PHILLIPS v. WORKERS COMPENSATION APPEALS BOARD

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

Lynn PHILLIPS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, M & H Construction Company et al., Respondents.

No. F016410.

Decided: April 08, 1992

Mastagni, Holstedt & Chiurazzi, and Craig A. Kingscott, Sacramento, for petitioner. Hanna, Brophy, MacLean, McAleer & Jensen, and Elizabeth S. Trimm, Sacramento, for respondents.

OPINION

STATEMENT OF THE CASE

Petitioner, Lynn Phillips, seeks review of a decision of the Workers' Compensation Appeals Board (WCAB or board) which upheld the order of the Workers' Compensation Judge (WCJ) denying death benefits for Eugene Davis (deceased).   We conclude:  (1) petitioner's application is untimely, however, in the interest of fairness, we will treat the untimely petition for writ of review as a petition for writ of mandate and address the merits of petitioner's claim;  (2) there is substantial evidence to support the decision of the board that Davis was killed while on a personal errand, a material deviation from his travel between his doctor's office and his home for treatment of a compensable injury;  and (3) the policy espoused in Laines v. Workers' Comp. Appeals Bd. (1975) 48 Cal.App.3d 872, 122 Cal.Rptr. 139 does not preclude application of a deviation rule under the facts of this case.   Thus, Davis's death was not compensable because it occurred when he materially deviated from a reasonable route home, for a purpose not germane to the medical visit, after he was treated for a compensable injury.

STATEMENT OF FACTS & PROCEDURAL HISTORY

Eugene Davis was injured in 1984 while working as a carpenter for M & H Construction Company, insured by Safeco Insurance Group.   In 1987, the parties stipulated that Davis was totally, permanently disabled and he was awarded compensation and further medical treatment.   On March 14, 1988, Davis was killed by a drunk driver in a collision on Highway 50.   That day he had traveled from his home in Loyalton, about 50 miles north of Truckee, to Sacramento for medical appointments related to his industrial injuries.

Lynn Phillips, Davis's former spouse, who maintained a relationship with Davis, applied for death benefits and related compensation in April 1988.   At her deposition in November 1988, she testified she last spoke with Davis on Saturday, March 12, 1988.   At the time, she was staying in Fresno where she had a part-time job and Davis was staying at their apartment in Loyalton.   Davis told her he intended to go the doctor on Monday, the 14th.   She then testified:

“Q. [Counsel]:  Did he tell you that he intended to go anywhere else that day?   That day being March 14, 1988.

“A. [Phillips]:  He said he was going to travel back to Loyalton through Lake Tahoe.

“Q. Why?

“A. His son Larry had requested that Gene stop in Lake Tahoe and get a job description for him from the Fire Department․   ¶ Larry had been out here the prior week and put his application in here and had considered it.   I don't know.”

Sixteen months later, on March 9, 1990, a hearing was held on Phillips's application for benefits.   Davis's former employer and Safeco contended that Davis's death was not compensable because it occurred while he was on a personal errand, a substantial deviation from his direct route to and from his medical treatments.

The WCJ summarized the evidence adduced at the hearing substantially as follows.   Phillips testified when she last spoke with Davis, he told her he would go to his doctor's appointments in Sacramento on Monday, March 14, 1988.   He did not mention anything else he was going to do that day.   After the accident she was told he may have been on an errand to pick up a Lake Tahoe Fire Department job description for his son.   She did not know for certain why Davis was on Highway 50 at the time of the accident.   He had been commuting from Loyalton to his doctor appointments in Sacramento since he had taken the Loyalton apartment in January of that year, but he did not mention any favorite route between Loyalton and Sacramento.   He had mentioned a huge construction project that was causing long delays on Highway 80.

A map of the area submitted at the trial shows Loyalton is about 50 miles north of Truckee, which is about 100 miles northeast of Sacramento.   The most direct route from Sacramento to Loyalton is northeast on Highway 80 from Sacramento to Truckee, then north on Highway 89 to Highway 49 to Loyalton.   A less direct route is east on Highway 50 from Sacramento to Highway 89, then north on Highway 89 to Highway 49 to Loyalton.   South Lake Tahoe is a few miles east of Highway 89 on Highway 50.   Thus, Sacramento, South Lake Tahoe and Loyalton are in a rough triangular relationship.   By using Highway 80, a driver traverses the hypotenuse of the triangle.   By traveling on Highway 50 to Highway 89, a driver traverses the base and side of the triangle.

