Going and Coming Rule an Injury in Malls

The WCJ and the WCAB found the applicant’s injury compensable when the applicant had a slip-and-fall injury after the applicant had left a store located in the mall. The injury occurred on the mall premises although the employer had no control or ownership of the mall premises. The case was decided on the theory of reasonable egress and ingress.

Haddad v. Safety National Casualty (BPD) (40 2CWCR 148):

Applicant worked as a manager of Bath and Body Works in the Northridge Mall. On February 18, 2012, she closed the store at 10:30 p.m. and slipped and fell while walking through the mall toward the mall parking structure where she had parked the car.

Defendant denied liability for the injury.

The WCJ found the injury arose out of and occurred in the course of employment.

Defendant petition for reconsideration claiming the injury was barred by the going and coming rule because the applicant and left the employer’s premises and her workday attended.

The WCJ recommended that reconsideration be denied.

The WCJ acknowledged that as a general rule, injuries occurring during a regular commuter period are not compensable because the employment relationship is suspended during the commute.

However the WCJ indicated that walking to and from the street and the building where the worker works, however, is a necessary incident of the employment. An employee comes under the protection of the Worker’s Compensation law when entering the employer’s premises or a means of access thereto.

An injury sustained during such ingress or egress is compensable.

In the present case the applicant was injured in an area that was not owned or controlled by her employer.

The mall is the only practical means of access to the employment premises. When the injured employee is within a reasonable margin of time and space necessary to go to and from the place where she worked she has not yet resumed her regular commute.

The WCJ concluded that the case of General Insurance v. WCAB (Chariez) 41 CCC 162 was distinguishable from this case. In that case the applicant was struck by passing auto on a public street and had not been exposed to any greater danger than the public at large. The WCJ indicated in this case the applicant was injured on the only practical means of access to the employer’s premises.

WCAB denied reconsideration adopting the opinion of the WCJ.

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