Morales v. Workers' Comp. Appeals Bd.

• Decision Date: 08 October 1986
• Court: California Court of Appeals Court of Appeals
• Parties: Jesse MORALES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and County of Ventura, Respondents. B018480.

Page 575

230 Cal.Rptr. 575

186 Cal.App.3d 283

Jesse MORALES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and County of Ventura, Respondents.

B018480.

Court of Appeal, Second District, Division 6, California.

Oct. 8, 1986.

Review Denied Dec. 30, 1986.

Frank & Rosenfeld and Irving Rosenfeld, Oxnard, for petitioner.

Graves & Roberson and Marshall W. Graves, Agoura Hills, for respondent Ventura County.

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

STONE, Presiding Justice.

We review the order of respondent Workers' Compensation Appeals Board (Board) denying reconsideration of the findings and order of the workers' compensation judge (WCJ) determining that petitioner and applicant, Jesse Morales, was not an employee of respondent County of Ventura (County) at the time of his alleged injury.

We conclude that the Board erred in determining that applicant was not an employee of County.

Applicant was sentenced to a term of 60 days confinement in county jail. He began serving the sentence approximately September 18, 1984. The parties stipulated that as normal policy the sentence was reduced by 10 days, making November 6, 1984, the last day applicant was to be confined. The parties further stipulated that while applicant was serving the sentence, County's Corrections Services Agency "exercised [the] jurisdiction which it had to select and offer the applicant a work release program." On October 2, 1984, applicant signed a document listing the rules and regulations of the agency's program and stating that applicant agreed to comply with the rules and regulations. The document also bears the signature of a Corrections Services Agency staff member who witnessed applicant's signing of the document.

The introductory paragraphs read: "You have been selected to participate in the Work Release Program in lieu of confinement. Your jail sentence will not be completed until you successfully complete the required hours of voluntary community work assigned to you. [p] Failure by you to complete the program, or failure by you to comply with the Program Rules and Regulations will result in your being returned to the county jail to complete your sentence, subject to a loss of good time. You may also have additional criminal charges filed against you." (Original italics.) The rules and regulations are then listed. They include a warning that failure to report to work or leaving a worksite without permission would be considered a violation of Penal Code section 4024.2, subdivision (b), ¹ a provision that applicant was required to remain within the County until completion of the program, and a statement that applicant was "required to complete 8-10 hours of voluntary community work for each day of [his] jail sentence." The sole consideration applicant received for his participation in the program was release from physical confinement.

In the work release program applicant worked daily from 7:30 a.m. to 5:00 p.m. at Oxnard Airport under the direction of County employees and agents. Applicant testified that on November 6, 1984, he sustained an injury to his back while attempting to move a heavy tree during the performance of his duties under the work release program.

The WCJ found that "[a]pplicant sustained his alleged injury while performing work activities as a prisoner at Oxnard Airport, working pursuant to the work release program" and that "[a]pplicant was not an employee of the County of Ventura at the time and place of the alleged injuries." In his opinion on decision the WCJ explained that he based his decision on Parsons v. Workers' Comp. Appeals Bd. (County of Tulare) (1981) 126 Cal.App.3d 629, 179 Cal.Rptr. 88.

Applicant petitioned for reconsideration. In his report and recommendation upon applicant's petition for reconsideration, the WCJ stated that his findings should be augmented "by the additional fact that applicant voluntarily entered into the work release program." Noting that applicant relied on State Compensation Ins. Fund v. Workmen's Comp. App. Bd. (Childs) (1970) 8 Cal.App.3d 978, 87 Cal.Rptr. 770, he stated that "[i]f the rule of the Childs case is that voluntary participation in work which is not required as incidental to incarceration results in an inmate being an employee of the County, the applicant's contention [that he was an employee] would appear to be correct." Explaining that there was no credit on the sentence and no monetary compensation, however minimal, he stated, "The conclusion [in the present case] was that there was a lack of any consideration paid applicant herein, and that the employment relationship did not exist." The WCJ recommended denial of reconsideration. The Board adopted and incorporated the WCJ's report and denied reconsideration.

Applicant contends that he was an employee of County. Based on the stipulation that applicant was selected for and offered participation in the work release program, respondents County and the Board contend the contrary.