On cross-examination, Phillips was asked about her deposition testimony that Davis had told her he intended to run an errand for his son on the way back to Loyalton.   She did not remember making that statement.   She testified Davis did not mention the errand before he died;  after the accident she learned from his son Larry that he had asked Davis to pick up the job description.

Phillips also testified when Davis was driving between Fresno and Sacramento for medical appointments in 1985, 1986 and 1987, he would take different routes because he enjoyed being out and seeing different things.

Davis's daughter, Gwen Vosoughkia, testified she did not know about Davis's intent to stop at Lake Tahoe before his death.   After the accident she learned her brother had asked Davis to pick up some paperwork at the fire department at South Lake Tahoe.   She spoke with her father frequently before his death.   He mentioned construction on Highway 80 and how he did not like to be tied up in the traffic.   Her father was not one to take the same route repeatedly;  he would take different routes from time to time.   When she traveled north from Sacramento on Highway 80 on the second day after Davis's death, traffic on the highway was backed up because of a construction project and she was delayed 45 minutes to an hour.

The WCJ found Davis's death was not the result of an industrial injury and denied death benefits.   The judge reasoned Davis was killed while on an errand for his son, a material deviation from his travel to and from the medical appointments.   Phillips petitioned the WCAB for reconsideration.   The WCJ, after considering petitioner's arguments, recommended the petition be denied.   Thereafter, the WCAB found there was ample evidence to justify the trial level decision and the decision was not contrary to established law.

DISCUSSION

1. Is the petition timely?

Phillips's petition for writ of review was filed in this court on August 9, 1990, 49 days after the board's order denying reconsideration was filed and served by mail.   The petition should have been filed within 45 days of the filing of the Board's order and thus was untimely.  (Southwest Airlines v. Workers' Comp. Appeals Bd. (1991) 234 Cal.App.3d 1421, 1424–1425, 286 Cal.Rptr. 347.)

 Labor Code section 5950 1 provides a petition for writ of review “must be made within 45 days after a petition for reconsideration is denied.”   A petition filed after this time period is untimely and the court is without jurisdiction to consider it.  (Villa v. Workers' Comp. Appeals Bd. (1984) 156 Cal.App.3d 1076, 1078, 203 Cal.Rptr. 26.)   In Villa, the court held Code of Civil Procedure section 1013 2 (hereafter § 1013) extended the time for filing the petition because the Board's order denying reconsideration was mailed to petitioner.  (Id. at pp. 1078–1079, 203 Cal.Rptr. 26.)

 Seven years later, Southwest Airlines v. Workers' Comp. Appeals Bd., supra, 234 Cal.App.3d 1421, 286 Cal.Rptr. 347, concluded the time for filing a petition for writ of review of a WCAB decision is not extended by the provisions of section 1013.   The court reasoned, the 45–day period specified in section 5950 runs from the time “a petition for reconsideration is denied ” or from “the filing of [an] order, decision, or award following reconsideration.”  Section 1013's extension for service by mail only applies when the time for doing the act in question runs from service of a document.   (Id. at pp. 1424–1425, 286 Cal.Rptr. 347.)   We find the reasoning of Southwest Airlines persuasive and agree section 1013 does not extend the time for filing under section 5950.

2. Can we treat the untimely petition for writ of review as a petition for writ of mandate?

 Petitioner contends “special circumstances” exist which enable this court to consider her untimely petition for writ of review as a petition for writ of mandate.   In the interest of fairness, we will do so.

The California Constitution provides worker's compensation decisions shall be subject to review by the appellate courts of the state and authorizes the Legislature to fix the manner of such review.  (Cal.Const., art. 14, § 4;  2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d ed. 1966 with 1991 revision) § 10.01[1], p. 10–3.)   Section 5810 provides that orders, decisions and awards of the appeals board related to compensation proceedings “may be reviewed by the courts specified in Sections 5950 to 5956 within the time and in the manner therein specified and not otherwise.”   The manner specified is an application for writ of review (§ 5950).   The writ of review is the designated procedure for securing review, reversal, correction or annulment of appeals board orders, decisions or awards made under Division 4 of the Labor Code.   But it is not the only appellate remedy available.  (2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation, supra, § 10.01[3], pp. 10–3—10–4.)

