3 Stonedeggs, Inc. – (DBA California Sandwich Company) business was to provide food service to firefighters and forestry workers at various locations. The employer won a contract to provide food service at a remote location near Happy Camp, California, and it was expected that the job would last 3 to 6 months.

The employer asked employees assigned to its Brownsville camp to volunteer to work at Happy Camp, a remote location without cellular telephone services where it was to serve meals for the three-to-six month period.

Braden Nanez and two other employees from the Brownsville camp agreed to travel to work providing food service at Happy Camp, and the employer authorized Nanez to drive his own car from Brownsville to his residence and then to Happy Camp.

On October 5, 2020, the day of the vehicular accident at State Highway 263/Shasta River Bridge, Nanez worked the breakfast shift and, afterwards, at about 9:00 a.m., commenced a seventy-mile drive to Yreka in his own car. He texted manager Brossard later that he would return for his next shift at about 4:00 p.m., a timeframe permitting daytime travel in his off hours.

The employer was not informed of his reasons for traveling to Yreka, but manager Todd surmised that it was to use his cellular telephone.

On April 26, 2022, the matter proceeded to trial as to the following issues: “Injury arising out of and in the course of employment per Labor Code section 3600(a), (the going and coming rule); and intoxication.”

The WCJ found that applicant (1) did not sustain injury arising out of and in the course of employment (AOE/COE); (2) violated company policy when he left the worksite without permission on the date of his injury; and (3) was engaged in a material deviation and complete departure from his employment at the time of injury. The WCJ ordered that Nanez take nothing on his workers’ compensation claim.

On reconsideration, Nanez contended that the evidence established that he was engaged in an activity reasonably expected to be incident to his employment at the time of his injury, and, therefore, that the commercial traveler rule applies to his accident.

The WCAB agreed, and rescinded the F&O, and substituted findings that the commercial traveler rule applies to his accident, that his claim is not barred by the going and coming rule and intoxication, and that he sustained injury AOE/COE in the form of a fracture to the right femur, and deferred his claim of injury to other body parts in the panel decision of Nanez v 3 Stonedeggs, Inc – ADJ14015513 (February 2023)

A commercial traveler is regarded as acting within the course of his employment during the entire period of his travel upon his employer’s business.” (Wiseman v. Industrial Acc. Comm.(1956) 46 Cal.2d 570, 572 [21 Cal.Comp.Cases 192].) The California Supreme Court made clear that, “[i]n the case of a commercial traveler, workers’ compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort, and safety of the employee.”

As the Court of Appeal observed, an employee away on business can “hardly [be] expected to remain holed up in his hotel room.” (Fleetwood Enterprises, Inc. v. Workers’ Comp. Appeals Bd. (Moody) (2005) 134 Cal.App.4th 1316, 1327 [70 Cal.Comp.Cases 1659].)

The test is whether the activity during the injury is one “that an employer may reasonably expect to be incident to its requirement that an employee spend time away from home.” (IBM Corp. v. Workers’ Comp. Appeals Bd. (Korpela) (1978) 77 Cal.App.3d 279, 283 [43 Cal.Comp.Cases 161].)

In Korpela, the issue presented was whether an employee’s death from an automobile accident while on a weekend trip to visit relatives during the course of an out-of-town training program was compensable under the commercial traveler rule. Evaluating whether the weekend trip was within the course of employment or a non-compensable “distinct departure on a personal errand,” the court found that the weekend trip was a leisure time activity normally incident to an out-of-town temporary assignment, a conclusion further supported by the fact that the employee’s supervisor knew of the visit and encouraged it. (Korpela, supra, at p. 283.)

Because 3 Stonedeggs, Inc (1) allowed applicant to travel by his own car from the Brownsville camp to his Chico home and then return to continue his work there; (2) sought and obtained applicant’s agreement to travel to Happy Camp on its business; (3) authorized applicant to travel to Happy Camp using his own car; and (4) did not instruct applicant to refrain from using his own car during his off hours or for personal reasons, applicant’s conduct in using his own car during his off hours to drive from Happy Camp to Yreka was conduct reasonably expected by defendant to be incidental to its requirement that he spend time away from home.