California Court of Appeals, Second District, Fifth Division
to review a decision of the Workers' Compensation Appeals
Board No.ADJ10324875. Annulled and remanded with directions.
Offices of F. Michael Sabzevar and F. Michael Sabzevar for
Schmitz and Allison J. Fairchild for Respondent Workers'
Compensation Appeals Board.
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
KRIEGLER, Acting P.J.
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.
majority of the Workers' Compensation Appeals Board
(appeals board) concluded that the going and coming
rule barred the petitioner's claim for
workers' compensation benefits. However, the dissent and
the workers' compensation judge (WCJ) found that the
required vehicle exception to the going and coming rule
applied because the petitioner was impliedly required to
provide her own transportation between patients' homes.
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.
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.
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.
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
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.”
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 ...