Section 5955 authorizes the Supreme Court or a court of appeal to issue a writ of mandate in “all proper cases.”   Petitioner argues this is a “proper case” for mandamus because she reasonably relied on the Villa opinion in filing her now adjudged untimely petition for writ of review.   She submits her case is analogous to Phelan v. Superior Court (1950) 35 Cal.2d 363, 217 P.2d 951.

In Phelan, the trial court denied defendant's motion for a new trial but reduced the verdict.   After the time for an appeal had expired, plaintiff filed a petition for writ of mandate to compel the trial court to strike the order reducing the judgment contending such order was void.  (Id. at pp. 365–366, 217 P.2d 951.)   The Supreme Court held petitioner's proper remedy was by way of appeal.   However, in view of the uncertainty which existed in the law with respect to whether a void order was appealable or reviewable by petition for a writ of mandate, the court concluded petitioner should not be denied the use of the writ because of his failure to appeal.   While the fact that a litigant has lost his remedy by appeal does not justify resort to mandate in the absence of a sufficient excuse for his failure to take an appeal, “[i]t would obviously be a hardship upon a litigant who has been misled by such uncertainty in the law if we were to resolve the uncertainty and in the same proceeding deny his petition for a writ on the ground that he in fact did have an adequate remedy by appeal.”  (Phelan v. Superior Court, supra, 35 Cal.2d at pp. 370, 371–372, 217 P.2d 951;  and see, e.g., Thelander v. Superior Court (1962) 58 Cal.2d 811, 814, 26 Cal.Rptr. 643, 376 P.2d 571;  Aced v. Hobbs—Sesack Plumbing Co. (1961) 55 Cal.2d 573, 579–580, 12 Cal.Rptr. 257, 360 P.2d 897 and Parrott v. Furesz (1957) 153 Cal.App.2d 26, 30–32, 314 P.2d 47.)

We agree this case and Phelan are analogous from a fairness standpoint.   Southwest Airlines was published two months after petitioner filed her petition for review which we now find to be untimely by following the holding in Southwest Airlines.   It would clearly work a hardship on petitioner, who relied on published authority to calculate her filing deadline, to conclude in the same proceeding that the relied on authority was incorrect and to deny relief on the ground the petition filed in accordance with that authority was untimely.

The petition before us possesses the necessary attributes required for a writ of mandate.  (Code Civ.Proc., §§ 1086, 1094.5.)   Accordingly, we find this to be a “proper case” and will treat the untimely petition for writ of review as a petition for writ of mandate and consider the merits of petitioner's claims.

3. Does substantial evidence support the conclusion of the WCAB that Davis was on a personal errand at the time of his death?

 When a decision of the appeals board is attacked on substantial evidence grounds, we review the entire record to determine whether it is supported by substantial evidence or by inferences reasonably drawn from the evidence.  (LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432;  Phoenix Indem. Co. v. Ind. Acc. Com. (1948) 31 Cal.2d 856, 859, 193 P.2d 745.)   We consider all the evidence rather than isolating evidence which supports the decision and ignoring other relevant facts of record which rebut or explain that evidence.  (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 475 P.2d 451.)   But we may not exercise our “independent judgment on the evidence.”  (§ 5952, Insurance Co. of North America v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 905, 910, 176 Cal.Rptr. 365.)   Factual findings of the WCAB are not supported by substantial evidence where such findings are in conflict with all the evidence, based on inferences which cannot fairly be drawn from the evidence, based on evidence which lacks probative force, or based on the creation of a conflict in the evidence which does not otherwise exist.  (Id. at pp. 910–911, 176 Cal.Rptr. 365, and cases cited therein.)

 “Substantial evidence” is evidence which, if true, has probative force on the issues.   It must be reasonable in nature, credible and of solid value.   It is relevant evidence which 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, 193 Cal.Rptr. 157, 666 P.2d 14.)

