Southern California Rapid Transit Dist., Inc. v. Workers Compensation Appeals Bd.

• Decision Date: 24 May 1978
• Citation: 146 Cal.Rptr. 277,81 Cal.App.3d 302
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, INC., permissibly self-insured, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD of the State of California, and Elliott Weitzman, Respondents. Civ. 52349.

Page 277

146 Cal.Rptr. 277

81 Cal.App.3d 302

SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, INC., permissibly self-insured, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD of the State of California, and Elliott Weitzman, Respondents.

Civ. 52349.

Court of Appeal, Second District, Division 5, California.

May 24, 1978.

For Opinion on Hearing, see 151 Cal.Rptr. 666, 588 P.2d 806.

James L. Flournoy, Los Angeles, for petitioner.

Owen A. Silverman, Inc., Torrance, and Fred L. Wright, Los Angeles, for respondent Elliott Weitzman.

Charles L. Swezey, Philip M. Miyamoto and Thomas J. McBirnie, Jr., San Francisco, for respondent Workers' Compensation Appeals Board.

STEPHENS, Associate Justice.

Petitioner Southern California Rapid Transit District, Inc. (hereinafter "R.T.D.") contends that the appeals board erred. It held compensable the disability resultant from an automobile accident sustained by respondent Elliott Weitzman. His injuries occurred when he was returning from a trip to his R.T.D. district office. Weitzman had dropped off a medical release authorizing him to return to work from an industrial injury. We agree and annul the award.

FACTS

Weitzman sustained an admitted industrial injury on February 29, 1976, while employed as a bus driver for R.T.D.

On September 27, 1976, Weitzman took a release to the R.T.D. authorizing him to return to work on a trial basis. A personnel clerk at R.T.D. indicated that Weitzman could not return to work since Dr. Abramson's release was with restrictions. This was not acceptable to R.T.D. Weitzman was advised that a full release was necessary and that once he obtained such a release he could bring it directly to the local district office. On September 28, 1976, Weitzman obtained a full release authorizing him to work without restriction on September 30, 1976. Weitzman took the release to R.T.D.'s local district office. After delivering the release, and while he was going home, Weitzman was involved in an automobile accident resulting in injuries.

Weitzman testified that in order to return to work he had to turn in Dr. Abramson's release before 11 a. m. of the day he was to return to work. He understood that he was to return to work on September 28, 1976; but since he did not deliver the release until after 11 a. m., he was not permitted to return to work that day. He also testified that he could not call in his return to work release but had to bring it to the R.T.D. office.

Relying upon Laines v. Workmen's Comp. Appeals Bd. (1975) 48 Cal.App.3d 872, 122 Cal.Rptr. 139, the judge held that the injury was industrially compensable. R.T.D. sought reconsideration. In a two-to-one panel decision, the Board denied reconsideration. The majority of the Board stated, in part:

"Applying the Laines rationale to the instant case, we find that as a consequence of his February 29, 1976 industrial injury, applicant (Weitzman) undertook a mission which entailed traveling from his physician's office to his employer's office in order to deliver a work release required by the employer in order for applicant to resume full work status. Applicant was injured during the homeward bound portion of this trip. The trip occurred as a consequence of applicant's earlier industrial injury, therefore, the injury applicant sustained during that trip arose out and occurred in the course of his employment and is compensable. On the basis of the foregoing discussion, we affirm the workers' compensation judge's finding . . . ."

The dissenting Board member concluded that when Weitzman delivered the work release to R.T.D., his temporary disability status ended; therefore the trip home constituted a normal commute within the going and coming rule.

DISCUSSION

Weitzman's automobile accident injury is urged as industrially compensable upon two theories: the first is under Laines, supra, as held by the Board; and, secondly, under the "special mission" exception to the going and coming rule.

1. Does Laines apply?

In Laines the injured employee sustained an industrial injury for which his employer directed him to seek medical treatment from a particular doctor. In transit to the doctor's office via motorcycle, the injured was involved in an accident. It was undisputed that the industrial injury was not in itself a factor contributing to the accident. (Cf. State Comp. Ins. Fund v. Ind. Acc. Com. (Wallin ) (1959) 176 Cal.App.2d 10, 1 Cal.Rptr. 73.)

