Opinion
For Opinion on Hearing, see 220 Cal. Rptr. 94, 708 P.2d 673.
Opinions on pages 415-434 omitted.
[202 Cal.Rptr. 81]Warren L. Hanna, Hanna, Brophy, MacLean, McAleer & Jensen, San Francisco, Grancell, Grancell & Marshall by Angel Barnes, Inglewood, Parker & Dally by Joan E. Partritz, Pomona, Kevin R. Twohy, Twohy, Darneille & Frye, Sacramento, Allen, Rhodes & Sobelsohn, Santa Ana, Krimen, Brodie, Hershenson & Da Silva by Jeffrey A. Rosen, San Francisco, amici curiae in support of petitioner.
Hoge, Fenton, Jones & Appel, Inc., Raymond W. Haworth, San Jose, Mullen & Filippi, James T. Ponzio, Santa Rosa, for petitioner.
Robert A. Fowler, Fowler & Ball, Ukiah, for respondents.
HANING, Associate Justice.
Santa Rosa Junior College petitions for review of a decision of the Workers' Compensation Appeals Board awarding death benefits to JoAnne Smyth, widow of a community college instructor who was killed in an automobile accident on his way home from the campus. At issue is the application of the "going and coming" rule as interpreted by Wilson v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 181, 127 Cal.Rptr. 313, 545 P.2d 225, to school teachers who regularly work at home. We conclude that Wilson requires the denial of benefits herein.
Joseph Smyth was a math instructor and chair of the mathematics department at Santa Rosa Junior College. He was killed in an automobile accident en route home from work at about 6:00 p.m. on March 16, 1982, while operating his personal automobile. It is undisputed that at the time of the accident Smyth had with him some students' papers he intended to grade that evening. His home was located in Ukiah, approximately 60 miles from the Santa Rosa campus where he worked. The family previously moved from Santa Rosa to Ukiah for their own convenience. Mrs. Smyth worked in Ukiah, she had a "back problem," and the couple decided that she should be located close to home and to their children's schools.
For several years prior to the accident Smyth remained late at work about once per week, stayed overnight in Santa Rosa once every two or three weeks, and also worked at home on some week nights. His duties as department chair in 1981-82 increased the frequency or degree of all these incidents. In that school year he worked late on campus once or twice per week, stayed overnight in Santa Rosa once or twice per week, and brought work home "about every night," working for one or two hours on those occasions. He did the work at home in a part of the living room reserved for these purposes, where he kept duplicate copies of books he needed. The work he brought home usually consisted of papers that needed grading; occasionally he worked at home preparing lesson plans or future class schedules. Mrs. Smyth testified there were two reasons why her husband worked at home rather than on campus; [202 Cal.Rptr. 82] he was subject to interruption by students or other business on campus, and he wished to spend some significant portion of his time with his family.
Several of Smyth's colleagues testified. His predecessor and interim successor, Patrick Boyle, testified that many instructors, including Boyle himself, took work home with them. In Boyle's opinion the work could not be finished during the normal working hours. Boyle testified that teachers were subject to interruption in their offices by students, both during daytime and at night and that no suitable alternatives existed on campus for uninterrupted work.
Richard Giles, another of Smyth's math department colleagues, also took work home four or five nights per week, stating that "[t]here's no continuous period when we can get work done" on campus. He considered it "tremendously important" to be accessible to students while on campus: "[T]here is a feeling of professionalism ... and I think Joe Smyth as a particular individual probably was more open to questions and working with students than any of the rest of us ...." Giles added that another reason he personally took work home was that by late afternoon he grew tired and felt the need for a break; for an opportunity to go home and refresh himself before continuing his duties.
Edmund Buckley, associate dean of instruction at the college, testified that the college administration neither encouraged nor discouraged working at home and that "it's common for many, many instructors to take work home." During his own four-year tenure as a department chair he had been able to avoid interruptions in his office "to some degree; not to a great degree." "[O]n several occasions" during those four years he had worked in the library grading papers, and found it "satisfactory" because he found "study carrels that nobody else knew about."
