Skye Gray was a caregiver who had been hired by Comfort Keepers Home Care. Employees bid on available shifts and are required to have reliable transportation to get to the shifts. An employee would contact the employer via email when the employee was available for a shift. The employee may accept or reject an assignment.
She was driving to her shift in her personal vehicle when she was involved in a motor vehicle accident shortly before midnight. This was the first time she had been to this particular location. She was in a coma for a period after the accident, and was pregnant at the time of the injury and miscarried after the auto accident.
She did request that she be assigned to this shift, and this specific job did not require her to run errands for the client or take the client anywhere. The distance between Gray’s home and her job assignment was 17-23 miles. She was not traveling between assignments at the time of the MVA. She was not carrying supplies or tools for the employer.
Grey was required to have reliable transportation. The employer testified that a bus pass would be sufficient. But in this case,was traveling late at night to a new location, and it is unknown whether any public transportation was even available at that time of day, to the location she was traveling. She was not travelling to a fixed business at a fixed time.
The only issue submitted for decision was whether the injury was AOE/COE, specifically whether or not the automobile accident occurred during the course and scope of her employment. The parties requested that the going and coming rule be addressed. The WCJ found the injury to be compensable and that it was not barred by the going and coming rule.
The employer’s Petition for Reconsideration was denied in the panel decision of Gray v Comfort Keepers Home Care -ADJ13210964 (June 2023).
“Under the well established going and coming rule, an employee does not pursue the course of his employment when he is on his way to or from work.” (Smith v. Workmen’s Comp.App.Bd. (1968) 69 Cal.2d 814, 815-816 [33 Cal.Comp.Cases 771] Thus, injuries sustained while an employee is “going and coming” to and from the place of employment do not normally arise out of and in the course of employment because the employee is neither providing benefit to the employer nor under the control of the employer during that commute.
However, the California Supreme Court held that the rule applies to a “local commute enroute to a fixed place of business at fixed hours.” (Hinojosa v. Workers’ Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 [37 Cal.Comp.Cases 734)] (Zhu v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1038 [82 Cal.Comp.Cases 692].)
The panel went on to conclude that “there is substantial evidence in this case to apply the ‘required vehicle’ exception to the going and coming rule. The ‘required vehicle’ exception may be invoked when ‘the employee is expressly or impliedly required or expected to furnish his own means of transportation to the job (Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814 [73 Cal. Rptr. 253, 447 P.2d 365]).- (Hinojosa v. Workemen’s’ Comp. Appeals Bd. (1972) 8 Cal.3d 150, 160 [37 Cal.Comp.Cases 734] (Hinojosa).)”
“The exception ‘arises from the principle that an employee ‘is performing service growing out of and incidental to his employment’ (Lab. Code, § 3600) when he engages in conduct reasonably directed toward the fulfillment of his employer’s requirements, performed for the benefit and advantage of the employer.’ (Smith, supra, at pp. 819-820.) (Zhu v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1039 [82 Cal.Comp.Cases 692].)