Baroid v. Workers' Comp. Appeals Bd.

• Decision Date: 14 July 1981
• Court: California Court of Appeals Court of Appeals
• Parties: N. L. BAROID, a corporation, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Thomas G. Hancock, Respondents. Civ. 60951.

Page 633

175 Cal.Rptr. 633

121 Cal.App.3d 558

N. L. BAROID, a corporation, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Thomas G. Hancock, Respondents.

Civ. 60951.

Court of Appeal, Second District, Division 1, California.

July 14, 1981.

Hearing Denied July 22, 1981.

Hearing Denied Sept.10, 1981.

Jones, Nelson, Sisk & Ford, by David P. Ford, Santa Ana, for petitioner.

Cantrell & Green, by Marilyn S. Green, Long Beach, for respondent Thomas G. Hancock.

LILLIE, Associate Justice.

Respondent Thomas G. Hancock (hereinafter also "applicant") sustained injury on July 5, 1979, in an automobile accident on a public street while he was on the way to work for petitioner N. L. Baroid (employer). Applicant was in his own automobile at the time of injury. It is undisputed that he was en route to his place of employment at the time of injury. This accident has resulted in severe injury to applicant, including paraplegia; further, the injury has affected his memory concerning the details of the events leading up to his injury.

The WCAB has found that applicant's injury is compensable under the Workers' Compensation Act. Petitioner contends that under the "going and coming" rule applicant's injury is not compensable. Applicant and the WCAB, however, assert that the injury is compensable under one or more exceptions to the going and coming rule.

I

"The going and coming rule precludes (recovery under the Workers' Compensation Act) for injury suffered during the course of a local commute to a fixed place of business at fixed hours in the absence of exceptional circumstances. (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 501 P.2d 1176). (P) For purposes of the rule, the employment relationship does not begin until an employee enters the employer's premises. Prior to entry the going and coming rule ordinarily precludes recovery; after entry, injury is generally presumed compensable as arising in the course of employment. (Pacific Indem. Co. v. Industrial Acc. Com. (1946) 28 Cal.2d 329, 336, 170 P.2d 18; Cal. Cas. Ind. Exch. v. Ind. Acc. Com. (1943) 21 Cal.2d 751, 755, 135 P.2d 158; 1 Larson, Workmen's Compensation Law (1972) §§ 15.00-15.11, pp. 4-2 4-4.)" (General Ins. Co. v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 595, 598, 128 Cal.Rptr. 417, 546 P.2d 1361.) The going and coming rule, however, is riddled with exceptions. (Hinojosa v. Workers' Comp. Appeals Bd. (1972) 8 Cal.3d 150, 156, 104 Cal.Rptr. 456, 501 P.2d 1176; Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 156, 144 Cal.Rptr. 105.)

One such exception to the going and coming rule is the "special mission" exception. Under this exception, "An injury suffered by an employee during his regular commute is compensable if he was also performing a special mission for his employer. (2 Hanna, (Cal.Law of Employee Injuries and Workmen's Compensation (2d ed.)), § 9.03(3)(iv), pp. 9-41 9-43.) The employee's conduct is 'special' if it is 'extraordinary in relation to routine duties, not outside the scope of employment.' (Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 295, 38 Cal.Rptr. 352, 391 P.2d 832). The special mission rule 'is ordinarily held inapplicable when the only special component is the fact the employee began work earlier or quit work later than usual.' (1 Larson, (Workmen's Compensation Law), § 16.12, p. 4-98.)" (General Ins. Co. v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 601, 128 Cal.Rptr. 417, 546 P.2d 1361.)

Another well recognized exception to the going and coming rule is the "special risk" exception. "If, prior to entry upon the (employer's) premises, an employee suffers injury from a special risk casually related to employment, the injury is compensable under the 'special risk' exception to the going and coming rule. 'The facts that an accident happens upon a public road and that the danger is one to which the general public is likewise exposed, however, do not preclude the existence of a causal relationship between the accident and the employment if the danger is one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.' (Freire v. Matson Navigation Co. (1941) 19 Cal.2d 8, 12, 118 P.2d 809; 1 Larson, supra, § 9.30, pp. 3-48 3-50)." (General Ins. Co. v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 600, 128 Cal.Rptr. 417, 546 P.2d 1361.)

