Safety and OSHA News

Struck on bicycle commuting from one job site to another: Does she get comp?

An in-home caretaker was struck by a car while riding her bicycle from one client’s home to another’s. Her employer said the coming-and-going rule applied and she shouldn’t get workers’ comp. How did a court rule? 

Yu Qin Zhu was an in-home caretaker for the California State Department of Social Services. Zhu would review a registry of patients, contact and interview them to determine whether she would work as their caretaker. The patients Zhu cared for set the schedule and told her what her duties were for each day. She worked for Social Services for 12 years.

On Dec. 16, 2015, Zhu had cared for one couple in the morning and then was riding her bicycle to the home of another client when she was injured in a crash with a car.

Social Services argued that this was a case of coming and going, therefore Zhu shouldn’t receive workers’ comp benefits. An administrative judge found this was a “required vehicle” exception – that is, Zhu was required to use her own vehicle to get from one work site to another during the course of a work day.

The Workers’ Compensation Appeals Board overturned the judge’s decision, agreeing with the company. Zhu appealed to a state court. In the interim, the Appeals Board reconsidered her case and reversed its decision, saying Zhu should receive workers’ comp benefits. Social Services still argued this was a coming-and-going situation, so the Court of Appeals heard the case.

The appeals court noted that California courts have said when employees are injured in their daily commute to a fixed workplace, they’re not eligible for workers’ comp.

However, if they’re injured during travel under other circumstances, they may qualify for benefits.

The key test: Whether the trip created a benefit to the employer other than an employee’s daily commute.

In Zhu’s case, the court noted:

  • Providing home care is one of the Department of Social Service’s duties.
  • Social Services knew Zhu was providing care in more than one home per day.
  • It was unavoidable Zhu would have to travel from one home to another, and Social Services knew she was.
  • Social Services benefited from Zhu’s travel from one home to another because it increased the ability to provide services to people in need.

But Social Services still argued that it didn’t require Zhu to work with more than one patient per day. However, the court noted that since she’d been seeing more than one client a day for 12 years and they didn’t object, Social Services accepted the benefit she provided by making multiple daily homecare visits.

The court ruled Zhu should receive workers’ comp benefits for her injuries suffered when she was involved in a crash with a car while riding her bicycle from one home to another. Her case was sent back to the Appeals Board to determine what the benefits should be.

(Yu Qin Zhu v. Workers’ Compensation Appeals Board and Department of Social Services, Court of Appeals of CA, Second Dist., Div. 5, No. B278696, 6/20/17)

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