Appellate Court reviews Going and Coming rule and Special Mission Exception

This is a published case of the Court of Appeal

This is a very significant case for workers’ compensation principles.

The applicant was a correctional officer and was killed in an automobile accident while driving home from work. The applicant had finished his normal shift of work and was required by his watch commander to also work the next shift.

An Application for Workers’ Compensation death benefits was filed. The issue was whether the applicant was acting within the course and scope of his employment under Labor Code section 3600, (a)(2). The Workers’ Compensation Appeals Board (WCAB) denied benefits.

The appellate court examined the “Going and Coming Rule” and the “Special Mission” exception. They evaluated whether this was an extraordinary event for the applicant to be held over for an extra shift. They determined it was not, because there were official procedures for hold over shifts. There were also established procedures and these were similar to the usual responsibilities.

The court reviewed cases on the “Going and Coming Rule”. They also reviewed cases on the “Special Mission rule”. They then reviewed the rationale underlying the rule.

This is a very long and well reasoned case to review when confronted with this type of case.


A Published case on Petition to Reopen for New and Further Disability

This is a published case of the Court of Appeal

This is a very significant case for workers’ compensation principles.

The applicant had an admitted injury when he fell off a roof fracturing his right ankle and injuring his back. The applicant was evaluated by an Agreed Medical Examiner (AME). A stipulated award was entered into for 51 percent permanent disability.
 
Thereafter, the applicant filed a petition to reopen for new and further disability. The AME evaluated the applicant again after the filing of the petition  and raised the percent of disability based on an EMG. 
 
The EMG was actually performed prior to the first stipulated award. The case proceeded to  trial. The Workers’ Compensation Judge (WCJ) issued a decision finding the applicant did not sustain a new and further disability. The applicant filed a petition for reconsideration.  The WCJ vacated his original finding and raised the applicant’s disability.
 
The Workers’ Compensation Appeals Board (WCAB) disagreed and indicated the applicant did not sustain new and further disability.
 
The appeals court reviewed Labor Code section 5803 and reversed. The stipulated award did not adequately reflect the disability of the applicant. Whether the original stipulation was the result of inadvertence, excusable neglect, or mistake of fact, the error justifies reopening the resulting award.


An Unpublished Court of Appeal case deals with the Evidence Code in Workers’ Compensation proceedings

This is an unpublished case of the Court of Appeal

This is a very significant case for workers’ compensation principles.

The applicant had an industrial injury. The applicant also had a subsequent aggravation of the original industrial injury. The applicant noticed the deposition of the claims examiner and sought production of claims notes from the defendant. The defendant moved to quash the subpoena.

The claims examiner appeared at the deposition and produced a privileged log for the requested documents. The applicant made a further claim for the documents on the privilege log.

A trial was held on the issue of the documents in the privilege log. The Workers’ Compensation Judge (WCJ) after hearings eventually determined some documents were not privileged. Defendant filed for reconsideration and the Workers’ Compensation Appeals Board (WCAB) returned the matter to the WCJ with instructions to appoint a Special Master to review the documents.

The defendant filed a writ. The appellate court never reached the final decision of whether the documents were privileged but indicated that the WCAB could not appoint a Special Master. They also indicated that Evidence Code section 915 applies to workers’ compensation.


A published decision of the appellate court on whether 4850 time covers a return to modified duty

This is a published court of Appeal case

This is a very significant case for workers’ compensation principles.

The applicant was a deputy sheriff. The applicant had a work related injury. The applicant worked the night shift and was given an extra 5% for working the night shift. When the applicant returned to work the applicant was returned to modified duty by his physician. He was not allowed to work the night shift on modified duty. He was still given full salary but not the extra 5%.

The applicant filed for a hearing contending under Labor Code section 4850 he was entitled to the shift differential. A Workers’ Compensation Judge (WCJ) agreed with the applicant and awarded the applicant the extra 5%. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The applicant contended before the appellate court that because he was on modified duty he was on a leave of absence from full duty and thus entitled to the extra 5%.

The appellate court determined that because the applicant was back at work he was not on a leave of absence and therefore, not entitled to 4850 time. Thus, there was no 4850 time while on modified duty.


A published Court of Appeal case has really extended the concept of the going and coming rule without addressing it

The employee left the office at the end of the work day and began driving in the direction of home. She decided on the way to stop for a frozen yogurt and take a yoga class. She deviated from her home direction and made a left turn into the yogurt shop. She ran into a motorcycle injuring the driver. The driver brought an action against her and her employer. The trial court granted summary judgment releasing the employer from liability. The appellate court reversed.

