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C.A. Says Use of Private Vanpool Does Not Trigger Workers’ Compensation for Crash
Opinion Says Board Erred in Determining That Exceptions to Rule That Injuries Occurring on Commutes Are Not Covered Apply
By a MetNews Staff Writer
The Third District Court of Appeal has held that the Worker’s Compensation Appeals Board erred in finding that exceptions to the so-called “going and coming” rule—which precludes benefits for injuries sustained during an employee’s commute—apply to allow recovery by a claimant who suffered a leg amputation following a crash occurring during his hour-long ride home in a private vanpool arranged by a coworker.
In Thursday’s opinion, written by Justice Jonathan K. Renner and joined in by Presiding Justice Laurie M. Earl and Justice Elana Duarte, the court granted the insurance company’s petition for writ of mandate and annulled the board’s decision, finding that it was error to apply the “special risk” and “dual purpose” exceptions based on the employer’s awareness of the vanpool and evidence that the claimant had no other means of getting to work.
Filing the petition was Zenith Insurance Company, an insurer that provided workers’ compensation coverage to farm labor contractor Ceja Reyes Inc. The company provides agricultural workers to surrounding farms in need of their services.
Javier Hernandez was one such worker who was hired by Ceja Reyes and assigned to a work site approximately 60 miles away from his home in Yuba City. The company did not provide transportation to its employees, and Hernandez, who was not licensed to drive, relied on a for-profit private vanpool operation started by one of his coworkers.
In May 2022, a van carrying Hernandez and approximately 10 others crashed in Yolo County. The van, which was not certified for the use of transporting nine or more farm workers as required by the Vehicle Code, was being driven by the unlicensed son of the vanpool organizer; Hernandez suffered serious injuries, including the loss of his right leg.
Zenith denied Hernandez’s claim on the ground that the injuries were not sustained during the course and scope of his employment under the “going and coming” rule. A workers’ compensation judge held a trial in March 2024, and found that Hernandez’s claims fell within the “special risk” and “dual purpose” exceptions.
After Zenith filed a petition for reconsideration, the Workers’ Compensation Appeals Board adopted the judge’s findings. Zenith filed a petition for writ review.
Unsupported Decision
Renner said “[o]ur review, though limited, includes determining whether the Board’s decision is supported by substantial evidence and whether the findings of fact support the decision,” and concluded that the agency erred in finding that the claimant’s injuries were covered.
As to the “special risk” exception, he noted that a two-part test is used to determine the applicability of the doctrine such that it will apply if the employee would not have been at the location of the crash but for his employment and if some factor renders the risk of harm encountered by the claimant to be greater than that faced by the general public.
He wrote:
“Our Supreme Court has explained ‘the…exception to the going and coming rule provides for compensation where a risk associated with the employment causes injury just outside the employer’s premises.’… For instance, in two cases cited by the Board, ‘the employees were injured in accidents while making left turns on a public street to the employers’ premises in the face of oncoming traffic.’ ”
Saying that “neither the Board nor Hernandez supply any authority for rendering the zone of employment exception as large as an entire commute,” he declared that “[e]ven if we were to ignore the location of the injury, we would still disagree with the Board’s analysis and conclude the special risk exception does not address the type of risk at issue here.” He concluded:
“Here there was no relationship between the risk and the location of the premises or conditions over which the Board found the employer had control.”
Special Arrangements
Renner rejected the argument, relied on by the board, that Ceja Reyes’ decision to hire a worker who had no way to get to work on his own required that he make “special arrangements” for a vanpool that “exposed him to a particular risk…not shared by the general public.”
He remarked that “[t]hese arguments…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 employer had any knowledge or control,” and commented:
“While there was some evidence to support the Board’s finding that the employer was aware of the vanpool, there is no indication the employer was aware of the license status of the drivers of the vanpool, and no evidence was apparently introduced that carpools and vanpools themselves are risky….The Board’s logic stretches the special risk exception far beyond prior case law and creates an exception that could apparently apply any time an employer hires a person without a driver’s license or a car.”
Turning to the other exception cited by the board’s decision, Renner explained that the “dual purpose” doctrine applies when the employee conducts sufficient work at home as to render the commute part of the employee’s employment.
He wrote:
“Here, the Board found the trip home served a dual purpose because Ceja Reyes is in the business of reliably providing agricultural laborers to businesses that need them, and the manager was aware of the vanpool and the arrival of the employees at the same time allowed him to assign them their work duties all at once. These facts are not sufficient to apply the dual purpose exception. They also do not go beyond the ‘normal need of the presence of the person for the performance of the work.’ ”
The justice added:
“Hernandez’s argument cites the fact that the Board found that ‘[Hernandez]’s actual supervisor…told the workers that the van owner was in charge of them when they were using the van.’ This ambiguous statement does not support the notion that they performed work on the van or at home. The Board erred in applying the dual purpose exception to these facts.”
The case is Zenith Insurance Company v. Workers’ Compensation Appeals Board, C101549.
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