II

The employer here is engaged in the business of supplying equipment to oil well drilling operations. Applicant's routine work shift was 8 a. m. to 4:30 p. m., which is the employer's only regular work shift. However, because of the nature of the employer's business, employees were required to be available 24 hours a day; the employer operated around the clock. Applicant was therefore required to make himself available, outside his regular work shift hours.

The employer provided applicant with an "airpage beeper," a device which applicant carried with him in the event he was unavailable by phone. The on-call nature of the employment was understood by applicant when he was hired by the employer. Approximately ten times per month he would be called into work outside of his regularly scheduled work hours. Sometimes being called into work outside of his regularly scheduled shift only involved a few minutes (e. g., opening up the gates to the employer's premises); on other occasions applicant would end up working 12 hours straight. Sometimes the employer would advise applicant ahead of time (e. g., the previous work day) that he would have to come into work early; other times the employer would just phone or use the beeper to call applicant immediately into work.

Applicant traveled to work in his own automobile. The employer did not provide transportation, pay for transportation expenses or pay a mileage allowance even in the situation where applicant was called into work when the employer called him by phone or used the beeper to reach him. When applicant would be told ahead of time (e. g., the previous day) that he would have to come in outside of his regular shift, he would not be paid for his travel time. According to applicant, however, he was paid for his travel time to work when the employer phoned him or used the beeper to have him immediately come into work outside of his regularly scheduled shift.

The injury herein occurred on July 5, 1979, at approximately 4:45 a. m. while applicant was on his way to report to work at 5 a. m. at the employer's premises. It is undisputed that applicant was reporting to work early at 5 a. m. at the request of the employer. What is unclear are the circumstances surrounding the employer asking applicant to come to work early. Unfortunately, the accident herein has affected applicant's memory.

Applicant's last work day prior to the injury was July 3, 1979. Applicant does not recall being told prior to July 5th to come in at 5 a. m. on the morning of July 5th. He does remember being awakened on the morning of July 5th by a telephone call. He does not recall the name of the caller or the substance of the conversation. He then called someone, but does not recall who or what the call was about. He then remembers hurrying to get dressed and going to work.

A co-worker, Jeweral Washington, remembers on July 3rd being told by his supervisor, Hubert Sanchez, that Washington was to come to work at 5 a.m. on July 5th and either applicant or another employee (Ron Taylor) would come in to help him. Washington remembers Sanchez asking if he wanted applicant or Taylor to come in to help him and Washington told Sanchez that it did not matter to him. According to Washington, when he was leaving work on July 3rd at about 4:30 p.m. to 5 p.m., applicant told Washington that applicant would be working with Washington on July 5th. Washington did not receive any phone call on the morning of July 5th. ¹

III

The workers' compensation judge, whose decision has been upheld by WCAB, has found that applicant's accident is compensable under the Workers' Compensation Act as applicant's injury came within the special mission exception to the going and coming rule. In his "Report and Recommendation on Petition for Reconsideration" the judge reasoned:

"The landmark case of Schreifer v. I. A. C., County of Los Angeles, State Compensation Insurance Fund (1964) 61 Cal.2d 289, 38 Cal.Rptr. 352, 391 P.2d 832 clarified the definition of the term 'special mission.' ' "Special" means extraordinary in relation to routine duties, not outside the scope of the employment' (page (295, 38 Cal.Rptr. 352, 391 P.2d 832)). 'In reporting to work hours ahead of his regularly scheduled shift, he (Schreifer) was doing more than merely making services available at the place where they (were) needed. Making the trip at that time was a special service There must have been some special need for Schreifer's services at that time.' ((pp. 294-295, 38 Cal.Rptr. 352, 391 P.2d 832.))

"In another landmark case, L. A. Jewish Council v. I. A. C. (1949) 94 Cal.App.2d 65, 209 P.2d 991, Rabbi Cohn, an employee, was killed while enroute to work. The circumstances were that the decedent normally performed his duties as a librarian during the afternoon hours. His duties included the inspection and discussion of recent acquisitions. During the week of the accident, he was called upon to come to work in the evenings, to participate in certain opening ceremonies, and to then make speeches. He was asked to come early on the evening in question, earlier than he would have come for that evening's speaking duties, to inspect and discuss certain purchases. He was killed enroute. It was held that this especially early evening trip to perform services which were part of his day-time duties but extraordinary for evening work, fell within the 'special mission' exception.

"In the instant case, applicant Hancock was supposed to be at work at 5:00 a. m. on July 5th. W...