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Zhu v. Workers' Compensation Appeals Board

California Court of Appeals, Second District, Fifth Division

June 20, 2017

YU QIN ZHU, Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD and DEPARTMENT OF SOCIAL SERVICES, Respondents.

         PROCEEDINGS to review a decision of the Workers' Compensation Appeals Board No.ADJ10324875. Annulled and remanded with directions.

          Law Offices of F. Michael Sabzevar and F. Michael Sabzevar for Petitionier.

          Anne Schmitz and Allison J. Fairchild for Respondent Workers' Compensation Appeals Board.

          Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Arezoo Jamshidi, Jonna D. Lothyan, Catherine M. Asuncion, Sebastian E. Lee, and Caroline E. Chan, for Respondent Department of Social Services.

          KRIEGLER, Acting P.J.

         The petitioner, 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 that the going and coming rule[1] barred the petitioner's claim for workers' compensation benefits. However, the dissent and the workers' compensation judge (WCJ) found that the required vehicle exception[2] 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 and 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.”

         On 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 ...


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