Graczyk v. Workers' Comp. Appeals Bd.

• Decision Date: 08 August 1986
• Citation: 229 Cal.Rptr. 494,184 Cal.App.3d 997
• Court: California Court of Appeals Court of Appeals
• Parties: , 58 A.L.R.4th 1245, 34 Ed. Law Rep. 523 Ricky D. GRACZYK, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD; California State University, Fullerton; and State Compensation Insurance Fund, Respondents. B015557.

Page 494

229 Cal.Rptr. 494

184 Cal.App.3d 997, 58 A.L.R.4th 1245, 34 Ed. Law Rep. 523

Ricky D. GRACZYK, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD; California State University, Fullerton; and State Compensation Insurance Fund, Respondents.

B015557.

Court of Appeal, Second District, Division 7, California.

Aug. 8, 1986.

Review Denied Oct. 23, 1986.

Tarlow & Tarlow and Mervin I. Tarlow, Torrance, for petitioner.

Krimen, Brodie, Hershenson & Da Silva and Robert A. La Porta, San Francisco, for respondent State Compensation Ins. Fund.

Richard W. Younkin, William B. Donohoe, Alvin R. Barrett and Charles E. Finster, San Francisco, for respondent W.C.A.B.

LILLIE, Presiding Justice.

Petitioner Ricky D. Graczyk (applicant) seeks review of the decision of respondent Workers' Compensation Appeals Board that he was not an employee of respondent California State University, Fullerton (CSUF) when injured in a football game while he was a student at CSUF. We conclude that the Board correctly determined applicant was not an employee of CSUF.

Applicant allegedly sustained injuries to his head, neck and spine while playing varsity college football for CSUF on September 9, 1978, as well as in the period from August 7, 1977, through November 27, 1978.

Trial of his application was bifurcated, and the matter was submitted on the issue whether he was an employee of CSUF within the meaning of the statutory definition of employee (Lab.Code, §§ 3351, 3352). ¹

The evidence established that applicant enrolled as a student at CSUF in the fall of 1977, following completion of high school. Football scouts from CSUF and two other universities recruited him; however, he chose CSUF because it was "close to my mom and the rest of my family." He commenced studies and playing football immediately upon enrollment.

Representatives of the CSUF football program encouraged applicant to apply for financial aid. During his first year as a student, he received financial aid, including a college opportunity grant of $1,100 a year from the state, a supplementary grant of approximately $800 from CSUF, and a student loan. Other than the student loan, the grants he received in the first year were based upon financial need and academic achievement, and were unrelated to athletic achievement.

In applicant's second year at CSUF, he received an athletic scholarship in the amount of $1,600 a year, payable in monthly installments. The athletic coach determined recipients of athletic scholarships based on athletic progress and value to the football team; and the scholarship funds were raised by alumni and business groups. Applicant had intended to continue playing on the football team even had he not received the athletic scholarship. The scholarship was for a full year and could not be terminated unless the recipient quit the team, dropped out of school, or failed to maintain academic standards. The scholarship was intended to meet costs of room and board, but there was no control over the manner in which the recipient spent it. Applicant understood that it was to be used for student expenses, and he so used it.

The WCJ found that applicant was an employee of CSUF, concluding in essence that he was an employee within the statutory definition of employee as interpreted in Van Horn v. Industrial Acc. Com. (1963) 219 Cal.App.2d 457, 33 Cal.Rptr. 169; and that although section 3352, subdivision (k), excluding student athletes as employees, is constitutional, it was enacted in 1981 and could not properly be applied retroactively to deprive applicant of his vested right to employee status under the law existing at the time of his injury.

The Board granted reconsideration and found (in a 2-1 decision) that applicant was not an employee of CSUF. The Board's determination was based on interpretation of the "relevant statutes defining 'employee.' " Thus, the Board noted the general requirement ( § 3600) of the existence of "employment" as a prerequisite to workers' compensation coverage, as well as the general statutory definition of "employee" ( § 3351) and the statutory definition of persons excluded from the general definition of employee ( § 3352). The Board concluded that the Legislature's 1981 amendment of section 3352, adding subsection (k) thereto and expressly declaring the amendment retroactive, could properly be applied retroactively to exclude applicant from the statutory definition of an employee entitled to benefits under the workers' compensation law.

The Board's dissenting panel member stated that he "would find that Labor Code Section 3352(k) may not constitutionally be applied to deprive applicant of a vested right."

In support of his contention that the Board erred in finding that he was not an employee of CSUF, applicant asserts he had a "vested right" in employee status under the law existing at the time of his injuries as established in Van Horn v. Industrial Acc. Com., supra, 219 Cal.App.2d 457, 33 Cal.Rptr. 169, and hence he could not be deprived of it retroactively by the Legislature's 1981 amendment to section 3352.

" 'The retroactive operation of a civil statute is by no means unusual, and no constitutional objection exists to such operation save where a vested right, or the obligation of a contract, is impaired.' " (Gordon H. Ball, Inc. v. State of California ex rel. Dep. Pub. Wks. (1972) 26 Cal.App.3d 162, 168, 102 Cal.Rptr. 637, quoting from McCann v. Jordan (1933) 218 Cal. 577, 579, 24 P.2d 457.) To determine whether applicant had a vested right of action, we must look to the unique nature of the workers' compensation law in California.

