Monterey
Park to the house in Alhambra, Zhu was involved in a
bicycle-automobile collision.
PROCEDURAL HISTORY
Zhu’s claim was heard on the limited issues of
employment and injury arising out of and in the course of
the employment. The WCJ found Zhu’s injury compensable
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because her “transportation between the clients’ homes was
a mandatory part of the employment.”
On September 19, 2016, a majority of the appeals
board rescinded the WCJ’s decision, finding that the
Hinojosa (fn. 1) and Smith (fn. 2) cases were distinguishable
because the employees in both cases were required to furnish
personal vehicles for their jobs. Zhu, on the other hand,
chose her own clients, work locations and hours, and merely
used the Department to obtain client referrals. The means
of transit were immaterial to the Department, and travel by
bicycle was for Zhu’s own convenience and benefit.
The dissent agreed with the WCJ and found “there was
an implied requirement that [Zhu] furnish her own
transportation to travel between disabled clients, care for
whom is the responsibility of defendant.” The dissent found
Zhu qualified for the “required vehicle exception” to the
going and coming rule because the employer received a
benefit from the employee’s provision of her own
transportation between job sites. Zhu therefore was
performing services growing out of and incidental to her
employment when she brought her bicycle to work, making it
available for use on a regular basis.
The appeals board’s decision of September 19, 2016 is
reviewable by a writ of review in that it is a final
determination of a threshold issue that disposed of the
petitioner’s claim. (Capital Builders Hardware, Inc. v.
Workers’ Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th
658, 663 [order is reviewable because it terminated workers’
5
compensation proceedings]; Safeway Stores, Inc. v. Workers’
Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 534–535.)
DISCUSSION
A. The going and coming rule
The history of the going and coming rule and the
exceptions to that rule are authoritatively set forth in
Hinojosa, supra, 8 Cal.3d at pages 153–160, and need not be
repeated. Suffice it to say that the history of this rule is
“tortuous,” that Dean Pound thought in 1954 that the rule
was “‘moribund,’” and that some think that the exceptions
have swallowed the rule. (Id. at p. 156.) Given this
unprepossessing background, and the requirements of the
case before us, the best course is to inquire to what facts the
rule is intended to apply. On this question, Hinojosa is
helpful.
After noting the conflict between the employer’s
interest to be immune from liability “for the employee’s
injury or death that occurs in the everyday transit from
home to office or plant [and] the contrary interest of the
employee [] in his desire to be protected from loss by injury
or death that occurs in the non-routine transit” (Hinojosa,
supra, at pp. 156–157), the court concluded:
We think a careful analysis of the decisions
will develop the formula that reconciles the
divergent positions. The cases have suggested a
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sensible line under workmen’s compensation
between the extremes of absolute coverage and
absolute rejection for all transit-suffered injuries.
In substance the courts have held non-
compensable the injury that occurs during a local
commute enroute to a fixed place of business at
fixed hours in the absence of special or
extraordinary circumstances. The decisions have
thereby excluded the ordinary, local commute
that marks the daily transit of the mass of
workers to and from their jobs; the employment,
there, plays no special role in the requisites of
portage except the normal need of the presence of
the person for the performance of the work.
(Hinojosa, supra, at p. 157, italics added.)
It appears therefore that the going and coming rule
applies when the employee is commuting between his home
and work or, as Hinojosa characterizes it, it applies to a
“local commute enroute to fixed a place of business at fixed
hours.” (Hinojosa, supra, 8 Cal.3d at p. 157.) Thus, if the
employee is commuting between his or her home and place of
work at the time of day that is usual for the commute, the
going and coming rule applies. The reason for this is that on
such a commute the employment “plays no special role in the
requisites of portage except the normal need of the presence
of the person for the performance of the work.” (Ibid.) That
is, no special benefit is conferred upon the employer or the
employment relationship by the commute.
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Zhu was not commuting between home and the
workplace at a fixed time for that commute when she was
injured. Thus, the going and coming rule does not apply if
the rule is understood to apply to commutes between home
and the workplace at a fixed time.
