SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT INC v. WORKERS COMPENSATION APPEALS BOARD (1978)

Petitioner Southern California Rapid Transit District, Inc. (hereinafter “R.T.D.”) contends that the appeals board erred. It held compensable the disability resultant from an automobile accident sustained by respondent Elliott Weitzman. His injuries occurred when he was returning from a trip to his R.T.D. district office. Weitzman had dropped off a medical release authorizing him to return to work from an industrial injury. We agree and annul the award.

FACTS

Weitzman sustained an admitted industrial injury on February 29, 1976, while employed as a bus driver for R.T.D.

On September 27, 1976, Weitzman took a release to the R.T.D. authorizing him to return to work on a trial basis. A personnel clerk at R.T.D. indicated that Weitzman could not return to work since Dr. Abramson's release was with restrictions. This was not acceptable to R.T.D. Weitzman was advised that a full release was necessary and that once he obtained such a release he could bring it directly to the local district office. On September 28, 1976, Weitzman obtained a full release authorizing him to work without restriction on September 30, 1976. Weitzman took the release to R.T.D.‘s local district office. After delivering the release, and while he was going home, Weitzman was involved in an automobile accident resulting in injuries.

Weitzman testified that in order to return to work he had to turn in Dr. Abramson's release before 11 a. m. of the day he was to return to work. He understood that he was to return to work on September 28, 1976; but since he did not deliver the release until after 11 a. m., he was not permitted to return to work that day. He also testified that he could not call in his return to work release but had to bring it to the R.T.D. office.

Relying upon Laines v. Workmen's Comp. Appeals Bd. (1975) 48 Cal.App.3d 872, 122 Cal.Rptr. 139, the judge held that the injury was industrially compensable. R.T.D. sought reconsideration. In a two-to-one panel decision, the Board denied reconsideration. The majority of the Board stated, in part:

“Applying the Laines rationale to the instant case, we find that as a consequence of his February 29, 1976 industrial injury, applicant (Weitzman) undertook a mission which entailed traveling from his physician's office to his employer's office in order to deliver a work release required by the employer in order for applicant to resume full work status. Applicant was injured during the homeward bound portion of this trip. The trip occurred as a consequence of applicant's earlier industrial injury, therefore, the injury applicant sustained during that trip arose out and occurred in the course of his employment and is compensable. On the basis of the foregoing discussion, we affirm the workers' compensation judge's finding . . . .”

The dissenting Board member concluded that when Weitzman delivered the work release to R.T.D., his temporary disability status ended; therefore the trip home constituted a normal commute within the going and coming rule.

DISCUSSION

Weitzman's automobile accident injury is urged as industrially compensable upon two theories: the first is under Laines, supra, as held by the Board; and, secondly, under the “special mission” exception to the going and coming rule.

1. Does Laines apply?

In Laines the injured employee sustained an industrial injury for which his employer directed him to seek medical treatment from a particular doctor. In transit to the doctor's office via motorcycle, the injured was involved in an accident. It was undisputed that the industrial injury was not in itself a factor contributing to the accident. (Cf. State Comp. Ins. Fund v. Ind. Acc. Com. (Wallin ) (1959) 176 Cal.App.2d 10, 1 Cal.Rptr. 73.)

The court in Laines found the injuries from the accident compensable, stating:

“. . . Where the visit to the doctor is based on the statutory obligation of the employer to furnish and the employee to submit to medical examination and nondangerous treatment (see Lab.Code, ss 4600, 4050, 4056), an injury sustained in the course of such a visit should be held to be an injury arising out of and in the course of employment within the meaning of section 3600 of the Labor Code. If the employee elects to stay at home rather than to venture out to such a medical examination treatment, he risks losing his right to seek compensation for his industrial injury under Labor Code sections 4053 and 4056.” (Laines, supra, 48 Cal.App.3d 872, 877, 122 Cal.Rptr. 139, 142.)

Professor Larson analyzes the situation presented by Laines as the concept of “quasi-course of employment.” (1 Larson, Workmen's Compensation Law (1978) s 13.11.)

“. . . By this expression is meant activities undertaken by the employee following upon his injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless 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. ‘Reasonable’ at this point relates not to the method used, but to the category of activity itself. . . . Quasi-course activities in this sense would include, for example, making a trip to the doctor's office and reaching for aspirin in the medicine cabinet. The concept of quasi-course would not, however, include beating one's wife or engaging in a boxing match.”

Under the “quasi-course activity” an injury while on a trip to the doctor's office is compensable:

“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. . . .

“When compensation has been denied in this type of case, there has usually been some added factor weakening the causal connection, such as doubt about whether the trip was really authorized, or termination of the employment relation before the second injury occurred. Denials have also issued when the purpose of the trip was not treatment by a doctor, but examination for purposes of a workmen's compensation claim or for purposes of meeting the employer's requirement of a physical fitness certificate. Other denials in apparently related cases may be accounted for by the fact that the original injury was not work-connected, as where an employee suffers a heart attack and then attempts to connect it with the employment by pointing to the exertion of making his way to the employer's clinic or infirmary.

