University of Vermont AAHS

Rash v. Workers' Compensation Appeals Board

Court of Appeal, Fifth District, California
2007 WL 1520066

UNPUBLISHED
May 25, 2007

Summary of Opinion

Michael Rash was employed as a member of the mounted patrol.  Members were required to supply their own horses certified for mounted duty and to be on call 24 hours.  Although the mounted deputies received some reimbursement from the expenses keeping a patrol-ready horse it was not 100%.  Rash accepted an assignment to be on patrol during the rodeo and in preparation he took his horse to his shoeing class.  On the return he was struck head on and seriously injured.  He filed a Workers’ Compensation claim but was denied.  Holds that the injury occurred while Rash was returning from a special mission and therefore arose  out of his employment.

 

Text of Opinion

Petitioning this court from a decision of the Workers' Compensation Appeals Board (WCAB) denying compensation benefits, a sheriff's deputy asks whether the injuries he sustained while returning from a college horseshoeing course to prepare his privately owned horse for mounted duty arose out of and in the course of his employment. We agree with the deputy and conclude that his injuries were industrially related given the unique terms of his employment arrangement. We therefore annul the decision of the WCAB and remand for further proceedings to award appropriate workers' compensation benefits.

 

PROCEDURAL AND FACTUAL HISTORIES

 

Michael Rash worked as a deputy with the Stanislaus County Sheriff's Department (Department). As a member of the Department's horse-mounted unit, Rash was required to privately own, care for, train, and transport a horse certified for mounted duty to be available for Department service 24 hours a day, seven days a week. Mounted deputies in the Department engage in patrol duty, perform search and rescues, work on reservoirs, and engage in public-relations events. They also receive a 2.5 percent stipend over their regular salary and have increased opportunities for paid training and overtime. Additional horse-related expenses, such as official tack, animal vaccinations, and farrier fees, are often reimbursed by the “Posse,” a voluntary charitable organization of mounted officers. Its primary purpose is to support the Department's equine activities.

 

Lieutenant James Silva is a commander in the Department and a member of the mounted unit. He adopted a constant shoeing requirement so that horses approved for mounted duty would be ready at a moment's notice. To replace horseshoes, farriers in the Stanislaus area either travel to the horse or ask the owner to bring the horse to the farrier. Local farrier fees range from $50 to $125, and the Posse reimburses members up to $75 for horseshoeing as often as needed. According to reserve deputy Michael Wagner, treasurer of the Posse for 20 years, most horses require shoeing every four to six weeks, but Rash stopped seeking horseshoeing reimbursement from the Posse after October 24, 2004.

 

Lieutenant Silva and his wife signed up for a horseshoeing class at Merced College in January 2005. The class took place Monday, Tuesday, and Wednesday mornings from 8:30 a.m. until approximately 12:30 p.m., and students in the course learned to trim hoofs and replace the shoes of horses provided by the trainer, the students, or members of the public. Due to insufficient enrollment, Lieutenant Silva asked Rash to join the class and advanced his $150 to $160 tuition, which Rash later reimbursed. Rash initially enrolled only to help Lieutenant Silva, but Rash decided to remain in the course after he found it beneficial both personally and professionally. On about half of the course days, Lieutenant Silva and Rash carpooled to the college located approximately 35 minutes from Rash's residence.

 

Former Stanislaus County Sheriff Leslie Wiedman approved reimbursement for Lieutenant Silva's tuition in the horseshoeing course under a county educational program for supervisors and managers. The sheriff considered the course relevant to Lieutenant Silva's duties as a mounted officer “to gain expertise dealing with horse health care and particularly with foot care, the shoeing of horses.” Sheriff Wiedman explained that, although the Department's reimbursement rules were not the same for nonmanagement employees, he “would have tried to do everything [he] could” to reimburse Rash for the course if Rash had made a request.

