The going-and-coming rule has long been a cornerstone of California workers’ compensation law, generally excluding injuries sustained during an employee’s commute from coverage. However, a recent decision by the California Court of Appeal—Zenith Ins. Co. v. WCAB (Hernandez) (2025) 110 Cal.App.5th 1164—has brought new clarity and imposed tighter limitations on the rule’s exceptions.
What Happened?
In this case, the 3rd District Court of Appeal reversed a Workers’ Compensation Appeals Board (WCAB) decision that had awarded benefits to a farmworker injured during a vanpool commute. The employee, Hernandez, was involved in a car crash while returning home in a van arranged by a coworker—not the employer. He had been commuting about 60 miles to work and did not possess a driver’s license. The WCAB had found that the special risk and dual-purpose exceptions to the going-and-coming rule applied, making the accident compensable.
Appeals Court Decision: NO WAY – Not Compensable
Generally speaking, an injury that occurs while commuting to work is compensable. Although there are exceptions, the judge significantly narrowed their application in this case:
- Special Risk Exception: This exception applies only if the injury occurs just outside the employer’s location and arises from a work-related risk beyond what the general public faces. In this case, the crash occurred far from the workplace and did not involve an employer-controlled hazard. The employee’s lack of a license, the legality of the van, and the long commute did not constitute a ‘special risk’ tied to employment.
- Dual-Purpose Exception: This exception applies when the commute also serves an intentional work function—such as making a sales call or picking up supplies before heading home. The Court found no evidence that Hernandez was performing any work-related duties during the trip.
Practical Takeaways for Claims Handling
The Special Risk Exception has become narrower than ever. For a commuting injury to be covered, the risk must be unusual, directly related to the employee’s work, and occur at or near the workplace. A long commute—say, 60 miles—does not meet the threshold on its own. Similarly, the Dual-Purpose Exception is difficult to establish unless there is clear work being performed during the commute. A mere benefit to the employer, such as punctuality, or casual oversight (like occasional calls) does not meet the standard.
The burden of proof lies squarely on the employee’s side. Defense teams should push for strong evidence, such as employer-arranged transportation, clear documentation of work performed during the commute, or instructions from a supervisor given in the vehicle.
Ultimately, evidence matters. Employers should maintain organized employment agreements, transportation policies, and ride-sharing waivers. Witness statements can also be crucial. It’s important to establish in writing that commuting is the employee’s responsibility, helping to avoid unnecessary liability in the event of a claim.
Final Word
For insurance carriers, TPAs, and defense attorneys, this decision is a significant win. It provides strong authority to argue that normal, employee-arranged commuting is not compensable. Treat ride-shares and carpooling as personal travel unless there is clear evidence to the contrary. When in doubt, ensure you document everything.
If you need guidance navigating these complex exceptions or want to ensure your policies are airtight, we’re always here to help.
