If you ask an applicants' attorney about the “going and coming rule,” nine out of 10 will tell you, “Oh yeah, it means you’re going to find this claim compensable, and I’m coming for your money.”

Gregory Grinberg

Well, probably not, but, maybe after this blog post, they’ll start saying that.

The going and coming rule stands for the premise that employees engaged in their commute to or from work are not “working” yet, and so injuries sustained during the commute are not industrial (nor is harm to third parties the liability of the employer via respondeat superior).

However, the exceptions are many to this rule, such that it’s barely a rule at all, but more of a notion.

That’s why it’s always so refreshing to see the rule used to bar a claim. Such cases are the carrots seen in an ocean of sticks. 

I respectfully submit for your consideration the case of Lapesarde v. State of California, Department of Corrections, which was recently denied review by the Court of Appeal.

Applicant, a nurse, was involved in a motor vehicle accident while driving home from work. Nonstarter, right? Going and coming, coming and going, open-and-shut case.  Well, if that were so, what would I write a blog post about?

Applicant argued the claim was not barred by the coming and going rule because of the “special mission” doctrine. That is, when an injured worker must go on a “special mission,” one that does not apply to the regular commute, the coming and going rule does not apply. 

The special mission? Applicant worked his regular shift from 6 a.m. to 2 p.m., then worked a second shift from 2 p.m. to 10 p.m. After this second shift, applicant spent 30 minutes in the car and drove home, stopping for gas and coffee so that he could stay awake for his 90-minute drive. He woke up in the hospital after his MVA with no memory after that pit stop.

So, what do you think, dear readers? Was the shift a “special mission” or was the regular commute but at an irregular time going home, just your typical coming and going?

Well, the workers' compensation judge at the trial opined that the claim was compensable, and defendant appealed. In addressing defendant’s petition for reconsideration, the Workers' Compensation Appeals Board panel considered the “special risk” rule, which “states that if a condition on or off the employer’s premises creates a special risk of harm to an employee who is about to enter or who has just left the premises, the injury is within the course of employment.”

However, the “special risk” theory was rejected by the WCAB because applicant made it to a gas station for a stop and was not exposed to any risk that the general public did not face, a test that can defeat the “special risk” theory exception to the coming and going rule.

In reviewing the WCJ’s opinion, the WCAB specifically rejected reasoning that “applicant was fatigued when he left work and started his drive home.” The WCAB’s reasoning instead turned on the fact that “applicant was driving on the road on his usual commute in his personal vehicle. Nothing in that route that he drove or the conditions that he experienced was any different than any other driver on the road at that time.”

Based on this opinion, it would appear that being particularly tired from overtime does not defeat the coming and going rule by itself. Nor does the change in time to an additional shift following a regular shift defeat the defense.

Do you think the same result would be reached if applicant had come in for a second shift rather than stayed at work to do a second shift? Would coming in for an irregular shift at the regular location have been enough to make this a “special mission”? Are there any job duties that might make a worker particularly susceptible to a “special risk,” such that driving might be particularly dangerous as compared to the dangers visited on the public?

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.