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Can I sue my employer if I’m injured on my way home?

The general rule in California is that an employee is “on his/her own” when commuting to and from home to office, and is not allowed to get workman’s compensation coverage.In the recent case of Shannon Lantz vs. Worker’s Compensation Appeals Board, (5th Dist 5/19/14), the court ruled that workman’s compensation would not be available to a prison guard who was tragically killed in a car accident on his way home from a “hold-over” shift.

Under the “special mission” exception to the going and coming rule (meaning no workman’s compensation coverage for routine commuting), the court will hold the employer liable for injuries if the activity is “extraordinary” in relation to his or her routine job duties. This is based on the place, time and nature of the additional work. Was the work performed at the usual place of work; did the trip involve only a change in the timing of the drive? On these facts the Court of Appeals held there would be no coverage.

Under Labor Code Section 3200, sometimes described as the cornerstone of the Work Comp system in California, liability exists against an employer for any injury sustained by an employees “arising out of and in the court of the employment”. So, where on the sliding scale of justice do we put “commute trips”?  Given the default position that this is not covered by workman’s compensation, the next issue is what exception might coverage be granted under? Here’s three of them:

1.  Special Mission Exception. This is not sufficient basis for work comp coverage if the employee is only working earlier or later than usual. However, if an “extra trip” to or from work is required, courts may well grant work comp coverage. State C>I> Fund vs. Indus. Acc. Com, 89 C al; App 197 (salesman required to make extra drive to store at night to unlock the door for an electrician).

2. Required vehicle Exception: In Hinojosoa vs. WCAB, 8 Cal3d 150 (1972) the employer required farm workers to drive their own vehicles. This illustrated control and activity for the employer’s benefit as the workers were ordered to drive between fields in their own vehicles.

3. Nature of Work Performed. If the work is “extraordinary” in relation to the normal job, then work comp coverage may be given. In the prison guard case, the court found that there was nothing extraordinary even though the job the employee did during the day and then on “hold over” showed changes in number of prisoners supervised.

Finally, the deceased worker’s estate argued that he should be granted coverage because he was not told in advance of reporting to work that he would be required to stay over and work an extra shift. The court did not hold this material and upheld denial of coverage. Keep your eye out for special circumstances, such as a police officer who is asked to leave early and direct traffic at an art festival; another officer injured on his day off while traveling to a courthouse to testify….see how complicated it can get?

Call or use the contact box to discuss your situation. If we can’t help you we will find a workman’s compensation firm near you who can. We are proud to be the only employee-only law firm practicing employment law that is also a member of the California Applicant Attorney Association. Stay safe out there! Steve 877 789-9707.