Opinion
F051989
5-4-2007
STACEY LAMERS, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD, SECURITAS, INC. et al., Respondents.
Lawrence Oliver Eitzen, for Petitioner. No appearance by Respondent Workers Compensation Appeals Board. Dietz, Gilmor & Associates and William Kemp Dietz, for Respondents Securitas, Inc. and Ace USA.
NOT TO BE PUBLISHED
OPINION
THE COURT
Stacey Lamers petitions this court from a decision of the Workers Compensation Appeals Board (WCAB) denying survivor benefits for her and her minor daughter. Lamerss late husband, Emmanuel Bagabo, died following an automobile accident incurred while traveling to a worksite approximately an hour from his home where he was assigned temporary duty. While we sympathize with Lamerss situation and the circumstances leading to the loss of her husband, we nevertheless are compelled under California law to agree with the WCAB and conclude her husbands accident did not arise out of and occur in the course of employment.
BACKGROUND
Bagabo was hired by Pinkerton Security, now known as Securitas, Inc., (Pinkerton) as a security guard on December 12, 2002. Bagabo was brought into work for the company by John Dunmire, who advised Bagabo that full-time employment was not then available, but that the company would send him to different worksites for training and to assess his suitability as a security guard.
Bagabo worked for Pinkerton at a timber company on December 19 and 22, 2002. On December 31, 2002 and January 1 and 2, 2003, Bagabo performed security guard duties for a bank. On either January 6 or 7, 2003, Dunmire asked Bagabo to work at a bridge on "the old highway" between Rio Dell and Scotia because another security guard was taking a few days off. Local bus service was unavailable to the bridge worksite, located about an hour by car south of Bagabos residence in Eureka. The assignment did not require the use of a car or a drivers license as the job duties involved walking along the bridge.
On January 8, 2003, Bagabo left home at 5:00 p.m. for two hours of training scheduled for 6:00 p.m. at the bridge worksite. When Lamers asked Bagabo why he was commuting so far to earn only $7.00 per hour, Bagabo responded, " `Its not good when a man doesnt work."
The next day Bagabo left home at 4:00 p.m. for an 8-hour shift scheduled to begin at 6:00 p.m. Lamers assumed he left early because the bridge was difficult to find. Bagabo never arrived, however, because he was in an automobile accident six miles from the bridge at about 5:00 p.m. After going from one hospital to the next, Bagabos injuries proved fatal. !(Exh. D, p. 5)!
On August 18, 2006, following a hearing in June 2006, a workers compensation administrative law judge (WCJ) denied Lamerss claim for workers compensation benefits, specifically finding Bagabos automobile accident did not arise out of and occur in the course of his employment with Pinkerton. On November 7, 2006, the WCAB issued an opinion denying Lamerss petition for reconsideration further explaining that Bagabos death was not compensable under the workers compensation system.
DISCUSSION
An employer is liable for workers compensation only if its employee sustained an injury "arising out of and in the course of the employment ...." (Lab. Code, § 3600.) "Whether an employees injury arose out of and in the course of [his] employment is generally a question of fact to be determined in light of the circumstances of the particular case." (Wright v. Beverley Fabrics (2002) 95 Cal.App.4th 346, 353.) Where the pertinent facts are not in dispute, however, resolution of the question becomes a matter of law subject to de novo appellate review. (Ibid.; Baroid v. Workers Comp. Appeals Bd. (1981) 121 Cal.App.3d 558, 566.)
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. Workmens Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 (Hinojosa).) Before entry onto the employers premises, the going-and-coming rule ordinarily precludes recovery; after entry, the injury is presumed compensable as arising out of and in the course of employment. (General Ins. Co. v. Workers Comp. Appeals Bd. (1976) 16 Cal.3d 595, 598.) The rule is based on the notion that an employee does not render services for the benefit of the employer during the normal commute to and from work. (City of San Diego v. Workers Comp. Appeals Bd. (2001) 89 Cal.App.4th 1385, 1388.) The going-and-coming rule applies to employees sent by employment agencies who commute from their homes to various businesses to perform services on a temporary basis. (Henderson v. Adia Services, Inc. (1986) 182 Cal.App.3d 1069, 1076-1078.) Numerous exceptions to the going-and-coming rule exist, however, "`where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. " (Hinojosa, supra, 8 Cal.3d at p. 158.)