“In the simple case, however, of a trip to the doctor's office necessitated by a compensable injury, the arguments put forward by the Kansas court in the Taylor case (Taylor v. Centrex Construction Company (1963), 191 Kan. 130, 379 P.2d 217) are difficult to answer. The court noted that the employer is under a statutory duty to furnish medical care, and that the employee is similarly under a duty to submit to reasonable medical treatment under the act. The provisions of the act, in turn, become by implication part of the employment contract. This being so, the better view appears to be that accidental injuries during a trip made pursuant to this statutory and contractual obligation are work connected.” (Footnotes omitted.) (Larson, supra, s 13.13, pp. 3-379 3-383.)

Thus, both Laines and Larson rely heavily on the employer's statutory duty to provide medical care and the injured employee's duty to submit thereto. Accordingly Laines is clearly distinguishable from the instant case. There is here no duty imposed upon the employee by the employer; the benefit of the delivery of the release was solely that of the employee. We therefore do not find the compensability of Weitzman's automobile accident a “logical extension of Laines,” as found by the judge.

Most persuasive is the New Jersey Superior Court, Appellate Division case of Anderson v. Chatham Electronics (1961) 70 N.J.Super. 202, 175 A.2d 256. In Anderson the court held that injuries sustained by an employee in an accident while returning from her doctor's office (to which she had gone for a medical clearance slip required by her employer) before returning to work following surgery unrelated to her employment did not arise out of and occur in the course of employment. The court while noting that the clearance slip was with regard to a non-industrial injury stated:

“Larson points out (1 Law of Workmen's Compensation (1952), s 13.13, p. 186) that even when a trip to a doctor is with reference to a compensable injury, ‘it should not therefore be necessarily concluded that anything happening * * * in the course of a visit to the doctor is compensable. To get this result, there should be either a showing that the trip was in the course of employment by usual tests (as where the doctor has been designated or the appointment made by the employer), or that the nature of the primary injury contributed to the subsequent injury in some way other than merely occasioning the journey * * *.’ ”

The rationale of Laines is inapplicable to the facts of the instant case and that of Anderson, being applicable, results in noncompensability.

2. Does the “Special Mission” exception apply?

The going and coming rule precludes compensation for injury suffered by an employee during the course of a local commute to a fixed place of business in the absence of exceptional circumstances. (General Ins. Co. v. Workers' Comp. Appeals Bd. (Chairez ) (1976) 16 Cal.3d 595, 598, 128 Cal.Rptr. 417, 546 P.2d 1361; Wilson v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 181, 184, 127 Cal.Rptr. 313, 545 P.2d 225; Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 501 P.2d 1176.)

The courts have thereby excluded from compensability the ordinary, local commute that marks the daily transit of the mass of workers to and from their jobs. The employment plays no special role in the requisites of portage except the normal need of the presence of the person for performance of the work. (Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 501 P.2d 1176; see also Wilson v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d 181, 184, 127 Cal.Rptr. 313, 545 P.2d 225.)

Under the “special mission” exception an injury suffered by an employee during his regular commute is compensable if he was also performing a special mission for his employer. The employee's conduct is “special” if it is “extraordinary in relation to routine duties, not outside the scope of employment.” (General Ins. Co. v. Workers' Comp. Appeals Bd. (Chairez ), supra, 16 Cal.3d at p. 601, 128 Cal.Rptr. 417, 420, 546 P.2d 1361, 1364; see also, Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d at pp. 159-160, 104 Cal.Rptr. 456, 501 P.2d 1176; Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 101 Cal.Rptr. 105, 495 P.2d 433; Guest v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 670, 87 Cal.Rptr. 193, 470 P.2d 1; Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 38 Cal.Rptr. 352, 391 P.2d 832.)

As explained in 2 Hanna, California Law of Employee Injuries (2d rev. ed. 1978) section 9.03(3)(c)(iv):

“If a worker is injured, whether on his own time or on that of his employer, while in the execution of a special mission for his employer, compensation will not be denied him because he was also on his way to or from his place of work. To bring the employee into the course of the employment under such circumstances, however, the employer's mission must be a substantial one, representing the major factor in the movement or journey, and not something merely incidental thereto. Such a mission is deemed substantial where its performance requires a special trip, or the regular trip at a special time. On the other hand, the employer's business is usually regarded as an incidental factor in the journey when the employee merely has a letter to mail, has with him tools or equipment of the employer, or work of the employer to be done or which has been done at home, or similar business of an inconsequential nature merely incidental to the main purpose of going home or coming to work. . . .” (Fns. omitted.)

In our case the medical release was essential for Weitzman to return to work. The mere cartage by Weitzman thereof does not warrant exception to the going and coming rule. There is no evidence that the transporting of such release required a special route or mode of transportation or increase in the risk of injury. (See Wilson v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d 181, 185, 127 Cal.Rptr. 313, 545 P.2d 225, and cases cited therein; see also Anderson v. Chatham Electronics, supra.)

