WHITE v. CITY and COUNTY OF SAN FRANCISCO, 2023 Cal. Wrk. Comp. P.D. LEXIS 129
Applicant alleged a work-related cumulative trauma (CT) injury to the right knee during the period September 16, 2012, through December 30, 2014, arising out of his employment by the City and County of San Francisco.
Applicant had previously settled a claim for a CT to the bilateral knees for the period from April 14, 2016, through April 14, 2017, by way of a Compromise and Release (C&R) dated March 28, 2022.
Applicant also had a prior specific injury to the right knee (Date of Injury December 1, 2009) while employed by the San Francisco Municipal Railway (MUNI), which was settled November 1, 2013, by way of Stipulations with Request for Award at 18% permanent disability.
The C&R for the CT through April 14, 2017, incorporated an Addendum signed by applicant, applicant’s attorney and the defense attorney and approved by the Workers’ Compensation Judge (WCJ) for that claim, which stated in pertinent part as follows:
- “This settlement is based on negotiations between the parties as well as a mutual desire to avoid additional hazards and delays of continued litigation. This is a full and final settlement of a denied claim with affirmative defenses. Defendant does not admit liability for this denied claim and defendant requests a Thomas finding as part of the settlement. Applicant is not eligible for the SJDB and applicant has seperated [sic] his employment with defendant (CCSF/MTA). This settlement resolves any and all claims for any and all species of Workers’ Compensation Benefits related to applicant’s employment with defendant.”
On July 14, 2022, defendant denied applicant’s claim of a CT to the right knee through December 30, 2014, based on a statute of limitations defense, a lack of medical evidence, and its assertion that, in the March 28, 2022 C&R, applicant agreed to resolve any and all claims for any and all species of workers’ compensation benefits related to his employment with defendant.
At trial, defendant asserted that the C&R covered the earlier CT period claimed by applicant through December 30, 2014, and that the language of the addendum barred the new CT claim.
The WCJ concluded that the CT date range for the first CT was limited to the period from April 14, 2016 through April 14, 2017, as specified in paragraph 1 of the C&R and that because the subsequent CT was for a period outside that date range, the C&R did not bar applicant’s claim for the CT through December 30, 2014.
On Reconsideration, defendant argued that the plain language in the Addendum of the C&R resolving the CT through April 14, 2017, settled/barred any other potential CT claim. Defendant also asserted that because the language in the Addendum was reviewed and approved by the WCJ for that claim, the current WCJ engaged in an improper second review of the terms of the C&R and found them unenforceable.
The WCAB denied defendant’s petition for reconsideration adopting and incorporating, in part, the report and recommendation of the WCJ.
The WCJ stated that the parties are not afforded unlimited discretion in terms of their settlement and are constrained by the language contained in the C&R form including paragraph 3 on page 5 of the pre-printed DWC-CA form 10214 (Rev. 11/2008) which states, “[t]his agreement is limited to settlement of the body parts, conditions, or systems and for the dates of injury set forth in Paragraph No. 1 despite any language to the contrary in this document or any addendum.” The WCJ also noted that paragraph 1 on page 3 of the C&R form instructed parties to “state with specificity the date(s) of injury(ies) and what part(s) of body, conditions or systems are being settled.” The WCJ further relied on non-binding panel decisions which found that language in paragraph 3 serves to nullify language in an addendum seeking to settle claims which are not listed in paragraph 1.
The WCJ rejected defendant’s argument that the addendum barred applicant’s CT through December 30, 2014, as this would constitute a “selective reading of that C&R,” disregarding the language of paragraph 3. He further found that there was no need to inquire into the intent of the parties with respect to the C&R because the Addendum language relied on by defendant was rendered void by the plain restriction of paragraph 3, limiting settlement to the dates of injury listed in paragraph 1.
The lesson of this decision is that you must consider the language of paragraph 3 when crafting any addendum. Further, the implications of the decision are that it may not be possible to use the C&R form or addendum to bar an applicant from making further claims against a defendant.
