Barragan v. Workers' Comp. Appeals Bd.

• Decision Date: 19 October 1987
• Docket Number: No. F008538,F008538
• Citation: 195 Cal.App.3d 637,240 Cal.Rptr. 811
• Court: California Court of Appeals Court of Appeals
• Parties: Sandra BARRAGAN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Hartford Accident & Indemnity Company, Respondents.

Page 811

240 Cal.Rptr. 811

195 Cal.App.3d 637

Sandra BARRAGAN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Hartford Accident & Indemnity Company, Respondents.

No. F008538.

Court of Appeal, Fifth District, California.

Oct. 19, 1987.

John N. Kopsinis, Fresno, Cal., for petitioner

No appearance for respondent W.C.A.B.

Tom J. Leath, Fresno, Cal., for respondent Hartford Accident & Indem. Co.

OPINION

BEST, Associate Justice.

Petitioner, Sandra Barragan, injured her back while engaged in performing services pursuant to a student externship program at Saint Agnes Hospital. Finding that she was not an employee of the hospital at the time of her injury, the worker's compensation judge (WCJ) denied Barragan's application for worker's compensation benefits. Barragan's petition for reconsideration was denied by the Workers' Compensation Appeals Board (WCAB). We annul the order because the undisputed facts establish Barragan's employee status as a matter of law.

FACTS

In August 1985, Barragan began a course of study at Galen College to become a medical assistant. She completed her classroom studies in March 1986, but in order to obtain her diploma she was required to complete a 160-hour externship program. By arrangements made through Galen College, Barragan began her externship program in the Rehabilitation Services Department at Saint Agnes Hospital. She worked at the hospital eight hours a day under the direct supervision of Linda Wenger, a registered physiotherapist-physical therapist, applying hot packs, helping the patients with isometric and group exercises, talking to the patients, taking their blood pressure, temperature and heart rates, and generally making sure they did not wander out of the building. Barragan also worked with nurses and therapists other than Linda Wenger when she was asked to do so.

On March 31, 1986, three weeks after Barragan began working, she was injured at the hospital. She had been demonstrating exercises with one of the patients when she began experiencing back pains. She then was directed to put hot packs on one patient, take hot packs off another patient, and take the blood pressure of a patient on a respirator. As Barragan sat down to take the blood pressure, her back popped, and she lost the feeling in her legs.

Randy Miller supervises the Rehabilitation Services Department at Saint Agnes Hospital. She interviewed Barragan before placing her in the externship program for training as a physiotherapist. The purpose of the hospital's externship program is to give the extern hands-on training. Mrs. Miller had worked with three students before, all of whom were hired by the hospital after completing their training. Mrs. Miller did not offer Barragan a job and, in fact, had no authority to do so without administrative approval. Barragan was provided with a nonemployee identification badge by the hospital; the badges are provided for security purposes.

Linda Wenger was employed by Saint Agnes Hospital as a physical therapist at the time of Barragan's externship and was responsible for her training. Barragan was limited by law as to what duties she could perform and everything she did was under Ms. Wenger's supervision and pursuant to her directions. For the three weeks Barragan was in the program, she performed her duties well and professionally. Ms. Wenger made no job offer to Barragan and had no authority to do so.

DISCUSSION

In his "OPINION ON DECISION," the WCJ found "No consideration was paid or furnished to applicant by Saint Agnes Hospital" and that when injured, Barragan's "status with respect to ... Saint Agnes Hospital was ... a student in a learning institution...." The WCJ then concluded Barragan was not an employee of Saint Agnes Hospital when she was injured on March 31, 1986. In denying Barragan's petition for reconsideration, the WCAB adopted the findings and recommendation of the WCJ. Barragan contends the WCJ's findings as adopted by the WCAB are not supported by substantial evidence. We agree.

When a person is injured while on the job, he is entitled to compensation under the Workers' Compensation Act, not because of any act or omission of his employer, but because an employment relationship exists. (Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 276-277, 179 Cal.Rptr. 30, 637 P.2d 266.) The question of whether a person is an employee may be one of fact, of mixed law and fact, or of law only. Where the facts are undisputed, the question is one of law, and the Court of Appeal may independently review those facts to determine the correct answer. (Johnson v. Workmen's Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 320, 115 Cal.Rptr. 871; Jones v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 124, 127, 97 Cal.Rptr. 554.) The crucial facts in this case are undisputed and establish Barragan was an employee at Saint Agnes Hospital at the time of her injury as a matter of law.

In Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 100 Cal.Rptr. 377, 494 P.2d 1, our Supreme Court noted:

"[W]e are not confined, in determining whether Laeng may be considered an 'employee' for purposes of workmen's compensation law, to finding whether or not the city and Laeng had entered into a traditional contract of hire. On the contrary, Labor Code section 3351 provides broadly that for the purpose of the Workmen's Compensation Act ' "Employee" means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written....' Section 3357 of the Labor Code declares that 'Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.' " (Id. at pp. 776-777, 100 Cal.Rptr. 377, 494 P.2d 1, fns. omitted, emphasis in original.)

Once the presumption of employment comes into play, the burden shifts to the employer to establish that the injured person was an independent contractor or otherwise excluded from protection under the Workers' Compensation Act. (Johnson v. Workmen's Comp. Appeals Bd., supra, 41 Cal.App.3d at p. 321, 115 Cal.Rptr. 871.)

LABOR CODE SECTION 3352¹ provides a list of specific people who are excluded from the definition of employee for purposes of the Workers' Compensation Act. The only exclusion potentially applicable to this case and presented to the WCJ is section 3352, subdivision (i). This statute excludes "Any person performing voluntary service for a public agency or a private, nonprofit organization who receives no remuneration for such services other than meals, transportation, lodging, or reimbursement for incidental expenses."

In addition to relying on a specific exclusion to rebut the presumption of employee status, an alleged employer may seek to prove that the essential contract of hire required under the definition of employee in section 3351 is absent. As this court stated in Parsons v. Workers' Comp. Appeals Bd.:

"The law clearly provides that the Labor Code section 3357's presumption of employee status is overcome if the essential contract of hire, express or implied, is not present under Labor Code section 3351. (Jones v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 124, 128 ; 2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation, supra, § 7.02[a].) The traditional features of an employment contract are (1) consent of the parties, (2) consideration for the services rendered, and (3) control by the employer over the employee." (Parsons v. Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 629, 638, 179 Cal.Rptr. 88.)

The Supreme Court, however, has held that these common law contract requirements should not be rigidly applied. (Laeng v. Workmen's Comp. Appeals Bd., supra, 6 Cal.3d 771, 777, 100 Cal.Rptr. 377, 494 P.2d 1.) This court recognized the rule in Parsons; nevertheless, we held that a consensual relationship between the worker and his alleged employer is an "indispensable prerequisite to the existence of an employment contract under Labor Code section 3351." (Parsons v. Workers' Comp. Appeals Bd., supra, 126 Cal.App.3d at p. 638, 179 Cal.Rptr. 88.) Other cases have held that control by the employer is the most important factor in establishing an employment relation for purposes of the Workers' Compensation Act. (Edwards v. City of Chico (1972) 28 Cal.App.3d 148, 153, 104 Cal.Rptr. 481.)

The board's decision was based on a finding that there was a lack of mutual intent to contract between Barragan and the hospital and that there was a failure of consideration for the services rendered by Barragan. Contrary to the board's findings, the evidence shows that a consensual employment relationship existed between Barragan and Saint Agnes Hospital. There was ample consideration to support a contract for an employment relation.

To support his finding of a lack of mutual intent to contract for employment, the WCJ relied on evidence given by Randy Miller and Linda Wenger that Barragan was never offered a job at the hospital. The judge also stated that Barragan knew she was not an employee when she entered into the extern program, since she did not replace a worker at the hospital or fill an established position. He also noted that Barragan did not work as a physical therapist, but only followed the directions of Linda Wenger. Finally, the judge noted that Barragan's position at the hospital was created solely for her instruction in a program on which she decided.

Citing to section 3351, Hanna writes in his treatise that to be covered under workers' compensation law, personal services must be performed under appointment, contract of hire or apprenticeship. The appointment, contract of hire or apprenticeship may be express or implied, written or oral. Hanna also states the requirement in section 3351 "is a formalization of the fact that the employment relationship is a mutual arrangement between employer and employee under which both give up and...