Course of employment (time and place)

• Pages: 265-302
• Author: David L. Pollak,Roger A. Tolman, Jr.,Monika R. Reyes

COURSE OF

EMPLOYMENT

5-1

CHAPTER 5

COURSE OF EMPLOYMENT (TIME AND PLACE)

I. GENERAL DISCUSSION  AOE/COE

§5:01 LC §3600(a)(2) — Maher

§5:02 Reasonable Doubts Resolved in Favor of Employee

§5:03 Compare Scope of Employment

II. PERSONAL COMFORT DOCTRINE

A. At Work, On Premises

§5:10 The Elliott Case

§5:11 Compare Not Contemplated or Otherwise Excluded On-Premises Activity

B. Coffee Break/Lunch Break

§5:20 Coffee Break Cases

§5:21 Lunch Cases

§5:22 Compare Inadequate Luncheon Facilities

§5:23 Emergency, Rescue, or Acts of Common Decency

III. PERMITTED ACTIVITY

§5:30 On-Duty Recreation and Other Permitted Activities

§5:31 Union Activity

§5:32 Extended Job Duties

§5:33 Inferences, Evidence, and Burdens of Proof

IV. PROHIBITED ACTIVITY

§5:40 Specific Prohibition by Employer

§5:41 Criminal Activities on the Job

§5:42 Compare Regular Work in Unauthorized or Criminal Manner

§5:43 Compare Serious and Willful Misconduct

V. EXTENSION OF PREMISES

§5:50 Ingress-Egress — Chairez and Freire

§5:51 Zone of Special Danger — Greydanus and Parks

§5:52 Parking Lots

§5:52.1 Military Bases & Other Large Workplaces

§5:53 Compare the Street or Sidewalk in Front of Premises — Chairez

§5:54 The Bunkhouse Rule — Rosen

§5:55 Home as Second Job Site — Bramall and Smyth

VI. RETURN TO PREMISES

§5:60 No Employment Connection

§5:61 Picking Up Pay

§5:62 Other Employment Connections

COURSE OF

EMPLOYMENT

California Workers’ Compensation 5-2

VII. OFFPREMISES INJURIES: THE GOINGANDCOMING RULE

§5:70 The Basic Rule

§5:71 Exception: Travel Pay

§5:72 Exception: Control Exercised (Wearing Police Uniform, Special Public Safety Duty)

§5:73 Government Sponsored Employee Van Pool

VIII. THE SPECIAL MISSION/ERRAND EXCEPTION

§5:80 General Points

§5:81 Special Work Hours: Early Arrival

§5:82 Overtime: Delayed Departure — Pointer

§5:83 No Fixed Job Site or Multiple Job Sites — Lefebvre and Hinojosa

§5:84 Remote Job Site Assignments

§5:85 Split Shifts — Arboleda

§5:86 Special Risks of Trip Related to Employment

§5:87 Vehicle Required at Work

§5:88 Transporting Tools

§5:89 Home as Second Job Site

§5:90 Trips to Special Events, Training Courses, Union Activities

§5:91 Dual Purpose Rule

IX. COMMERCIAL TRAVELER RULE

§5:100 In General

§5:101 Mixed Purpose — Janda

§5:102 Major Deviations

§5:103 Return to Course Following Deviation

§5:104 Incidental Purpose

X. RECREATIONAL, SOCIAL AND ATHLETIC ACTIVITIES

§5:110 Histor y — Judicial Creation

§5:111 Statutory Limitations

§5:112 Purpose of Statute — Bell

§5:113 Reasonable Expectancy of Employment — The Two-Prong Test Per Ezzy

§5:114 The Off-Duty Proviso of LC §3600(a)(9)

§5:115 Compare Intoxication-Caused Injuries

COURSE OF

EMPLOYMENT

5-3 Course of Employment (Time and Place) §5:03

I. GENERAL DISCUSSION  AOE/COE

§5:01 LC §3600(a)(2) — Maher

To be compensable under workers’ compensation law, an injury must both arise out of and occur in the course of the injured

employee’s employment. LC §3600(a) states in pertinent part: “Liability for… compensation… shall… exist [exclusively]

against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and

for the death of any employee if the injury proximately causes death,…” All states use this basic work relationship test of

arising out of and in the course of employment, or some close variant. [See National Study Commission Report, 1972, p. 50.]