Petitioner challenges the finding that Davis's death was not the result of an industrial injury because he was killed while on an errand for his son rather than while traveling in connection with his medical appointments.   In finding Davis's death was not compensable, the WCJ relied on Phillips's deposition testimony that Davis told her he was going to return from his medical appointments on the day of his death by way of Lake Tahoe because his son asked him to pick up a job description from the Lake Tahoe Fire Department.   The judge acknowledged Phillips and Vosoughkia provided alternative theories at the hearing to explain why Davis was traveling on Highway 50.   However, the judge found this testimony “less persuasive.”   He added, the “self-serving equivocation, lack of recall and denial by Ms. Phillips substantially distracted (sic) from her credibility as a witness.”   The WCAB found substantial evidence to justify the WCJ's decision:  “[h]aving had the opportunity to observe [Phillips's] demeanor and considering the differences between her deposition testimony and subsequent trial testimony, the WCJ was entirely justified in reaching the conclusion stated in the Findings and Order․”

 Petitioner submits the court cannot rely on her deposition statement regarding Davis's intent because it is hearsay.   A finding based on hearsay does not invalidate the finding or render the evidence too insubstantial to be credited.   Hearsay evidence is admissible and its weight is a question for the board.  (§§ 5708, 5709;  Sada v. Industrial Acc. Com. (1938) 11 Cal.2d 263, 268, 78 P.2d 1127.)   Accordingly, the challenged finding is not invalid because it is based on hearsay evidence.

 Petitioner also contends since the evidence as to Davis's reason for traveling on Highway 50 at the time of his death was conflicting and ambiguous, under section 3202, any doubts must be resolved in his favor.   Section 3202 compels the court to construe the workers' compensation statutes liberally in favor of injured employees.   It applies to factual questions as well as statutory construction.  (Sully–Miller Contracting Co. v. Workers' Comp. Appeals Bd. (1980) 107 Cal.App.3d 916, 926, 166 Cal.Rptr. 111.)

 In this case, there was conflicting evidence regarding why Davis was traveling on Highway 50, a longer and indirect route home, when he was killed.   However, the evidence was not evenly balanced.   The WCJ found the most credible evidence compelled the conclusion that Davis was on Highway 50 in order to pick up employment papers for his son in South Lake Tahoe.   He discounted Phillips's later testimony providing alternative reasons for Davis's presence on Highway 50 as “self-serving” and “less persuasive.”   The findings of the WCJ are entitled to great weight because of the judge's opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand.  (Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at pp. 318–319, 90 Cal.Rptr. 355, 475 P.2d 451.)   Although Phillips's interest in obtaining a recovery did not automatically render her testimony questionable, the WCJ could consider her interest in the outcome of the case as well as other factors relating to her credibility and reject her hearing testimony even if it was uncontradicted.  (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd., supra, 34 Cal.3d 159, 167, 193 Cal.Rptr. 157, 666 P.2d 14.)   Moreover, a party's admissions against interest in the course of discovery are generally given special deference because of their high credibility value.  (See, e.g., D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22, 112 Cal.Rptr. 786, 520 P.2d 10.)

 After reviewing the record, the board upheld the WCJ's conclusion.   The question of the applicant's honesty and good faith is one of fact for the board.   When the board has determined the question under circumstances which would permit a finding either way, the court cannot substitute its conclusion as to the credibility of the witness.  (§ 5953;  Lockheed Aircraft Corp. v. Ind. Acc. Com. (1946) 28 Cal.2d 756, 761, 172 P.2d 1.)

 Accordingly, viewed in light of the entire record, Phillips's deposition testimony regarding Davis's purpose for traveling on Highway 50 is substantial evidence to support the board's finding that Davis was killed while on a personal errand and thus his death was not compensable.

For the same reasons we reject petitioner's contention that that finding was not a reasonable inference from the evidence.   Even though Davis's reason for traveling home by Highway 50 had to be inferred from conflicting evidence, the finding that he intended to go to South Lake Tahoe on a personal errand is not unreasonable.   It is supported by Phillips's deposition testimony which the WCJ found to be more credible than the contradictory hearing testimony.

4. Regardless of whether Davis was on a personal errand at the time of his death, since he was also returning from a medical appointment necessitated by his industrial injuries, was his death a proximate result of his industrial injuries under Laines v. Workers' Comp. Appeals Bd.?