B. Transit for the benefit of the employer or employment
However, the going and coming rule has in practice
been invoked when the employee was in transit between
points other than the home and workplace. In these cases
the real issue is not whether the going and coming rule
applies, but whether the transit is part of the employment or
the employment relationship. Thus, a transit for the
purposes of lunch and the lunch break is not a part of the
employment relationship (Tryer v. Ojai Valley School (1992)
9 Cal.App.4th 1476, 1482), but where the employer expressly
or impliedly requires the employee to furnish his own car for
the employer’s own purposes, the transit is part of the
employment. (Hinojosa, supra, 8 Cal.3d at pp. 160–161.)
Whether the transit is part of the employment
relationship tends to be a more subtle issue than whether
the transit was between home and work. Hinojosa is again
helpful:
These are the extraordinary transits that vary
from the norm because the employer requires a
special, different transit, means of transit, or use
of a car, for some particular reason of his own.
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When the employer gains that kind of a
particular advantage, the job does more than call
for routine transport to it; it plays a different role,
bestowing a special benefit upon the employer by
reason of the extraordinary circumstances. The
employer’s special request, his imposition of an
unusual condition, removes the transit from the
employee’s choice or convenience and places it
within the ambit of the employer’s choice or
convenience, restoring the employer-employee
relationship.
(Hinojosa, supra, 8 Cal.3d at p. 157.)
Once it is clear that the transit is not a commute
between home and work at a fixed time, the inquiry should
be whether the transit was the employer’s choice or was of
some benefit to the employer or the employment
relationship. This is by no means a novel inquiry. The
courts, in crafting the so-called exceptions to the going and
coming rule, responded to this very inquiry. The exceptions
to the going and coming rule are, in the main, instances
where the transit is the employer’s choice or confers some
benefit on the employer.
A review of some of these exceptions will illustrate this
point. One exception is when travel expenses are paid by the
employer. (1 Hanna, Cal. Law of Employee Injuries and
Workers’ Compensation (rev. 2d ed.) § 4.154[1], p. 4-191.)
The “employer who makes a substantial payment for travel
expenses in order to induce an employee to accept work at an
extensive distance from his home has impliedly agreed that
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the employment ‘relationship shall continue during the
period of “going and coming”. . . .’” (Zenith Nat. Ins. Co. v.
Workmen’s Comp. App. Bd. (1967) 66 Cal.2d 944, 948,
quoting Kobe v. Industrial Acci. Com. (1950) 35 Cal.2d 33, 35
(Kobe).) In these cases, it is clear that the employer has
made the decision to make the transit part of the
employment relationship by actually paying for it.
To the same effect are the cases where the employer
furnishes transportation to and from work. (Kobe, supra, 35
Cal.2d at p. 35.) “The essential prerequisite to compensation
is that the danger from which the injury results be one to
which he is exposed as an employee in his particular
employment,” and “[t]his requirement is met when, as an
employee and solely by reason of his relationship as such to
his employer, he enters a vehicle regularly provided by his
employer for the purpose of transporting him to or from the
place of employment.” (California Casualty Indem.
Exchange v. Industrial Acci. Com. (1942) 21 Cal.2d 461, 466.)
Here, again, it is the employer’s decision to make the transit
part of the employment relationship.
The same is true where the employer expressly or
impliedly requires the employee to furnish his own car for
the employer’s own purposes. (Hinojosa, supra, 8 Cal.3d at
pp. 160–161; Smith, supra, 69 Cal.2d at p. 820.) The
exception “arises from the principle that an employee ‘is
performing service growing out of and incidental to his
employment’ (Lab. Code, § 3600) when he engages in conduct
reasonably directed toward the fulfillment of his employer’s
10
requirements, performed for the benefit and advantage of
the employer.” (Smith, 69 Cal.2d at pp. 819–820.)