The phrase “arising out of” usually refers to the proximate cause of an employee’s injury or condition, whereas the

phrase “course of employment” usually refers to the time and place where the injury occurred. Thus, under LC §3600(a)(2)

one of the conditions of compensation is that at the time of the injury the employee is performing service growing out of

and incidental to his or her employment and is acting within the course of his or her employment.

In Maher v. WCAB, 33 CA3d 729, 48 CCC 326, 328 (1983), the Supreme Court elaborated that “an employee is in the

course of his employment when he does the reasonable things which his contract with his employer expressly or impliedly

permits him to do [citation]. And, as such, an employee acts within the course of his employment when performing a duty

imposed upon him by his employer and one necessary to perform before the terms of the contract [are] mutually satised….”

The further condition that the injury arise out of the employment, requires that “the employment and the injury… be linked in

some causal fashion, not necessarily the sole cause but at least a contributory cause.” [Maher, 48 CCC at 329.] It is required

that both conditions concur, that is the injury must both arise out of and occur in the course of the applicant’s employment

as recited in the opening paragraph of LC §3600(a). For example, an employee’s injury occurring during an ordinary com-

mute to work does in a real sense arise out of employment, that is it is proximately caused by the fact of employment in

that the commute would not have occurred except for the employment relationship. However, as will be discussed in this

chapter, such an injury during an ordinary commute is generally held not to be in the course of employment because it is

not incidental to or growing out of any service actually being rendered to the employer.

See Ralphs Grocery Co. v. WCAB (Moeller), 58 CA4th 647, 62 CCC 1399 (1998), where the Court of Appeal annulled

a Board decision upholding the WCJ’s award of death benets. The employee, while o work for a nger injury, was laid

o due to diminishing sales. He also contracted cancer during this period. The layo eliminated his health benets. His wife

worked part-time and he had three young children to support. He was anxious to get back to work to support his family.

While still o work, the employer phoned him at home to tell him that the only work available was part-time without medical

benets. Based upon the stress of receiving such news, he collapsed sustaining a fatal heart attack. The WCJ, upheld by the

Board, found that the phone call triggered the heart attack and therefore arose out of and in the course of employment. The

Court of Appeal reversed noting that the employee was not on duty and not engaged in any special errand or other activity

for the employer; the Court cited the “going and coming rule,” noting that had he been in the course of his commute, the

heart attack would not be compensable, and that this was even further removed.

The court’s disposition in this case should be compared with the compensable consequence doctrine. [See Chapter 6,

Arising Out of Employment.] For example, SCIF v. IAC (Wallin), 176 CA2d 10, 24 CCC 302 (1959) (discussed in Chap-

ter 6), involved an injury occurring when applicant’s disability allegedly caused double vision. While recuperating at home,

the employee used a power saw to cut some rewood, and due in part to his defective vision, cut o one of his ngers.

The employee was obviously not in the course of his employment at the time of this subsequent incident. Nevertheless,

the loss of a nger was found to be a compensable consequence of the original injury. Similar observations may be made

with respect to employees on their way to medical treatment or evaluation when injured in subsequent incidents. They are

not in the course of their employment but nevertheless, the courts have uniformly found their injuries compensable. The

Courts tend to require not only a causal nexus, but also a relationship of the injury to the time and place of employment.

§5:02 Reasonable Doubts Resolved in Favor of Employee

Any reasonable doubt as to whether any particular activity that the employee is engaged in at the time of his industrial

injury was in fact contemplated by his employment is to be resolved in favor of the employee. [See, e.g., Tingey v. IAC, 22

CA2d 636, 8 CCC 174 (1943); Goodrich v. IAC, 22 CA2d 604, 8 IAC 177 (1943). See also §5:101.]

§5:03 Compare Scope of Employment

The term “course of employment” for purposes of workers’ compensation law is not necessarily synonymous with the

term scope of employment for the purpose of implicating an employer for the tort of his employee under the doctrine of

respondeat superior. [See Saala v. McFarland, 63 CA2d 124, 30 CCC 220 (1965); Caldwell v. A.R.B., Inc., 176 CA3d 1028

(W/D-1986); Wank v. Richman & Garrett, 165 CA3d 1103, 13 CWCR 101 (1985). But cf. Childers v. Shasta Livestock

Auction Yard, Inc., 190 CA3d 792, 15 CWCR 112 (1987) (discussed in Chapter 6).]