Relying on language from Honojosa recognizing the going-and-coming rule precludes workers compensation recovery if "the injury occurs during a local commute enroute to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances," Lamers argues the rule does not bar recovery here because her husband did not have an established worksite and his hours varied day to day. (Hinojosa, supra, 8 Cal.3d at p. 157, italics added.) Lamers compares Bagabos employment with Pinkerton with that of a volunteer fireman whom the Supreme Court found to have suffered an industrial injury while traveling from his home to a fire station to attend a drill in Le Febvre v. Workmens Comp. Appeals Bd. (1968) 69 Cal.2d 386 (Le Febvre). The Supreme Court explained:
"As a volunteer fireman whose duties were to respond to calls to fight fires at any location within the entire district and to attend evening drills and meetings twice each month at such locations as might be designated from time to time, Le Febvres employment cannot be viewed as having a regular headquarters or office where he was regularly required to report in order to perform his duties or before setting out on his assigned tasks. Instead, from the moment he left his home, or any other point from which he might have been summoned, to engage in firefighting or in training drills in the district, he was acting within the scope of his employment by the volunteer fire department. Accordingly, the fact that he met his death while traveling on the public highway en route to an evening drill does not bring the going and coming rule into play. The travel was plainly required by the employment, the travel risk was incident to the employment, and Le Febvres death is compensable." (Le Febvre at pp. 388-389.)
Unlike the volunteer fireman in Le Febvre, Bagabo was not subject to summons at any time. We agree with the WCAB:
"Volunteer firefighters have no set places or hours of employment, but rather are on call and must respond to emergencies at times and locations that, obviously, are not known in advance. In Mr. Bagabos case, however, although his particular place of employment may have been different on any given day, he knew in advance where his workplace would be each day. (See Voice v. Workers Comp. Appeals Bd. (1988) 53 Cal.Comp.Cases 497 (writ den.) (death of a security guard, who was killed in an automobile accident on a public street while traveling to work in his personal vehicle, was determined to be barred by the going [and] coming rule; although the security guard worked at various locations in the Silicon Valley — and worked at five different buildings in the week before his accident — he and the other security guards were told in advance each week where they were to work and they did not use their personal vehicles on the job).)"
Lamers also argues that her husband fell within the "transportation exception" to the going-and-coming rule by conveying a special benefit to Pinkerton by driving his personal vehicle to the bridge on the day of his assignment. Lamers believes her husband was effectively required to furnish his own transportation as a condition of his employment as in Hinojosa.
The employer in Hinojosa hired farm laborers to harvest fruit from several non-contiguous ranches without providing transportation between field locations. (Hinojosa, supra, 8 Cal.3d at p. 152.) The employee did not own a vehicle and hired a coworker to drive him to and from work and between fields. (Id. at pp. 152-153.) After completing a workday and while on their way home, the employee and his coworker were involved in an automobile accident. (Id. at p. 153.) Reversing the WCAB, the Supreme Court found the injury fell outside the going-and-coming rule because the employer received a benefit by impliedly requiring its workers to furnish personal transportation between job sites. (Id. at pp. 160-162.)
Unlike the employee in Hinojosa, Bagabo knew in advance when and where he would work on any given day and he was not required to transport himself from one jobsite to another during an assignment with Pinkerton. Although Lamers further relies on Smith v. Workmens Comp. App. Bd. (1968) 69 Cal.2d 814 for the proposition that an employee does not fall within the going-and-coming rule when the employer requires an employee to drive a car to work, there is no evidence supporting that a vehicle was necessary to Bagabos job duties. As the WCJ summarized Dunmires testimony, "There is no requirement that employees drive themselves to a job. He tells them they dont care how they get there, just that they are there on time."
Lamers believes Pinkerton effectively required her husband to drive his personal vehicle to the bridge assignment because public transportation to the worksite was not feasible, the jobsite was an hour commute from their residence, and the shift ran into the early hours in the morning. Lamers, however, does not refer to any legal authority expanding the exceptions to the going-and-coming rule for such circumstances. As the WCAB explained:
"There is no basis in the law to conclude that the length or timing of an individual employees personal commute can determine whether or not an injury sustained during that commute is or is not within the going and coming rule. In this regard, we observe that, in the current job environment (in part due to the cost of housing and the quality of public schools), some employees drive many miles — while other employees may walk — to get to the same jobs at the same work locations. It would be inequitable to find that an injury sustained by one employee is compensable, while an injury sustained by another employee is not, merely because the first employee had a longer commute — at least if the employer did not dictate where the respective employees were to live, but their living situations were a matter of personal choice."
The WCAB added in a footnote that the adoption of such an exception to the going-and-coming rule would create "`line drawing" issues. "Would a 50-mile commute be compensable, but not a 45-mile one? Would a one-hour commute be compensable, but not a 55-minute one?"
There is no evidence in the record that Pinkerton required Bagabo, either explicitly or implicitly, to drive his personal car to work as a condition of employment. To the contrary, the evidence established that Bagabos duties at the bridge instead mandated him to patrol the bridge on foot. Moreover, he knew in advance when and where he would be working. Bagabos commute to the worksite was nothing more than "the normal need of the presence of the person for the performance of the work" barred from workers compensation coverage by the going-and-coming rule. (Hinojosa, supra, at p. 157.)
DISPOSITION
The petition for writ of review, filed January 11, 2007, is denied. This opinion is final forthwith as to this court. --------------- Notes: Before Wiseman, Acting P.J., Cornell, J., and Kane, J.