Workers’ Compensation Appeals Board rules on Special Risk Exception to Going and Coming rule

• Posted By: Harvey Brown
• April 1, 2019

This is a writ denied case

This is a very significant case for workers’ compensation principles.

The applicant claimed an injury in a head-on motor vehicle accident on the way home from work. The applicant was a nurse and claimed that he had to work a mandatory second shift and was injured on the way home. The employer said the shift was voluntary.

The Workers’ Compensation Judge (WCJ) ruled the injury was industrial and fell within the “special risk exception” to the “going and coming rule”. The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration rescinded the award and barred the claim. The WCAB reviewed General Ins. v WCAB (Chairez) and the two prong test. But for the employment, the applicant would not have been at the location where the injury occurred, and the risk was distinctive from that of the general public.

The WCAB decided the applicant was not exposed to any extraordinary risk in comparison to that of the general public. It was determined the applicant chose to work the second shift. It was not a requirement. The risks in his commute were no different than the general public.

It was determined his commute and motor vehicle accident fell within the “going and coming rule” and was not a compensable work injury.

Case:

• Posted In: Writ