The record does not support a finding of a requirement that Weitzman make a special or extra trip to work in addition to his ordinary commute. (See General Ins. Co. v. Workers' Comp. Appeals Bd. (Chairez ), supra, 16 Cal.3d 595, 601-602, 128 Cal.Rptr. 417, 546 P.2d 1361; see also State C. I. Fund v. Indus. Acc. Com. (1928) 89 Cal.App. 197, 264 P. 514.) He was merely to bring in the release before 11 a. m. on the day he was to return to work.

The purpose of the September 28, 1976, trip was to return to work on that date. The fact that Weitzman was also carrying the release does not convert his otherwise normal commute into a “special mission” merely because Weitzman was too late to start work on that day.

In Anderson, supra, the court similarly rejected the attempt to apply the “special mission” exception, stating:

“(The injured) argues that the medical certificate which it requested her to obtain was for the employer's ‘benefit’ for the additional reason that ‘to know and be assured that the employee is physically fit for work are obviously for the employer's benefit.’ In her supplemental memorandum she says ‘the employer's desire for a medical clearance slip is obviously to serve its purposes. Physical capability of the employee at the job is important to an employer * * * to insure that the work is performed efficiently, that the employee is not injured at the job, and that other employees will not be affected.’ Those considerations are too remote in the case at bar to turn the employee's compliance with the condition precedent to resumption of her employment, imposed by the employer, into a ‘special errand’ for the benefit of the employer. It is a benefit to the employer for the employee to have good teeth, hearing and eyesight; to get enough fresh air, exercise, wholesome food and sleep; to keep away from liquor and tobacco; and to keep clean. It would be a most extraordinary case in which the employer's request or even direction to the employee to obtain these ‘benefits' on his own time as a condition of further employment would make compliance part of the employment. An employer might tell an employee that his hearing or eyesight appears to be failing, and that unless he gets it corrected he will have to terminate the employment. We conceive that an injury sustained while en route to the employee's own doctor to be fitted for glasses or a hearing aid would not be compensable. An employee may be required to furnish his own uniform, or a tool such as a hammer. Certainly an injury sustained while en route to purchase such an item on his own time, off the premises, would not be compensable. An employer might object to an employee's lack of cleanliness and might tell him that in the future he is to shave and bathe more often as a condition for continued employment. That would not make a cut while being shaved in a barber shop or a fall on a cake of soap in a public bath compensable.”

We note the late case of Bramall v. Workers' Comp. Appeals Bd., 78 Cal.App.3d 151, 141 Cal.Rptr. 105. There the worker-secretary was injured on her homeward journey. She had with her work from her employer and was obligated to complete it as promptly as possible. She merely used her home as a secondary place of employment during other than normal working hours. While her employer had not specifically directed her to do the work at home in this particular instance, and had he been asked would have authorized it, it was expected to be done. On other occasions the employer knew the work was to be done at her home and approved it as a normal practice. As is seen, the special mission exception clearly applied in the Bramall case while no such employer direction, expectation or benefit resulted in the trip made by Weitzman. Also, the reference by Hanna, ante, page 281, specifies that “home work” is not within the exception where it is “inconsequential” in nature, i. e., to the employer's interests.

Accordingly, Weitzman's automobile accident incapacity is not compensable under the “special mission” exception to the going and coming rule.

For the foregoing reasons, the award and the opinion and order denying reconsideration are annulled, and the matter remanded to the appeals board for such further proceedings as are consistent with this opinion.

I respectfully and briefly dissent. The record is quite ambiguous on two factual matters: first, whether Weitzman was supposed to bring in a medical release the day before he actually resumed work and, second, whether Doctor Abramson released him for work on September 28, the day of the automobile accident, or September 30. With respect to the first point the petitioning employer itself states in its petition to this court: “Applicant testified that as long as the release was turned in before 11:00 the day preceding the day before he was to go to work, since the release was for September 30, 1977, any time before 11:00 September 29, the release could have been turned in.” With respect to the second point, again the petitioning employer informs us that “on September 28, 1976, applicant, Elliott Weitzman, was given a full release to return to work on September 30, 1976 by his treating physician, Doctor Abramson.”^[FN1] In his report on petition for reconsideration, the workers' compensation judge expressly quoted Weitzman's deposition testimony to the effect that he was to return to work on the 30th.

In support of the Board's order we must therefore assume that Weitzman had to turn in the release before the day on which he was to return to work and that that day was not September 28, but September 30. For these reasons the statement in the majority opinion that the special mission rule does not apply because the release was delivered in the course of an ordinary commute is not justified.

Further, there are obvious benefits to an employer in knowing that a previously injured employee has been released for work by his attending physician and knowing that fact sometime before the employee actually reports for work. The purpose of the trip, made at the employer's request, was precisely to impart such knowledge to the employer. I therefore do not understand how Laines can be distinguished on the basis that “the benefit of the delivery of the release was solely that of the employee.”

I would, therefore, uphold the award.

FOOTNOTES

1.  Inexplicably the release itself forms no part of the record.

STEPHENS, Associate Justice.

ASHBY, J., concurs.