The appellate court indicated the employer required the employee to use her personal vehicle to travel to and from the office and make other work-related trips throughout the day. They indicated that the planned stops for frozen yogurt and a yoga class did not change the incidental benefit to the employer of the employee using her personal vehicle to travel to and from the office and other destinations. The planned stops did not constitute an unforeseen, substantial departure from the employee’s commute. They indicated this was a foreseeable, minor deviation. Finally, the planned stops were not so unusual that it would be unfair to include the resulting loss among the other costs of the employers doing business.


In a published opinion the court of appeals upholds finding of Res Judicata

The applicant was injured in 1999 and 2000. In 2002, a Joint Stipulation with Request for Award was entered into. There were two insurance companies. Thereafter, one insurance company went into liquidation and CIGA assumed administration of the claim. State Farm was to reimburse CIGA 25 percent of all benefits paid.

In 2008, CIGA filed a petition for dismissal. The record reflects there was no action on this petition. Five years later CIGA sought to be relieved as administrator of the claim. The Workers’ Compensation Judge (WCJ) ruled that the Workers’ Compensation Appeals Board (WCAB) was without jurisdiction to rescind or alter the award. Two decisions were issued by the WCJ and WCAB in 2008 and 2009, and CIGA did not appeal those decisions. Therefore, the WCAB ruled they were now final and “law of the case.”

The appellate court looked at CIGA’s liability to only be liable for “covered claims.” In spite of the law governing covered claims, CIGA failed to seek judicial review of the WCAB decisions of 2008, 2009, and 2011. In that light, the court indicated the strong public policy of CIGA being liable for covered claims does not outweigh the policy of having finality to a decision. Therefore, the initial decisions against CIGA were deemed Res Judicata.


Civil case defines respondeat superior liability, the going and coming rule and its exceptions

An employee was on his way to a breakfast meeting with a former colleague. He made a left turn and hit two pedestrians, killing one and injuring the other. The plaintiff brought a law suit trying to sue the employer indicating the breakfast meeting was work related and fit an exception to the going and coming rule.

There is an excellent discussion of respondent superior liability. This dealt with whether the employer could be vicariously liable for the employee’s actions.

To analyze this the court looked at the “going and coming rule”. Employees are generally not within the scope and course of employment on the way to work.

The court then looked at the exceptions to this rule. The first exception was the “special errand rule”. This breakfast meeting was not considered a “special errand”.

The next exception was the “required vehicle exception”. This requires benefit to the employer.

The court then looked at substantial departures from the employers’ business. Here it was determined the breakfast meeting was not work related.


Statute of Limitations interpreted that only filing is necessary not service

The applicant was injured on August 25, 2008 and died from the injury on September 8, 2008. An application for adjudication of claim was filed on September 10, 2008. A petition for serious and willful misconduct (S&W) was filed with the Workers’ Compensation Appeals Board (WCAB) on August 20, 2009. It was never served on the employer.

Two and half months later applicant filed an amended S&W and served it on the employer. The employer claimed it was not timely since they were not served within one year with the original.

At trial the Workers’ Compensation Judge (WCJ) ruled that the filing was sufficient since the delay in serving was not sufficiently egregious. The employer filed a petition for reconsideration and the WCAB agreed with the WCJ.

The appellate court reviewed Labor Code section 5407 and section 4553. Labor Code section 5407 states the claim must be filed within one year. They also reviewed the cases of Cuadra and McGee to determine that the one year rule means filing of the application, not both, filing and service. They indicated that the lack of service did not mislead or prejudice the employer. Thus, the adequacy of notice must be measured by whether the employer was mislead or prejudiced.


How many depositions of the applicant may you take in one case

This is a panel decision which ordered sanctions against the insurance carrier and the defense attorney for engaging in bad faith and frivolous actions.

The defendant took a deposition of the applicant. At the end of the deposition the defense attorney said he had no more questions.

Four years later the defendant wished to take a second deposition. Applicant’s attorney objected and requested a protective order and sanctions under Labor Code section 5813 and Code of Civil Procedure 2023. The defendant filed a petition to compel the deposition. The Workers’ Compensation Judge (WCJ) ruled that the defendant was not entitled to a deposition in that code of Civil Procedure Section 2025.610 only allows one deposition.

Applicant requested sanctions and attorney fees for having to fight the deposition and the WCJ awarded $15,610 in attorney fees and a penalty of $2500.

Defendant filed for reconsideration and lost. The Board agreed that once the record is closed that the defendant is only entitled to one deposition. There are other ways in which to complete discovery.


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