Laeng v. Workmen's Comp. Appeals Bd.

Decision Date06 March 1972
Citation6 Cal.3d 771,494 P.2d 1,100 Cal.Rptr. 377
CourtCalifornia Supreme Court
Parties, 494 P.2d 1 John L. LAENG, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, City of Covina, et al., Respondents. L.A. 29942. In Bank

Donine, Donine & Cuthbert and Marvin D. Donine, La Puente, for petitioner.

Rupert A. Pedrin, San Francisco, Stanley S. Feinstein, Los Angeles, T. Groeziner, James J. Vonk, and W. R. Lowndes, San Francisco, Cal., for respondents.

John D. Maharg, County Counsel, Mary Carol Scherb, Deputy County Counsel, and Milton J. Litvin, Los Angeles, amici curiae on behalf of respondents.

TOBRINER, Associate Justice.

While participating in the 'obstacle course' phase of a physical agility test conducted by the City of Covina as part of a 'tryout' competition for the position of 'refuse crew worker,' petitioner John Laeng fell from a raised, horizontal telephone pole and severely fractured his right foot. Laeng sought compensation for his injuries under the Workmen's Compensation Act, but the referee, although sympathetic to the 'equities' of Laeng's claim, concluded that the claimant was precluded from a workmen's compensation recovery since, at the time of the injury, he had not yet become an 'employee' of the respondent city. After granting a petition for reconsideration of the referee's decision, the Workmen's Compensation Appeals Board (WCAB), by a 2--1 vote, denied the claimant all compensation benefits; Laeng attacks the decision of the WCAB by the present petition.

For the reasons discussed more fully below, we have concluded that the claimant's challenge to the board's action must be sustained. Although at the time of his injury Laeng was concededly not an 'employee' of the city in a strict, contractual sense of that term, we are not constrained in interpreting the provisions of the Workmen's Compensation Act by the common law contractual doctrine but must instead be guided by the purposes of the legislation at issue. Workmen's compensation, of course, fundamentally proposes to protect individuals from any 'special risks' of employment; thus when an employer, as part of a 'tryout' for an employment position, exposes an applicant under his control and direction to such risks, any resulting injury becomes properly compensable under the workmen's compensation law. In the instant case, the claimant suffered injury as, pursuant to the city's instructions, he quickly scrambled through the potentially dangerous 'obstacle course,' a course designed by the employer to correlate with the actual conditions of employment. Under these circumstances, we believe that Laeng's injury was compensable under the Workmen's Compensation Act as a matter of law and that the board erred in holding to the contrary.

We begin our analysis with a review of the uncontested facts from which the present controversy arose. In response to a newspaper advertisement placed by respondent City of Covina, petitioner Laeng applied for a city position as a 'refuse crew worker' on April 20, 1970; thereupon the city directed him to take a written examination on April 25th at a local high school. After completing the examination along with 45 other applicants, Laeng received notice on April 29th that he had passed the written test and that he should report to the high school on May 2d for a physical agility test.

Pursuant to these instructions, Laeng, with 13 other applicants who had also successfully completed the written examination, 1 reported to the high school gymnasium. The 'agility test' scheduled for that day consisted of four separate activities--sit-ups, broad jump, chin-ups and a timed obstacle course--and was supervised by two city employees, apparently physical education instructors. The applicants were scored on their performances of each individual activity, and only those who had received satisfactory grades on the sit-up broad jump and chin-up phases were permitted to undertake the final activity, the obstacle course. Laeng successfully completed the first three parts of the test and then was directed to participate in the final 'obstacle course' phase. 2

The course constructed by the city presented a series of obstacles, commencing with a horizontally laid telephone pole, raised approximately three feet off the ground, along which the participants in the test were to run. Other obstacles encountered in the test included a 'wall,' a series of bars, and several other raised logs, which the applicants were variously to climb onto, jump off of and crawl under. The 'obstacle course' phase was a timed event--each participant was given only 90 seconds to complete the course--and this factor naturally required the applicants to attempt to surmount the successive obstacles as quickly as possible. At the hearing before the workmen's compensation referee, the city's personnel director, who supervised the administration of the test, testified that only potential policemen, firemen and refuse men were required to take any physical agility test at all, and that the particular test that the claimant had taken was correlated to the type of work--'the constant jumping . . . on and off the truck, up and down, all day'--involved in the 'refuse crew' job for which he was applying.

