[As Modified on June 9, 2014]
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. WCAB No. ADJ8004482, Ronnie G. Caplane, Rick Dietrich, and Deidra E. Lowe, Commissioners. Robert K. Norton, Workers Compensation Administrative Law Judge.
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Law Office of Jeanne Collachia and Jeanne Collachia for Petitioners.
No appearance for Respondent Workers Compensation Appeals Board.
Patricia A. Brown, Yvonne Hauscarriague and David M. Goi for Respondents California Department of Corrections & Rehabilitation and State Compensation Insurance Fund.
This original proceeding concerns a claim for workers compensation benefits by the dependents of a correctional officer killed in an automobile accident while driving home from work. Before his normal commute home,
the lieutenant was held over from his scheduled shift and required to work the next shift as the prisons watch commander. The issue presented is whether, at the time of the accident, the lieutenant was acting within the course of his
employment for purposes of Labor Code section 3600, subdivision (a)(2).
The application of the statutory language to the facts of this case is guided by the often-maligned going and coming rule and its special mission exception. Under the rule and its exception, travel to and from work ordinarily is not considered within the course of employment, but travel undertaken as part of a special mission is. Here, petitioners contend that the mandatory hold-over shift as watch commander was a special mission that included the travel home.
The special mission exception requires the activity undertaken by the employee be extraordinary in relation to his or her routine duties. Whether an activity is extraordinary is based primarily on the place, time and nature of the additional work. Here, the hold-over shift (1) was performed at the usual place of work, (2) followed the lieutenants usual shift and affected his commute only by changing the timing of his drive home, and (3) changed the lieutenants responsibilities from overseeing one yard to the entire prison, but decreased the number of employees under his supervision.
The Workers Compensation Appeals Board (WCAB) denied the application for benefits, determining that the hold-over shift as watch commander was not extraordinary because, among other things, it was assigned in accordance with procedures agreed upon by the prison administration and the officers union and did not dramatically change his activities. We conclude the WCABs decision involved weighing evidence and choosing among conflicting inferences that could be drawn from that evidence and, therefore, is properly characterized as a finding of fact. Under the standards for judicial review established by the Labor Code, we must uphold the finding of fact that the hold-over shift was not extraordinary because it is supported by substantial evidence.
Therefore, the decision of the WCAB denying benefits is affirmed.
Lieutenant Seth Patrick Lantz, a 33-year-old correctional officer at Pleasant Valley State Prison in Coalinga, California, was killed in an automobile accident at 6:20 a.m. on Saturday, October 2, 2010. The accident occurred in Kern County on southbound Highway I-5, about 1.1 miles north of its intersection with State Route 46.
Lantz had worked at Pleasant Valley State Prison in Coalinga, California for approximately two years before the accident. Previously, he worked at facilities in Kern County, but transferred to Pleasant Valley State Prison after being promoted. He continued to live in the Bakersfield area and commuted to the prison in his own vehicle. The one-way commute was over 85 miles. According to the testimony of Lieutenant Benny Contreras, about 50 to 60 miles of Lantzs commute were driven on Highway I-5.
Lantz worked as a program lieutenant assigned to A Yard, a Level 4 facility that housed violent prisoners with special needs, such as rapists, child molesters and gang dropouts. It was one of five yards or facilities at the prison. As the lieutenant in charge of A Yard, Lantz was responsible for approximately 800 to 1, 000 inmates. He was supervised by the facility captain for A Yard, Captain Ainsworth Walker. Lantzs regular shift was the third watch, which ran from 2:00 p.m. to 10:00 p.m. During that shift, Lantz supervised two sergeants. The evidence varied about the number of staff under Lantzs supervision. Captain Walker estimated that Lantz was responsible for 40 or 50 staff members. In contrast, fellow correctional Lieutenant Contreras testified that Lantz had 30 officers on his usual shift.
As the lieutenant of A Yard, Lantz would report any incident that happened in the facility and was in charge of preparing the incident package. Because A Yard was active, he sometimes would prepare two or three incident packages in a single shift. Lantzs responsibilities also included conducting 115 hearings at the facility and answering inmate appeals.
Lantz regularly worked 40 hours per week and had Sundays and Mondays as his regular days off. In her testimony, Lantzs wife said there was not a lot of overtime for lieutenants, and estimated that he worked overtime two or three times per month.
On Friday, October 1, 2010, Lantz worked his regularly assigned shift. Sometime after the start of his shift and before the meal break at 4:00 p.m., Lantz was informed that he would need to hold over and serve as the watch commander for the next shift, which ran from 10:00 p.m. to 6:00 a.m. At about 9:00 p.m., Lantz spoke with his wife by telephone and told her that he was being held over.
When a replacement watch commander is needed, the procedure used for selecting the replacement has been agreed upon by the Department of Corrections and Rehabilitation (Department) and the officers union. First, the extra shift is offered to qualified officers in order of seniority. If no one volunteers, then the shift is assigned in reverse order of seniority. Under the procedures, an officer can be required to work overtime shifts twice a week, and an officer told to work a hold over shift is required to do so, except in emergency situations. Normally, positions are filled with an employee on premises; employees are not called at home and asked to come in early.
