Exception to going-and-coming rule not applicable to carpool arranged by colleague

A California appeals court on Thursday annulled a Workers’ Compensation Appeals Board order awarding benefits to a farmworker who was seriously injured while commuting home via a carpool arranged by a co-worker.

Javier Hernandez worked as a farm laborer for Ceja Reyes Inc. and did not drive, paid $10 per day to be part of a carpool organized by co-workers and not provided by the employer. In 2022 he suffered serious injuries, including a right leg amputation, when the van crashed during his commute home, as documented in Zenith Insurance Co. v. Workers’ Compensation Appeals Board.

Zenith Insurance Co. denied Hernandez’s claim because his injuries were not sustained in the course and scope of employment under the going-and-coming rule, which generally provides that comp is not available for injuries suffered while commuting to or from work.

A workers compensation judge determined that the special risk and dual-purpose exceptions to the going-and-coming rule applied to Mr. Hernandez’s claim. The Workers’ Compensation Appeals Board adopted the judge’s report and recommendation to deny Zenith’s petition for reconsideration.

The 3rd District Court of Appeal said there was no evidence to support the board’s finding that the dual-purpose exception to the coming-and-going rule applied to the claim. The court also said the board’s rationale for applying the special risk exception goes beyond what is allowed by case law and could apply any time an employer hires a person without a driver’s license or a car.

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