LC Sec. 3600(a)(9) Does NOT Apply to Commercial Travelers
By now we’re all familiar with the going and coming rule, and also its exception of the “commercial traveler.” A commercial traveler is one that is on a trip for business purposes (think conferences, special projects, recruiting events) and is thereby taken away from hearth and home, sometimes for days at a time. When an employee is a commercial traveler (not to be confused with a Travelers commercial) it is generally considered that he or she is always on the clock, and therefore the going and coming rule does not apply.
Enter the case of Antonio Parvool v. Tony’s Food Service (coincidentally insured by Travelers). Mr. Parvool, the poor, unfortunate man, had the difficult job of going to Hawaii to assist in providing catering services to movie production crews. While he was not handing out whole-wheat extra-thin bagels to movie stars, he got to enjoy the surrounding area, including the employer-provided hotel and swimming pool.
Despite your humble blogger’s valiant efforts, workers’ compensation Judges in California are reluctant to grant change-of-venue motions to Hawaii – some nonsense about state jurisdiction. Rest assured, when your humble blogger is finally in charge, workers’ compensation trials will be held on the beaches of Hawaii in casual attire, and applicants will immediately realize there is more to life than hounding an employer over a paper cut. Objections will be made with Mai-Tai in hand, and all permanent disability indemnity will be paid in macadamia nuts. Someday…
Having spent too much time around action movie stars and their stunt doubles, applicant decided to dive head-first into the shallow portion of the hotel swimming pool, and sustained injuries to his neck, upper extremities, lower extremities, psyche, and digestive system. Defendant pointed out that applicant wasn’t on the clock when he took his dive, but applicant’s counsel responded by pointing out that the commercial traveler rule applied.
Persuaded by defendant’s arguments, the workers’ compensation Judge held that Labor Code section 3600(a)(9) rendered this injury non-industrial, as applicant’s injury arose “out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties.”
Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration and, having rubbed the lamp in just the right way, the applicant’s wish was granted. The WCAB reasoned that section 3600(a)(9) does not apply to the commercial traveler exception, but rather to routine injuries. So, if a hotel worker were to take a lunch break and go for a swim in the hotel pool, sustaining the exact same injury as the unfortunate Mr. Pavool, the injury would not be compensable under section 3600(a)(9).
In its reasoning, the WCAB points out that it is unreasonable to expect an employee to remain cooped up in a hotel room. Even this, we have seen, may not spare a traveling employee an injury.
So, if you’re sending your employee on a trip, see if you can find a hotel with a swimming pool that only has deep ends!