Page 1
C.A. Upholds WCAB Decision Founded on Speculation
Third District Applies ‘Commercial Traveler’ Rule in Finding That Employee Who Wandered 70 Miles From Worksite in Own Automobile on Personal Time, Was in Accident, Is Covered by Workers Compensation
By a MetNews Staff Writer
An injury incurred by an employee who was based at a U.S. Forest Service fire camp where he worked for a privately owned food service was compensable under the workers’ compensation system although the injury was incurred in a vehicular accident miles from the worksite while on personal time, the Third District Court of Appeal has held, applying the “commercial traveler” rule.
In an opinion filed April 23 and certified for publication on Friday, it denied a petition for review, thus upholding a decision of the Workers’ Compensation Appeals Board. Although the board’s decision was founded on mere speculation, Acting Presiding Justice Harry E. Hull Jr. wrote, it will not be disturbed because the employer proceeded on an infirm theory.
“Under the ‘commercial traveler’ rule in workers’ compensation law, an employee traveling on the employer’s business is regarded as acting within the course of employment during the entire period of travel,” Hull explained.
He acknowledged that “personal activity not reasonably contemplated by the employer may constitute a material departure from the course of employment.” The employer, 3 Stonedeggs, Inc., argued that its employee, Braden Nanez, then 19, engaged in such a departure when he traveled 70 miles from the worksite—located near Siskiyou County’s town of Happy Camp—although employees were expected to remain at the camp unless they were authorized to leave.
The youth, who was seriously injured, apparently had no recollection of the events.
Cell Phone Service
Reversing the decision of an administrative law judge, the board made a finding, based on speculation by James Todd, one of the employer’s camp managers, that Nanez went off to gain cell phone service. There was evidence that such service was available at the camp and evidence to the contrary.
There was also evidence that Nanez had departed to smoke marijuana, which was prohibited at the camp. Two California Highway Patrol officers inspected Nanez’s vehicle following the accident and detected the odor of burnt marijuana. At the hospital, he tested positive for THC (tetrahydrocannabinol), found in cannabis.
The acting presiding justice said that an inference may be drawn “that Nanez left camp to smoke marijuana” which “shows he committed a material deviation from his job duties and violated company policy,” but added:
“Even if such an inference could be made, we may not annul a Board decision simply because the Board chose one of two competing inferences reasonably drawn from the evidence.”
‘Speculation,’ ‘Surmise’
Examining the evidence relied upon by the board, Hull said:
“There is an argument that no substantial evidence supports the Board’s finding that Nanez was seeking cellular service when the accident occurred. Hearsay evidence established that Nanez did not have cellular service at the camp, but Todd’s speculation in his unsworn and undated statement that Nanez left camp to find coverage does not qualify as substantial evidence. Speculation and surmise are not substantial evidence.
He continued:
“No witness had actual knowledge of why Nanez left camp. And such evidence is not available. According to Nanez’s answer, Nanez’s mother stated outside the record that Nanez has no memory of the accident or of having worked for the employer. But because the employer does not challenge the Board’s finding and instead contends that any departure from the camp without authorization was outside the course of employment, we will not disturb it.”
Although Hull said at one point in the opinion that “the evidence established that the employer instructed Nanez to refrain from using his car during off hours and for personal reasons,” he later declared that there was no “material departure from the course of employment” because no absolute prohibition on straying from the worksite had been promulgated. He wrote:
“The employer made clear to employees its “expectation” that employees not leave camp. It told employees it did not want them leaving camp ‘if they don’t have to’ due to safety reasons, and it ‘really encouraged’ the employees not to drive on the roads. But in none of these explanations did the employer actually prohibit the employees from leaving camp.”
Explaining why the commercial traveler rule applies even though Nanez did not embark on a journey in the course of his employment, Hull said:
“No party cites to reported case law or other Board decisions that explain how to determine whether the employee is a commercial traveler or is rather on a ‘quasi-permanent’ assignment, and we have found none. To us, a useful approach arises by recognizing that the commercial traveler rule is an exception to the going and coming rule. That rule precludes compensation where the injury occurs during the employee’s ordinary, daily, local commute to and from his fixed place of employment at fixed hours and in the absence of special or extraordinary circumstances….
“Nanez’s traveling does not comport with the type of travel subject to the going and coming rule. His travel to Happy Camp was not an ordinary, daily, local commute to a fixed place of employment. His employment required him to reside at the place of work away from his home for a limited duration. And it was both his and the employer’s intention that upon completion of the assignment, he would return to reside at his home in Chico. He would not, for all intents and purposes, make Happy Camp his residence or domicile from where he would daily commute to work. This evidence indicates Nanez’s assignment at Happy Camp was not ‘quasi-permanent’ for purposes of workers’ compensation law.”
The case is 3 Stonedeggs v. WCAB (Nanez), 2024 S.O.S. 1601.
Copyright 2024, Metropolitan News Company