In-Home Supportive Services v. Workers' Comp. Appeals Bd.

• Decision Date: 01 March 1984
• Docket Number: IN-HOME
• Court: California Court of Appeals Court of Appeals
• Parties: SUPPORTIVE SERVICES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Marjorie Bouvia, Respondents. ARGONAUT INSURANCE COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD and Marjorie Bouvia, Respondents. Civ. 22599.

Page 697

199 Cal.Rptr. 697

152 Cal.App.3d 720

IN-HOME SUPPORTIVE SERVICES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Marjorie Bouvia, Respondents.

ARGONAUT INSURANCE COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD and Marjorie Bouvia, Respondents.

Civ. 22599.

Court of Appeal, Third District, California.

March 1, 1984.

John K. Van de Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., Nelson Kempsky, Chief Deputy Atty. Gen., Bruce J. Braverman and Seward L. Andrews, Deputy Attys. Gen., for petitioner In-Home Supportive Services.

Law Offices of William Kaplan and Stephen L. Katz, San Francisco, for petitioner Argonaut Ins. Co.

Panattoni, Westley, Farrell & Fraulob and Leonard C. Panattoni, Sacramento, for respondent Marjorie Bouvia.

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

BLEASE, Acting Presiding Justice.

The In-Home Supportive Services Program (IHSS) (Welf. & Inst.Code, § 12300 et seq.) pays for domestic services to enable aged, blind and disabled persons to remain in their own homes. Marjorie Bouvia, at work as an IHSS attendant, injured her back helping an IHSS recipient out of a car and was awarded workers' compensation benefits for the injury. In this consolidated writ of review proceeding, the State Department of Social Services (hereafter the state), the state agency which is the administrator of the In-Home Supportive Services Program (IHSS) (see Welf. & Inst.Code, §§ 10110, 12300 et seq.) ¹ , and Argonaut Insurance Company seek annulment of an order of respondent Workers' Compensation Appeals Board denying reconsideration of the award. We will affirm the award.

This case concerns the worker's compensation coverage of domestic employees of IHSS recipients. Worker's compensation coverage is a function of defined employment relationships. The state argues that coverage for IHSS workers is based upon the employment relationship with the IHSS recipient. (See Lab.Code, § 3351.5, subd. (b).) Bouvia must be excluded from coverage because she did not exceed the minimum wages and hours of work required for coverage by virtue of that employment. (See § 3352, subd. (h).) This argument assumes the employment relationship with the recipient is the exclusive ground of coverage. As we shall show, that is not the case. The workers' compensation law provides for coverage based upon dual employment relationships.

We hold the state is also the employer of an IHSS worker and Bouvia is entitled thereby to workers' compensation coverage for her injury.

FACTS

The matter was submitted on an agreed statement of facts. ²

IHSS is a social service program funded by federal grant-in-aid moneys and funds of the state and county governments. (See Welf. & Inst.Code, §§ 10100 et seq. 12306; County of Sacramento v. State of California (1982) 134 Cal.App.3d 428, 184 Cal.Rptr. 648.) IHSS covers the gamut of tasks essential to safe and healthful household operations, from cleaning and cooking to transportation and assistance with ambulation. (See Welf. & Inst.Code, §§ 12300, 12304.)

The state supervises the county welfare departments (counties) which administer the program on the local level. (Welf. & Inst.Code, § 10600 et seq.; § 12302; see generally City and County of San Francisco v. State of California (1978) 87 Cal.App.3d 959, 151 Cal.Rptr. 469.) The counties are permitted three options to comply with the duty to provide IHSS services. "In order to implement such a plan, an individual county may hire homemakers and other in-home supportive personnel in accordance with established county civil service requirements or merit system requirements for those counties not having civil service, or may contract with a city, county or city and county agency, a local health district, a voluntary nonprofit agency, a proprietary agency, or an individual or make direct payment to a recipient for the purchase of services." (Welf. & Inst.Code, § 12302.)

Bouvia's work as an individual provider of IHSS domestic services commenced after she sought work at the Department of Social Welfare of the County of Sacramento. The county sent her to an IHSS recipient, Mr. L., for whom she worked at the rate of $3.35 per hour, for 87 hours per month. In February of 1981 she commenced working for an additional recipient, Mrs. H., at the same pay rate, for 63 hours per month.

Mrs. H. was hospitalized in the first week of September of 1981 and Bouvia's services were no longer needed. She returned to the county, which sent her to interview Ms. M., another IHSS recipient. On September 16, 1981, she began working at Ms. M.'s home with an expectation of working 65 hours per month. She continued to work part of the day at Mr. L's home to which was added part-day work in Ms. M.'s home.

