Santa Rosa Junior College v. Workers' Compensation Appeals Board

REYNOSO, J.

I respectfully dissent. Courts have fashioned the “going and coming” rule to aid in determining whether an injury occurred “in the course of the employment.” (Lab. Code, § 3600; Parks v. Workers’ Comp. App. Bd. (1983) 33 Cal.3d 585, 588 [190 Cal.Rptr. 158, 660 P.2d 382].) In applying this rule, courts have held “non-compensable the injury that occurs during a local commute enroute to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances.” (Hinojosa v. Workmen’s Comp. App. Bd. (1972) 8 Cal.3d 150 at p. 157 [104 Cal.Rptr. 456, 501 P.2d 1176].) By narrowly focusing on the rule and its numerous exceptions, however, the majority in this case has lost sight of the primary statutory test. (Cf. id., at p. 156, fn. 5.) Since Smyth’s accident clearly occurred in the course of his employment, it should be compensable.

The Legislature mandated in Labor Code section 3202 that courts liberally construe the Workers’ Compensation Act “with the purpose of extending [its] benefits for the protection of persons injured in the course of their employment.” In determining whether the going and coming rule applies to bar compensation, any reasonable doubt must be resolved in the employee’s favor. (Cal. Cas. Ind. Exch. v. Ind. Acc. Com. (1943) 21 Cal.2d 751, 760 [135 P.2d 158].) In part, courts developed exceptions to the going and coming rule to ameliorate its harsh and arbitrary effect. Moreover, this court has concluded that the rule is not a formula of automatic application and that each case should be adjudged on its own facts. (Hinojosa, supra, 8 Cal.3d at pp. 155-156; Makins v. Ind. Acc. Com. (1926) 198 Cal. 698, 703 [247 P. 202, 49 A.L.R. 411].)

Smyth’s accident during his Ukiah commute should be compensable because it was a dual purpose trip, serving both his personal purpose of mak*359ing a trip home and the business purpose of reaching a second jobsite. In such a situation, the court should look for three principal indicia to establish a compensable injury: “the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.” (1 Larson, The Law of Workmen’s Compensation (1985) § 18.32 at p. 4-309.)

Here, testimony demonstrated that Smyth brought home one or two hours of work almost every night. In addition, part of the Smyths’ living room was reserved as his work place, in which he kept duplicate copies of his books. Finally, it was more than a matter of personal convenience to work at home. To be an effective teacher, Smyth needed to be accessible to students while in his office. Frequent interruptions by students, however, made it impossible for him to complete his preparatory work on campus. Furthermore, Smyth served as head of the mathematics department. In this capacity, he assumed the responsibility of supervising and evaluating the night instructors as well as the burden of administrative work, which included receiving all telephone calls for the department. This evidence supports the board’s finding that Smyth’s home was a second jobsite.

The majority mistakenly relies on Wilson v. Workmen’s Comp. App. Bd. (1976) 16 Cal.3d 181 [127 Cal.Rptr. 313, 545 P.2d 225], to bar Smyth’s claim. In Wilson, however, the board specifically found that (1) applicant’s home was not a second jobsite because her activities outside school hours were matters of personal choice, and (2) only convenience motivated applicant’s car trip. (Id., at p. 183.) There was no claim that school facilities were insufficient to permit completion of her preparation for classes as in this case. (Compare Wilson with Bramall v. Workers’ Comp. App. Bd. (1978) 78 Cal.App.3d 151 [144 Cal.Rptr. 105] [court allows recovery under second jobsite exception when evidence demonstrated that applicant could not properly complete her work in the office after hours].)

Smyth’s accident should be compensable because it happened during a commute to his second jobsite. This trip involved “an incidental benefit to the employer, not common to commute trips by ordinary members of the work force” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956 at p. 962 [88 Cal.Rptr. 188, 471 P.2d 988]), because Smyth’s work at home enabled him to maintain an open door policy in his office for his students’ benefit. The majority’s denial of compensation in this case will lend ere*360dence to the perception that the going and coming rule is arbitrary and unfair.

Bird, C. J., concurred.