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Under the going and coming rule, an employee's injury while commuting to and from work is not compensable under the workers' compensation system, absent special or extraordinary circumstances. That's because long ago, the California Supreme Court believed that an employee going to and from the place of employment did not render any service for the employer. (Ocean Accident and Guarantee Co. v. IAC (1916) 173 Cal. 313, 322.) Although the going and coming rule remains, "It has generated a multitude of exceptions which threaten, at times, to defeat the rule entirely." (Santa Rosa Junior College v. WCAB (Smythe) (1985) 40 Cal. 3d 345, 348.) So, the Workers' Compensation Appeals Board (WCAB) frequently finds injuries incurred while traveling to and from work to be compensable.
On May 1, 2025, the 3rd District Court of Appeal decision in Zenith Insurance Co. v. WCAB (Hernandez) (2025) 110 Cal. App. 5th 1164 establishes important precedent regarding the application of exceptions to the going and coming rule. It significantly narrows the scope of both the special risk exception and the dual purpose exception, providing crucial guidance for practitioners navigating compensability issues in commute-related injuries.
FACTS OF THE CASE
The case involved Javier Hernandez, a farm laborer, who had no driver's license and did not own a car. He relied on a vanpool arranged by another employee to travel approximately 60 miles each way between his home and the work site. The employment contract specifically stated that the employer did not provide transportation, make transportation arrangements or recommend any type of transportation, and that employees were solely responsible for their transportation.
In May 2022, during Hernandez's commute home, the van crashed while being driven by an unlicensed driver. Hernandez sustained catastrophic injuries, including a right leg amputation. When he filed a workers' compensation claim, the defendant denied it based on the going and coming rule. The WCAB found the injuries to be compensable under both the special risk and dual purpose exceptions, and the defendant appealed.
ANALYSIS OF THE SPECIAL RISK EXCEPTION
The Court of Appeal first addressed the special risk exception to the going and coming rule. The court emphasized that it applies only in very specific circumstances — namely, when a risk associated with the employment causes injury "just outside the employer's premises." The court rejected the WCAB's expansive interpretation that would have extended the exception to cover an entire 60-mile commute.
The court stated that the special risk exception implies "a zone of employment, varying in distance, measured by the special circumstances of each case and defined by the nature of the employment." Typically, that zone is limited to the immediate vicinity of the employer's premises. The exception applies when: (1) but for the employment, the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than risks common to the public.
Crucially, the court determined that there must be "a relationship between the risk to which the employee was subjected and the location of the employer's premises and/or conditions over which the employer exercised some control." The court found no such relationship in Hernandez's case, as the risk was based on the nature of the employee (as a person who is not licensed to drive) rather than any circumstances of the employment over which the employer had knowledge or control.
The court explicitly rejected the WCAB's logic that would create an exception any time an employer hires a person without a driver's license or car, noting that the going and coming rule has been applied to employees who make their own car pool or ride-share arrangements.
ANALYSIS OF THE DUAL PURPOSE EXCEPTION
The court clarified that the dual purpose exception applies "to a local commute to and from the place of employment when the employee performs work at home." The key question is whether "the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force."
The court found that the facts in Hernandez's case did not meet that threshold. The WCAB's finding that the employer was in the business of reliably providing agricultural laborers and that the supervisor assigned work duties on the employees' arrival did not go beyond "the normal need of the presence of the person for the performance of the work." It also found no evidence that Hernandez performed work while on the van or at home, a critical element for applying the dual purpose exception.
ANALYSIS OF THE DECISION
The Hernandez case has several important implications for future workers' compensation cases involving the going and coming rule. The court has firmly established that the special risk exception applies only to injuries occurring in close proximity to the employer's premises — not to entire commutes regardless of distance. For the special risk exception to apply, there must be a relationship between the risk and either the location of the employer's premises or conditions over which the employer exercises some control. An employer's mere awareness of an employee's transportation arrangements is insufficient. Moreover, the court rejected the notion that an employee's personal characteristics (lack of driver's license, lack of car) create a special risk attributable to the employment.
For the dual purpose exception to apply, there must be evidence that the employee actually performed work at home or during the commute. The mere fact that the employer benefits from the employee's timely arrival is insufficient.
The court's decision narrows both the special risk and dual purpose exceptions to the going and coming rule. It establishes clear parameters that practitioners must consider when evaluating the compensability of injuries occurring during commutes. The decision reinforces the fundamental principle that the employment relationship is generally suspended during ordinary commutes, with exceptions applying only in circumstances that bear a demonstrable relationship to employment conditions over which the employer exercises control.
For employers and insurers, this decision provides greater predictability in determining compensability of commute-related injuries. For injured workers, it emphasizes the importance of establishing concrete evidence of how the employment created or contributed to the risk of injury beyond the normal risks of commuting.
For further discussion of the dual purpose exception, see Section 5.53 Mixed Business and Personal Purposes — Dual Purpose Rule. For further discussion of the special risk exception, see Section 5.56 Special Risk — Zone of Danger.