April 2010

“Going & Coming Rule” Revived

California employers won a victory at the WCAB last month in the case of Zoucha v. Alcal Arcade Insulation, after an earlier case dealt a blow to the “going & coming rule.”
The “going & coming rule” precludes workers’ compensation recovery for injuries sustained during a local commute en route to a fixed place of work at fixed hours. While commuting, the employee is not considered to be performing any service for the employer, and the injury therefore is generally not compensable.
In Zoucha the applicant was employed as an insulation installer and was assigned to work at different job sites as directed by the employer. He was allowed to transport himself to each job site. The applicant argued that he would use his vehicle periodically as part of his job, occasionally transporting materials, and once traveling between job sites on the same day.
The applicant was injured in a motor vehicle accident while driving home from a job site in Vallejo. After trial, the workers’ compensation judge found the injury compensable because the employer benefited from the availability of the personal vehicle, creating an exception to the “going & coming rule.”
In an appeal filed by Wiggins, Richard, Romano & Thorson partner Albert Romano it was argued that no exception to the “going & coming rule” applied, and the employer should be relieved of all liability.
In a unanimous decision, the WCAB panel overturned the judge and ordered the applicant to “take nothing” by way of the claim.
The WCAB agreed with Mr. Romano because on only one prior occasion was the employee required to drive himself from one installation job site to another in a single workday. This was insufficient evidence to show the job was dependent upon personal transportation or that this was an essential requirement of the job.

Also, the applicant was injured on his way home after having worked all day in the same location. Thus, he was commuting from a fixed place of employment.

Zoucha follows the unpublished Court of Appeal decision of Lobo v. Tamco, which reached the opposite result. The Lobo court found that the “required-vehicle” exception to the “going & coming rule” applied even though that employee was not required to use his personal vehicle on the date of injury and only on rare occasions during the work day over his 16-year carrier.

Apportionment to Prior Award Denied

A WC Judge failed to apportion a permanent disability award in the case of Minivielle v. County of Contra Costa, despite the uncontested defense evidence that the applicant received a prior PD award for an earlier injury to the same part of body. Labor Code section 4664 states such prior awards are “conclusively” presumed to still exist. Nevertheless, on reconsideration, the WCAB agreed with the judge and denied any apportionment.
The WCAB held that apportionment does not apply if the current award is rated under the 2005 schedule and the prior award is rated under the 1997 schedule and clear evidence of overlap is not shown.
The Board panel said that apportionment does not work if the method used to calculate the earlier PD was different from that used under the Guides. Merely showing the injuries were to the same part of body was not enough.
The Board also refused to apportion under Labor Code section 4663, claiming that section was not raised by the defense on appeal.

15% PD Reduction Rule Strictly Applied

A WCAB panel allowed an award of permanent disability (PD) without a 15% decrease even though the employer made an offer to return the employee to work.
However, the return to work offer was not made within the 60-day time period following the permanent & stationary determination, as is required by the statute. The offer was made 72-days after issuance of the P&S report. Even though the employee returned to work before the P&S report issued, the Board denied the PD reduction, finding strict adherence to the formal requirements of the statute was required.

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