Likewise, “when the employee engages in a special
activity which is within the course of his employment, and
which is reasonably undertaken at the request or invitation
of the employer, an injury suffered while traveling to and
from the place of such activity is also within the course of
employment and is compensable.” (Dimmig v. Workmen’s
Comp. Appeals Bd. (1972) 6 Cal.3d 860, 868 (Dimmig).) The
employer’s special request for a service outside the
employee’s regular duty is a decisive factor, including the
performance of the usual service but at an odd hour.
(Schreifer v. Industrial Acci. Com. (1964) 61 Cal.2d 289,
291.) Like the furnishing of the employee’s vehicle, the
travel is at the employer’s request and provides a particular
advantage to the employer through “‘“the bother and effort of
the trip itself.”’” (Dimmig, supra, at p. 868.)
Finally, where an employee is required by the
employment to work at both the employer’s premises and at
home, he is in the course of employment while traveling
between the employer’s premises and home. (Bramall v.
Workers’ Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 157–
158.) “The basic question to be answered in a particular case
is whether ‘the trip involves an incidental benefit to the
employer, not common to commute trips by ordinary
members of the work force.’ [Citations.]” (Ibid.)
With these guideposts in mind, we turn to the facts of
this case to determine whether the transit in this case was
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at the employer’s express or implied request, or whether the
transit was part of the employment relationship.
C. Zhu’s transit was for the Department’s benefit and was
impliedly requested by the Department
The Department’s statutory mandate is “to provide in
every county . . . supportive services . . . to aged, blind, or
disabled persons, . . . who are unable to perform the services
themselves and who cannot safely remain in their homes or
abodes of their own choosing unless these services are
provided.” (Welf. & Inst. Code, § 12300, subd. (a).) Thus,
the provision of care in the home is one of the Department’s
tasks.
Zhu worked for the Department for twelve years. The
Department, which paid Zhu, was fully aware of Zhu’s
workload and obviously knew that Zhu was providing home
care to more than one home per day. It was ineluctable that
Zhu would have to transit from one home to another and
that the Department knew that she was doing so.
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
12
required Zhu to provide for her own transportation between
homes so that she could service more than one home per day.
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. (Santa Rosa Junior College
v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 345; Wilson
v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 181.)
This case is much like Hinojosa where the employee, a
farm laborer, was shifted by the employer during the day
between seven or eight non-contiguous ranches. (Hinojosa,
supra, 8 Cal.3d at p. 152.) The employees were required to
use their own means of transportation for this purpose.
However, what was decisive was not that they were required
to furnish their own transportation, but that the employer
directly benefited from the transits which rendered the
transits part of the employment. (Id. at p. 160.) The direct
benefit to the Department of the transit is certainly a
hallmark of this case.
The Department contends that since it did not require
Zhu to service more than one patient per day, the required
vehicle exception does not apply. To the same effect is the
Department’s argument that it did not “structure” the work
in such manner that required transportation between
homes. This may be so, but the Department accepted the
13
benefit provided by Zhu servicing multiple homes in one day,
and it did so for a number of years. Under these
circumstances, a reasonable person would conclude that
transiting between homes was part and parcel of Zhu’s job.
The appeals board contends that the so-called
“required vehicle” exception applies. We do not disagree.
However, we prefer to state that under the particular facts of
this case, the going and coming rule does not apply because
Zhu was not commuting between her home and the
workplace at a fixed time (Hinojosa, supra, 8 Cal.3d at p.
157), and Zhu’s transit bestowed a direct benefit on the
Department, as the Department knew that Zhu had to
transit between homes to service more than one home a day,
her transit was at the implied request of the Department
and was thus a part of her employment relationship.
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DISPOSITION
The decision of the Workers’ Compensation Appeals
Board entered on September 19, 2016 is annulled and the
matter is remanded to the Workers’ Compensation Appeals
Board for further proceedings consistent with this opinion.
KRIEGLER, Acting P.J.
We concur:
BAKER, J.
DUNNING, J.
 Judge of the Orange Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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