Fernando Martinez worked for the D. H. Smith Company, as did his two sons. The company provided Martinez and his sons a Ford F350 flatbed to drive to and from work. Because Martinez did not have a driver's license, only the sons were to operate the vehicle. In June 2007, Martinez and his sons were on their way to a construction site, with the elder Martinez behind the wheel. Martinez rear-ended another vehicle on the freeway, injuring himself and his son. At first, Fernando and his son lied to the investigating officer from the Califomia Highway Patrol about who was driving the company truck. However, marks on their bodies from their seatbelts showed that Fernando was driving and his son was a passenger at the time of the collision. They eventually fessed up to the fact that Fernando was driving.
Both filed workers comp claims. There is no doubt that the son's injuries are compensable. But what about Fernando?
At first, Fernando's claim was denied. Here is an excerpt from the initial ruling:
After consideration of all of the evidence, testimony at trial and in deposition, and the demeanor of witnesses, it was found that applicant's conduct in driving the company truck to work without a driver's license, against the express orders of the employer, was a cause of the injury, and takes the activity in which the injury occurred outside the course of employment. The conduct of driving the company truck on public highways against the express order of the company was more than the manner of performing duties. It was different duties than he was employed for. It appears that applicant did drive the truck before his sons were licensed, contrary to the testimony of defendants. However, on the evidence it is clear that he was not allowed to drive after they were licensed, and he and his sons were well aware of that...Applicant's conduct in this case posed an increased hazard to his own safety and life, to that of his son and members of the public, and greatly increased the risk of liability to the employer for damage to property and injury.
Sounds reasonable, but remember, this is California. The review board overturned this decision. They found the injuries to Fernando were compensable, as he was in the course and scope of employment and furthering the interests of the employer, even though he was disregarding the employer's instructions pertaining to his driving.
Golden State Precedents
The review board cited some fascinating cases to support their contention that the injuries were compensable:
Benefits not barred for injury incurred following a high-speed chase through heavy traffic after employee had run a red light [Williams v. Workmen's Comp. Appeals Bd. (1974)];
Bus driver who sustained injury as a result of nearly hitting an oncoming vehicle while recklessly driving his bus not barred from recovering workers' compensation benefits for the injury [Westbrooks v. Workers' Comp. Appeals Bd. (1988)]
With precedents like these, it would be hard to come up with a case where employee misconduct resulting in an injury was not compensable. In California at least, virtually anything you do at work is compensable.
The review board goes on to say:
In this case, it does not matter that applicant may not have been authorized by defendant to drive the truck because his travel to the job site in the truck was authorized by the employer and was of benefit to the employer.
A distinction must be made between an unauthorized departure from the course of employment and the performance of a duty in an unauthorized manner. Injury occurring during the course of the former conduct is not compensable. The latter conduct ... does not take the employee outside the course of his employment.
It is apparently not a concern to the review board that the "unauthorized manner" in this particular case involves an illegal activity (driving without a license).
The End of "To and Fro"?
Finally, California has interpreted the "coming and going" rule in the most generous manner. In most states, commuting "to and fro" is generally not compensable, even when the employee is operating a company vehicle. The workday usually begins at the worksite. Not in California: "When the employer provides the means of transportation, the course of employment begins when the employee begins to travel."
NOTE to CA employers: you may want to bag it on the company cars.
Workers comp costs in California are the highest in the country, despite the fact that employee benefits are relatively stingy. The high costs derive from many factors, one of which is revealed in this particular case. There are embedded in case law deeply rooted concepts that tilt the interpretation of compensability in the direction of injured employees. In many states, defense could certainly raise the issue of whether Fernando's insistence on driving the truck without a license crossed the line into "serious and wilful misconduct." You know, the concept of personal responsibility. That might be a reasonable argument in some states, but it doesn't hold any water in California.