William Wilbur, dean of business services, testified that no financial or other considerations were granted Mr. Smyth, or any other staff members, to account for the distance and time of their commutes. Wilbur knew of no benefit obtained by the employer by reason of the work done at home rather than on campus. He agreed there was no rule against taking work home, and that to work at home is "common for all disciplines."
It is undisputed that Smyth could have eliminated or at least reduced interruptions by posting office hours for students, but did not wish to do so; his home work site was also subject to interruption.
The workers' compensation judge decided that the death was not industrial. He found it to have been Smyth's voluntary choice to work at home, that Smyth had facilities and time adequate enough that he did not have to resort to working at home.
Acting on petition for reconsideration, a three-member board panel, by two-to-one vote, held the death arose out of and occurred during the course of employment, concluding that Smyth was "essentially required" to maintain a home work site and that "[t]he nature of the job compelled him" to do so because of the interruptions on campus.
Whether Smyth's death occurred in the course of employment is a question of law, but the factors which are relevant to that decision are factual. As to these, our review of the board's express and implied findings is governed by the substantial evidence rule. However, " '[w]here, as here, there is no real dispute as to the facts, the question of whether an injury was suffered in the course of employment is one of law, and a purported finding of fact on that question is not binding on an appellate court.' " (Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864, 101 Cal.Rptr. 105, 495 P.2d 433, citing Reinert v. Industrial Acc. Com. (1956) 46 Cal.2d 349, 358, 294 P.2d 713.)
The resolution of this case involves the application of the "going and coming" rule and its many exceptions, and the "white-collar" doctrine announced in Wilson v. Workers' Comp. Appeals Bd., supra [202 Cal.Rptr. 83] , 16 Cal.3d 181, 127 Cal.Rptr. 313, 545 P.2d 225. The "going and coming" rule precludes workers' compensation benefits for death or injuries incurred "during a local commute en route to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances." (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 501 P.2d 1176.) Like the hearsay and many other rules, it commands more attention for its exceptions than its strict application. These exceptions have been exhaustively reviewed and need no further repetition from us.
See Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 104 Cal.Rptr. 456, 501 P.2d 1176; Baroid v. Workers' Comp. Appeals Bd. (1981) 121 Cal.App.3d 558, 175 Cal.Rptr. 633.)
The exception confronting us in the instant case is the "dual purpose" or "special mission" doctrine. This exception to the "going and coming" rule provides compensation benefits "where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force." (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962, 88 Cal.Rptr. 188, 471 P.2d 988.) If it does, the "established rule" is "[t]hat where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer." (Lockheed Aircraft Corp. v. Ind. Acc. Com. (1946) 28 Cal.2d 756, 758-759, 172 P.2d 1.) In recognition of the fact that numerous and varied circumstances might indirectly provide some incidental benefit to the employer while an employee is engaged in travel, the rule has been further refined to provide that "the injury is compensable if received while the employee is doing those reasonable things which his contract of employment expressly or impliedly authorizes him to do." (Employers' etc. Corp. v. Indus. Acc. Com. (1940) 37 Cal.App.2d 567, 573, 99 P.2d 1089, reaffirmed by the Supreme Court in Reinert v. Industrial Acc. Com., supra, 46 Cal.2d at p. 353, 294 P.2d 713, Dimmig v. Workmen's Comp. Appeals Bd., supra, 6 Cal.3d at p. 865, 101 Cal.Rptr. 105, 495 P.2d 433, and Southern California Rapid Transit Dist., Inc. v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 158, 164, 151 Cal.Rptr. 666, 588 P.2d 806; see also Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 157-158, 144 Cal.Rptr. 105.)
When applying the foregoing rules or tests to an accident occurring in the course of a commute to or from work by an employee claiming his or her home as a second job site, we encounter the "white-collar" rule of Wilson v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d 181, 127 Cal.Rptr. 313, 545 P.2d 225.