By Rachel Fortner, Esq., Associate Attorney, Santa Rosa Office, June 2024
AWOL FOR WEED OR COMPENSABLE COMMERCIAL TRAVELER?
A California Appellate Court issued a decision applying the commercial traveler rule to an applicant who left a remote job site without the permission of his employer and was in a severe motor vehicle accident: 3 Stonedeggs, Inc. v. Workers’ Comp. Appeals Bd. (Nanez), (Cal. Ct. App., Apr. 23, 2024, No. C098711), — Cal.Rptr.3d —-, 2024 WL 2105987.
The applicant was a food service worker at a fire camp, assigned to a job at an even more remote fire camp in Happy Camp for three to six months, beginning September 29, 2020. Happy Camp is approximately 70 miles west of Yreka in the Klamath National Forest, and too remote for most cell phone coverage. The applicant drove his own car to Happy Camp, where employees were provided lodging, food, and leisure activities. The employees worked an early morning and an evening shift, with approximately six hours of leisure time between shifts.
An employer testified that employees were not to depart camp without arranging the leave with a supervisor. The employers emphasized safety and not driving while tired.
Without notifying anyone, the applicant left Happy Camp after his morning shift on October 5, 2020, and was in a serious motor vehicle accident.
The responding California Highway Patrol officers documented smelling the odor of marijuana and found ash in the car, but no marijuana was found. At the hospital, the applicant’s urine tested positive for THC.
Some days prior to the accident, the applicant had smoked marijuana in the forest nearby. No drugs or alcohol were allowed at camp, and after being confronted, the applicant agreed to throw it away.
The case proceeded to trial, and the judge rejected the intoxication defense, finding that there was no evidence that the marijuana was a substantial factor in the cause of the accident, or that the marijuana in the applicant’s system was intoxicating.
However, the trial judge ruled that it was not a compensable injury because the applicant left “without the employer’s knowledge or approval, and for no known purpose” and thus “materially deviated from the course and scope of his employment.”
On Reconsideration, the Board held that the commercial traveler rule applied. Since the applicant had his own car and the employer did not tell him not to use it, it was reasonably expected that he may drive to town and such a trip was “incidental to its requirement that he spend time away from home.” There was no evidence that his trip to town was not “for comfort or leisure and was not a distinct departure from his employment.”
The Appellate Court provided a succinct summary of the commercial traveler rule, relying on LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal.4th 644, 652 (LaTourette):
- The commercial traveler rule is an exception to the going and coming rule. (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 437.) Under the rule, employees “ ‘whose work entails travel away from the employer’s premises are held … to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.’ ” (IBM Corp. v. Workers’ Comp. Appeals Bd. (1978) 77 Cal.App.3d 279, 282 (IBM Corp.).) Workers’ compensation coverage “applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort, and safety of the employee.” (LaTourette, supra, 17 Cal.4th. at p. 652.) A traveling employee “could hardly [be] expected to remain holed up in his hotel room.” (Fleetwood Enterprises, Inc. v. Workers’ Comp. Appeals Bd. (2005) 134 Cal.App.4th 1316, 1327.)
- The commercial traveler rule “does not, however, apply to any and all activities. ‘Personal activity not contemplated by the employer may constitute a material departure from the course of employment.’ ” (LaTourette, supra, 17 Cal.4th. at p. 652.) The activity must bear some relation to the purposes of the employment. (Id. at p. 653.)
The court contrasted the applicant’s temporary assignment out of town with a daily commute to a fixed location to find that he was a commercial traveler.
Using the LeTourette language of necessity “for the sustenance, comfort and safety of the employee,” the appellate court found that the applicant was probably seeking cell coverage “or even just to get away for a while to have a break from the camp for his leisure and comfort” and thus the particular action was “reasonably contemplated by the employment” and not a “material departure.”
What can we learn from this case? When defending a commercial traveler case, defendants need to engage in active discovery and present a strong case showing that the injury-causing activity: (1) had no relation to the purposes of employment and (2) was not reasonably contemplated by the employment.
By Sally Freeman, Esq., Associate Attorney, San Jose Office, June 2024
