STATE COMPENSATION INSURANCE FUND v. WORKERS COMPENSATION APPEALS BOARD (1986)

OPINION

On petition of the State Compensation Insurance Fund, workers' compensation carrier for the employer, Jesus Torres, a farm labor contractor, we granted review of the decision of the Workers' Compensation Appeals Board (Board) that three employees were in the course and scope of their employment at the time of their injuries and/or deaths.   The injuries and/or deaths of the three employees were suffered in an automobile accident which occurred on the employees' way home from work.   The three cases were consolidated for disposition by the Board.   The Board determined that the employees were in the course and scope of their employment when the accident happened on the way home from work.   The sole issue before us is the issue of course and scope of employment.   The case involves application of the principles enunciated in Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 104 Cal.Rptr. 456, 501 P.2d 1176.

FACTS

The three farm labor employees, Sonia Vargas-Delgado, Roberto Rufino and Armando Espinoza, lived together in Wasco and traveled approximately 21 miles to the job site, a garlic field, in Espinoza's car.   On August 3, 1983, they worked until around 12:45 to 1:15 p.m. cutting garlic and were on their way back to Wasco when the accident occurred.   As a result of the accident, Espinoza died immediately;  Rufino died sometime later, and Vargas-Delgado was seriously injured.

At the hearing before the workers' compensation judge testimony of three witnesses, Rufino, Vargas-Delgado and the employer, Torres, was presented relative to the issue before us.

Rufino's testimony, by way of deposition, was that he first began working for Torres at various job sites in 1981.   He did not work for Torres in 1982, but resumed working for him in March 1983 and continued in his employment until he was injured on August 3, 1983.   Rufino stated that the only means of transportation to the fields was by private car.

Rufino stated that during the period in 1981 that he was working for Torres, he never had to shift from one field to another on a given workday.   He did, however, shift fields on two occasions in March of 1983.   On these occasions he provided his own means of transportation between fields.   His testimony was the only testimony that workers ever moved from one field to another during the workday.   He did not shift fields after the two times in March 1983.

During his employment during August of 1983 Rufino and the others were paid on the basis of piecework.   He testified that he had no fixed hours of employment and was able to come and go from the job as he pleased.

Vargas-Delgado testified that she had been living with Espinoza for seven years at the time of the accident.   She explained that she, Rufino and Espinoza had driven to work the morning of the accident in Espinoza's car and had left for home on the day of the accident because they were finished with their assigned work.   At the time of the accident she had only been working for Torres for three days.

In Torres' testimony he explained the nature of his work.   He was a licensed labor contractor.   He did not have a regular work crew but would find jobs and then look for workers.   If the farmer paid by the hour, Torres paid his employees by the hour while on the job;  if the farmer paid by contract, he paid his employees by contract.   When paid by the hour, everyone began work and left work at the same time.   Employees were not paid for the time spent going to and coming from home.   When they worked by contract, his employees started work and left work at different times.   The employees cutting garlic at the time of the accident were piece-rate workers.

On occasion he would have several separate crews working on several noncontiguous fields.

Torres did not recall providing transportation to any employees.   When the workers called him regarding work, he would direct them to the proper field and arrange to meet them nearby.   Torres explained that he did not impose any requirement that his employees have a car;  they were to get to work by whatever means they could.   Some of his workers lived on a nearby ranch and would walk to work.

Generally, workers would work until 3 or 3:30 p.m., but when it was very hot some would go home as early as 1:30 p.m.

Torres claimed that in the year of 1983 he never had an occasion to shift a work crew from one field to another during the same workday.   If there was only a small amount of work to be done in a given field, he would direct a small number of workers to that field.   Thus the size of the crew was adjusted to the amount of work to be done at any particular field.   His work schedules were designed to use only one crew at any particular field on any day.

The workers' compensation judge found in pertinent part:

“The employer testified that he never shifted a crew from one field to another during a single work day and that he never required employees to have their private vehicles at work.   There is no evidence rebutting the employer's testimony that he never directly required his employees to have their private vehicles at work so we may accept this as true.   With respect to changing fields within a single work day, however, there is something that has the appearance of a conflict.

“The employer's testimony was that he never had occassion [sic ] in 1983 to shift a crew from one field to another in the course of the same work day.   The deposition testimony of Roberto Rufino indicates that he had to change from one field to another in the same work day on at least two occassions [sic ] in March 1983 while working for this employer․  Rufino had worked for this employer in March 1983 and then consecutively from April 1983 to the time of his injury in August 1983.   He had also worked for this employer in 1981.   What appears to be a conflict in testimonies here upon closer observation is most probably not one.   The testimony of Rufino indicates that the employer himself was not present on the occassions [sic ] that the crew in which Rufino worked in had to move from one non-contiguous field to another during the course of the same work day, that it was the employer's wife and/or son who actually moved the crew․  Thus it appears correct that the employer, himself, never had occassion [sic ] in 1983 to move a work crew during the course of the same work day.