California workers' compensation law ( § 3200 et seq.) is a statutory system enacted pursuant to constitutional grant of plenary power to the Legislature to establish a complete and exclusive system of workers' compensation. (Cal. Const., art. XIV, § 4; § 3201; 1 Herlick, Cal. Workers' Comp. Law Handbook (2d ed. 1978) § 1.1, pp. 12-13; 1 St. Clair, Cal. Workers' Comp. Law & Practice (3d ed. 1985) § 1.3, p. 2; 65 Cal.Jur.3d (1981) Work Injury Compensation, §§ 1-2; pp. 20-23; Cal. Workers' Comp. Practice (Cont.Ed.Bar 1985) § 1.3, p. 4; see Lowman v. Stafford (1964) 226 Cal.App.2d 31, 36, 37 Cal.Rptr. 681.) It is "an expression of the police power" ( § 3201) and has been upheld as a valid exercise of the police power. (Western Indemnity Co. v. Pillsbury (1915) 170 Cal. 686, 151 P. 398; Pacific Employers Ins. Co. v. Industrial Acc. Com. (1963) 219 Cal.App.2d 634, 33 Cal.Rptr. 442; see Alaska Packers Assn. v. Indus. Acc. Com. (1934) 1 Cal.2d 250, 34 P.2d 716; 1 Herlick, Cal. Workers' Comp. Law Handbook, supra, § 1.1, p. 13.)

The right to workers' compensation benefits is "wholly statutory" (Johnson v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 964, 972, 88 Cal.Rptr. 202, 471 P.2d 1002; Ruiz v. Industrial Acc. Com. (1955) 45 Cal.2d 409, 414, 289 P.2d 229), and is not derived from common law. (Carrigan v. California State Legislature (9th Cir.1959) 263 F.2d 560, 567; Coleman v. Silverberg Co. (1968) 263 Cal.App.2d 74, 84-85, 69 Cal.Rptr. 158; see Alaska Packers Assn. v. Indus. Acc. Com., supra, 1 Cal.2d at p. 256, 34 P.2d 716; Argonaut Mining Co. v. Ind. Acc. Com. (1951) 104 Cal.App.2d 27, 29, 230 P.2d 637.)

This statutory right is exclusive of all other statutory and common law remedies, and substitutes a new system of rights and obligations for the common law rules governing liability of employers for injuries to their employees. (Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230, 233, 60 P.2d 276; Alaska Packers Assn. v. Indus. Acc. Com. (1927) 200 Cal. 579, 583; see Tipton v. Atchison Ry. Co. (1935) 298 U.S. 141, 153-154, 56 S.Ct. 715, 719-720, 80 L.Ed. 1091; Hazelwerdt v. Industrial Indem. Exchange (1958) 157 Cal.App.2d 759, 762, 321 P.2d 831.) Rights, remedies and obligations rest on the status of the employer-employee relationship, rather than on contract or tort. (Cal.Workers' Comp.Practice (Cont.Ed.Bar 1985) § 1.3, p. 4; see Alaska Packers Assn. v. Indus. Acc. Com., supra, 1 Cal.2d at p. 256, 34 P.2d 716; Deauville v. Hall (1961) 188 Cal.App.2d 535, 539-540, 10 Cal.Rptr. 511; Argonaut Mining Co. v. Ind. Acc. Com., supra, 104 Cal.App.2d at p. 29, 230 P.2d 637.)

In enacting the workers' compensation law as an expression of the police power pursuant to the constitutional grant of plenary power, the Legislature has defined employee status in sections 3351 and 3352. ² In essence, section 3351 defines persons included in the definition of "employee," and section 3352 defines persons excluded therefrom. ³ An employee excluded from compensation benefits under section 3352 retains his right to maintain a civil action for damages against his employer. (See 1. St. Clair, Cal. Workers' Comp. Law & Practice, supra, pp. 49-50.)

In 1963, at the time of the decision in Van Horn v. Industrial Acc. Com., supra, 219 Cal.App.2d 457, 33 Cal.Rptr. 169, the section 3352 exclusionary definition of employee did not refer to athletes among the occupational groups then excluded from employee status. Van Horn (id.) held that a student athlete who was killed in an airplane crash while returning to California with members of the college football team and college officials was an employee within the meaning of the section 3351 definition and the section 3357 presumption that any person rendering service for another, unless expressly excluded by statute, is presumed to be an employee. The Van Horn opinion made no reference to the section 3352 exclusionary statute.

Apparently in a response to the Van Horn decision (1 Herlick, Cal. Workers' Comp. Law, supra, § 2.11, pp. 30-31), the Legislature in 1965 amended section 3352, adding former subdivision (j) (presently subd. (g), see fn. 3, supra ), which provides that " 'Employee' excludes ... [a]ny person, other than a regular employee, participating in sports or athletics who receives no compensation for such participation other than the use of...