Yu Qin Zhu v. Workers' Comp. Appeals Bd.

219 Cal. Rptr. 3d 630, 12 Cal. App. 5th 1031, 82 Cal. Comp. Cases 692, 2017 WL 2645307, 2017 Cal. App. LEXIS 564
CourtCalifornia Court of Appeal, 5th District
DecidedJune 20, 2017
DocketNo. B278696
StatusPublished
Cited by3 cases

This text of 219 Cal. Rptr. 3d 630 (Yu Qin Zhu v. Workers' Comp. Appeals Bd.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yu Qin Zhu v. Workers' Comp. Appeals Bd., 219 Cal. Rptr. 3d 630, 12 Cal. App. 5th 1031, 82 Cal. Comp. Cases 692, 2017 WL 2645307, 2017 Cal. App. LEXIS 564 (Cal. Ct. App. 2017).

Opinion

KRIEGLER, Acting P.J.

The *1035petitioner, an in-home caretaker, was riding her bicycle from one private home where she worked to another home where she was scheduled to work when she was struck and injured by a car. Her employer, the California State Department of Social Services (Department), paid the petitioner for working at both of these locations.

A majority of the Workers' Compensation Appeals Board (appeals board) concluded *632that the going and coming rule1 barred the petitioner's claim for workers' compensation benefits. However, the dissent and the workers' compensation judge (WCJ) found that the required vehicle exception2 to the going and coming rule applied because the petitioner was impliedly required to provide her own transportation between patients' homes.

After we granted the petition for a writ of review, the appeals board filed a brief stating that upon further consideration the appeals board has concluded that the required vehicle exception applies with the result that petitioner's injury arose out of and in the course of employment. The appeals board requests that we either annul its earlier decision and affirm the WCJ's decision or remand the matter to the appeals board for a new opinion and decision. The Department, however, insists that the required vehicle exception does not apply and that the going and coming rule bars recovery. Since we do not agree with the Department, we annul the appeals board's decision *1036and remand with directions to issue a new decision and opinion consistent with this opinion.

THE FACTS

After an interview with the Department, petitioner Yu Qin Zhu (Zhu) was hired as a home caretaker by the Department. The Department added Zhu to the registry of qualified workers. Zhu reviewed the registry of patients, contacted persons on the registry, and then interviewed her selections so that both parties could decide whether Zhu would work as their caretaker. The patients Zhu cared for set the schedule and told her what her duties were for each day.

Zhu worked as a caretaker for the Department from 2003 through 2015. Zhu was paid by the Department every two weeks with one paycheck for all the work performed. She was not paid for transportation to, from, or in between locations.

On December 16, 2015, Zhu cared for a couple living in Monterey Park from approximately 8:30 a.m. to 11:30 a.m. Zhu was scheduled to care for a woman in Alhambra in the afternoon. While she was riding her bike from Monterey Park to the house in Alhambra, Zhu was involved in a bicycle-automobile collision.

PROCEDURAL HISTORY

Zhu's claim was heard on the limited issues of employment and injury arising out of and in the course of the employment. The WCJ found Zhu's injury compensable because her "transportation between the clients' homes was a mandatory part of the employment."

*633On September 19, 2016, a majority of the appeals board rescinded the WCJ's decision, finding that the Hinojosa (fn. 1) and Smith (fn. 2) cases were distinguishable because the employees in both cases were required to furnish personal vehicles for their jobs. Zhu, on the other hand, chose her own clients, work locations and hours, and merely used the Department to obtain client referrals. The means of transit were immaterial to the Department, and travel by bicycle was for Zhu's own convenience and benefit.

The dissent agreed with the WCJ and found "there was an implied requirement that [Zhu] furnish her own transportation to travel between disabled clients, care for whom is the responsibility of defendant ." The *1037dissent found Zhu qualified for the "required vehicle exception" to the going and coming rule because the employer received a benefit from the employee's provision of her own transportation between job sites. Zhu therefore was performing services growing out of and incidental to her employment when she brought her bicycle to work, making it available for use on a regular basis.

The appeals board's decision of September 19, 2016 is reviewable by a writ of review in that it is a final determination of a threshold issue that disposed of the petitioner's claim. (Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 663, 210 Cal.Rptr.3d 101 [order is reviewable because it terminated workers' compensation proceedings]; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 534-535, 163 Cal.Rptr. 750.)

DISCUSSION

A. The going and coming rule

The history of the going and coming rule and the exceptions to that rule are authoritatively set forth in Hinojosa , supra , 8 Cal.3d at pages 153-160, 104 Cal.Rptr. 456, 501 P.2d 1176, and need not be repeated. Suffice it to say that the history of this rule is "tortuous," that Dean Pound thought in 1954 that the rule was " 'moribund,' " and that some think that the exceptions have swallowed the rule. (Id. at p. 156, 104 Cal.Rptr. 456, 501 P.2d 1176.) Given this unprepossessing background, and the requirements of the case before us, the best course is to inquire to what facts the rule is intended to apply. On this question, Hinojosa is helpful.

After noting the conflict between the employer's interest to be immune from liability "for the employee's injury or death that occurs in the everyday transit from home to office or plant [and] the contrary interest of the employee [ ] in his desire to be protected from loss by injury or death that occurs in the non-routine transit" (Hinojosa , supra , at pp. 156-157, 104 Cal.Rptr. 456, 501 P.2d 1176

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Bluebook (online)
219 Cal. Rptr. 3d 630, 12 Cal. App. 5th 1031, 82 Cal. Comp. Cases 692, 2017 WL 2645307, 2017 Cal. App. LEXIS 564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yu-qin-zhu-v-workers-comp-appeals-bd-calctapp5d-2017.