Reynolds Elec. & Engineering Co. v. Industrial Acc. Com'n
| Decision Date | 25 March 1966 |
| Citation | 50 Cal.Rptr. 327 |
| Court | California Court of Appeals |
| Parties | REYNOLDS ELECTRICAL & ENGINEERING COMPANY, Inc., a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Furl M. Buckner, Respondents. Civ. 29879. |
For Opinion on Hearing, see 55 Cal.Rptr. 254, 421 P.2d 102.
Herlihy & Herlihy, Los Angeles, for petitioner.
Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Commission.
Jack R. Berger, Los Angeles, for respondent Buckner.
*
Review of a decision of the Industrial Accident Commission.
The petitioner Reynolds Electrical & Engineering Company, Inc., hereinafter referred to as Reynolds, is a corporation organized and existing under the laws of the State of Texas. It had qualified to do business in the State of California and had designated C. T. Corporation System as its agent in the State of California for the service of process. As of the date of the claimed injury of its employee, Reynolds was insured for liability under the workmen's compensation law of Nevada but was uninsured for liability under the workmen's compensation law of California.
On November 30, 1962, the employee of Reynolds, Burl M. Buckner, filed an application for hearing with the California Commission wherein he alleged that he had suffered an injury to his heart during the period from January 15, 1962 to and including July 9, 1962 in the course and scope of his employment as a structural iron worker with Reynolds on the job site at Ely, Nevada. No personal service of process was initially made on Reynolds and a hearing was had before the commission on July 17, 1963 without an appearance by or on behalf of Reynolds. On September 24, 1963 the commission issued its findings and award. These findings and the award were annulled and set aside as a result of a motion to quash the service of the application.
Thereafter proper service of the application was effected and hearing thereon was had. On June 28, 1965 the commission issued its findings and award holding that Reynolds was liable for benefits under the workmen's compensation law of California by reason of the fact that, although the injury occurred in Nevada, the contract of employment was consummated in California. Additionally, it was found that Buckner had sustained permanent disability in the amount of 73 per cent as a result of his injury in Nevada and that Reynolds was not entitled to apportionment of such disability to a preexisting condition relative to the present heart condition. There was also imposed against Reynolds a monetary penalty of 10 per cent of all compensation benefits, both past and future, upon the grounds that it had unreasonably refused to provide compensation benefits under the workmen's compensation law of California during the pendency of the proceedings before the California Commission.
Both Reynolds and Buckner petitioned for reconsideration. The petition for reconsideration on the part of Reynolds was denied and the petition for reconsideration of Buckner was granted. On reconsideration the commission made minor changes in favor of Buckner with respect to the award relating to the reimbursement for medicallegal expense and for self procured medical treatment.
Reynolds' attack upon the award is (1) that the evidence is insufficient to sustain the finding that the contract of employment was entered into in the State of California; (2) that the evidence does not justify the finding that Reynolds should be assessed a 10 per cent penalty for unreasonable delay in the furnishing of compensation benefits and (3) that the evidence does not justify the finding that the industrial injury resulted in a permanent disability without apportionment of a part of such disability to known preexisting factors contributing to the overall present and future disability of the applicant.
The evidence before the commission as it relates to the contract of employment is in substance as follows. Buckner, the applicant, was a structural steel worker whose residence was situated in Lancaster, California. He had been previously employed by Reynolds during the year 1952 and some time in 1955. Before the start of his work in January 1962, Wilfred Bayer, the assistant structural superintendent of Reynolds, whom he had known for approximately 20 years, called Buckner on the telephone and asked him if he wanted to go to work and Buckner responded in the affirmative. Thereupon Bayer stated, '[C]ome on.' Bayer was in Mercury, Nevada, and Buckner was at his home in Lancaster at the time of this conversation. At this time, Reynolds was in need of structural steel workers and requisitioned, through the union hiring hall at Los Angeles, approximately 20 men including Buckner. This requisition was approved by E. J. Hutchins, structural superintendent of Reynolds. Bayer had suggested certain names of iron workers, including Buckner, to Hutchins, and had called the iron workers union in Los Angeles to have proper forms drawn up for the referral of Buckner to the work site at Ely, Nevada. Bayer had done this personally so that the only thing Buckner had to do was go by the union and pick up a referral slip. Bayer testified in substance that it is common practice to bring workers from out of state to work at the Nevada work site. That these men come to the work site before working and fill out various payroll as well as security forms in the personnel office and then wait until they are referred to the job site. That during this time they are paid subsistence allowance as well as travel expenses to Nevada and, if they cannot get security clearance, they are terminated and returned home and are paid their fare home. That the personnel department does not interview the man as to his qualifications to do the job; that the only thing they do is take payroll information and security clearance information so that security clearance can be obtained for the worker. Buckner testified in substance that upon his arrival at the work site he filled out the forms in the personnel office regarding security checks and payroll information, and went to work; that there had been no interview regarding his qualifications for the job.
