Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. WCAB No. BAK 0154540 Alfonso J. Moresi, Ronnie G. Caplane, and Frank M. Brass, Commissioners. Donald H. Johnson, Workers’ Compensation Administrative Law Judge.
Mullen & Fulippi, LLP, Bruce K. Wade for Petitioner, American Home Assurance.
Sylvia Lopez for Respondent, Donald Wuertz.
No appearance for Respondent, Workers’ Compensation Appeals Board.
OPINION
Vartabedian, Acting P.J., Levy, J., and Dawson, J.
American Home Assurance (AHA) petitions this court for a writ or review on behalf of its insured, RR Donnelley, from a decision of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, § 5950; Cal. Rules of Court, rule 8.495.) AHA contends the WCAB erred in concluding an employee was on a special mission, and therefore covered for purposes of workers’ compensation, during his commute to a non-routine meeting at his usual place of business on a day he was not scheduled to work. Finding substantial evidence in the record supporting the WCAB’s decision that attendance at the meeting was extraordinary in relation to the injured worker’s usual employment duties, we must deny the petition.
Further statutory references are to the Labor Code.
BACKGROUND
Donald Wuertz worked as a machine operator for RR Donnelley in its printing business in Visalia. Wuertz commuted to work about 50 miles each way on a motorcycle from his home in Terra Bella. The printing plant ran 24 hours, 7 days a week and Wuertz regularly worked rotating 12-hour shifts beginning at 7:00 am scheduled for 3 days on, 2 days off, and 2 days on, with the sequence reversing the following week so that he worked 7 shifts for a total of 84 hours over a two-week period. Wuertz also worked overtime “at least a couple of times” every two weeks and those shifts started at 7:30 am and lasted either 8 or 10 hours.
Without citing to the record and contrary to the testimony of its own witness, manufacturing supervisor Tim Lundblade, AHA contends Wuertz’s “shifts always started at 7:30 a.m. whether he worked a regular shift, an overtime shift or whether he appeared for a meeting.”
Wuertz was not scheduled to work either his regular rotating shift or overtime on Thursday, August 9, 2007. Wuertz last worked for three days ending Tuesday of that week, when he was told of a mandatory 7:30 a.m. meeting at the worksite to address specific complaints from one of the company’s customers, Netflix. Such meetings only occur 2-4 times per year and are known as “stand-down meetings” because all of the machines for the customer’s line are stopped so everyone from each of the three shifts may attend. Safety meetings, meanwhile, occur during regularly scheduled shifts and no one is called in to the worksite from home. Wuertz did not know how long the mandatory meeting on August 9, 2007, was expected to last, but he intended to leave after the meeting as there was no overtime available that day. Not anticipating working, Wuertz did not take his regular personal work items, such as his work shirt, calculator, and pens, to the printing plant that morning.
Unfortunately, Wuertz was in a serious motorcycle accident on the way to the stand-down meeting and never arrived at the printing plant on the morning of August 9, 2007. Like employees who attended the meeting, however, Wuertz was paid for two hours of time because his former supervisor considered that he would not have been in the motorcycle accident but for the meeting.
Wuertz subsequently filed a workers’ compensation claim from the accident alleging he sustained industrial injury to his head, left leg, ankle, bladder, and left arm, which also caused blood clots and urological problems. RR Donnelley’s workers’ compensation insurer, AHA, denied the claim as not work-related. After a January 30, 2009, hearing limited to whether the injuries arose out of and in the course of employment, a workers’ compensation administrative law judge (WCJ) found Wuertz was on a special mission to attend the mandatory meeting on his day off at the time of the accident. The WCJ therefore concluded that the going-and-coming rule did not bar Wuertz’s claim for workers’ compensation benefits and allowed his claim to move forward.
AHA petitioned the WCAB for reconsideration, contending the special mission exception to the going and coming rule did not apply because Wuertz was simply commuting to work, to perform his duties like any other day, when he sustained the motorcycle accident. The WCAB summarily denied the petition for reconsideration, adopting and incorporating the WCJ’s report and recommendation.
DISCUSSION
An employer is liable for workers’ compensation benefits only where an employee sustains an injury “arising out of and in the course of the employment....” (§ 3600, subd. (a).) In assessing whether an injury arises out of and in the course of employment, the judicially created “going and coming” rule generally precludes workers’ compensation recovery for injuries sustained during a local commute en route to a fixed place of business at fixed hours. (Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 (Hinojosa).) The rule is based on the notion that an employee normally does not render services for the benefit of the employer while traveling to and from work. (City of San Diego v. Workers’ Comp. Appeals Bd. (2001) 89 Cal.App.4th 1385, 1388.) However, “[w]hen an employee engages in a special activity that is within the course of employment, an injury suffered during the activity or while traveling to and from the place of such activity also arises out of the employment.” (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal.4th 644, 652.)
“It is well settled that an employee is ordinarily not entitled to worker’s compensation for an injury sustained in going to or departing from work. An exception has been created if the employee was engaged in a special mission for the employer during the commute. The special mission exception requires three factors to be met: (1) the activity is extraordinary in relation to the employee’s routine duties, (2) the activity is within the course of the employee’s employment, and (3) the activity was undertaken at the express or implied request of the employer and for the employer’s benefit.” (City of Los Angeles v. Workers’ Comp. Appeals Bd. (DeLeon) (2007) 157 Cal.App.4th 78, 84-85, citations omitted.)