 

Department Sergeant Giles New called Rash on Monday, April 4, 2005, and they agreed Rash would cover a shift of another mounted deputy at the Oakdale Rodeo the following Saturday and Sunday. Later that afternoon, Rash examined his horse certified for mounted duty, Indian, and discovered its right rear shoe was missing. Rash decided to shoe Indian at the horseshoeing class because he believed it would be quicker and more reliable than what he described as the “chaos” he would have had to undergo to try to schedule a farrier in time for the rodeo.

 

While off duty on Wednesday morning, Rash brought Indian and two of his other horses to the Merced College class. Rash told the instructor, Danny Harrison, that Indian was his priority for the day and that he needed the horse for duty that weekend. Under Harrison's supervision, Rash and a classmate replaced all four of Indian's shoes.

 

Rash loaded the horses in his privately owned truck and trailer at the end of Wednesday's class and on the way home went to lunch in Merced approximately one mile from the college. Following lunch, Rash was driving along Route J-59 when another vehicle struck him head-on. As a result of the accident, Rash filed a claim for workers' compensation benefits alleging injury to “multiple body parts,” including both legs.

 

The Department concluded that Rash's injuries were not employment-related and denied his claim for workers' compensation benefits. Following hearings in March and May 2006, a workers' compensation administrative law judge (WCJ) agreed with the Department and concluded that Rash's automobile accident was not a compensable injury and therefore he was not entitled to workers' compensation benefits. Rash petitioned for reconsideration, which the WCAB denied by adopting and incorporating the reasoning from the WCJ's report and recommendation.

 

DISCUSSION

 

An employer is liable for workers' compensation benefits only where an employee sustains an injury “arising out of and in the course of the employment....” (Lab.Code,   §  3600, subd. (a) .) “ ‘This two-pronged requirement is the cornerstone of the workers' compensation system.’  “ (LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 650, 72 Cal.Rptr.2d 217, 951 P.2d 1184 (LaTourette ).)

 

An injury “ ‘ “arise[s] out of” ‘ “ employment when there is a causal link between the injury and the job. (LaTourette, supra, 17 Cal.4th at p. 651, 72 Cal.Rptr.2d 217, 951 P.2d 1184.) In other words, the injury must have been sustained while performing a particular act reasonably contemplated by the employment; accordingly, “ ‘ “the nature of the act, the nature of the employment, the custom and usage of a particular employment, the terms of the contract of employment, and perhaps other factors should be considered.”  ‘ “ (Ibid.)

 

Occurring “ ‘ “in the course of” ‘ “ the employment ordinarily refers to the time, place, and circumstances of an injury. (LaTourette, supra, 17 Cal.4th at p. 651, 72 Cal.Rptr.2d 217, 951 P.2d 1184.) “ ‘Thus, “ ‘[a]n employee is in the “course of his employment” when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do.’ “ ‘ “ (Ibid.) Similarly, “ ‘an employee acts within the course of his employment when “ ‘performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract [are] mutually satisfied.’ “ ‘ “ (Ibid.) “The rationale is that the employee is still acting in furtherance of the employer's business.” (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 354, 115 Cal.Rptr.2d 503.) “The combination of a personal act performed outside of regular working hours with the performance of acts in furtherance of the employer's business does not defeat a finding that the employee was acting in the course of his or her employment.” (Id. at pp. 354-355, 115 Cal.Rptr.2d 503.)

