Lieutenant Seth Patrick Lantz worked as a correctional officer at the Pleasant Valley State Prison in Coalinga. Because Lantz lived in the Bakersfield area, his one-way commute to the prison was over 85 miles. Lantz's regular shift ran from 2:00 p.m. to 10:00 p.m., during which he worked as a program lieutenant in charge of the A Yard and was responsible for approximately 800 to 1,000 inmates.
The State Department of Corrections and Rehabilitation and the correctional officers' union have an agreed upon procedure for selecting a watch commander replacement when one is needed. The shift is first offered to qualified officers in order of seniority. If no one volunteers, the shift is assigned in reverse order of seniority. The assigned officer is required to work the overtime shift except in emergency situations. The watch commander is responsible for all 4,000 to 5,000 inmates at the prison.
On October 1, during Lantz's regularly scheduled shift, he 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. Lantz, who had served as watch commander before, was assigned the hold-over shift in accordance with the reverse seniority procedure because no one had volunteered to take the shift. On October 2, at approximately 6:20 a.m., while driving home in his personal vehicle after the hold-over shift, Lantz was killed in an automobile accident. According to the Department, employees are not paid for their commuting time, are not required to own personal vehicles, and are advised to remove or cover up their uniforms when commuting.
Lantz's widow applied for workers' compensation benefits on behalf of herself and her four children, contending that Lantz was killed during the course of his employment. A trial was held before a Workers' Compensation Administrative Law Judge (ALJ), who concluded that Lantz sustained an injury arising out of and in the course of his employment resulting in his death. The Workers' Compensation Appeals Board (WCAB) rescinded the ALJ's findings of fact and concluded that Lantz's death did not arise out of and in the course of his employment. Lantz's widow filed a petition for writ of mandate with the Court of Appeal, which affirmed the WCAB's findings.
In order for an employer to be liable for workers' compensation benefits for the injury or death of an employee, the employee must have been acting within the course of employment at the time of the injury. Under the "going and coming rule," an employee is not covered by workers' compensation for injuries occurring while the employee is commuting to or from work absent special or extraordinary circumstances.
Included within the scope of "special or extraordinary circumstances" is the special mission exception, which provides that an injury suffered by an employee during the regular commute is compensable if the employee was performing a "special mission." The special mission exception requires that the activity be (1) extraordinary in relation to the employee's routine duties, (2) within the course of the employee's employment, and (3) undertaken at the request of the employer and for the employer's benefit. In order to determine whether an activity is "extraordinary," courts generally consider the location, timing, and nature of the tasks included in the activity.
The parties disputed whether Lantz's activity was extraordinary, and the WCAB determined that it was not extraordinary for Lantz to be held over, nor was it special or remarkable for him to serve as watch commander.
Before the Court of Appeal could evaluate the WCAB decision, it had to determine what standard of review to apply. Pursuant to Labor Code section 5953, courts review WCAB findings of fact for substantial evidence, a liberal standard of review, while they subject WCAB determinations of law to a more rigorous independent review. The parties disputed which standard the Court should apply.
In order to determine whether the WCAB resolved an issue of fact or law, the Court evaluated the evidence in the context of whether Lantz was engaged in an "extraordinary" activity. The first factor, the location of the extra work, presented no conflicting inferences of fact. The evidence showed that Lantz worked the hold-over shift at the prison, his usual place of employment. As for the second factor, the timing of the extra work, Lantz was required to work full, back-to-back shifts, and the doubling of an employee's workday could be considered extraordinary. However, Lantz was not required to make an extra trip in order to work the second shift, and working an occasional second shift is a mandatory part of being a correctional officer. Thus, the second factor presented conflicting inferences. The third factor, the nature of the duties performed during the hold-over shift, also presented conflicting inferences. According to the testimony at trial, Lantz was either required to supervise 33 percent more employees than normal, or 40 percent fewer. While it was undisputed that Lantz had to supervise five times as many prisoners as normal, it was also reasonable to conclude that this was no more demanding than normal because he was supervising the inmates during the night shift, when activity decreases.
In other words, in order to reach its decision, the WCAB had to choose between conflicting inferences presented from the evidence at trial and decide how much weight to give each inferred fact. These two analytical steps are associated with deciding questions of fact, not law. Thus, the Court held that the WCAB made findings of fact, which should only be reviewed for substantial evidence.
The Court then held that the testimony of two Department employees (a lieutenant and a captain) regarding the operation of the prison and the duties of a lieutenant and a watch commander constituted substantial evidence in support of the WCAB's finding of fact that the hold-over shift as watch commander was not an extraordinary activity for Lantz, and he was not on a special mission at the time of his death. Thus, the Court affirmed the WCAB's decision that Lantz did not sustain an injury resulting in death arising out of and in the course of his employment with the Department.
The "going and coming" rule is not only used in workers' compensation cases, but also for determining whether an employer is liable for a tort committed by an employee. In our November 2013 Client Update, we reported on the case of Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, in which the Court of Appeal held that an employee was not acting in the course and scope of his employment when he, unbeknownst to his supervisor, drove 140 miles from his jobsite in a company vehicle to purchase a vehicle for his wife and collided with another vehicle on his trip back to the worksite. Thus, Halliburton Energy Services could not be held liable.
However, it is important to remember that there are many exceptions to the going and coming rule. Employers are advised to be very circumspect before asking employees to perform work-related functions on their way to or from work.
Lantz v. Workers' Compensation Appeals Board (2014) 171 Cal.Rptr.3d 829.