The timing of the activity also must be considered in determining whether the special mission exception applies. As our Supreme Court has established, “compensation is not barred by the going and coming rule when the employee is requested to perform an unusual service, or a usual service at an odd hour, because ‘the trip is “special” in that “the bother and effort of the trip itself is an important part of what the employee is eventually compensated for.” ’ ” (Dimmig v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 860, 868, citing Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d. 289, 291-292.) “[T]he common thread of the cases involving a special mission is that there is some deviation in the location, nature or hour of the work to be performed that distinguishes the special mission from the normal work commute.” (City of San Diego v. Workers’ Comp. Appeals Bd. (Molnar) (2001) 89 Cal.App.4th 1385, 1389.)
Presenting nearly identical arguments raised before the WCAB on reconsideration, AHA contends the facts do not demonstrate Wuertz was on a special mission when he was injured on the way to RR Donnelley on August 9, 2007, because he was attending a typical work-related meeting, during his usual morning commute time, and on a day of the week when he often worked. AHA therefore believes the going and coming rule shields RR Donnelley and AHA from workers’ compensation liability.
AHA does not dispute the existence or legality of the special mission exception to the going and coming rule and admits that Wuertz’s attempted attendance at the stand-down meeting was both within the course of employment and at the express or implied request or invitation of RR Donnelley. Disputing only the first factor necessary in finding the commute was a special mission, AHA contends Wuertz was not engaged in a special activity extraordinary in relation to his routine duties. AHA “asserts that an employer meeting to discuss general work activities and to determine solutions to a customer’s concerns held during regular work hours at the regular work site cannot be considered an extraordinary activity.”
Contrary to AHA’s position, the WCAB found the mandatory stand-down meeting was not a typical meeting to discuss general work activities and was not conducted during Wuertz’s regular work hours. AHA therefore presents a factual dispute for this court to resolve. Of course, “[t]he findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review.” (§ 5953.) “This court may not reweigh the evidence or decide disputed questions of fact.” (Keulen v. Workers’ Comp. Appeals Bd. (1998) 66 Cal.App.4th 1089, 1096.) Thus, factual findings must be upheld where supported by substantial evidence in light of the entire record. (§ 5952; LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627.) “The term ‘substantial evidence’ means evidence ‘which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.)
In disputing the WCAB’s conclusion that attending a meeting qualifies as a special mission outside of Wuertz’s usual employment duties, AHA emphasizes that all businesses have staff meetings, and that a meeting such as the one called on August 9, 2007, to address specific customer concerns is a normal operating procedure of any successful enterprise. Moreover, the need to shut down the printing operations during the meeting was not any more extraordinary than asking “a secretary to stop typing, an attorney to stop dictating, [or] a court to stop adjudicating... in order to attend an employee meeting.”
In adopting the WCJ’s recommendation, however, the WCAB noted that from the testimony provided, the meeting in question was of much more importance than a typical meeting to improve performance. Notably, an RR Donnelley manufacturing supervisor testified that the purpose of the meeting was to discuss complaints from its customer, Netflix, who was “upset.” Moreover, both Wuertz and the supervisor agreed that a “stand-down meeting,” in which the entire customer line was shut down, only occurred a few times a year, and that the printing equipment otherwise ran 24 hours a day. Given that no other relevant testimony was presented, the WCAB reasonably concluded that attending the meeting, requiring the shutting down of equipment that only occurred a few times per year, was not usual and routine employment duty.
AHA also contends Wuertz was not performing an extraordinary activity by commuting to the worksite on a day when he was not regularly scheduled to work because Wuertz “often worked on days that he would otherwise be off,” and the meeting was called at the same time he normally worked. Pointing to employee records, AHA contends Wuertz worked an average of four extra days every month by picking up overtime shifts. As the WCAB noted, however, Wuertz was not scheduled to work on August 9, 2007. AHA did not offer any evidence to contradict Wuertz’s recollection that he was not scheduled to work as a machine operator and that overtime was not available that day. The WCJ also found credible Wuertz’s testimony that he did not take his usual work-related personal items to the meeting. As the WCJ described, Wuertz “did work a lot of overtime, but he was not heading to work to do overtime on the day he was hurt.”
See footnote 2, supra.
AHA compares the circumstances surrounding Wuertz’s accident to those in Molnar, supra, 89 Cal.App.4th at p. 1385, where a San Diego police officer was injured on the way to testify in court on a day in which he was not otherwise scheduled to work. Disagreeing with the WCAB, the Fourth Appellate District concluded that “a police officer whose duties include testifying in court is not on a special mission while commuting from home to court to testify.” (Id. at p. 1387.) The regular duties of a police officer, however, are notably distinct from those of a printing machine operator. In overruling the WCAB, the Molnar court specifically considered that the record demonstrated “that it is an integral part of a San Diego patrol officer’s duties to testify, if subpoenaed to do so, in a proceeding arising out of his or her patrol work, and that such an officer testifies at such proceedings an average of twice a month.” (Id. at p. 1388-1389.) In the present case, no testimony was offered suggesting Wuertz’s attendance at the stand-down meeting was an integral and routine part of his job duties as a machine operator. To the contrary, the record reveals such meetings were relatively rare - occurring only a few times per year - and no evidence was offered that the purpose of the meeting was directly related to Wuertz’s regular employment activity of operation of the printing equipment. Accordingly, the decision of the WCAB is supported by substantial evidence.
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.