May 12, 2025

Zenith Insurance Co. v. Workers’ Compensation Appeals Board

Under the going and coming rule, employees are generally not covered by workers’ compensation while commuting to or from work, because they are not considered to be acting within the course and scope of their employment. However, two exceptions may apply: the “special risk” exception, which provides for compensation where a risk associated with the employment causes injury just outside the employer’s premises, and the “dual purpose” exception, which applies when the trip involves an incidental benefit to the employer, other than the employee’s presence at work.

A farmworker injured in a vanpool crash on his commute home filed a workers’ compensation claim against his employer. The vanpool was privately organized by the employees; the employer did not arrange, control, or finance the transportation. The Workers’ Compensation Appeals Board found coverage, applying the special risk and dual purpose exceptions to the going and coming rule. The workers’ compensation insurer petitioned the Court of Appeal for a writ of review.

The Court of Appeal reversed the Board’s decision, holding that neither the special risk nor the dual purpose exception applied because the employer did not arrange or control the vanpool and derived no special benefit beyond the employee’s presence at work. The court emphasized that the special risk exception applies only to risks tied to the employer’s premises or under its control, and the dual purpose exception requires a work-related benefit beyond routine commuting. The court cautioned against expanding these exceptions to cover commuting arrangements privately organized by employees.

This decision reinforces the limits of workers’ compensation liability for injuries sustained during commutes not directly controlled by the employer.

Horvitz & Levy LLP represented the workers’ compensation carrier on appeal.