On September 21, 1981, Bouvia injured her back assisting Ms. M. out of a car. She continued to work both jobs but her condition worsened. She ceased work on October 6, 1981, as a result of her injury. During the 90-day period preceding the injury Bouvia worked at the homes of Mr. L., Mrs. H., and Ms. M. for a combined total of more than 52 hours and combined earnings of more than $100, the minimum requirements of section 3352. However, during this period, she had not been employed as Ms. M.'s IHSS provider for more than 52 hours nor did she earn in that employment more than $100. It is the failure of Bouvia to meet the minimum wage and hour requirement in the sole employ of Mrs. M. which the state argues disqualifies her.

Bouvia applied for workers' compensation benefits for her injury. Her application lists "In-Home Supportive Services c/o County Welfare Department" as her employer, and Argonaut Insurance Company as the employer's insurance carrier. Argonaut answered the petition claiming that Bouvia is excluded from coverage by Labor Code section 3352, subdivision (h). Thereafter, the Attorney General appeared in the case on behalf of In-Home Supportive Services. The workers' compensation judge ruled against the state and Argonaut and they unsuccessfully petitioned the Workers' Compensation Appeals Board for reconsideration. This writ of review followed.

DISCUSSION

I

This case requires us to construe provisions of the Labor Code ³ (principally §§ 3351, 3351.5, and 3352) which govern workers' compensation coverage of domestic employments.

The workers' compensation law predicates coverage for work injuries upon defined employment relationships. They are generally to be found, not in the definition of employer, ⁴ but in the definitions of "employee." That is, an "employee", as defined by specified employment relationships, is one who is entitled to workers' compensation coverage for an injury occurring in the course of the specified employment.

The definitions of "employee" are hierarchically organized, first, to include as "employees" a broad class of employment relationships (§ 3351), and, second, to exclude from this class limited types of employment relationships (§ 3352). An employer which hires an "employee," i.e., which enters into a covered employment relationship, is obligated to provide workers' compensation coverage for the employee.

This hierarchial organization reflects the priority given coverage by the workers' compensation law. (See also § 3202.) We follow this order of priority in first determining the issue of inclusion and then the issue of exclusion.

II

A.

The first issue is whether the IHSS worker is a covered "employee" of the state by virtue of an employment relationship established by the state's control of IHSS work.

Labor Code section 3351 ⁵ sets forth the inclusive rules of coverage. It defines a covered "employee" as "every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed...." Section 3357 augments this definition in stating that: "[a]ny person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee."

The definitional reach of these covered employment relationships is very broad. Although the employment relation in workers' compensation law is an outgrowth of the common law relationship of master and servant (See Flickenger v. Industrial Acc. Com. (1919) 181 Cal. 425, 429, 184 P. 851; compare Oxford v. Signal Oil & Gas Co. (1970) 12 Cal.App.3d 403, 408, 90 Cal.Rptr. 700, with Rest.2d Agency (1958) § 220; also see 2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d ed. 1970) § 3.01) ⁶, the scope of included employment relationships is not limited to genotypes of this parentage. "[A]n 'employment' relationship sufficient to bring the act into play cannot be determined simply from technical contractual or common law conceptions of employment but must instead be resolved by reference to the history and fundamental purposes underlying the [Worker's] Compensation Act...." (Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 777, 100 Cal.Rptr. 377, 494 P.2d 1.)

In Laeng, the Supreme Court held a city liable as employer of a job applicant who was injured in a physical agility test conducted by the city as part of a "tryout" for a city job. While not wholly discarding common law principles, Laeng reads sections 3351 and 3357 broadly in light of the beneficent purpose of the workers' compensation law. (Laeng, supra, at pp. 777-778, fn. 7, 100 Cal.Rptr. 377, 494 P.2d 1; also see Comment, Labor Law: Scope of the Term "Employee" (1944) 32 Cal.L.Rev. 289, 299.) That purpose is the social and economic objective "to distribute the risk of service-connected injuries ... by charging all enterprises with [the] costs...." (Laeng, supra, at p. 782, 100 Cal.Rptr. 377, 494 P.2d 1, quoting with approval from Van Horn v. Industrial Acc. Com. (1963) 219 Cal.App.2d 457, 467, 33 Cal.Rptr. 169) and thereby to ameliorate the economic burden on the employee of...