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Horvitz & Levy persuaded the Court of Appeal to reverse the Workers’ Compensation Appeals Board’s ruling that an injured employee was entitled to receive workers’ compensation benefits under a theory that would have dramatically increased employer liability for employee commuting accidents.
This writ proceeding arose from the WCAB’s denial of Zenith Insurance Company’s petition for reconsideration of the Workers’ Compensation Judge’s ruling that applicant Javier Hernandez Ramirez’s injury arose out of and in the course of his employment with Zenith’s insured, farm labor contractor Ceja Reyes, Inc. Hernandez was involved in a single vehicle accident when the van in which he and his coworkers were riding left the roadway and overturned while on their way home from their usual place of employment.
Under the going and coming rule, an injury suffered during a local commute to or from a fixed place of business is ordinarily considered outside the course of employment and noncompensable through workers’ compensation. But the Workers’ Compensation Judge held that because Hernandez was injured in a vanpool, the special risk and the dual purpose exceptions to the going and coming rule applied and the injury was therefore compensable. The WCAB denied Zenith’s petition for reconsideration.
Zenith retained Horvitz & Levy to file a petition for a writ of review in the Court of Appeal. The Court of Appeal agreed with Horvitz & Levy’s arguments, issued a writ of review, and reversed the WCAB’s ruling in a published decision. The Court of Appeal held the going and coming rule applied because Hernandez was injured on his normal commute from a fixed place of employment. The rule’s special risk exception did not apply. The van was organized by a fellow employee, not by the employer, and the going and coming rule applies to employee-organized carpool arrangements. The facts that the commute was long and that Hernandez lacked a driver’s license, arguably limiting his commuting options, were insufficient to trigger the special risk exception. The court also held the dual-purpose exception to the going and coming rule did not apply because Hernandez was performing no work while on the vanpool, nor did he plan to do so when he arrived at home.
