California Court of Appeal, 3 Stonedeggs, Inc. v. Workers’ Compensation Appeals Board and Braden Nanez, C098711

Workers’ Compensation Law

 

Commercial Traveler Rule

 

California Law

 

 

 

Under the “commercial traveler” rule in workers’ compensation law, an employee traveling on the employer’s business is regarded as acting within the course of employment during the entire period of travel. (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal.4th 644, 652 (LaTourette).) As a result, workers’ compensation coverage applies to injuries the employee sustains during the travel itself and during the course of other personal activities “reasonably necessary for the sustenance, comfort, and safety of the employee,” such as procuring food and shelter. (Ibid.) However, personal activity not reasonably contemplated by the employer may constitute a material departure from the course of employment. (Ibid.)

 

 

In this matter, respondent Workers’ Compensation Appeals Board (the Board) determined that under the commercial traveler rule, workers’ compensation coverage applied to injuries respondent Braden Nanez sustained in an auto accident while he was off work and away from his job at a remote fire base camp. The employer, petitioner 3 Stonedeggs, Inc., expected employees not to leave the job site and to notify a manager if they did. Nanez did not notify a manager he was leaving camp. Rescinding the findings of the administrative law judge, the Board found that Nanez’s use of his own car while off work to drive approximately 70 miles away from camp purportedly to obtain cellular service was conduct reasonably expected by his employer to be incident to its requirement that Nanez spend time away from home where cellular service was not adequately provided at the camp. The Board concluded that Nanez’s travel was for comfort and leisure and was not a distinct departure from his employment.

 

 

The employer is a mobile food service that contracts with the U.S. Forest Service to provide meals for firefighters and supporting personnel. Nanez, 19 years of age, began working for the employer as a food service worker on September 11, 2020, at a fire camp in Brownsville, California.

 

 

The Board agreed with Nanez and rescinded the ALJ’s opinion. In an opinion and decision dated February 15, 2023, the Board determined that the commercial traveler rule applied to Nanez’s claim. The Board explained, “Because the employer (1) allowed applicant to travel by his own car from the Brownsville camp to his Chico home and then return to continue his work there; (2) sought and obtained applicant’s agreement to travel to Happy Camp on its business; (3) authorized applicant to travel to Happy Camp using his own car; and (4) did not instruct applicant to refrain from using his own car during his off hours or for personal reasons, applicant’s conduct in using his own car during his off hours to drive from Happy Camp to Yreka was conduct reasonably expected by the employer to be incidental to its requirement that he spend time away from home.” Also, because the record did not disclose Nanez’s reasons for traveling to Yreka other than, in the Board’s words, Todd’s “surmise” that it was to use his cell phone, and because Nanez traveled during his off hours and between shifts, the record suggested that Nanez’s travel was for comfort or leisure and was not a distinct departure from his employment. The Board also found that the evidence did not establish that Nanez’s claim was barred by the defense of intoxication.

 

 

To receive workers’ compensation, the injured employee must prove by a preponderance of the evidence that his injury arose out of and was in the course of employment. (LaTourette, supra, 17 Cal.4th at p.650; Lab. Code, §3600.) In applying this two-pronged requirement, we are to construe it liberally in favor of awarding benefits. (LaTourette, at pp.650-651.)

 

 

The first prong, “in the course of employment,” ordinarily refers to the time, place, and circumstances under which the injury occurred. (LaTourette, supra, 17 Cal.4th at p.651.) “Thus ‘“an employee is in the ‘course of his employment’ when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do.”’” (Ibid.) The second prong, “arising out of employment,” concerns whether the injury occurred by reason of a condition or incident of the employment. (LaTourette, supra, 17 Cal.4th at p.651.) In other words, “‘the employment and the injury must be linked in some causal fashion.’” (Ibid.) This causation element requires only “‘“that the employment be one of the contributing causes without which the injury would not have occurred.”’” (Id., at fn.1.) The mere fact an employee during working hours is performing a personal act when injured does not per se preclude him from compensation. (LaTourette, supra, 17 Cal.4th at p.651.) If the particular act is reasonably contemplated by the employment, injuries received while performing that act arise out of the employment and are compensable. (Ibid.) Generally, an employee commuting to and from a fixed place of business at fixed hours is not considered to be acting within the scope of his employment. Under the so-called going and coming rule, injuries suffered during the ordinary local commute are not compensable. (Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157.) That is because the employment plays no special role in the need for transportation other than the normal need of the employees’ presence to perform their work. (Ibid.) The commercial traveler rule is an exception to the going and coming rule. (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 437.) Under the rule, employees “‘whose work entails travel away from the employer’s premises are held ... to be within the course of their 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 (IBM Corp.).) Workers’ compensation coverage “applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort, and safety of the employee.” (LaTourette, supra, 17 Cal.4th. at p.652.) A traveling employee “could hardly be expected to remain holed up in his hotel room.” (Fleetwood Enterprises, Inc. v. Workers’ Comp. Appeals Bd. (2005) 134 Cal.App.4th 1316, 1327.) The commercial traveler rule “does not, however, apply to any and all activities. ‘Personal activity not contemplated by the employer may constitute a material departure from the course of employment.’” (LaTourette, supra, 17 Cal.4th. at p.652.) The activity must bear some relation to the purposes of the employment. (Id. at p.653.)

 

 

No party cites to reported case law or other Board decisions that explain how to determine whether the employee is a commercial traveler or is rather on a “quasi-permanent” assignment, and we have found none. To us, a useful approach arises by recognizing that the commercial traveler rule is an exception to the going and coming rule. That rule precludes compensation where the injury occurs during the employee’s ordinary, daily, local commute to and from his fixed place of employment at fixed hours and in the absence of special or extraordinary circumstances. (Hinojosa, supra, 8 Cal.3d at p.157.) It excludes from coverage “the ordinary, local commute that marks the daily transit of the mass of workers to and from their jobs; the employment, there, plays no special role in the requisites of portage except the normal need of the presence of the person for the performance of the work.” (Ibid.)

 

 

(…) Even intentional or criminal misconduct that occurs within the course of one’s employment and causes injury does not necessarily preclude recovering benefits. (Westbrooks, supra, 203 Cal.App.3d at p.254.) “Any employer could argue that reckless, intentional, or criminal conduct is not part of any job description and therefore not within the scope of employment. This argument, however, if permitted to succeed, would totally undermine the no-fault foundation of workers’ compensation law.” (Ibid.)

 

 

 

 

 

 

(California Court of Appeal, May 24, 2024, 3 Stonedeggs, Inc. v. Workers’ Compensation Appeals Board and Braden Nanez, C098711, Certified for Publication)