Griffith Construction Co. v. Workmen's Compensation Appeals Board

Opinion

STONE, P. J.

Petitioners seek annulment of decision, after reconsideration by the Workmen’s Compensation Appeals Board of its decision, holding that respondents Juan Gutierrez, Johnny Eugene Moore, Soledad

[609]

Vidaurri and Charlotte Magsby were not barred from receiving workmen’s compensation by reason of the going and coming rule.

Juan Gutierrez, Johnny Eugene Moore, Frank Vidaurri, Theodore Magsby and Jack Moore of Bakersfield were employed by petitioner Griffith Construction Co. at a job site near Mojave on the Tehachapi Desert, some 73 miles from Bakersfield. The five men, all of whom lived in Bakersfield, had formed a car pool to provide transportation to the job site. On December 4, 1968, they left for work about 5:40 a.m.-, in an automobile owned by Frank Vidaurri but driven by Theodore Magsby. They stopped at Tehachapi and purchased lunch supplies at a delicatessen store. Between Tehachapi and Mojave the vehicle was involved in a one-car crash, killing Theodore Magsby and Frank Vidaurri. Johnny Moore and Juan Gutierrez were injured.

Because of the distance from their home base to the job site, each of the employees was paid a sum in addition to his salary, The controversy centers upon the question whether the additional compensation constituted “subsistence pay,” as the master contract between the union and the Southern California Chapter of Associated General Contractors designated it, which would exclude them from the benefits of the Workmen’s Compensation Act, or whether they were paid the additional compensation to cover extra travel time and travel expense, bringing them within an exception to the exclusionary going and coming rule.

(Zenith Nat. Ins. Co.

v.

Workmen’s Comp. App. Bd., 66

Cal.2d 944, 947 [59 Cal.Rptr. 622, 428 P.2d 606];

Garzoli

v.

Workmen’s Comp. App. Bd.,

2 Cal.3d 502, 505 [86 Cal.Rptr. 1, 467 P.2d 833].)