motorcycles cops in a parade

Was a Police Officer’s Motorcycle Fatality a Work-Related Injury? Injured Workers in the News, #94

A California Motorcycle Officer suffered a fatality in a highway crash.  The Manhattan Police Officer, who was recognized as a hero from the Las Vegas mass shooting,  was reportedly going to work when the accident happened.  This fact pattern raises the question as to whether someone injured while driving to work can claim a work injury and receive workers’ compensation benefits.

Per the Associated Press, it is reported that the Manhattan Beach Police Officer was likely heading to work when the collision happened shortly after 5 a.m. on Interstate 405 in Carson,

This article will discusses how this type of accident can be considered as an industrial event.

Can A Worker File A Workers’ Compensation Claim If They Got Hurt On Their Way To Or From Work?

While California Workers’ Compensation Law precludes recovery from injuries sustained during commutes, there are exceptions to the rule. Therefore, in these matters, a complete factual analysis is required.  Further, these cases are likely to be litigated.

The following is a discussion of the “going and coming” rule.  Per case law, “[t]the going and coming precludes [recovery under the Workers’ Compensation Act] for injury suffered during the course of a local commute to a fixed place of business at fixed hours in the absence of exceptional circumstances. (Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal. 3d 150, 157 [37 Cal. Comp. Cases 734, 104 Cal. Rptr. 456, 501 P.2d 1176].) [] For purposes of the rule, the employment relationship does not begin until an employee enters the employer’s premises. Prior to entry the going and coming rule ordinarily precludes recovery after entry, injury is generally presumed compensable as arising in the course of employment. (Pacific Indem. Co. v. Industrial Acc. Com. (1946) 28 Cal. 2d 329, 336 [11 Cal. Comp. Cases 148, 170 P.2d 18] Cal. Cas. Ind. Exch. v. Ind. Acc. Com. (1943) 21 Cal. 2d 751, 755 [8 Cal. Comp. Cases 55, 135 P.2d 158]1 Larson, Workmen’s Compensation Law (1972) §§ 15.00–15.11, pp. 4–2—4–4.)” (General Ins. Co. v. Workers’ Comp. Appeals Bd. (1976) 16 Cal. 3d 595, 598 [41 Cal. Comp. Cases 162, 128 Cal. Rptr 417, 546 P.2d 1361].) The going and coming rule, however, is riddled with exceptions. (Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal. 3d 150, 156 [37 Cal. Comp. Cases 734, 104 Cal. Rptr. 456, 501, P.2d 1176] Bramall v. Workers’ Comp. Appeals Bd. (1978) 78 Cal. App. 3d 151, 156 [43 Cal. Comp. Cases 288, 143 Cal. Rptr. 105].)

One such exception to the going and coming rule is the “special mission” exception. Under this exception, “An injury suffered by an employee during his regular commute is compensable if he was also performing a special mission for his employer. (2 Hanna, [Cal. Law of Employee Injuries and Workmen’s Compensation (2d ed.)], § 9.03[3][iv], pp. 9–41—9–43.) The employee’s conduct is ‘special’ if it is ‘extraordinary in relation to routine duties, not outside the scope of employment.’ (Schreifer v. Industrial Acc. Com. (1964) 61 Cal. 2d 289, 295  [29 Cal. Comp. Cases 103, 38 Cal. Rptr. 352, 391 P.2d 832].) The special mission rule ‘is ordinarily held inapplicable when the only special component is the fact the employee began work earlier or quit work later than usual.’ (1 Larson, [Workmen’s Compensation Law], § 16.12, p. 4–98.)” (General Ins. Co. v. Workers’ Comp. Appeals Bd., supra, 16 Cal. 3d at p. 601.)

Another well recognized exception to the going and coming rule is the “special risk” exception. “If, prior  to entry upon the [employer’s] premises, an employee suffers injury from a special risk causally related to employment, the injury is compensable under the ‘special risk’ exception to the going and coming rule. ‘The facts that an accident happens upon a public road and that the danger is one to which the general public is likewise exposed, however, do not preclude the existence of a causal relationship between the accident and the employment if the danger is one to which the employee, by reason of and in connection with his employment, is subjected pecul[iar]ly or to an abnormal degree.’ (Freire v. Matson Navigation Co. (1941) 19 Cal. 2d 8, 12 [6 Cal. Comp. Cases 302 118 P.2d 809]1 Larson, supra, § 9.30, pp. 3–48—3–50).” (General Ins. Co. v. Workers’ Comp. Appeals Bd., supra, 16 Cal. 3d at p. 600.)”  Baroid vs. WCAB (1981) 46 C.C.C. 790.