Labor Code section 3351 defines an 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" and lists various examples including "(e) All persons incarcerated in a state penal or correctional institution while engaged in assigned work." ² Section 3352 lists categories of workers that are excluded from the definition of employee. Neither section 3351 nor section 3352 mentions county jail inmates. Section 3357 provides: "Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee." The Labor Code does not expressly exclude county jail inmates from the definition of employee.

Penal Code section 4017 provides that a county jail inmate may be required by an order of the board of supervisors to perform labor on the public works and ways of the county or aid in fire fighting and that, if injured while fire fighting, the inmate shall be considered an employee for workers' compensation purposes. County has implemented Penal Code section 4017 by the enactment of section 6213 of the Codified Ordinances of the County of Ventura, which provides that male county jail inmates may be required by the sheriff to perform labor upon "any public grounds ... or any other places deemed advisable" within the county "during the time they are so confined." (Ibid.) Since the document signed by applicant makes repeated reference to the performance of "voluntary community work," Penal Code section 4017 is inapplicable. We note that respondents do not contend that applicant's work was required pursuant to an order of the board of supervisors.

In Pruitt v. Workmen's Comp. App. Bd. (1968) 261 Cal.App.2d 546, 68 Cal.Rptr. 12, a county jail inmate who was serving a six-month sentence volunteered to work for the city at a sewage plant pursuant to an arrangement between the city and county. In exchange for his work the county gave him 5 days credit for each 30 days that he worked and the city furnished 1 carton of cigarettes each week. The court stated that the principal consideration received by the applicant was credit toward completion of the sentence and "an interlude release from jail confinement" (id., at p. 553, 68 Cal.Rptr. 12) and held that payment of wages is not essential for the existence of a contract of employment under the Workers' Compensation Act. (Pruitt, supra, 261 Cal.App.2d at p. 553, 68 Cal.Rptr. 12.) Noting that Penal Code section 4017 does not address the availability of workers' compensation benefits for county jail inmates who are injured while voluntarily working for a third party, the court held that when a county jail inmate is loaned to a third party for work on a voluntary basis and works under the control of the third party, there is an implied contract of hire within the meaning of Labor Code section 3351 even if the only consideration received by the inmate is of nominal value. (Pruitt, supra, 261 Cal.App.2d at pp. 552-553, 68 Cal.Rptr. 12; cf. Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 776-783, 100 Cal.Rptr. 377, 494 P.2d 1 [person injured during tryout for job is employee for workers' compensation purposes].) In reaching this conclusion, the court relied on the statutory and constitutional policy that workers' compensation provisions be liberally construed in favor of the worker. (Pruitt, supra, at p. 553, 68 Cal.Rptr. 12; see § 3202; Cal. Const., art. XIV, § 4 [formerly Cal.Const., art. XX, § 21]; Veilleux v. Workers' Comp. Appeals Bd. (1985) 175 Cal.App.3d 235, 241-242, 220 Cal.Rptr. 568 [constitutional foundation of rule of liberal construction].)

In State Compensation Ins. Fund v. Workmen's Comp. App. Bd. (Childs), supra, 8 Cal.App.3d 978, 87 Cal.Rptr. 770, a county jail inmate was injured while working as a member of a road gang. He voluntarily performed the work and was paid $0.50 per day. Noting that the record was "devoid of reference" (id., at p. 982, 87 Cal.Rptr. 770) to any ordinance requiring county prisoners to perform such work, Division Five of this court held that, absent such an ordinance, the applicant was an employee of the county because the work was voluntary, it was performed under the direct control and supervision of county agents, and he was paid for the work. (Id., at p. 983, 87 Cal.Rptr. 770, citing former Cal.Const., art. XX, § 21 [now Cal.Const., art. XIV, § 4]; Lab. Code, § 3202.) Reasoning that voluntary work programs promote rehabilitation of inmates, Division Five stated that to preclude the right of an inmate to be compensated for an injury sustained while performing voluntary labor would discourage enlistment of county prisoners in voluntary work programs. (Childs, supra, 8 Cal.App.3d at p. 983, 87 Cal.Rptr. 770.)

In Parsons v. Workers' Comp. Appeals Bd. (County...