The California Court of Appeal addressed the scope of the Going And Coming Rule in its decision, Craig Schultz v. WCAB and Joint Test Tactics and Training (JT3), 2015 S.O.S. 99, January 6, 2015. Regarding this ever evolving issue, the court concludes that the workers' compensation appeals board (WCAB) wrongly focused on the activity of the injured worker at the time of the injury rather than the determinative question: when does a commute end?
Mr. Schultz worked as a drafter for JT3. His employer occupied several buildings dispersed over the large Edwards Air Force Base. His work took him to multiple locations around the base and sometimes off the base to other work sites. He was entitled to enter the military base only by virtue of his employment with JT3. Once on the base he was entitled to use the company or military provided vehicles to travel to the distant locations at which he worked. On the date of the injury, however, he was driving his personal vehicle on the base toward his office at the beginning of his work day when he began to experience pain related to diabetes. He pulled over. While off road, he accidentally hit the accelerator, putting his car into a ditch and rolling it. He suffered severe injuries.
After trial on the issues, including whether the claim was barred by the Going And Coming Rule, the workers' compensation judge (WCJ) found that the rule was inapplicable in this context. The rule does not apply when an injured worker is providing a benefit to his employer by making his vehicle available for travel between locations during working hours. Although the applicant in this case was driving his personal car during his morning commute, sufficient evidence was admitted to persuade the WCJ that Mr. Schultz would be providing JT3 with the benefit of his car, since he would on occasion use it during work.
The WCAB reversed the WCJ and found that the important fact was not the potential benefit provided by Mr. Schultz to the employer, but his activity at the time of the injury. Here, the injury occurred before he ever arrived at work. According to the WCAB, Mr. Schultz commuting in his own car was no benefit to the employer because "[o]ccasional use of an employee's car for work purposes does not render the employer liable for any injury the employee incurs in the course of commuting to work."
The Court of Appeal disagreed with both of the lower tribunals. It tracked the long history of the Going And Coming Rule, citing in particular the 1941 decision of the California Supreme Court in Smith v. Industrial Acc. Com. (1941) 18 Cal.2d 843. In Smith, the Supreme Court held that injuries sustained by an employee at an exposition on Treasure Island in San Francisco Bay occurred within the course of his employment. Mr. Smith was injured when he jumped onto a moving truck that was transporting workers from the administration building, where employees clocked out, to the ferry terminal, where they left the island. The court wrote that "the entire island and system of roads thereon were under the control of the employer."
The Court of Appeal observed that this decision paralleled the important facts in Schultz. The Court found that once Mr. Schultz entered the Edwards base, where he was permitted only by virtue of his employment, he had entered onto the premises controlled by his employer. From his entry on, the risk of injury fell within the jurisdiction of workers' compensation.
The Going And Coming Rule is fraught with exceptions and its application in any particular case is always difficult to predict. The Schultz opinion is another example where the generally accepted conclusion that the arrival at work concludes the commute is interpreted to narrow the scope of the rule.