The court in Laines found the injuries from the accident compensable, stating:

". . . Where the visit to the doctor is based on the statutory obligation of the employer to furnish and the employee to submit to medical examination and nondangerous treatment (see Lab.Code, §§ 4600, 4050, 4056), an injury sustained in the course of such a visit should be held to be an injury arising out of and in the course of employment within the meaning of section 3600 of the Labor Code. If the employee elects to stay at home rather than to venture out to such a medical examination treatment, he risks losing his right to seek compensation for his industrial injury under Labor Code sections 4053 and 4056." (Laines, supra, 48 Cal.App.3d 872, 877, 122 Cal.Rptr. 139, 142.)

Professor Larson analyzes the situation presented by Laines as the concept of "quasi-course of employment." (1 Larson, Workmen's Compensation Law (1978) § 13.11.)

". . . By this expression is meant activities undertaken by the employee following upon his injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. 'Reasonable' at this point relates not to the method used, but to the category of activity itself. . . . Quasi-course activities in this sense would include, for example, making a trip to the doctor's office and reaching for aspirin in the medicine cabinet. The concept of quasi-course would not, however, include beating one's wife or engaging in a boxing match."

Under the "quasi-course activity" an injury while on a trip to the doctor's office is compensable:

"When an employee suffers additional injuries because of an accident in the course of a journey to a doctor's office occasioned by a compensable injury, the additional injuries are generally held compensable. . . .

"When compensation has been denied in this type of case, there has usually been some added factor weakening the causal connection, such as doubt about whether the trip was really authorized, or termination of the employment relation before the second injury occurred. Denials have also issued when the purpose of the trip was not treatment by a doctor, but examination for purposes of a workmen's compensation claim or for purposes of meeting the employer's requirement of a physical fitness certificate. Other denials in apparently related cases may be accounted for by the fact that the original injury was not work-connected, as where an employee suffers a heart attack and then attempts to connect it with the employment by pointing to the exertion of making his way to the employer's clinic or infirmary.

"In the simple case, however, of a trip to the doctor's office necessitated by a compensable injury, the arguments put forward by the Kansas court in the Taylor case (Taylor v. Centrex Construction Company (1963), 191 Kan. 130, 379 P.2d 217) are difficult to answer. The court noted that the employer is under a statutory duty to furnish medical care, and that the employee is similarly under a duty to submit to reasonable medical treatment under the act. The provisions of the act, in turn, become by implication part of the employment contract. This being so, the better view appears to be that accidental injuries during a trip made pursuant to this statutory and contractual obligation are work connected." (Footnotes omitted.) (Larson, supra, § 13.13, pp. 3-379 3-383.)

Thus, both Laines and Larson rely heavily on the employer's statutory duty to provide medical care and the injured employee's duty to submit thereto. Accordingly Laines is clearly distinguishable from the instant case. There is here no duty imposed upon the employee by the employer; the benefit of the delivery of the release was solely that of the employee. We therefore do not find the compensability of Weitzman's automobile accident a "logical extension of Laines," as found by the judge.

Most persuasive is the New Jersey Superior Court, Appellate Division case of Anderson v. Chatham Electronics (1961) 70 N.J.Super. 202, 175 A.2d 256. In Anderson the court held that injuries sustained by an employee in an accident while returning from her doctor's office (to which she had gone for a medical clearance slip required by her employer) before returning to work following surgery unrelated to her employment did not arise out of and occur in the course of employment. The court while noting that the clearance slip was with regard to a non-industrial injury stated:

"Larson points out (1 Law of Workmen's Compensation (1952), § 13.13, p. 186) that even when a trip to a doctor is with reference to a compensable injury, 'it should not therefore be necessarily concluded that anything happening * * * in the course of a visit to the doctor is compensable. To get this result, there should be either a showing that the trip was in the course of employment by usual tests (as where the doctor has been designated or the appointment made by the employer), or that the nature of the primary injury contributed to the subsequent injury in some way other than merely occasioning the journey * * *.' "

The rationale of Laines is inapplicable to the facts of the instant case and that of Anderson, being applicable, results in noncompensability.

2. Does the "Special Mission" exception apply?

The going and coming rule precludes compensation...