Could Farm Laborer Who Lost Leg During Vanpool Accident Recover Workers’ Comp?

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The coming and going rule bars most workers’ compensation claims based on injuries sustained during a commute. In California, the “special risk” rule is an exception that covers injuries that occur during a commute if they happen within the zone of employment. A case involving a farm laborer injured in a van accident addresses the question of how far that zone can stretch.

The laborer worked for a company that assigned him to various locations in the region. The company did not provide transportation. The laborer had no driver’s license so he joined a private vanpool to get to work. He paid $10 per trip. 

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On the way back home from a jobsite one day, while far from the employer’s office, the van crashed. The laborer sustained catastrophic injuries during the accident, including a right leg amputation. He filed a workers’ compensation claim.

The workers’ compensation board found that the injury was compensable. It reasoned that the special risk exception applied because the employer had chosen to hire someone who lacked a drivers’ license and who therefore needed to take a vanpool to get to the jobsite.

The special risk exception to the coming and going rule provides for compensation where a risk associated with the employment causes injury just outside the employer's premises.

The exception applies if:

1. But for the employee’s job, he 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.

Did the special risk exception apply?

A. No. The injury did not occur near the employer’s office, but in a place and under circumstances over which the employer had no control.

B. Yes. If not for the job, which required travel to various locations and necessitated arranging private transportation, the employee would not have been in that van.

If you selected A, you agreed with the court in Zenith Ins. Co. v. Hernandez, No. C101549 (Cal. Ct. App. 05/01/25), which held that the injuries were not compensable.

The court stated that the employee provided no authority for stretching the zone of employment exception to the point that it covered an entire commute. The exception normally applies to injuries sustained just before an employee arrives at work or just after he leaves work. In any case, it’s limited to injuries that occur just outside of the employer’s premises.

Even if he was injured within the zone of employment, the employee failed to connect the risk of injury to the employer’s premises or to conditions over which the employer exercised some control.

The court rejected the argument that the exception applied because the company chose to hire an employee who could not get to work on his own and had to make special arrangements to travel by van pool.  “These arguments, to the extent they deviate from the normal risks of commuting to the general public, are based on the nature of the employee, as a person who is not licensed to drive, and not any circumstances of the employment over which the Board properly found the employer had any knowledge or control,” the court wrote. 

The court reversed and remanded the board’s decision.

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