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Chavez v. Workers' Compensation Appeal Board6/24/2004
THE COURT
Eleuterio Chavez petitions for a writ of review to determine the lawfulness of a decision of the Workers' Compensation Appeals Board (WCAB) finding an injury sustained while commuting to his employer's worksite did not arise out of and in the course of his employment under the going and coming rule. (Lab. Code, § 5950; Cal. Rules of Court, rule 57.) We will deny the petition.
BACKGROUND
Chavez worked as a farm laborer tending to organic vegetables for Grimmway Enterprises, Inc. (Grimmway). Before June 2002, Chavez worked approximately one year two months at Grimmway's various fields in Cochella, Lamont, and Tehachapi. In early June 2002, Chavez began working for Grimmway's fields in Cuyama.
Grimmway did not provide transportation to any of its job sites and did not pay its employees for time spent prior to arriving at the field each day. Chavez and other employees arranged their own transportation by a paying co-worker directly for a van ride to Grimmway's various work locations.
On June 17, 2002, Chavez was one of seven employees commuting to work in the employee-coordinated vanpool. Approximately 15 minutes before their scheduled work shift, the van was in an automobile accident on a public highway causing injury to Chavez's lower extremities.
While in Cuyama, Chavez usually worked on eight field sections per day. Each section was about the size of a WCAB hearing room. Although it was "fairly easy" to walk from one field to the other, the employees nevertheless used the van to change fields. The employees regularly stored tools overnight and took breaks throughout the day in the van.
After a July 2003 hearing, a worker's compensation administrative law judge (WCJ) found Chavez's injury did not arise during the scope and course of his employment with Grimmway. After Chavez petitioned the WCAB for reconsideration, the WCJ explained in a report and recommendation to the WCAB that the going and coming rule barred Chavez's workers' compensation claim because the van involved in the accident was not required for Chavez's employment. On October 21, 2003, the WCAB denied Chavez's petition to reconsider the decision by adopting and incorporating the WCJ's report and recommendation.
DISCUSSION
An employer is liable for workers' compensation only if its employee sustained an injury "arising out of and in the course of the employment ...." (Lab. Code, § 3600.) "Whether an employee's injury arose out of and in the course of employment is generally a question of fact to be determined in light of the circumstances of the particular case." (Wright v. Beverley Fabrics (2002) 95 Cal.App.4th 346, 353.) Judicial review of the WCAB's findings of fact is limited to determining whether the decision, based on the entire record, is supported by substantial evidence. (Lab. Code, § 5952, subd. (d); LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627.)
The judicially created going and coming rule generally precludes worker's compensation recovery for injuries sustained during a local commute enroute to a fixed place of business at fixed hours. (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 (Hinojosa).) Before entry onto the employer's premises, the going and coming rule ordinarily precludes recovery; after entry, the injury is presumed compensable as arising out of and in the course of employment. (General Ins. Co. v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 595, 598.) The rule is based on the notion that an employee does not render services for the benefit of the employer during the normal commute to and from work. (City of San Diego v. Workers Comp. Appeal
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