With Respect to the “Going and Coming Rule”, Is The Analysis Different for Police Officers?

Yes. There is the case of Garzoli which addressed the extraordinary nature that can be involved in law enforcement.

The Supreme Court in  Garzoli vs. WCAB 35 Cal. Comp. Cases 193, dealt with case involving the following facts: “On June 6, 1968, he began his regular shift at 4 p.m. and “checked out” with the lieutenant or watch manager at midnight. He started home on his own motorcycle (which he did not use in his work), wearing his police uniform and carrying his pistol. A few minutes later, his motorcycle was struck by a negligently driven automobile, and he sustained severe injuries, which caused his death July 4, 1968.”  Further “There was evidence that …[the Officer]… was on call 24 hours a day; that he had been called many times to report for duty at a time other than his regular shift (such as when a riot was antipicated, or the lieutenant or watch manager had to be away, or for marksmanship practice); that the police department’s “Manual of Policies and Procedure” did not deal with the matter of a police officer’s norma going and coming between his home and the police station; and that although the manual provided that police officers were prohibited from engaging in law enforcement activities while off duty within the city except in cases or extreme emergency or when it appeared that someone’s life was in danger, such policy was not followed by the department, and off-duty officers were expected to render assistance in less serious situations.

In the latter respect, the chief of the police department testified: “If somebody was in need of help, and in a small community of our size where a policeman is known by just about every individual, and he refused to help—well, what would happen to him and what would happen to the police department as a whole? So as a consequence if somebody needed help, and irregardless of whether he had a weapon or not, I would censor [sic] them if they did not help these people.”  The chief further testified that there was no adequate place for a police officer to change from street clothes into his uniform, or vice versa, at the police station and that it was with his consent that an officer might wear his uniform and carry his pistol in going and coming between his home and the police station.”  There was additional information that was presented at trial that “the lieutenant or watch manager with whom the decedent had “checked out” at midnight when he left the station testified that it was with his knowledge and consent that the decedent wore his uniform, carried his pistol, and rode his motorcycle in going and coming between his home and the police station. He also testified that he had worked the same shift as the decedent that night; that he came upon the scene of the accident shortly after it occurred; and that he immediately “in [his] official capacity . . . administered first aid and questioned the persons standing there,” assisting fellow officers in apprehending the driver of the automobile involved in the accident (hit and run), and made an official report as an investigating officer.”  Further at trial, “there was also evidence that the decedent lived about a mile and a quarter or a mile and a half from the police station; that there was no public transportation available to him; that the only way he could go to work was to walk, drive his own vehicle, or hire a taxi; and that the city did not pay him any mileage.

In this case, the Supreme Court noted that “In the present case, the city did not require that the decedent furnish a vehicle of transportation on the job. From the testimony of the police chief, however, it is clear that, as a practical matter, the decedent was required to wear his official uniform to and from work and that, at least when so clothed, carrying his pistol, and traveling conspicuously in the public streets on a motorcycle on his way home immediately after completing his shift, he was expected  to render assistance to members of the public in the field of law enforcement, if needed.

Accordingly, it is a reasonable extension of the exception laid down in Smith to hold that under the circumstances here shown, the decedent was engaged “in conduct reasonably directed toward the fulfillment of his employer’s requirements, performed for the benefit and advantage of the employer,” as a result of which the going and coming exclusion is inapplicable.”” [emphasis added]

In sum, with respect to the recently deceased officer, his facts will be analyzed against the facts of the Garzoli case as well as the legal theories employed to create the exception to the going and coming rule.   From the news accounts, there seemed to be some question as to whether he in fact on his way to work.  This is a significant issue that requires clarification.    Likewise, there will be an investigation as to the necessity of wearing a uniform and weapon when driving a police motorcycle.  Further, there will be an investigation as to whether there was an expectation that this Officer was expected to render assistance to members of the public.  All of these factors, and others, will bring weight into the analysis.

What If I Need Legal Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 30 years. Contact us today for more information.



