Laines v. Workmen's Comp. Appeals Bd.

• Decision Date: 05 June 1975
• Citation: 122 Cal.Rptr. 139,48 Cal.App.3d 872
• Court: California Court of Appeals Court of Appeals
• Parties: Oscar LAINES, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents. Civ. 35928.

Page 139

122 Cal.Rptr. 139

48 Cal.App.3d 872

Oscar LAINES, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents.

Civ. 35928.

Court of Appeal, First District, Division 4, California.

June 5, 1975.

Hearing Denied July 30, 1975.

Van Bourg, Allen, Weinberg, Williams & Roger, Frank J. Reilly, Oakland, for petitioner.

Hanna, Brophy, MacLean, McAleer & Jensen, Hogan J. Kallemeyn, Oakland, for respondents, Mack Truck, Inc. and Travelers Ins. Co.

EMERSON, Judge. ^*

Petitioner Oscar Laines sustained industrial injuries to his left knee on June 14, 1973, and June 30, 1973, in the course of his employment with respondent Mack Truck, Inc. He was directed by his employer to seek medical treatment for these injuries at the Levine Medical Clinic in Hayward. On July 23, 1973, while enroute from his attorney's office to the Levine Medical Clinic to keep an appointment for a medical examination in connection with the June 14 knee injury, ¹ petitioner was injured when a motorcycle on which he was riding was hit by a truck. (We will hereafter refer to the July 23 injury as the accident injury, in order to distinguish it from both the first and second industrial injuries.) It is undisputed that the industrial knee injury, in itself, was not a factor contributing to the accident.

Petitioner's cases relating to all three injuries were consolidated for hearing before a referee. In his findings and award, issued August 9, 1974, the referee stated that the injury sustained in the accident did not arise out of and in the course of petitioner's employment, and issued a 'take nothing' order in that case. He found, however, that those injuries were a 'compensable consequence' of the June 14 industrial injury, and that petitioner was therefore entitled to temporary disability from June 14 forward. The referee also found that the June 30 injury arose out of and in the course of employment, but that it caused no temporary disability and required no medical treatment. The later finding is not questioned in the instant proceeding.

Respondents filed a petition for reconsideration of the referee's decision with respect to the June 14--July 23 injuries. On October 3, 1974, the Workers' Compensation Appeals Board (hereafter 'Board') granted reconsideration and issued its Opinion and Order Granting Reconsideration and Decision after Reconsideration reversing the referee's findings and award and holding, inter alia, that the injuries sustained by petitioner in the accident were not proximately caused by the industrial injury and therefore were not compensable. From this decision petitioner sought a writ of review. We granted the writ for the purposes of clarifying the point of law involved.

The issue before us may be stated thus: Is an employee entitled to receive workers' compensation benefits for injuries sustained while enroute to receive medical treatment for an industrial injury where (a) the industrial injury, in itself, was not a factor contributing to the second injury, and (b) where the journey did not commence at the worker's place of employment?

Although this issue has been considered by the Workers' Compensation Appeals Board in several cases, it has not been discussed and resolved at the appellate court level.

Section 3600 of the Labor Code provides that an employee's injury is compensable when the following conditions concur: '(a) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division. ( ) (b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment. ( ) (c) Where the injury is proximately caused by the employment, either with or without negligence. ( ) (d) Where the injury is not caused by the intoxication of the injured employee. ( ) (e) Where the injury is not intentionally self-inflicted. ( ) (f) Where the employee has not willfully and deliberately caused his own death. ( ) (g) Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.' The existence of conditions (a), (d), (e), (f), and (g) are not in dispute in this case. The issue revolves around the existence of conditions (b) and (c): Was petitioner performing a service growing out of and incidental to his employment and acting in the course of his employment? Was petitioner's injury proximately caused by his employment? Petitioner contends that the accident injury did arise out of and in the course of employment, since he was required to visit the examining physician under Labor Code sections 4050, ² 4051, ³ 4053, ⁴ and 4056, ⁵ and since his employer was required to provide him with such treatment and to reimburse him on a mileage basis for his transportation expenses in making such a visit under Labor Code section 4600. ⁶ He also asserts that the accident injury was proximately caused by the industrial injury and thus was a 'compensable consequence' of the industrial injury, as discussed in State Comp. Ins. Fund v. Ind. Acc. Com. (Wallin) (1959) 176 Cal.App.2d 10, 1 Cal.Rptr. 73.