 

In determining whether an injury arises out of and in the course of employment, the judicially created “going and coming” rule generally precludes workers' compensation recovery for injuries sustained during a local commute en route to a fixed place of business at fixed hours. (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 501 P.2d 1176 (Hinojosa ).) The rule is based on the notion that an employee usually does not render services for the benefit of the employer while traveling to and from work. (City of San Diego v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1385, 1388, 108 Cal.Rptr.2d 510.) Exceptions to the going-and-coming rule exist, however, “ ‘where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.’  “ (Hinojosa, supra, 8 Cal.3d at p. 158, 104 Cal.Rptr. 456, 501 P.2d 1176.) As a result, “[w]hen an employee engages in a special activity that is within the course of employment, an injury suffered during the activity or while traveling to and from the place of such activity also arises out of the employment.” (LaTourette, supra, 17 Cal.4th at p. 652, 72 Cal.Rptr.2d 217, 951 P.2d 1184.) This type of activity is also known as a “ ‘special mission,’ “ where “ ‘ “[s]pecial” means extraordinary in relation to routine duties, not outside the scope of the employment.’ “

In a supplemental briefing request, we asked the parties whether, assuming Rash's commute home from Merced College fell within the special-mission exception to the going-and-coming rule, his stopping for lunch after class negated the compensability of his injuries. They agreed that Rash's conduct would not alter the analysis because stopping for lunch was an act of personal comfort and convenience (State Comp. Ins. Fund v. Workmen's Comp.App. Bd. (1967) 67 Cal.2d 925, 927-928, 64 Cal.Rptr. 323, 434 P.2d 619); that it was not a substantial deviation from the mission (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 496, 48 Cal.Rptr. 765); or that a special mission does not end until an employee returns home (Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 538, 163 Cal.Rptr. 750). As Rash appropriately notes, the defense was not raised by the Department and therefore was not developed in the record. (§  5705.)

(Hinojosa, supra, 8 Cal.3d at p. 159, 104 Cal.Rptr. 456, 501 P.2d 1176.)

An employee performs services arising out of and in the course of employment “ ‘when he engages in conduct reasonably directed toward the fulfillment of his employer's requirements, performed for the benefit and advantage of the employer.” “ (Garzoli v. Workmens' Comp.App. Bd. (1970) 2 Cal.3d 502, 506, 86 Cal.Rptr. 1, 467 P.2d 833.) The burden of proving that an injury arose out of and in the course of employment falls on the employee and generally presents a question of fact to be determined in light of the circumstances.  (Pettigrew v. Workers' Comp. Appeals Bd. (2006) 143 Cal.App.4th 397, 405, 48 Cal.Rptr.3d 922; Wright v. Beverly Fabrics, Inc., supra, 95 Cal.App.4th at p. 353, 115 Cal.Rptr.2d 503.) However, where, as here, the pertinent facts are not in dispute, resolution of the question becomes a matter of law subject to de novo appellate review. (Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864, 101 Cal.Rptr. 105, 495 P.2d 433.) “In resolving this issue, we are guided by the Legislature's command in section 3202 that workers' compensation laws ‘be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’ “ (Wright v. Beverly Fabrics, Inc. supra, at p. 353, 115 Cal.Rptr.2d 503.)

Reasserting the same arguments raised before the WCAB on reconsideration, Rash contends he received “average justice” instead of “individual justice” because the WCAB concluded that his injury occurred outside the course of his employment. As adopted by the WCAB, the WCJ explained that Rash presented “an interesting and compelling set of circumstances” that posed a difficult question whether the injury was compensable. After noting that the injury did not occur while Rash was on regular duty with the Department, the WCJ reasoned:

“In the opinion of this WCJ, even though Mr. Rash had a personal interest in the equine hobby, it is unlikely that he would have taken this particular college course, when he did, were it not for his employment and obviously, he would almost certainly not have had Indian with him at the class on that date were it not for his job as a mounted sheriff. Thus, as this WCJ sees these facts, and readily acknowledging that others might see them differently, what brought Mr. Rash onto highway J-59 on 4/6/05 at the moment of his head-on collision was a combination of both his personal interests and his job duties. Had he not been a mounted officer, this WCJ simply cannot believe that he would have been where he was, when he was, on 4/6/05. This WCJ believes that Mr. Rash's injury occurred AOE [arising out of employment].”