“Based, thus, on the testimony of Roberto Rufino, it will be found that the farm labor crews of Jesus Torres, Labor Contractor, in fact, on occassion [sic], moved from one field to another during the course of the same work day in 1983 and that the employees here were required to have their private vehicle at work with them in the event of such a move.”

The workers' compensation judge and the Board concluded that the workers' compensation claims arose out of and in the course of employment.   The insurance carrier for the employer, Torres, filed this petition for review.

DISCUSSION

 An employer is responsible for injury or death suffered by an employee if the injury or death arises out of and in the course of employment.   (Lab.Code, § 3600.)   With limited exceptions, injury or death sustained by an employee while on the way to work or returning from work is not incurred in the course of and arising out of employment and thus is not compensable.   This principle has been labeled the “going and coming rule.”  (Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 345, 351–352, 220 Cal.Rptr. 94, 708 P.2d 673;  Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 814, 815, 73 Cal.Rptr. 253, 447 P.2d 365.)

The employees or their dependents seek to bring themselves within the pale of an exception to the going and coming rule set forth in Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 104 Cal.Rptr. 456, 501 P.2d 1176.

In Hinojosa, the employer operated seven or eight noncontiguous ranches and employed petitioner Hinojosa as a farm laborer.   Upon completion of work at one ranch, the foreman would routinely assign the workers to different ranches to finish the day.   Payment per day accrued from the time Hinojosa arrived at the job until he departed for home, including the time spent in transit between ranches.   The workers were required to provide their own transportation between ranches during the day, thus necessitating the use of a car to carry out the job.   One day on his way home from work, in the automobile of a co-worker, Hinojosa was involved in an accident and was injured.   The California Supreme Court annulled the board's finding that recovery was prohibited under the going and coming rule and held that the employer's implied condition of employment, that the employee provide his own means of transportation between ranches while on the job, removes the transit to and from work from the employee's choice or convenience and places it within the ambit of the employer's choice or convenience, restoring the employer-employee relationship.   The fact that the employer impliedly, rather than expressly, required the employee to arrange for his own transportation was of no consequence.   The court instructed:  “[T]he use of a vehicle can be ‘an implied or express condition of ․ employment.’  [Citation.]  The condition implicit in the employment itself dictated the use of car transport;  no words of the employer were necessary;  ․”  (Id., at p. 161, 104 Cal.Rptr. 456, 501 P.2d 1176.)

The court concluded:

“In conclusion, we hold that the instant case clearly differs from the normal routine commute;  it is instead the extraordinary situation in which the job is structured, and dependent upon, transportation from one place of work to another so that the use of an instrument of such transportation is a requisite of employment.   The employer could have provided, at his own expense, company vehicles to transport the workers between his various farms during their workday.   His failure to do so made it necessary for the workers to supply their own on-the-job transportation.   Thus petitioner made use of the car from his residence to the first ranch, and thereafter from ranch to ranch and finally from ranch to his residence because the car was an essential requirement of the job;  the presence of the car was requisite to performance of the job;  the worker was impliedly required to bring the car to the job and to take it from the job.   Thus the injury suffered in the car was covered by the Workmen's Compensation Act.”  (Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d at p. 162, 104 Cal.Rptr. 456, 501 P.2d 1176.)

A critical distinction between Hinojosa and the case at bench quickly appears.   In Hinojosa it was clearly an implied condition of the employment that the employee would shift from one field to a noncontiguous field during the course of the workday, the employee was paid during the period of the move and the employee was expected to furnish his own means of portage from one field to another.

Several cases have dealt with this exception to the going and coming rule, including Smith v. Workmen's Comp. App. Bd., supra, 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365, Hinson v. Workmen's Comp. Appeals Bd. (1974) 42 Cal.App.3d 246, 116 Cal.Rptr. 792, and County of Tulare v. Workers' Comp. Appeals Bd. (1985) 170 Cal.App.3d 1247, 216 Cal.Rptr. 885.

In Smith v. Workmen's Comp. App. Bd., supra, 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365, petitioner's husband worked as a social worker for Ventura County.   His supervisor expressly required social workers to use their own cars to visit clients in the field.  Smith was killed in an accident on his way to work, and his wife sought workers' compensation death benefits.   The board denied the benefits based on the going and coming rule.   The California Supreme Court reversed, reasoning that when an employee engages in conduct directed toward the fulfillment of the employer's requirements he is performing a service growing out of and incidental to his employment.   Hence, the employer's requirement that the worker furnish a vehicle for transportation on the job curtails the application of the going and coming rule.  (Id., at pp. 819–820, 73 Cal.Rptr. 253, 447 P.2d 365.)