The threshold question is whether petitioner's accident injury arose out of and in the course of his employment. Since, as stated above, there are no California appellate court cases on this point, petitioner refers us to various out-of-state authorities, including a 1963 Kansas case, Taylor v. Centex Construction Co. (1963), 191 Kan. 130, 379 P.2d 217. In Kansas, as in California, the employer is required to furnish the employee with medical treatment, and the employee is obligated to submit to examination and treatment as a condition of receiving compensation. (See Taylor v. Centex Construction Co., Supra, at p. 221.) Noting these statutory requirements, the court states that: 'The liability of an employer to an employee arises out of a contract between them and the terms of the Act are embodied in the contract. . . . It would be folly to say that the claimant's trip going to and from the doctor's office did not 'arise out of' the nature, conditions, obligations, or incidents of his employment.' (Taylor v. Centex Construction Co., Supra, at p. 221.)

The case of Immer and Company v. Brosnahan (1967) 207 Va. 720, 152 S.E.2d 254, relying on Taylor, reaches a similar decision based on comparable statutory provisions. The Virginia court said: '(1) The medical attention which the employer is required to furnish and the employee is entitled and obligated to receive is incidental to and a part of the compensation to which the employee is entitled under the Act. Merrimac Coal Corp. v. Showalter, 158 Va. 227, 231, 232, 163 S.E. 73. The requirement has as its obvious dual purpose the placing of the cost of such medical attention upon the employer and the restoring of the employee's health so that he may return to useful employment as soon as possible. The furnishing and receiving of such medical attention inures, therefore, to the benefit of the employee and, albeit indirectly, to the employer as well. ( ) (2, 3) The requirement of the Act that the employer furnish and the employee accept medical attention is read into the employment contract between them. Glassco v. Glassco, 195 Va. 239, 241, 77 S.E.2d 843. When the employer directs or authorizes the employee to seek medical attention for a work-connected injury and the employee follows such direction or authorization, they are but fulfilling the reciprocal obligations of the Act and their contract. To say that an additional injury, suffered by an employee while fulfilling such an obligation, is not also work-connected has little support in modern legal authority and even ess in logic.' (Immer and Company v. Brosnahan, Supra, at p. 257.)

The rationale of these decisions is persuasive. Where the visit to the doctor is based on the statutory obligation of the employer to furnish and the employee to submit to medical examination and nondangerous treatment (see Lab.Code, §§ 4600, 4050, 4056), an injury sustained in the course of such a visit should be held to be an injury arising out of and in the course of employment within the meaning of section 3600 of the Labor Code. If the employee elects to stay at home rather than to venture out to such a medical examination treatment, he risks losing his right to seek compensation for his industrial injury under Labor Code sections 4053 and 4056.

Larson, in his treatise on workmen's compensation, discussing Taylor, states that: 'In the simple case . . . of a trip to the doctor's office necessitated by a compensable injury, the arguments put forward by the Kansas court in the Taylor case are difficult to answer. The court noted that the employer is under a statutory duty to furnish medical care, and that the employee is similarly under a duty to submit to reasonable medical treatment under the act. The provisions of the act, in turn, become by implication part of the employment contract. This being so, the better view appears to be that accidental injuries during a trip made pursuant to this statutory and contractual obligation are work connected.' (1 Larson, The Law of Workmen's Compensation (1972) § 13.13, ch. 3.)

When, in addition to these persuasive considerations, we recognize the California legislative mandate that the Labor Code '. . . shall be liberally construed by the courts with the purpose of extending . . . (its) benefits for the protection of persons injured in the course of their employment' (Lab.Code, § 3202), we are impelled to hold, and we do so hold, that the accident injury sustained by petitioner arose out of and in the course of his employment.

The Labor Code also requires that an injury, to be compensable, must be proximately caused by the employment. (Lab.Code, § 3600, subd. c.) Petitioner's argument that the accident injury was proximately caused by the industrial injury is based...