The WCJ continued:

“What Mr. Rash was doing is really quite clear from the evidence presented at trial. He was performing an activity that benefited his employer. He was doing so on that day, at that time, because of a request by Deputy New that he fill in for another deputy who had backed out on short notice from the upcoming weekend's Oakdale Rodeo. He was performing on that date an activity that was absolutely required if he was to attend that following weekend's rodeo-he was having Indian shod.”

The WCJ acknowledged that Department policy required Indian to be shod at all times and that Rash admitted choosing “ ‘the easy way out’ “ by taking Indian to class instead of trying to find a farrier “who might or might not have shown up before Saturday.” The WCJ also recalled Rash testifying that he “most likely would have attended class anyway that date.” After analyzing the facts, the WCJ continued:

“In the end, the critical distinction in this WCJ's mind is whether an employee may, through his own decisions and his own acts, create a special mission that his employer did not request, demand or condone in some reasonably direct manner. This WCJ does not believe this to be the case. Applicant has presented no authority for the proposition that an employee, quite obviously acting in furtherance of his employer's interests and toward the end of an upcoming special event, may unilaterally and of his own volition elect a course of behavior that results in an injury and thereby ‘create his own’ special mission and this WCJ's review of the cases and deskbook authority fails to reveal any such authority. [¶ ] ... [¶ ]

 “In summary, given that the employer did not in any direct manner allow, encourage, condone or pay for the drive to and from the college on 4/6/05, in this case and upon the entirety of these facts, this WCJ cannot find that Mr. Rash was on a special mission for his employer when he was injured. The injury was AOE [arising out of employment] but it was not COE [in the course of employment]. Injury must therefore be denied.”

The WCJ further added that he was unconvinced by Rash's argument that Sergeant New's “ ‘last minute’ “ request for him to work at the rodeo that weekend necessitated taking Indian to the horseshoeing class. According to the WCJ, the request was not “last minute” because Department policy mandated that Indian be shod and ready for service “24/7.” Noting that Rash “had not checked Indian's shoe status since the last duty day some 18 days earlier,” the WCJ seemed to place blame on Rash for not having replaced Indian's shoes before receiving the assignment from Sergeant New.

Agreeing with the WCAB's determination that his injury arose out of his employment, Rash asks this court also to consider whether his injury also occurred in the course of his employment. The WCJ found that the injury did not occur in the course of employment because Rash created his own “special mission that his employer did not request, demand or condone in some reasonably direct manner” and therefore “unilaterally and of his own volition elect[ed] a course of behavior that result[ed] in an injury....” It appears, however, that the WCAB failed to consider whether Rash's activity-taking Indian to Merced College to be shod for an impending work-related event-was necessary or impliedly permitted under the terms of his employment as a mounted deputy.  (LaTourette, supra, 17 Cal.4th at p. 651, 72 Cal.Rptr.2d 217, 951 P.2d 1184.)

It is uncontroverted that Rash's employment arrangement with the Department mandated that, in exchange for a 2.5 percent increase in salary, Rash maintain a privately owned horse certified for official mounted duty. According to the WCJ's summary of evidence, Sergeant New testified that deputies must maintain their mounted duty horses in good health and “shod at all times ... to be available for a 24/7 callout.” When describing why mounted deputies receive eight hours of pay for six hours of training, Sergeant New explained that the added pay is to compensate for the additional time in caring for the horse, such as grooming, checking the equipment, and connecting the trailer. Sergeant New also acknowledged that he spends about an hour and a half of unpaid time even when he meets a farrier on his property to shoe a horse.

