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Court of Appeal, First District, Division 4, California.

Dorothy WILSON, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the state of California et al., Respondents.

Civ. 34915.

Decided: March 24, 1975

Levy, Van Bourg & Hackler by Frank J. Reilly, Oakland, for petitioner. T. Groezinger, James J. Vonk, George S. Bjornsen, Glenn W. Groenewold, San Francisco, for respondent State Comp. Ins. Fund.

Dorothy Wilson, a teacher in the Oakland public schools, seeks annulment of an order of respondent board denying workmen's compensation benefits. Petitioner was driving to school from her home when her car was struck by another car and she was injured. At the time of the accident, petitioner had with her in the car report cards which she had graded the night before, books, and teaching materials. The board denied benefits on the basis of the ‘going and coming rule’ which holds noncompensable ‘the injury that occurs during a local commute enroute 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, 461, 501 P.2d 1176, 1181.) An injury incurred during such travel is compensable, however, in ‘special’ situations ‘in which the employer, because of benefit to himself, places an extraordinary requirement upon the employee, thereby re-establishing the employment relationship in the case of transit, and imposing liability on the employer in the case of the employee's injury.’ (8 Cal.3d at p. 159, 104 Cal.Rptr. at p. 462, 501 P.2d at p. 1182.)

Petitioner contends that the ‘going and coming’ exclusion does not apply to her injury because (1) she was carrying supplies to school, as she often did, (2) she occasionally visited parents' homes and therefore needed her car, and (3) since she had done work at home the evening before, her home was a second jobsite.

At the time of the accident, petitioner was carrying report cards, papers, books, art activities material, and sewing thread spools in her car. On prior occasions petitioner had brought heavy or bulky objects to school, such as an 80-pound sack of sand, wax for candles, and 2-foot by 4-foot posters to be used as reading aids.

One of the ‘special’ situations described by the court in Hinojosa, supra, is that in which the employee is ‘expressly or impliedly required or expected to furnish his own means of transportation to the job . . .’ (8 Cal.3d at p. 160, 104 Cal.Rptr. at p. 463, 501 P.2d at p. 1183.) In Smith v. Workmen's Compensation Appeals Board (1968) 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365, the employee, a social worker, was required to bring his automobile to work to respond to emergency calls and to visit clients; an injury incurred in travel was therefore compensable. If petitioner was expressly or impliedly required to bring articles to school which required automobile transportation, she would be ‘required or expected to furnish [her] own means of transportation to the job,’ and thus would come within this exception to the ‘going and coming’ rule.

Two questions emerge: First, was petitioner expressly or impliedly required to transport objects to school for use by her students? Second, were the objects she transported such that use of an automobile would be required?

There was uncontradicted evidence that petitioner was encouraged to bring materials to the classroom. The school principal testified that teaching materials are normally supplied, but that teachers are encouraged to devise special projects and to bring in such material as may be needed for their projects. A curriculum guide given to primary grade teachers by the school district states that a teacher should collect pictures and ‘concrete items related to units of work. A railroad spike, a trainman's lantern, a bus driver's punch, a milkman's hat can be examined closely, and also used in dramatic play.’

Although petitioner was not expressly or impliedly required, as a condition of her employment, to bring any specific materials to school, or to bring materials at any specific time, there was uncontradicted evidence that she could not have fulfilled her professional responsibilities at the level expected by the employer if she had not done so. Petitioner provided a benefit to the school district by supplying additional teaching materials. Employer benefit is a significant factor in determining whether an exception to the going and coming rule is appropriate. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962, 88 Cal.Rptr. 188, 471 P.2d 988; also see McCarty v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 677, 681–682, 117 Cal.Rptr. 65, 527 P.2d 617.)

The record does not disclose how large, heavy or bulky were the book, report cards and spools which petitioner took to school on the date of the accident. However, she testified, without contradiction, that the materials were ‘difficult to handle’; thus it is to be inferred that the use of a car was necessary to transport the objects. Hinson v. Workmen's Comp. Appeals Bd. (1974) 42 Cal.App.3d 246, 116 Cal.Rptr. 792, is distinguished. There, the injured employee had voluntarily driven his own vehicle to work instead of using employer-furnished transportation which was available to him.

The order denying benefits is annulled; respondent board will take further proceedings consistent with the views expressed herein.

CHRISTIAN, Associate Justice.

RATTIGAN, Acting P. J.,* and EMERSON, J.*, concur.

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