Vol. VII No. 7
JULY 2001
COMPENSATION
NEWS
MONTHLY REPORT
"SPECIAL RISK" EXCEPTION TO
THE GOING AND COMING RULE
The Court of Appeals in a
nonpublished case has reviewed a
case involving the "special risk"
exception to the going and coming
rule.
crossing the street in front of his
employer.
The Supreme Court established a
two-pronged test. It must be
determined: (1) whether "but for" the
employment the worker would not
have been where the injury happened,
and (2) whether the risk is "distinctive
in nature or quantitatively greater
than risks common to the public".
The court indicated in this case the
applicant was not exposed to risks any
greater than the public. The court
further found in this case that people
other than the employers' employees
used the field to park in. The court
said the employees were not required
to park in the field or to jaywalk and
therefore, the death was
noncompensable.
The court looked at the exception
for making a left turn into the
employer's premises and rejected its
application.
applicant had punched out the
applicant jaywalked to the lot and was
struck and killed by a vehicle.
The Workers' Compensation Judge
(WCJ) found the death compensable
because the employer's employees
were the only people parking in the lot.
The WCJ indicated that there was no
public risk involved. The defendant
filed a Petition for Reconsideration
contending that the going and coming
rule applied and there was no "special
risk" exception. The Workers'
Compensation Appeals Board
(WCAB) denied reconsideration.
Defendant then filed the writ which
generated this opinion.
The appellate court cited the general
rule enunciated in Hinojosa v. WCAB
(1972) 8 c3d 150, that injuries
occurring during a local commute are
considered nonindustrial. However, an
exception exists as to this rule. If an
applicant is injured where a condition
creates a special risk of harm to the
applicant either when entering or
leaving the jobsite this may be
industrial.
The court looked at General Ins. Co. V
WCAB (Chairez) (1976) 16 C3d 595.
The Chairez case involved an applicant
who was killed while
FREMONT V.
WCAB
(Schuman) 29
CWCR5
The applicant was a security guard
for a gated community. The gated
community fronted a public
highway. The applicant drove his
vehicle to work and would park
across the street from the gated
community in an open dirt field.
Other employees of the community
would also park in the field, as well
as members of the general public.
The employer did not provide
parking. The nearest intersection to
the lot was 50 yards from the lot.
One evening after the
Editor: HARVEY BROWN Firm:
SAMUELSEN, GONZALEZ,
VALENZUELA, BROWN AND
MANN
Phone: 310 831-0872 Address: 350
West Street # 105 San Pedro, Ca
90731
CONTENTS
FREMONT V. WCAB (Schuman)
29CWCR5................................... 1
Click here for printable version