Although the WCAB agreed with the WCJ that Rash “ ‘create[d] his own’ special mission” by taking Indian to class to be shod before a mounted assignment, there is no evidence in the record that Rash's actions were beyond the scope of activities contemplated by his employment. To the contrary, the uncontroverted evidence reveals that the Department required its mounted officers to exercise discretion in caring for their horses certified for mounted duty. The witnesses all suggested that Rash was acting well within the parameters of his employment contract. Every witness employed or formerly employed by the Department-Sheriff Wiedman, Lieutenant Silva, Sergeant New, Deputy Wagner, and Rash-confirmed that the duties of an officer in the mounted unit included caring for a horse while off duty to ensure the horse was ready for assignment. Further, nothing in the record remotely suggests that if Rash had asked a supervisor for permission to take Indian to the Merced College class so that the horse could be shod in preparation for the upcoming work-related event that he would have been denied permission to do so. The evidence instead strongly suggests that his request easily would have been approved.

We also do not perceive any failure by Rash to have addressed Indian's farrier needs before accepting the rodeo duty as turning his commute to and from the horseshoeing class into his “own” special mission outside the course of employment. Aside from the lack of any evidence in the record that Indian required shoeing earlier, there is no indication that taking Indian to be shod at Merced College several days before an assignment exceeded the scope of duties contemplated by Rash's employment as a mounted officer. For example, Sergeant New explained that he generally tried to anticipate the needs of his horse certified for mounted duty a week ahead of an event to plan for a farrier to come to him, but in the past he has needed to transport his horses to the farrier for shoeing. Lieutenant Silva, who put into effect the constant-shoeing requirement, explained that “[t]he horse owner is responsible to assure that the horse is shod. In order to do so, a deputy must find a farrier.” He added that, while the majority of farriers will come to the horse, some want the horse brought to them. Course instructor Harrison confirmed that “[i]t is hard to get farriers to show up to do their duties.” Rash testified that he chose to take Indian to class as the easiest and surest way of ensuring that Indian would be ready for the rodeo several days later. It was also the least expensive in that Rash was already planning on going to the class and would negate the need to employ a farrier. Under the Department's employment arrangement with its mounted officers, Rash acted within the course of his employment by performing a duty necessarily imposed upon him by the Department, whether performed in compliance with the Department's “24/7” horseshoeing requirement or in preparation for the upcoming rodeo.

Rash's decision to participate in the college course, without more, arguably could be considered an “off-duty recreational, social, or athletic activity” generally falling outside the ambit of workers' compensation coverage. (§  3600, subd. (a)(9).

FN3. Section 3600, subdivision (a)(9), provides that an injury is compensable “[w]here the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee's work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.” (Italics added.)

However, Rash's added conduct on April 6, 2006, of taking Indian to be shod at the class in the most convenient and inexpensive manner in preparation for duty was both a subjectively and objectively reasonable expectancy of his employment as a mounted deputy and was therefore compensable. (See City of Stockton v. Workers' Comp. Appeals Bd. (2006) 135 Cal.App.4th 1513, 1519-1525, 38 Cal.Rptr.3d 474; Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal.App.3d 252, 258-263, 194 Cal.Rptr. 90.) Similarly, under the “ ‘dual purpose’ “ doctrine, “ ‘where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly or indirectly could he have been serving his employer.’  “ (Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 569, 209 Cal.Rptr. 674, 693 P.2d 254.) Although we need not make this type of inquiry, Rash overtly established that he was deliberately acting in furtherance of his employment when he informed the instructor upon his arrival for class on April 6, 2006, that his priority for the day was to shoe Indian for mounted duty that weekend.

Although Rash owned other horses and maintained a personal interest in the shoeing class, his commute to and from Merced College on the day of his accident indisputably conferred a direct benefit and advantage to the Department by both preparing Indian for the upcoming rodeo event and meeting the Department's general requirement that the horse be shod and ready for duty at all times. The Department gave Rash complete discretion in deciding how to care for his certified horse, and there is no indication in the record that Rash acted unreasonably or beyond the scope of his employment arrangement. We conclude that the injuries Rash sustained while returning home from Merced College occurred during a special mission benefiting the Department and therefore arose out of and in the course of his employment.

DISPOSITION


The WCAB's order denying reconsideration is annulled and the matter is remanded for further proceedings consistent with this opinion.

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