The foregoing circumstances furnish a sufficient basis to support the commission's finding that there was an offer of employment made by Bayer, who was then in Nevada, to Buckner, who was then in California, and that the acceptance of that offer was made by Buckner in California. The evidence is sufficient to support the conclusion that when Buckner left his home in Lancaster, California, to go to the job site at Ely, Nevada, it was not to find a job or obtain one if he could but that he had a job and was going to it. The contract of employment having been consummated in California, the commission had jurisdiction to hear and determine the application. (Lab.Code, § 5305; Commercial Cas. Ins. Co. v. Industrial Acc. Comm., 110 Cal.App.2d 83, 242 P.2d 13; Chicago Bridge etc. Co. v. Industrial Acc. Comm., 226 Cal.App.2d 309, 38 Cal.Rptr. 57; Globe Cotton Oil Mills v. Industrial Acc. Comm., 64 Cal.App. 307, 221 P. 658; Friedman Bag Co., Inc. v. Shrier, 194 Cal.App.2d 561, 565, 15 Cal.Rptr. 38.
As to whether the commission was justified in assessing a 10 per cent penalty on the award, the law provides as follows: 'When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision or award shall be increased by 10 per cent.' (Lab.Code, § 5814.) The evidence relating to the applicant's injury and the furnishing of workmen's compensation benefits shows in substance that some time in June 1962, on the job site at Ely, Nevada, while the applicant was working on one of the towers approximately 80 feet from the ground, he experienced pain in his chest beginning at the left breast bone. This pain lasted 10 to 15 minutes and was of such severity that he had to lie down on one of the beams on which he was working, until the pain passed. He did not report this incident to his supervisor. Immediately prior to this incident, he and his fellow employees had been engaged in pushing large heavy steel beams into place. He went to work as usual on July 9, 1962 and shortly after lunch, while he was engaged with others in loading pads of lumber on a truck, he experienced a sharp pain in the left chest area. A short time later when he went to the tower to continue working he again felt pain in his chest. At this time his foreman observed that something was wrong, whereupon the applicant told him about the chest pain. The applicant was then placed in a truck and driven to the first aid area. From the first aid area he was taken to the company dispensary in Mercury, Nevada. The doctor at the dispensary gave the applicant some nitroglycerine pills to take and recommended that he see a Dr. Miller at the Sunrise Hospital in Las Vegas. He was examined by Dr. Miller and went home in Nevada for the night but returned the following morning because of his chest pain and was then hospitalized and treated by Dr. Miller. Upon discharge, he was told to return to his home in Lancaster, California, and to see a doctor there immediately upon his return. He was not given the name of a doctor to see. Upon his return home to Lancaster the applicant saw a Dr. Busby who treated him and who has continued to treat him for his heart condition. Medical and hospital treatment in Nevada after the applicant left the company dispensary was self procured as was his treatment after having returned to California.
The employer was charged with knowledge of the circumstances under which the contract of employment was made. The employer knew that the applicant had suffered a disabling injury on July 9, 1962, while he was working in the course and...
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Reynolds Elec. & Engineering Co. v. Industrial Acc. Com'n
...employment in California. The case at bench is also distinguishable form the holding in Reynolds Electrical & Engineering Company, Inc. v. Industrial Accident Commission, Cal.App., 50 Cal.Rptr. 327, decided Mar. 25, 1966, where the evidence disclosed that the offer of employment was made by......