The watch commander, who basically acts as warden during the first shift, is responsible for all 4, 000 to 5, 000 inmates at the prison. Stated generally, the duties of the watch commander include providing for the security of the facility, making sure positions are filled, handling sick calls, and screening proposed telephone calls into the facility.
Lantz was assigned the hold-over shift as watch commander in accordance with the reverse seniority procedure because no one had volunteered to take the shift. Lantz had served as watch commander before.
While serving as watch commander for the first watch (i.e., 10:00 p.m. to 6:00 a.m.), Lantz oversaw 30 to 40 staff members. There were no floor officers during first watch, but there were escort and security officers, rovers and other duty officers. No other lieutenants served on first watch that night, so Lantz was not placed in a situation where a lieutenant with more seniority reported to him. Captain Walker described the first watch as a skeleton crew, with second watch (i.e., the day shift) having the most staff.
At 6:00 a.m. on October 2, 2010, Lantzs wife received a text message from him stating that he was on his way home. While traveling home, Lantz drove his personal vehicle and the only state property he transported to and from work was a protective vest. With regard to commutes in general, Lieutenant Contreras testified that Department employees were not paid for their commuting time, were not required to own personal vehicles, and were not required to wear their uniforms to and from work.
In September 2011, Lantzs widow, on behalf of herself and her four children (applicants), applied for workers compensation benefits, contending that Lantz sustained the fatal injury during the course of his employment.
In April 2012, a trial was held before Workers Compensation Administrative Law Judge Robert K. Norton (WCJ).
In June 2012, the WCJ issued a written order that included findings of fact.
The first finding stated that Lantz sustained an injury arising out of and in
the course of his employment resulting in his death.
The State Compensation Insurance Fund (State Fund) filed a petition for reconsideration. In July 2012, the WCJ issued a report on the petition for reconsideration and recommended that it be denied. The WCJ adopted a version of the going and coming rule that provided business related travel is within the scope of employment, except when that travel is a local commute to or from the employees residence to a fixed place of business at a fixed time . . . ." The WCJ concluded that the rule did not apply to Lantz because his commute was not local and was outside the fixed time of his usual shift. Based on this conclusion, the WCJ stated he need not reach the question of whether the facts of this case fell within an exception to the going and coming rule. Nevertheless, the WCJ proceeded to state that the holding-over probably was extraordinary because the least senior correctional lieutenant served as the chief executive officer for the entire prison.
The WCJs findings of fact were rescinded by the WCAB in an opinion and order granting reconsideration that was filed on September 4, 2012. The WCAB determined that (1) the one-way commute of more than 85 miles traveled by Lantz, while significant, constituted the ordinary, local commute that marked Lantzs transit to and from work and (2) the change in schedule caused by the second shift did not, by itself, mean the departure time was not fixed. Accordingly, the WCAB concluded that the going and coming rule would control the outcome unless the special mission exception applied.
In analyzing the special mission exception, the WCAB considered both the mandatory nature of the hold-over shift and the duties Lantz performed as watch commander. First, the WCAB concluded that it was not extraordinary for Lantz to be held over and required to work a second shiftan occurrence so common that the employer and officers union had established official procedures for assigning hold-over shifts. Second, the WCAB indicated that requiring Lantz to act as the watch commander was not extraordinary because it was part of established procedures, the duties performed in that position were similar to his usual responsibilities, and Lantz was among the officers
regularly assigned to that position. The WCAB stated the assignment as watch commander increased the number of individuals under his authority, but the activities of the watch commander were not dramatically different from Lantzs day-to-day obligations. Consequently, the WCAB granted the petition for reconsideration and ordered the substitution of a finding that stated Lantz did not sustain an injury arising out of and in the course of his employment with defendant, resulting in his death.
In October 2012, applicants filed a petition for a writ of review with this court, requesting that the WCABs decision be annulled and the decision of the WCJ be reinstated.
In March 2013, this court issued an order summarily denying applicants petition. Applicants then filed a petition for review with the California Supreme Court, which was granted with directions for this court to issue a writ of review.
In June 2013, this court issued the writ of review, directed the WCAB to file and certify a copy of the record of the proceedings before it, and allowed the parties to submit supplemental briefing.
I. OVERVIEW OF GOING AND COMING RULE
A. Constitutional and Statutory Basis
The California Constitution authorizes the Legislature to create and enforce a system of workers compensation that addresses the liability of employers to compensate the dependents of their workers for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party. (Cal. Const., art. XIV, § 4, italics added.)
Pursuant to this authority, the Legislature adopted Californias Workers Compensation Act, Labor Code section 3200 et seq. The cornerstone of injury compensation under this legislation is Labor Code section 3600, which provides in relevant part:
(a) Liability for the compensation provided by this division
shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes ...