Safeway Stores, Inc v. Workers' Comp. Appeals Bd.

• Decision Date: 14 April 1980
• Citation: 104 Cal.App.3d 528,163 Cal.Rptr. 750
• Parties: SAFEWAY STORES, INC., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Richard Pointer, and Lien Services of Northern California, Respondents. Civ. 46807.
• Court: California Court of Appeals Court of Appeals

Page 750

163 Cal.Rptr. 750

104 Cal.App.3d 528

SAFEWAY STORES, INC., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Richard Pointer, and Lien Services of Northern California, Respondents.

Civ. 46807.

Court of Appeal, First District, Division 1, California.

April 14, 1980.

Hearing Denied June 18, 1980.

Hanna, Brophy, MacLean, McAleer & Jenson, Michael H. Young, Oakland, for petitioner.

Richard W. Younkin, William B. Donohoe, Dexter W. Young, Workers' Compensation Appeals Bd., San Francisco, for respondent Workers' Compensation Appeal Bd.

Pisor, Vadney, George & Bennett, Oakland, for respondent Richard Pointer.

Bertram Cohen, San Francisco, for respondent Lien Services of Northern Cal.

GRODIN, Associate Justice.

Richard E. Pointer, the applicant for benefits in this case, was employed by petitioner Safeway Stores, Inc. as a data processing clerk at petitioner's plant in Fremont, California. On the night of November 2, 1975, he reported for work at his usual starting time, which was 3 p. m., but instead of leaving at his usual quitting time, which was 11:15 p. m., he remained at work until 5:30 the following morning in order to help complete a semi-annual grocery inventory. There was some evidence of a computer malfunction. At 5:30 a. m. he left to go home, and as he got out of his car to enter his house he was attacked by an unknown assailant and suffered injury as a result.

Safeway, which is self-insured for purposes of the Workers' Compensation Act, declined to provide benefits or treatment under the Act on the ground (among others) that the injury did not arise "out of and in the course of the employment." (Lab.Code, § 3600.) Pointer filed an application with the Workers' Compensation Appeals Board (hereinafter "Board") and his application was assigned to a workers' compensation judge for hearing. (Lab.Code, § 5309.) The judge decided to hold a hearing limited to Safeway's threshold contention, deferring other issues; and after hearing the judge ruled that Pointer was entitled to no benefits under the Act because his injury did not arise out of or in the course of his employment.

On Pointer's petition for rehearing, however, the Board arrived at a contrary conclusion. Finding that Pointer's injury did arise out of and in the course of his employment, the Board ordered that the matter be returned to the trial level for further hearing and decision on all other issues. Safeway then sought review of this decision by petition for writ of review filed with this court. We initially denied the petition, but the Supreme Court has granted it, and ordered that it be heard before this court. Lien Services of Northern California, asserting lien claims against potential compensation recovery, is also a party to this proceeding. Its position is identical with that of the applicant.

I. Reviewability.

Question exists at the outset whether the Board's order on reconsideration in this matter is reviewable under Labor Code section 5950, which provides for the filing of an application for writ of review by "(a)ny person affected by an order, decision, or award of the appeals board." ¹

In Gumilla v. Industrial Acc. Com. (1921) 187 Cal. 638, 203 P. 397, the writ applicant sought review of an Industrial Accident Commission order granting a rehearing in a case which was originally decided in the applicant's favor, claiming that the petition for rehearing had been untimely filed. The Supreme Court denied the writ, stating: "A writ of certiorari does not lie to review an order made in a matter prior to the final adjudication thereof. The Industrial Accident Commission proposes to decide the case again after the order granting the rehearing, but it has not yet done so. Final action thereon has not yet been taken. Under these circumstances, the application for a writ of review of the order granting a rehearing is premature. (Citations.)" (Id., at pp. 639-640, 203 P. at p. 397.)

Relying on Gumilla, this and other districts of the Court of Appeal have from time to time denied as premature petitions in cases where the Board has remanded for further proceedings (e. g., So. Cal. R. Trans. Dist. v. WCAB (1976) 41 Cal.Comp.Cases 350; Minton v. WCAB (1975) 40 Cal.Comp.Cases 313; PG&E v. WCAB (1978) 43 Cal.Comp.Cases 1081). This was, in fact, the basis upon which this court initially denied the instant petition. There have been cases, however, in which the appellate court has granted a petition for review despite remand. (E. g., Kaiser Foundation Hospitals v. WCAB (1979) 44 Cal.Comp.Cases 304; City of Los Angeles v. WCAB (1979) 44 Cal.Comp.Cases 421; City and County of San Francisco v. WCAB (1979) 44 Cal.Comp.Cases 540.) Notwithstanding the frequency with which this type of question must arise throughout the state, it appears that no published appellate opinion since Gumilla has squarely addressed it. The resultant ambiguity is particularly acute in view of the possibility that if a Board order determinative of a threshold issue is subject to review despite remand, failure to seek review at that time might preclude a subsequent petition on that issue. (Cf. Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (1978) 82 Cal.App.3d 39, 147 Cal.Rptr. 30.)

In order to receive and possibly to provide some guidance on this procedural question, we invited the parties to address it specifically in their briefs and oral argument. All parties other than the Board urge upon us the view that the petition is timely and not premature. The Board advises that its members are in disagreement on that question, and that the Board itself has no position other than that we should confront and decide it. The legal and policy arguments on both sides of the issue can be briefly summarized.

In addition to the Supreme Court's language in Gumilla, support for the proposition that review should await decision after remand may be found in article XIV, section 4 of the California Constitution, to the effect that the administration of the workers' compensation laws shall accomplish justice in all cases "expeditiously, inexpensively, and without incumbrance of any character." (Emphasis added.) Allowing parties to utilize the appellate process on individual issues in a single compensation claim could create a danger of defeating that constitutional objective. Arguably employers and their carriers, with relatively superior financial position vis-a-vis the average injured worker, could take advantage of the opportunity for purposes of delay and force piecemeal litigation.

On the other hand, permitting review of Board orders which determine such threshold issues as whether the injury arises out of and in the course of employment ² may in many cases better serve the statutory scheme and its objectives. In this state, the workers' compensation system is self-executing: i. e., once an industrial injury is sustained, the employer and the carrier are obligated to afford the injured worker all compensation benefits to which he or she is entitled without a prior order, decision, or award by the Board; and when payment of compensation has been unreasonably delayed or refused, a penalty may be imposed. (Lab.Code, § 5814; cf. Kerley v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 223, 227, 93 Cal.Rptr. 192, 481 P.2d 200.) We are advised that most workers' compensation claims are never heard by the Board; the vast majority are resolved among the parties themselves. Thus, where the employer or carrier asserts in good faith and with reasonable cause that it has no statutory liability at all, and the Board has decided that issue on review after a bifurcated hearing, prompt, judicial review, whatever the court decides, may avoid the necessity of further litigation. The fact that an order is reviewable does not mean that the appellate court must grant the petition for review; and if an employer files a petition without reasonable basis he will be liable for attorney fees for services of the applicant's attorney in connection therewith. (Lab.Code, § 5801.) Thus, protection exists against abuse of the appellate process in such cases.

Because of the self-executing character of California's workers' compensation statute, an employer confronted with an adverse determination by the Board on a threshold issue of the sort involved in this case may reasonably be said to be "affected" by the Board's order within the meaning of section 5950. Moreover, the order may reasonably be said to be "final" as that term is used in Gumilla, supra. Gumilla's holding that a mere grant of reconsideration is not reviewable is clearly distinguishable from the situation here. ³

Finally, viewing the order in this case as "final" within the meaning of Gumilla would go far toward reconciling what would otherwise be a statutory anomaly. Section 5900, which governs the procedure for filing petitions for reconsideration, provides that such a petition may be filed by "(a)ny person aggrieved directly or indirectly by any final order, decision, or award made and filed by the appeals board or a referee . . . ." (Emphasis added.) In Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd., supra, 82 Cal.App.3d 39, 147 Cal.Rptr. 30, the court held that a referee's finding that an employer had failed to prove a statute of limitations defense leaving the amount of a lien claim to be adjusted by the parties, was a "final" order within section 5900. "Such a final order, decision, or award, in the commonly accepted sense is one which determines any substantive right or liability of those involved in the case. The term does not include intermediate procedural orders which merely grant a petition for reconsideration, or a petition for reopening without affirmatively disposing of any of the issues involved." (1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1977) § 7.01(4).) If an order is "final" for purposes of permitting reconsideration under section 5900, there appears to be...