Laines v. Workmen's Comp. Appeals Bd., supra, 48 Cal.App.3d 872, 122 Cal.Rptr. 139, held that an injury received by an employee while en route to medical treatment for an industrial injury is compensable.   Because the Labor Code required the employer to furnish and the employee to submit to medical treatment as a condition of receiving compensation, an injury sustained in the course of such treatment arises out of and in the course of employment.   (Id. at p. 877, 122 Cal.Rptr. 139.)   On the proximate causation requirement for compensability, the court stated:

“On the question of causation in a case of this nature, Larson states that:  ‘When an employee suffers additional injuries because of an accident in the course of a journey to a doctor's office occasioned by a compensable injury, the additional injuries are generally held compensable.   If the journey takes place immediately after the first injury occurs, the chain of causation is most readily visible, as when an employee was being rushed to a hospital following a compensable injury and sustained further injury when the ambulance was involved in a collision.   But, quite apart from the element of immediacy, a fall or automobile accident during a trip to a doctor's office has usually been considered sufficiently causally related to the employment by the mere fact that a work-connected injury was the cause of the journey, without any necessity for showing that the first injury in some way contributed to the fall or accident.   Of course, if the prior injury in any way contributes to the second accident, the case is that much stronger, as when pain or drugs or a weakened member may have played a part.’  ․ (1 Larson, The Law of Workmen's Compensation, [1978] § 13.13, ch. 3.) ․”  (Id. at pp. 878–879, 122 Cal.Rptr. 139;  emphasis omitted.)

“The most serious problem with providing coverage in the case of the trip to the doctor's office in a case such as petitioner's, is that the employer lacks the opportunity to exercise any control over the trip.   The time the trip is made, the route followed, and the means of transportation employed are completely within the discretion of the employee, and the employer is thus unable to insure that the trip is reasonably safe and free of unnecessary hazards.

“Given the arguments set forth above, a choice must be made between requiring the employer to bear the risk of the employee's injury or requiring the employee to bear the risk of any mishap that may befall him while seeking statutorily required medical attention.   We conclude that the risk should be borne by the employer.”  (Id. at p. 879, 122 Cal.Rptr. 139.)

The WCAB determined that Laines did not control this case because Davis was killed when he materially deviated from the route home from his medical appointments, for a personal errand.   Petitioner contends the policy espoused in Laines requires the employer to assume the risk of additional injury to the employee when he travels to or from medical treatments necessitated by an industrial injury even when the employee deviates from the usual or most direct route.

 No California case has addressed the question of whether an employee's deviation from the most direct route to or from treatment rendered his subsequent injuries noncompensable.   Out-of-state authorities are instructive.   In Preway, Inc. v. Davis (1987) 22 Ark.App. 132, 736 S.W.2d 21, the applicant left her home in Arkansas to drive to a medical appointment in Memphis for follow-up treatment of an industrial injury.   She intended to drop her son off at his grandmother's house which was on the road to Memphis.   She was injured in an automobile accident before she dropped the child off.   The court affirmed an award of compensation and adopted Larson's “quasi-course of employment” concept.3  “Quasi-course” activities are those undertaken by the employee following his injury, including a trip to the doctor's office, which are related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury.   The court stated when the injury arises out of a quasi-course activity, the chain of causation should be deemed broken only when the employee engages in intentional conduct which was expressly or impliedly prohibited by the employer.   Under this standard, the court could not say the employee was violating an express or implied prohibition of her employer when she chose to deliver her child to his grandmother's house on the way to her doctor's office in a distant city, nor could such an arrangement be considered unreasonable.  (Id. 736 S.W.2d at pp. 22–23.)

A Florida court found a second injury compensable in Taylor v. Dixie Plywood Company of Miami, Inc. (Fla.1974) 297 So.2d 553, under the following facts.   The employee injured himself at work and was told to report to a particular physician's office.   Instead, he went home and then was injured in an automobile accident after he left his home to go to the doctor's office.   The court observed that the fact the employee was a few blocks off the most direct route to the doctor's office was immaterial under the circumstances, since an injured employee could with good reason go to his nearby home before going to the physician's office, if for no other purpose than to let his wife know he had to see a doctor.   If the employee had deviated from the direct route to the doctor's office for some irrelevant, extraneous purpose, such as personal pleasure or personal business not incidentally germane to the trip to the doctor's office, the result might be different.  (Id. at pp. 555–556.)   The court concluded the insubstantial deviation involved in this case would not preclude compensation unless it was shown the deviation was unreasonable and unjustifiable under the circumstances.  (Id. at p. 556.)