Wilson involved a grade school teacher who regularly performed some of her work at home, and who was involved in an automobile accident while driving to her school. In denying benefits, the Wilson court attached no significance to the fact that "applicant's type of work regularly is performed at home.... The contemporary professional frequently takes work home. There, the draftsman designs on a napkin, the businessman plans at breakfast, the lawyer labors in the evening. But this hearthside activity--while commendable--does not create a white-collar exception to the going and coming rule. [p] Because applicant performed work at home for her own convenience, transporting work-related materials to facilitate her work there was also for personal convenience, furnishing no basis for exception from the going and coming rule. [p] Transporting the [work-related material] may have been essential to applicant's employment, but unless such materials require a special route or mode of transportation or increase the risk of injury--their mere transport does not warrant exception from the going and coming rule. [Citations.] Such cartage is common and must be viewed as incident to the commute rather than as part of the employment." (Wilson v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 185, 127 Cal.Rptr. 313, 545 P.2d 225.)
[202 Cal.Rptr. 84]Respondents contend Wilson is distinguishable because it was not claimed therein that the school facilities were inadequate for performance of the teacher's job. They contend the evidence in the instant case is just the opposite--that Professor Smyth was unable to complete his work on campus. We do not believe any real distinction exists.
We recognize that the law requires us to construe the workers' compensation laws liberally for the purpose of extending their benefits to injured persons. (Lab.Code, § 3202; Dimmig v. Workmen's Comp. Appeals Bd., supra, 6 Cal.3d at pp. 866-867, 101 Cal.Rptr. 105, 495 P.2d 433; Guest v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 670, 673, 87 Cal.Rptr. 193, 470 P.2d 1.)
An analysis of the foregoing cases reveals that the statutory mandate of liberal construction is frequently utilized to resolve factual doubts in the employee's favor. However, respondents' claim that the inadequacy of the school facilities required Professor Smyth to work at home is based on their contention that the interruptions by students seeking counselling were too frequent and time consuming to allow for the completion of administrative tasks and class preparation. The problem with this claim is the undisputed evidence that these student interruptions could have been avoided by the simple expedient of posting office hours. Professor Smyth chose to make himself available to students at any time--it was his choice to permit the interruptions, and his choice to work at home for his own convenience. His attitude is commendable and we do not wish to discourage such dedication in any teacher, but to distinguish this situation from Wilson would violate the controlling principle of stare decisis reiterated in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937. The "going and coming" rule, with all its exceptions, is judicially created and has received substantial criticism, but if a change is due it must come from our Supreme Court or the Legislature. Our common and collective experience leads us to believe that Professor Smyth's work habits and situation are shared by virtually all teachers throughout the state, as well as those other "contemporary professionals" referred to in Wilson. To construe the instant facts otherwise under the guise of upholding substantial evidence would only add further confusion about the rule in relation to Wilson, and erode confidence in the principle of stare decisis.
The former chair of the mathematics department testified that teachers permitted student interruptions in their offices out of a sense of "professional integrity." We admire this attitude. The primary responsibility of a teacher is to teach, and to do this well requires the teacher to be available to the student. This brings home the fact that the demands of teaching, as well as those inherent in other professions, are incompatible with a legal concept that one performs, and leaves, one's job at the office.
By all accounts Professor Smyth was an exceptional teacher, whose concern for his students led his priorities even at the expense of causing him to work overtime without any additional compensation.
We are aware of Bramall v. Workers' Comp. Appeals Bd., supra, 78 Cal.App.3d 151, 144 Cal.Rptr. 105, and have no disagreement therewith. The facts therein were sufficiently distinct from those in the instant case to require the result reached by the Bramall court.
The decision is annulled and remanded with instructions to follow the Report and Recommendation on Petition for Reconsideration of the Workers' Compensation Judge and affirm his Finding and Order.
LOW, P.J., and KING, J., concur.
The instant case presents a classic example of circumstances which generate criticism of the rule. Professor Smyth's overriding concern for his students and his willingness to work long hours on his own time are a manifestation of those finest qualities we hope to see in our educators. His employer (as well as his students) obviously benefited from this activity, and yet Wilson cannot be meaningfully distinguished.