Car Accident While Driving for Work: Workers’ Comp and a Third-Party Claim

If you are hurt in a car accident while driving for work in California, you can usually claim workers’ compensation, and if another driver caused the crash, you can also bring a separate personal injury claim against that driver. Workers’ comp pays your medical care and part of your lost wages without proving fault. The third-party claim can recover what workers’ comp never pays, including pain and suffering and your full wage loss.

Getting both right matters. Workers’ comp temporary disability pays about two-thirds of your average weekly wage, so a worker who earned $1,050 a week receives about $700. The third-party claim can fill that gap and more, but the workers’ comp insurer has reimbursement rights against it, and the two cases have different deadlines. Mistakes in one can cost you money in the other.

This guide covers when driving counts as “work,” the exceptions to the commute rule, how the two claims fit together, how the insurer’s lien and credit work, the deadlines, and what to do after a work crash.

When driving counts as work: the going-and-coming rule

Workers’ comp covers injuries that arise out of and occur in the course of employment (Labor Code section 3600). Under the long-standing “going-and-coming rule,” your ordinary commute between home and a fixed workplace is generally not covered. The idea is that the employment relationship is suspended while you travel to and from work on your own time.

But once you are driving as part of the job, you are generally covered. That includes delivery and route drivers, sales representatives visiting clients, home health workers traveling between patients, technicians driving between job sites, and anyone running a work errand during the day. It does not matter whether you were in a company vehicle or your own car.

The going-and-coming rule also has important exceptions, and they come up constantly in car accident cases. Insurers often deny these claims as “commuting” when an exception actually applies.

By the numbersTwo years

Exceptions that can make your commute covered

Situation	Usually covered?	Why
Ordinary drive from home to a fixed workplace	Usually no	Going-and-coming rule
Driving between job sites or clients during the workday	Usually yes	You are performing your job
Employer requires you to bring your own car to use for work	Often yes, including the commute	Required-vehicle exception
Running a special errand for the employer before or after work	Often yes	Special errand (special mission) exception
Business trip or out-of-town assignment	Generally yes, unless on a major personal detour	Commercial traveler rule
Riding in employer-provided transportation	Often yes	Employer controls the travel

The required-vehicle exception comes from the California Supreme Court’s decision in Hinojosa v. Workmen’s Compensation Appeals Board (1972): when the employer requires you to have your car available for work, the commute itself becomes part of the job. The special errand exception covers trips you make at the employer’s request outside your normal routine, like dropping off paperwork on the way home. The commercial traveler rule generally covers employees for the whole of a business trip, including reasonable activities like meals and lodging, unless they make a substantial personal departure.

Each exception depends on the details. Text messages asking you to “swing by” a job site, mileage reimbursement records, and job descriptions that require a vehicle can all be important evidence.

Watch: injured at work in California

Our attorneys explain what your employer must do after a work injury, and what to do in the first 24 hours to protect your claim.

Two claims, different benefits

When someone other than your employer caused the crash, such as another driver, a trucking company, or the maker of a defective part, Labor Code section 3852 preserves your right to sue them even though you are receiving workers’ comp. Here’s how the two claims compare:

• Workers’ comp pays medical treatment, temporary disability (about two-thirds of wages, subject to state limits), permanent disability, and a job displacement voucher in qualifying cases. Fault does not matter.
• A third-party claim requires proving the other party was at fault, but can recover full past and future lost earnings, all medical expenses, and pain, suffering and emotional distress, which workers’ comp does not pay.

You generally cannot sue your own employer for the crash; workers’ comp is your exclusive remedy against the employer (Labor Code section 3602), and co-workers are generally protected too. The third-party claim is against outsiders.

Our firm handles the workers’ comp side. For the auto injury claim, our affiliated personal injury firm, WIN Injury & Accident Trial Lawyers (wintriallawyers.com), handles car crash cases, so both claims can be coordinated from the start.

The insurer’s lien and credit

The workers’ comp insurer does not simply step aside when you recover from the at-fault driver. Under Labor Code sections 3852 through 3861, the employer or its insurer can:

• Seek reimbursement of benefits it has already paid out of your third-party recovery (a lien), generally reduced by its fair share of your attorney’s fees and costs.
• Claim a credit against future workers’ comp benefits, up to the net amount you recover from the third party, with the approval of the Workers’ Compensation Appeals Board.
• Intervene in your lawsuit or bring its own action against the at-fault party.