Mr. Anthony Wilson, an MTA Worker, is both a hero and an Injured Worker.   It was reported that “[l]ast week, Nelson was cleaning the Pelham Bay subway station in the Bronx when police allege 49-year-old Alexander Wright began to harass customers. Nelson stepped in to protect them, but the suspect quickly turned his rage toward Nelson, breaking his collarbone and nose.”  KESQ.COM

This fact pattern may involve many unique issues. This article will discuss two important issues that come up with these type of events;  the injury investigation and the Injured Worker’s high profile work injury celebrity status.

Why Would High Profile Claim Like This Be Investigated?

In California, any assault claim has the possibility of an insurance company defense of initial physical aggressor.  The initial physical aggressor rule could bar an Injured Worker’s claim.  Therefore, it is worthy of inquiry by the insurance company.  In other words, there will be an investigation as to whether the Injured Worker made the first physical contact.

Labor Code Section 5402, allows insurance companies 90 days to investigate claims.  “If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.”  Thus, the Insurance Company will got out and get witness statements and see if the incident was caught on tape before accepting the claim.

Why Is The Injured Worker’s Celebrity Status A Problem?

An Injured Worker who becomes a celebrity as a result of their injury creates a problem.

When an Injured Worker is in a high profile worker’ compensation case, they may be on television or interviewed for news articles. These television reports or interviews may reveal information concerning the Injured Worker’s injuries and their physical activity level.   Additionally, in interviews, Injured Workers may try to make a positive and uplifting impression rather than be accurate concerning their complaints.  This information can be used to impeach the Injured Worker.  Also, it could be sent to examining or evaluating physicians.

What if I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

work injury word cloud


A Hospital Worker tragically died.   Law enforcement considers the death to be a homicide.  The alleged cause for the homicide was a kick in the groin.   Do the facts give rise to legitimate workers’ compensation  work-related death claim?

It is reported as follows:  a Hospital Worker had an altercation with a patient.   A mental health evaluation patient was trying to leave the hospital when the staff tried to prevent her from leaving.  The incident got physical.   The patient began to “swing her arms and pull away from security when (an employee) attempted to grab her arms. The Mental Health Unit eventually had to step in.” The patient allegedly started to kick and then struck a Hospital Worker with her knee in the groin.  The Hospital Worker, after the injury, was in the ICU for three days. Tragically, he died.

The article reporting on the matter indicated that “[a]uthorities say after a review of medical records and investigation, the cause of death is physiological stress associated with a physical altercation in the setting of cardiomegaly and obesity.”

The coroner commented that “[t]here’s a lot of people walking around with the same medical conditions he had, that might live for another 15-20 or 25 years, had it not been for the kick to the groin.”

This article will discuss the hurdles required to prove a death claim in this matter.  This article will discuss issues of causation and medical legal reporting.

Is The Coroner’s Opinion Enough to Prove the Death Is Work-Related?

The answer is “no.”  In California, Workers’ Compensation Law has standards of causation.  The doctors must express their opinion within the workers’ compensation framework.  With respect to a death claim, the medical evaluator should express their opinion within reasonable medical probability.  Further, with respect to a death case, the issue is whether the industrial injury was a “contributing” cause.  The South Coast Framing case  established the “contributing cause” standard for death cases.  (South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 [188 Cal.Rptr.3d 46, 349 P.3d 141].)  As we don’t know whether the Coroner’s opinion was within reasonable medical probability or whether it addressed causation as a contributing cause, on it’s face, it could not be used as evidence.

Thus, a medical opinion must have the correct language.   It should also be noted that criminal law has a different burden of proof.  Therefore, clarification is needed within a workers’ compensation framework.  It is possible that what might not be considered criminal causation can still be valid for the purposes of industrial causation.

What Medical Evidence  Is Needed To Proof the Death Was Work-Related?

In this matter, either the treating physician or a medical evaluator, QME or AME,  should be employed to render an opinion on industrial causation of the death.   The question would be whether the attack “contributed” to the injured worker’s death.  The worker’s involvement, i.e. physical activities, in the altercation can be viewed as a whole as opposed to the mere kick.  In other words, the stress, mental or physical, from the incident can be considered with respect to industrial causation for the death.  As noted, workers’ compensation should look at the totality of the incident and not the mere kick to the groin to make the assessment.

What if I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

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