Two Recent Court of Appeals Decisions
From the Desk Of: Barry A. Saperstein, Esq. Shareholder Attorney, San Bernardino Certified Specialist,
Workers' Compensation Law,
The State Bar of California,
Board of Legal Specialization 1. The California Court of Appeal issued a rare published decision in Zhu v. WCAB (2016) Cal.App.4th (6-20-17). This opinion is so new there is no official citation yet. In Zhu, 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 by a car. Apparently, her employer required her to travel between patient's homes, on her own. Her method of travel was via her personal bicycle. A majority of the WCAB Panel concluded that Zhu's claims were barred by the "going and coming rule," which holds that an injury that occurs during a local commute is non-compensable absent special or extraordinary circumstances. In a dissent, one of the commissioners asserted that the claim was compensable under the "required vehicle exception" to the "going and coming rule" because Zhu was impliedly required to provide her own transportation between patients' homes. The Court of Appeal reversed the Panel decision, holding that an injury occurring during transit between jobs is compensable when the employer expressly or impliedly requires the employee to furnish transportation for the employer's own purposes. In so holding, the Court reasoned that the employer was a direct beneficiary of Zhu's travel between multiple homes since it allowed her to service more than one home per day, thereby increasing her employer's ability to service more persons in need, generating more income for the employer. Since the only way Zhu could service more than one home per day would be if she traveled between them, the employer directly benefited from the travel and, therefore, the injury was compensable. ANALYSIS: In the event an employee must travel to various job sites during a work day, and the employee uses their own method of transportation and they are injured in transit, the injury is compensable, as there was a benefit to the employer for the applicant's travelling between jobs. However, if the applicant was leaving their last job of the day, heading towards her home, then any injury on that journey would likely be non-compensable. 2. The California Court of Appeal issued a second published decision, this time in Hikida v. WCAB (2016) Cal.App.4th (6-22-17). There is presently no official citation at this time. In Hikida, the WCJ found apportionment between industrial and non-industrial causes, as the applicant suffered an injury causing permanent disability; and the resulting surgery caused another injury, resulting in permanent disability. This decision was upheld by the WCAB Panel. The worker petitioned the California Court of Appeal for a Writ of Review, arguing that apportionment was not proper because the Agreed Medical Examiner had concluded her Permanent Disability was the result of a failed surgery for carpal tunnel, a condition she contracted primarily due to the clerical work she had performed for 25 years. The Court of Appeal concluded that despite significant changes in the law which were enacted in 2004, disability resulting from medical treatment for which the employer was responsible is not subject to apportionment. Accordingly, the Court of Appeal annulled the prior decision and remanded the matter for further proceedings consistent with the opinion. ANALYSIS: The issue was properly decided by the Court of Appeals, as medical treatment to treat or cure a work related injury, if the treatment causes further disability, is non-apportionable as a non-industrial injury; instead, it is considered a compensable consequence of the original injury. The reason this case is so special is the applicant failed to prepare the Writ of Review for the Court of Appeals within the statutory time frame. Very interesting. Since both of these cases are published decisions, they are binding authority.