There are important limits. If the employer’s own negligence contributed to the crash, for example by failing to maintain a company vehicle, its reimbursement and credit rights may be reduced or eliminated. Settlements also require proper notice to the employer. This is one of the most technical areas where the two cases intersect, and handling it well can make a large difference in what you keep. Our guide to liens on a workers’ comp settlement explains liens more broadly.

💡 Example: Ana drives deliveries and is rear-ended at a red light. Her average weekly wage is $1,050, so her temporary disability rate is two-thirds, or $700 a week. Workers’ comp pays her medical care and that $700 while she recovers. Separately, she brings a claim against the at-fault driver for her full wage loss and pain and suffering. When that claim settles, the insurer can seek reimbursement of what it paid, reduced by its share of the attorney’s fees, and both lawyers work out the credit before the settlement is finalized.

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Deadlines for both claims

• Report the injury to your employer within 30 days (Labor Code section 5400), and in writing.
• File a workers’ comp application with the WCAB generally within one year of the injury (Labor Code section 5405).
• Sue the at-fault driver generally within two years of the crash (Code of Civil Procedure section 335.1).
• Government vehicles or road defects: if a city, county or state agency is responsible, a written government claim is generally due within six months (Government Code section 911.2).

These deadlines run separately. Starting the workers’ comp case does not stop the clock on the injury lawsuit.

Key fact

What to do after a work-related crash

1. Get medical care and tell every provider you were driving for work.
2. Call the police and get the report number. Exchange insurance information with the other driver.
3. Photograph the vehicles, the scene, your injuries and any road hazards. Get witness names and numbers.
4. Report the injury to your employer in writing and ask for a DWC-1 claim form.
5. Save proof the trip was for work: dispatch logs, texts from your supervisor, mileage logs, delivery records or calendar entries.
6. Don’t give a recorded statement to the other driver’s insurer before talking to a lawyer.
7. Don’t settle either claim alone. A quick settlement of one claim can affect the other.

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Common reasons insurers deny work crash claims

Insurers often argue the trip was a personal commute, that you had deviated from the work route for personal reasons, or that you were an independent contractor rather than an employee. Each argument has answers. A short stop for coffee usually does not end coverage; a lengthy personal detour might. If you drive for a company that pays you on a 1099, read our guide on workers’ comp for misclassified workers.

If your claim has already been denied, see what to do after a denied workers’ comp claim. A denial is the insurer’s position, not the final word; a workers’ comp judge can decide the issue.

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A work crash can uncover other claims

Car accident cases often reveal problems beyond the crash itself. Drivers who use their own vehicles for work are entitled to reimbursement of necessary work expenses, including mileage, under Labor Code section 2802; many never receive it. Our guide to expense reimbursement in California explains how that works.

Delivery and route drivers are also frequently pushed to skip meal and rest breaks to stay on schedule, which can create premium-pay claims, and fatigue from missed breaks can be part of the story of a crash. And if your employer disciplines you, cuts your hours or fires you after you report a work injury, Labor Code section 132a prohibits discrimination against workers for filing a workers’ comp claim. Each of these claims has its own deadline, so raise them early with your attorney.

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Frequently asked questions

Am I covered if I crash on my way to work?

Usually not, because of the going-and-coming rule. But exceptions apply if your employer required you to bring your car for work, you were on a special errand, you were traveling for business, or you were in employer-provided transportation.

Can I get workers’ comp and sue the other driver?

Yes. Labor Code section 3852 preserves your right to sue a negligent third party. The workers’ comp insurer may have reimbursement and credit rights against that recovery.

What if I was partly at fault for the crash?

Workers’ comp does not depend on fault, so you can still receive benefits. In a third-party claim, California’s comparative fault rules reduce, but do not necessarily eliminate, your recovery.

What if the other driver was uninsured?

Workers’ comp still applies. Your own uninsured motorist coverage may also apply, though it is often reduced by workers’ comp benefits. Have a lawyer review the policy.

Does it matter if I was driving my own car?

No. If you were driving for work, coverage does not depend on who owns the vehicle. You may also be owed mileage reimbursement for work driving.

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