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A correctional officer for the California state Department of Corrections and Rehabilitation exchanged shifts with a coworker after the coworker asked him to swap shifts. While driving to work, the officer hit a patch of black ice and spun off into a ravine. He suffered severe injuries.

At the facility where the officer worked, it was mandatory to be fully staffed. Officers sometimes swapped shifts. The officer had previously swapped shifts around 10 times per year. A sergeant said that swapping shifts benefitted the state by reducing possible overtime since he would not have to call someone on the overtime list if a worker was unable to come in for his shift. The sergeant permitted employees to swap shifts without first obtaining approval.

Was the board correct in finding an exception to the going and coming rule applied?

A. Yes. The special mission rule applies when a worker begins work earlier than normal.

B. No. The officer did not perform an extraordinary service to the state by working in a coworker's place to perform routine duties.

C. Yes. The officer's shift swapping with his coworkers was done with the implied approval of the supervisor.

How the court ruled: B. In an unpublished decision, the California Court of Appeal held that the officer was not entitled to benefits under an exception to the going and coming rule. California Department of Corrections and Rehabilitation v. Workers' Compensation Appeals Board, No. E054153 (Cal. Ct. App. 08/28/12, unpublished).

The court explained that shift swapping was clearly of benefit to the state because it helped ensure that employees would be present for each shift without the supervisor having to shuffle schedules and may have helped to avoid paying overtime.

The court said that characterizing every shift as a "special need" rendered the concept of "special" meaningless. The court pointed out that if the coworker was injured on his way to work, he would not be entitled to compensation. It would be inconsistent to hold that an employee who agreed to work the shift of a coworker could be entitled to benefits for injuries received while traveling to work while the coworker would not be entitled to benefits if injured during his commute.

The court also found that the road conditions at the time of the commute did not justify application of the special risk exception. The risk the officer faced was no different than that of anyone else on the road at the time.

A is incorrect. The court said that the special mission rule is ordinarily held inapplicable when the only special component is the fact that the worker began work earlier than normal. In this case, there was nothing unusual about changing shifts. It was an accepted practice.

C is incorrect. The court said that while the shift swapping was done with implied approval, it did not provide an extraordinary service compared to the officer's usual duties.

Editor's note: This feature is not intended as instructional material or to replace legal advice.

October 25, 2012

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