Dimmig v. Workmen's Comp. Appeals Bd.

• Decision Date: 31 March 1972
• Docket Number: S.F. 22857
• Citation: 6 Cal.3d 860,101 Cal.Rptr. 105,495 P.2d 433
• Court: California Supreme Court
• Parties: , 495 P.2d 433 Martha R. DIMMIG et al., Petitioners, v. WORKMEN'S COMPENSATION APPEALS BOARD and California Casualty Indemnity Exchange, Respondents. In Bank

Page 105

101 Cal.Rptr. 105

6 Cal.3d 860, 495 P.2d 433

Martha R. DIMMIG et al., Petitioners, v. WORKMEN'S COMPENSATION APPEALS BOARD and California Casualty Indemnity Exchange, Respondents.

S.F. 22857.

Supreme Court of California,

In Bank.

March 31, 1972.

Dreyer, Shulman, Butler & Dubbin, William M. Dubbin and Brian N. Lawther, San Jose, for petitioners.

Levy & Van Bourg, and Berry J. Williams, Oakland, as amici curiae on behalf of petitioners.

Rupert A. Pedrin, Marcel L. Gunther, Hanna & Brophy and Robert N. MacLean, San Francisco, for respondents.

BURKE, Justice.

Petitions are the widow and children of William Dimmig who was killed in an automobile accident while returning home from night classes at Notre Dame College in Belmont, California. Petitioners seek review of the decision of the Workmen's Compensation Appeals Board adopting the findings and recommendations of its referee denying compensation benefits on the ground that Dimmig was not in the course of his employment at the time of his death. We have concluded that the undisputed facts before the referee require the opposite result.

In August 1969 Dimmig was hired by the Memorex Corporation as a contracts administrator. Before he was hired Dimmig had been working as a contracts administrator for another employer and had been attending night classes at Notre Dame College in order to obtain a bachelor's degree in economics. Dimmig continued his studies at Notre Dame College during his employment with Memorex. On October 30, 1969, on his way home from a class in money and banking, Dimmig was killed in an automobile accident.

Memorex had established a policy of encouraging its employees to attend college and, upon successful completion of a particular course, Memorex would reimburse the entire cost of tuition and books for courses directly related to the employee's job and 50 percent of such costs for courses not directly related to the job but required for the degree being sought. The stated purpose of this program was 'to encourage Memorex personnel to further their education in order to perform more effectively in their present jobs and increase their qualifications and knowledge for advancement.' In order to be eligible to participate in the company's reimbursement program an employee normally had to have been employed by Memorex for six months. In Dimmig's case, however, this requirement had been waived.

The above facts are not disputed by the parties. There is some dispute, however, over petitioners' claim that Dimmig was 'required' to obtain his bachelor's degree as a condition of his employment. The corporate executives responsible for Dimmig's selection each testified that Dimmig's employment was not conditioned upon continuation of his college work and that the question of education was not a major factor in the hiring discussions. The executives indicated that Dimmig was hired because of his previous job experience in contract administration and because he was considered promotable. There was also testimony that the company made a practice of including any special conditions to continued employment in the written offer of employment. No such conditions were included in the offer to Dimmig.

Respondents did not contradict, however, the substantial testimony that Dimmig believed a bachelor's degree was required for his continued employment with Memorex. Keith D. Chapel, a friend of Dimmig's, testified that Dimmig had indicated to him that 'he (Dimmig) had been hired on the premise that he would finish his degree, because the job required a degree.' (George E. Wright, Dimmig's immediate supervisor at Memorex and one of those responsible for Dimmig's employment, testified that on at least three occasions Dimmig had expressed his belief that the company expected him to go on with his education.

With regard to the waiver of the sixmonth requirement for participation in the company's tuition reimbursement program, Wright testified that when Dimmig was told of the requirement 'he came back to me, and since he felt that it was a condition, or since he felt that the company expected him to go to school, that the company should be willing to waive the sixmonth waiting period.' Wright thereupon arranged for the waiver with the personnel department. There is no indication in the record that anything had been done by the company to dispel Dimmig's belief that his employment was conditioned on his continued class attendance.

The referee did not consider the question of whether or not Dimmig's continued education was a condition of his employment. He found only that the record is clear that all parties considered Dimmig's school attendance to be beneficial to both the employer and employee and that Memorex's furnishing of payment of expenses must be considered as additional compensation. The referee then concluded that Dimmig's injury could not be considered one arising out of and in the course of employment. In stating his reasons for this conclusion the referee notes that an employer receives some benefit from 'fringe benefits' furnished to the employee such as vacations and health plans, and stated that 'The Referee feels that it would be stretching the law to make employee injuries during the course of a vacation or while proceeding to a doctor's office for a treatment of a nonindustrial condition or while attending or proceeding to school, to be considered acts within the course and scope of the employment.' In his recommendation to the board on petitioners' petition for reconsideration, the referee stated further that he 'continues of the opinion that though the employer benefited from decedent's educational activity and paid for same, it was not a sufficiently direct benefit to make such school attendance an act within the course and scope of applicant's employment.'

We disagree. Although, as the referee points out, the benefits to the employer from vacations and health care plans are so indirect as not to bring the activity within the employee's course of employment, the benefit received by the employer in this case is directly related to the employee's job functions and thus may be said to fall within the course of his employment. Before reaching this issue, however, we must dispose of respondents' contention that the board's decision is not subject to appellate review by virtue of the substantial evidence rule set forth in LeVesque v. Workmen's Comp. App. Bd., 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.

In LeVesque, we were concerned with the scope of judicial review of the evidence in workmen's compensation cases and held that, pursuant to the language of Labor Code section 5952, "The review by the court shall not be extended further than to determine, based upon the entire record . . . whether . . . (t)he order, decision, or award was not supported by substantial evidence." LeVesque does not, however, limit appellate review of errors of law in workmen's compensation cases. 'Where, as here, there is no real dispute as to the facts, the question of whether an injury was suffered in the course of employment is one of law and a purported finding of fact on that question is not binding on an appellate court.' (Reinert v. Industrial Acc. Com., 46 Cal.2d 349, 358, 294 P.2d 713, 718; Rausch v. Workmen's Comp. App. Bd., 274 Cal.App.2d 357, 358, 79 Cal.Rptr. 148.)

The referee's opinion makes it clear that he based his decision upon his legal conclusion that the facts presented were insufficient to bring Dimmig's death within the course of his employment because the benefit to Memorex was not sufficiently direct. The only factual findings made by the referee were that Dimmig's attendance at Notre Dame College benefited Memorex and that the payment of expenses must be considered as additional compensation. These findings are supported by substantial evidence and are binding on an appellate court. (LeVesque v. Workmen's Comp. App. Bd., Supra, 1 Cal.3d 627, 83 Cal.Rptr. 308, 463 P.2d 432.) We are not, however, bound by the referee's conclusion of law that the facts found, coupled with the uncontradicted evidence before the referee, are insufficient to bring the death of petitioners' decedent within the course of his employment. (Reinert v. Industrial Acc. Com., Supra, 46 Cal.2d 349, 294 P.2d 713.) We may, therefore, proceed to determine that issue.

In Pacific Indem. Co. v. Ind. Acc. Com., 26 Cal.2d 509, 514, 159 P.2d 625, 628, we stated that: 'If the particular act is reasonably contemplated by the employment, injuries received while performing it arise out of the employment, and are compensable. In determining whether a particular act is reasonably contemplated by the employment, the nature of the act, the nature of the employment, the custom and usage of a particular employment, the terms of the contract of employment, and perhaps other factors should be considered. Any reasonable doubt as to whether the act is contemplated by the employment, in view of this state's policy of liberal construction in favor of the employee, should be resolved in favor of the employee.' (Italics added.)

Later, in Reinert v. Industrial Acc. Com., Supra, 46 Cal.2d 349, 353, 294 P.2d 713, 715 (quoting from Employers', etc., Corp. v. Industrial Acc. Com., 37 Cal.App.2d 567, 573, 99 P.2d 1089), we stated the test as follows: "The true rule to be derived from the cases is that the injury is compensable if received while the employee is doing those reasonable things which his contract of employment expressly or impliedly authorizes him to do." In Reinert we held that an injury suffered by a camp counselor while horseback riding on her own time was within the scope of her employment because the undisputed facts indicated that 'recreational horseback riding was considered by both employer and employee as part of the compensation; that such consideration was the practice of the employer; and that the danger from which the injury resulted was 'one to...