Javier Hernandez was employed as a farm laborer by Ceja Reyes, Inc., a farm labor contractor located in Woodland. Ceja Reyes provides agricultural workers to businesses that need them. During his employment with Ceja Reyes, Hernandez was only assigned to work at one site in Winters, which was approximately 60 miles from his home in Yuba City.

Ceja Reyes does not provide transportation to its employees. Its employment contract with Hernandez specified that it did not make transportation arrangements, did not recommend any type of transportation, and Hernandez was solely responsible for his transportation.Hernandez testified that he does not have a driver’s license, does not own a car, and does not drive. He said there was no “reasonable public transportation” that would have taken him from his home to the jobsite.

Another Ceja Reyes employee arranged the vanpool that Hernandez used to travel to and from work as a personal side business independent of their employer. To motivate workers to use the vanpool, the vanpool operator held himself out as a supervisor for Ceja Reyes, even though he was not one. Hernandez’s actual supervisor at the work site told workers that the van owner was in charge of them when they were “using the van.” The supervisor also observed the workers being delivered to the job site, and once he saw they arrived, he assigned each worker his duties.

In May 2022, during Hernandez’s commute home, the van crashed in Yolo County. At the time, the van was being driven by the son of the organizer of the vanpool. This driver did not have a California driver’s license, and the van was not certified to be used as a farm labor vehicle. He filed a workers’ compensation claim and alleged that he sustained catastrophic injuries including a right leg amputation. Zenith Insurance denied the claim after concluding his injury was barred by the Going and Coming rule. A WCJ concluded Hernandez’s claims came within the special risk and dual purpose exceptions to the going and coming rule and awarded benefits. The WCAB denied Zenith’s petition for reconsideration.

The Court of Appeal agreed with Zenith that the exceptions relied upon by the Board do not apply. It annulled the Board’s order and remanded the case for further proceedings in the published case of Zenith v WCAB – C101549 (May 2025).

The California Supreme Court “devised a two prong test to determine applicability of the special risk exception. . . . [T]he exception will apply (1) if ‘but for’ the employment the employee would not have been at the location where the injury occurred and (2) if ‘the risk is distinctive in nature or quantitatively greater than risks common to the public.’ ” (Parks v. Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 585,590.)

The Court of Appeal noted that “The Board applied the two-prong test but neither the Board nor Hernandez supply any authority for rendering the zone of employment exception as large as an entire commute.” And went on to note “The Board concluded Hernandez was required to be on the road longer, for more miles, and on a different route and was riding in a van that was not legally registered as a farm labor vehicle, and driven by a person, on the day of the accident, who did not possess a valid driver’s license. “All these were unique and special risks created by [Ceja Reyes] in hiring a person who could not drive, had no car, and had no driver’s license, and who needed to reliably be at work on time sixty miles away from his home.” On appeal, Hernandez argues the general public would not be involved in this type of transportation or recruited to be in it.

“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.”

“There is no support in the record for the suggestion that Ceja Reyes was aware Hernandez could not drive. “An award of compensation may not be based on surmise, conjecture, or speculation.” (3 Stonedeggs, Inc. v. Workers’ Comp. Appeals Bd. (2024) 101 Cal.App.5th 1136, 1149.) “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. We agree with Zenith that the Board erred in applying the special risk exception to these facts.”

“Zenith argues that, contrary to the Board’s conclusion, the dual purpose exception to the going and coming rule does not apply. Again, the facts of this case do not meet threshold requirements in the authority upon which the Board (and Hernandez in this court) relies: ‘In proper circumstances, the dual purpose exception applies to a local commute to and from the place of employment when the employee performs work at home.’ (Bramall v. Workers’ Comp. Appeals Bd. (1978) 78 Cal.App.3d 151,156, emphasis added.)”

“Hernandez essentially argues he performed work while on the van. He argues Zenith failed to accept the Board’s finding of fact that workers would receive their job assignments for the day while they were physically in the van. The Board made no such finding. Rather, it explained that “[Hernandez]’s supervisor . . . observed the workers being delivered to the work site, and once he saw that they had arrived, assigned each worker his duties.” The remainder of 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.”