Finally, in Taylor v. Centex Construction Company (1963) 191 Kan. 130, 379 P.2d 217, a cement mason foreman, who injured his eye at work, was directed to see a particular physician for treatment.   Before returning to work, he stopped at his son's service station, had his truck (which he used in his employment) greased, and ate lunch.   On the return drive he was injured in a motor vehicle accident about a mile and a half from the job site.  (Id. 379 P.2d at p. 218.)   In reversing a judgment denying compensation, the Kansas court held that nothing in the Workmen's Compensation Act demanded the injured employee take the most direct route to and from the doctor's office when the route selected was reasonable and did not materially delay his return to work.   The employee could use his discretion in that respect, including a consideration of traffic, the number of stop lights, the condition of the road, and incidental advantages to such routes.  (Id. 379 P.2d at pp. 222, 224.)

On the other hand, the Massachusetts court affirmed the denial of compensation in Maguire's Case (1983) 16 Mass.App.Ct. 337, 451 N.E.2d 446.   There, a teacher injured her tooth at school.   She was treated by a dentist and the tooth was eventually pulled.   As the teacher turned into the school driveway following the pulling, she felt ill and remembered she had forgotten her medication at home.   She was seriously injured in an automobile accident while returning to her home to retrieve the medication.   The court held she was engaged in an independent enterprise at the time of the accident.   Thus, the injury was beyond the risk the employer was required to bear and was not compensable.  (Id. 451 N.E.2d at pp. 448–449.)

The New Jersey court stated in Camp v. Lockheed Electronics, Inc. (1981) 178 N.J.Super. 535, 429 A.2d 615, that in general, an accident is compensable when it occurs while the employee is going to or coming from the office of an authorized treating physician.   But the employer may establish a valid defense to the claim, such as substantial deviation, that precludes recovery by the employee.  (Id. 429 A.2d at p. 622.)

Read together, the out-of-state cases stand for the proposition that where the deviation is unsubstantial or reasonable under the circumstances, the worker has not abandoned his trip for medical treatment and his accidental injury en route to or from the treatment is compensable.   We believe this is a reasonable rule to apply in California.

If travel for medical treatment is viewed as activity within the “quasi-course of employment,” it must be related to the employment in the sense that it is necessary or reasonable travel which would not have been undertaken but for the compensable first injury.  (Cf. Southern California Rapid Transit Dist., Inc. v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 158, 165, 151 Cal.Rptr. 666, 588 P.2d 806, discussing 1 Larson, Workmen's Compensation Law (1978) § 13.11.)   Under this view, a trip for statutorily required medical treatment is analogous to a “special mission” in the workers' compensation scheme.   Thus, a similar deviation standard should apply in both cases.

 The special mission rule provides:  when an employee engages in a special activity which is within the course of his employment and is reasonably undertaken at the request of the employer, an injury suffered while traveling to and from the place of such activity is also within the course of employment provided the employee does not substantially deviate therefrom for purposes of his own.  (Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 868, 101 Cal.Rptr. 105, 495 P.2d 433;  Red Arrow Etc. Corp. v. Indus. Acc. Com. (1940) 39 Cal.App.2d 559, 561, 103 P.2d 1004.)

 It is for the WCAB to determine whether the employee deviated on a personal errand unless the court can say as a matter of law a deviation did not occur.  (Cf. Lockheed Aircraft Corp. v. Ind. Acc. Com. (1946) 28 Cal.2d 756, 758, 172 P.2d 1.)   Factors to be considered in determining the extent of a deviation include (1) whether the route on which the employee was traveling at the time of the injury could be used for both the employer's mission and the personal errand, (2) the amount of time consumed in the personal errand, (3) the nature of the errand, (4) whether the errand was an inducement for the employee to undertake the special mission, and (5) whether the errand was in connection with the performance of the special mission, for example, as an award.  (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 496–497, 48 Cal.Rptr. 765.)

In this case, the WCJ and the WCAB concurred that Davis was killed while on a personal errand which was a material deviation from his normal commute home from his medical appointments near Sacramento.   Implicit in this conclusion are findings that the errand was completely irrelevant to the medical visit and that travel by Highway 50 was not a reasonable alternative route between Sacramento and Loyalton.   These findings are supported by the record and we cannot say as a matter of law a material deviation did not occur.