In Hinson v. Workmen's Comp. Appeals Bd., supra, 42 Cal.App.3d 246, 116 Cal.Rptr. 792, Hinson, a tractor driver, would drive his truck to the headquarters shop on the ranch every morning and check in.   The employer had a pickup truck at the shop which the foreman would use to drive tractor drivers to the field.¹  Sometimes, when the foreman asked them to do so, the tractor drivers would use their own vehicles.   The foreman would “rather” have the employees provide their own transportation because that freed the foreman from driving the employees back to the shop after work.   Hinson was injured on the way to work.   The board held recovery noncompensable under the going and coming rule.   This court affirmed, concluding that there was substantial evidence to support the board's decision.   Distinguishing Hinojosa, the court held:  “Unlike Hinojosa, Mr. Hinson was not required to furnish his own transportation from the shop to the fields;  his employer made available a company pickup to transport him to his tractor.   Thus, it cannot be said that Hinson's use of his own car was a condition of his employment.”  (42 Cal.App.3d at p. 250, 116 Cal.Rptr. 792.)   The court noted the fact that the foreman would “rather” the drivers take their own cars to the field might raise a factual question as to whether the employees were required to use their own cars, but concluded that “a reasonable inference may be drawn that the employees' use of their cars on the job arose as a matter of convenience to all concerned, rather than at the employer's request․”  (Id., at p. 250, 116 Cal.Rptr. 792.)  “A practice adopted for the mutual convenience of the employer and the employee and left to the discretion of the employee (if he didn't want to take his car to the field he would be taken in the company pickup), does not rise to the status of a requirement of employment, nor does it establish a ‘special’ advantage to the employer as to extend the employer-employee relationship to a regular commute from the home to the place of work.”   (Id., at pp. 250–251, 116 Cal.Rptr. 792.)

In County of Tulare v. Workers' Comp. Appeals Bd., supra, 170 Cal.App.3d 1247, 216 Cal.Rptr. 885, Leslie Caires, a supervising secretary and division head for the Tulare County Building and Planning Department, was injured while driving her vehicle to work.   The evidence established that Caires used her personal vehicle to fulfill her job responsibilities.   The tasks she used her vehicle to perform were done on an as-needed but regular basis.   These tasks included purchasing various supplies, going to the post office, and delivering reports.   While theoretically Caires had county vehicles available to her, reservations had to be made in advance, and the use of employees' personal vehicles was acceptable and encouraged.   When Caires used her own car, she would be reimbursed for mileage when she submitted a reimbursement request.   This was to the economic advantage of the county because it cost the county less than using its own vehicles.

This court held:

“This case falls within the class of cases mentioned in Hinson where an employee uses his own vehicle ‘as an accommodation to his employer.’   (Hinson v. Workmen's Comp. Appeals Bd., supra, 42 Cal.App.3d at p. 250 [116 Cal.Rptr. 792].)   Such a classification implies that the employer benefits from such usage, and that while it is not a requirement of the job, it is an implicit expectation dictated by the job itself.  (Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d at pp. 157, 161 [104 Cal.Rptr. 456, 501 P.2d 1176].)   Once an employee has impliedly agreed to accommodate the employer and use his own vehicle, the employer can reasonably come to rely upon its use and expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.”  (County of Tulare v. Workers' Comp. Appeals Bd., supra, 170 Cal.App.3d at p. 1253, 216 Cal.Rptr. 885.)

A common thread running through all of these precedents is the regularity with which the employees were called upon to furnish their own means of transportation on the job for the benefit of the employer.   In each case supplying of transportation by the employee on the job was such a common and frequent occurrence as to become an expectation of the parties as a matter of general practice.

 In contrast, in the case at bench the employer's practice and policy was to recruit the number of employees required to complete the work on a specific field and job.   Separate crews were recruited to work on each location upon which the labor contractor had contracted to do the work.   Thus there was no requirement that the employees, as part of their employment, make themselves and transportation available to shift from one ranch to another during the workday.

By its terms the finding of occasional use by employees of their own transportation to travel between fields is based solely upon the testimony of Rufino who said twice in March 1983 he was asked to move from one field to another.   These were the only times during his lengthy employment at the ranch that he moved from one field to another.   We assume, as we must, that this finding is true.   Nevertheless, we are of the opinion that such an unusual and infrequent request falls short of giving rise to a reasonable inference that employees were expected to use their cars on the job or of establishing that as an expectation from past practices or an implied condition of employment the employees were required to regularly furnish transportation between fields during the workday.   To hold otherwise would stretch the perimeters of Hinojosa well beyond its intended effect.

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

FOOTNOTES

1.   In the instant case, Rufino testified that on the two occasions in March 1983 when he was requested to go to a second field, Torres' wife and his son supplied a van to transport the workers.   Rufino followed the van in his own car.   Thus it appears that the employer made a means of transportation available to the employees on those occasions.

GEO. A. BROWN, Presiding Justice.

FRANSON and HAMLIN, JJ., concur.