Laeng commenced the obstacle course at the direction of the supervising personnel, but as he ran across the raised telephone pole, he slipped, fell to the ground, and severely fractured his right foot. The injury caused substantial pain, and Laeng could not walk at all; his wife was called to the school and several of the persons present carried him to his car. Laeng immediately went to his family doctor who, after X-raying the foot, referred the patient to an orthopedic surgeon. The claimant thereafter underwent surgery, remained hospitalized for six days and was unable to return to work through September 29, 1970, the date of the initial workmen's compensation hearing. 3 At the hearing, Laeng presented bills evidencing medical expenses of more than $800 as a result of the injury, as well as a bill of $70 for 'medical-legal' costs, incurred in obtaining a physician's 'examination report' as required by the WCAB's rules of practice and procedure.

Upon hearing the foregoing uncontested facts, the referee observed that '(a) lthough the equities appear to be in favor of applicant, (the) law appears to preclude a finding of employment,' 4 and, accordingly, he found that the claimant was not an employee of the City of Covina at the time of the injury and that his injury was noncompensable under workmen's compensation; the referee also determined, however, that the $70 medical-legal expenses were reasonably incurred and he awarded that sum to the claimant. Upon the petition of both the applicant and the city, the Workmen's Compensation Appeals Board granted reconsideration of the matter, and after reconsideration, issued an opinion, by a 2--1 vote, denying the claimant both compensation for the injury and the medical-legal costs that had been awarded by the referee. In this present petition for review, the claimant primarily challenges the board's conclusion that the injury, incurred during his 'tryout' for the 'refuse crew worker' position, is not compensable under the workmen's compensation laws because he was not an 'employee' of the city at that time.

Although we recognize that at the time of his injury the claimant was not yet 'employed' by the city in any contractual sense, we 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 . . ..' 5 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.' 6 (Emphasis added.) (See also Lab.Code, § 5705, subd. (a).)

Given these broad statutory contours, we believe that an '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 Workmen's Compensation Act (cf. NLRB v. Hearst Publications, Inc. (1944) 322 U.S. 111, 124--129, 64 S.Ct. 851, 88 L.Ed. 1170; B. P. Schulberg Prod. v. California Emp. Com. (1944) 66 Cal.App.2d 831, 834--835, 153 P.2d 404. See generally, la Larson, Workmen's Compensation Law (1967) §§ 43.41, 43.42, pp. 628--633; 2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d ed. 1970) § 3.01 (2), pp. 3--3 to 3--5). 7 In so doing we must bear in mind section 3202's mandate that 'workmen's compensation statutes are to be construed liberally in favor of awarding compensation.' (Greydanus v. Industrial Acc. Com. (1965) 63 Cal.2d 490, 493, 47 Cal.Rptr. 384, 387, 407 P.2d 296, 299; Reynolds Elec. etc. Co. v. Workmen's Comp. App. Bd. (1966) 65 Cal.2d 429, 433, 55 Cal.Rptr. 248, 421 P.2d 96.)

As both parties recognize, no prior reported appellate decision in California has addressed the precise question of whether an injury sustained during a 'tryout' for an employment position is compensable under our workmen's compensation legislation; indeed, our research discloses that the question has only rarely been litigated in our sister states as well. In the leading American case on this issue, Smith v. Venezian Lamp Co. (1957) 5 A.D.2d 12, 168 N.Y.S.2d 764, a New York court did directly address the problem of a 'tryout' injury, and squarely held that a claimant sustaining such an injury could recover workmen's compensation...

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