First, petitioner does not contend Davis's errand for his son was connected in any way with his medical visits.   Second, as explained earlier, Sacramento, South Lake Tahoe and Loyalton are in an approximate triangular relationship.   Highway 80 forms the hypotenuse, Highway 50 the base, and Highways 89 and 49 the side of the triangle.   Thus, geographically, Highway 80 is the most direct route between Sacramento and Loyalton.   The map included in the record also indicates Highway 80 is a large, relatively straight thoroughfare, whereas Highways 50 and 89 are smaller and appear to wind through mountains.   Accordingly, the board also could have concluded Highway 80—with or without construction delays—was the only reasonable route from a driveability and time-consumption standpoint.   Therefore, Davis had materially deviated from his medical travel at the time of his death.

Petitioner next contends the deviation rule should not apply in this case because it is based on the principle that the employer should only bear the risk of employee injury when the employer can exercise some control over the employee's actions to avoid unnecessary hazards.   She argues, since Laines recognized the employer has no control over the route the employee takes to the physician's office, injuries received while en route should be compensable even when the employee combines his travel for a medical visit with another errand which involves a material deviation from his medical travel route.

 We disagree.   Although Laines concludes the employer should bear the risk that the employee may sustain additional injury when seeking statutorily required medical care, that risk need not be limitless.   Further, that the time the trip is made, the route followed and the means of transportation are within the discretion of the employee, does not preclude the application of a deviation rule.   Accordingly, we hold an accident is compensable when it occurs while the employee is going to or coming from medical treatment for a compensable injury unless the employee materially deviates from a reasonably direct route for a purpose not germane to the medical visit.

 Alternatively, petitioner submits Laines should be construed to allow the entire trip to and from medical treatment, including some deviations, to be covered.   She relies on the “commercial traveler/dual purpose” cases.   The commercial traveler rule provides that employees whose work entails travel away from the employer's premises are held to be within the course of employment continuously during the trip, except when a distinct departure on a personal errand is shown.  (IBM Corp. v. Workers' Comp. Appeals Bd. (1978) 77 Cal.App.3d 279, 282, 142 Cal.Rptr. 543.)   Thus, injuries suffered by commercial travelers while engaged in personal activities are compensable if the personal activity is combined with a business purpose.  (Ibid.)

 The “dual purpose” rule states, “ ‘If the employee's activity has a dual purpose, i.e., if he combines personal acts with the business of his employer, and the business is a substantial factor, he is considered in the course of his employment.’ ”  (Leonard Van Stelle, Inc. v. Industrial Acc. Com. (1963) 59 Cal.2d 836, 840, 31 Cal.Rptr. 467, 382 P.2d 587.)

 We find these rules inapplicable in this case.   First, an injured employee is not a commercial traveler.   Unlike a commercial traveler whose employment duties are not performed on a particular premises or at specific times, the injured employee's obligation to receive treatment is circumscribed.   The employer can expect the injured employee to travel between his home and the doctor's office and back again via a mode reasonable in terms of time, distance and the employee's physical condition.   In addition, the employer reasonably can expect the injured employee to deviate from his usual route for activities which are a normal incident of his need for medical care, such as to procure devices or medications.   Therefore, the employer should bear the risk of injury during travel for those purposes.   We find no reason to require the employer to assume the risk when the employee deviates from his medical travel on a personal errand unrelated to his need for medical care and of no benefit to the employer.

Accordingly, since substantial evidence supports the board's conclusion Davis was killed when he deviated from the reasonably direct route between his physician's office and his home for a purpose not germane to the medical visit, his death is not compensable.

DISPOSITION

The decision of the Workers' Compensation Appeals Board is affirmed.

FOOTNOTES

1.   All statutory references are to the Labor Code unless otherwise indicated.

2.   Section 1013 provides in pertinent part:  “any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period or on a date certain after the service of such document served by mail shall be extended five days ․ but such extension shall not apply to extend the time for filing ․ notice of appeal.”

3.   1 Larson, Workmen's Compensation Law (1985) § 13.13.

BEST, Presiding Justice.

VARTABEDIAN and BUCKLEY, JJ., concur.

Copied to clipboard