State Comp. Ins. Fund v. Workers' Comp. Appeals Bd.

• Decision Date: 29 June 1976
• Citation: 130 Cal.Rptr. 831,59 Cal.App.3d 647
• Court: California Court of Appeals Court of Appeals
• Parties: STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Norma Jo Bate, Respondents. Civ. 48081.

Page 831

130 Cal.Rptr. 831

59 Cal.App.3d 647

STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Norma Jo Bate, Respondents.

Civ. 48081.

Court of Appeal, Second District, Division 3, California.

June 29, 1976.

T. Groezinger, James J. Vonk, George S. Bjornsen and Robert A. La Porta, San Francisco, for petitioner.

Louis I. Bell, a Professional Corporation, and Sydney Halem, Los Angeles, for respondent Norma Jo Bate.

No appearance for respondent Workers' Compensation Appeals Board.

ALLPORT, Associate Justice.

Petitioner, the compensation insurer, contends that respondent Norma Jo Bate, the applicant in the underlying compensation proceeding, was not an employee at the time of her injury.

The compensation judge characterized her as a 'substitute' employee and held her injury compensable by analogy to Laeng v. Workmen's Comp. Appeals Bd., 6 Cal.3d 771, 100 Cal.Rptr. 377, 494 P.2d 1. The Appeals Board concurred without further comment.

The evidence as to respondent's employment status consisted entirely of her testimony and a report of earnings supplied by the alleged employer, Antelope Valley Newspapers, Inc. We have issued a writ of review and examined the entire record, including a transcript of respondent's testimony. We find therein no substantial evidence of an employment relationship or quasi- employment status subsisting at the time of injury. Accordingly we annul the award and remand the case for further proceedings.

The Evidence

Respondent was a tape punch operator and a member of the typographical union. The alleged employer operated as Antelope Valley Press in Palmdale, California. It is apparent that there was a relationship by was of a labor contract between the union and the newspaper, but neither the contract nor any direct information about the employer-union relationship were offered as evidence in this compensation case. Such of the arrangement as can be inferred merely filtered through respondent's testimony as to her individual experience. We therefore recite the testimony in some detail.

She had first worked for the newspaper on January 30, 1975. Except that she had done so through the union, the way in which she first came to work there is not related. It is clear, however, that she never became a 'regular' employee. Her 'hiring', as she described it, was day-to-day at the rate of $45 per day.

To get a particular day's work, she considered it essential that she report to the secretary of her union, on the newspaper premises, before 8:00 a.m. On June 9, 1975, she reported, but no one was hired. As she walking out of the building and down a ramp, she slipped and fell, injuring her back and knee. The award contested in these review proceedings is of continuing temporary disability benefits and certain medical expenses.

As established by the earnings report, the work available to respondent had declined since Jaunary 30, 1975, and was virtually eliminated before June, 1975. In the month of February she worked about four days each week, and in March and April about three days. In May she worked a total of four days, the last day worked having been May 21, 1975. She had not worked from that date until her injury on June 9.

As to the reason for the decline in work, the employer reported that 'she was claiming posted union overtime,' adding 'which any union member in the U.S. can do.' The report also stated that there would have been no further earnings because there was 'no overtime to claim' and 'there was no work for her to claim.' Respondent testified only that 'they cut down on the hiring,' that there had been 'a decrease at the office,' and that she was 'only working one or two days a week.'

Respondent could not recall the last date before June 9 that she had gone to the premises 'to look for work', but she thought that 'Wednesday and Friday and Saturday are the best days to show up to get hired.' Accordingly, she 'came in' twice or three times each week. However, she considered herself under no obligation to appear. 'If I don't want to work, I don't show up,' but 'If yoy want to work, you have to show up.' Also, 'if you don't show up, it is not a mark against you.' The 'employer doesn't have any requirement that you show up. . . . that is up to you. If you want to get paid you do, but you have to make an attempt to stay in the union.'

There were other 'substitute workers' who did the same kind of work as respondent. They, too, reported to the union secretary, who was 'a fellow employee', but 'not part of management.' The foreman could not hire anyone, but related any need for workers to the union secretary, and 'the secretary determines who has the most priority and who has the job for the day.' For any particular union member to be hired 'you have to be there at 8:00. That is show-up time.' Otherwise someone else would be hired.

To be considered available for employment, the union required that the member attempt to obtain work at least once each week. That was necessary 'to stay on the available board' and 'to retain your membership card.' Members thus available, but not employed, were not required to pay union dues. A member's 'showing-up' satisfied those union requirements, but otherwise had 'nothing to do with the company policy.'

It appears that on June 9, the date respondent was injured, three persons in various crafts 'showed up', but no one was hired because there was no work. Counsel argued, 'on that day she is an applicant for work. The only way she is going to get hired is to show up. . . . Every time she ever got hired, she did the same thing. . . . She is an applicant for work when she enters those premises.' The compensation judge responded rhetorically, 'Everybody that comes looking for work is an applicant for work, but does that make them an employee?'

Discussion

For an injury to arise 'out of and in the course of employment' (Calif.Const., art. 20, § 21; Lab.Code, § 3600), there obviously must be a subsisting employment. 'It is frequently stated that for an injury to occur in the course of employment the employee must be engaged in the work he has been hired to perform or some expectable personal act incidental thereto and the injury must occur within the period of his employment and at a place where he may reasonably be for the purpose.' (Dept. of Water & Power v. Workmen's Comp. App. Bd. (Antrobus), 252 Cal.App.2d 744, 746, 60 Cal.Rptr. 829, 830.)

Employment, in turn, depends upon an underlying agreement between the parties. Labor Code section 3351 defines 'employee' for purposes of workers' compensation to mean 'every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.' Thus, '(i)t appears manifest under statutory and case law that a contractual relationship must exist between the parties before a claimant is entitled to benefits.' (Anaheim General Hospital v. Workmen's Comp. App. Bd. (Craig), 3 Cal.App.3d 468, 474, 83 Cal.Rptr. 495, 499.) Similarly, '(i)n any case, the relationship of employer and employee under a contract of employment is essential to recovery of compensation.' (McBurney v. Industrial Acc. Com., 220 Cal. 124, 126, 30 P.2d 414, 416; see also, 2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d ed.) §§ 3.01, 3.02, 3.04. 4.04; 1A Larson, Workmen's Compensation Law, §§ 47.00, 47.10.)

A contract of employment is governed by the same rules applicable to other types of contracts, including the requirements of offer and acceptance.' (Reynolds Elec. etc. Co. v. Workmen's Comp. App. Bd. (Egan), 65 Cal.2d 429, 433, 55 Cal.Rptr. 248, 251, 421 P.2d 96, 99; see also Reynolds Elec. etc. Co. v. Workmen's Comp. App. Bd. (Buckner), 65 Cal.2d 438, 441, 55 Cal.Rptr. 254, 421 P.2d 102.) As the Egan and Buckner decisions illustrate, either the prospective employer or employee can be the 'offeror' and the other the 'offeree'. Also, the offer can be transmitted through a labor union, but in that event the union merely 'act(s) as the employer's agent for some purposes.' (65 Cal.2d at p. 435, 55 Cal.Rptr. at p. 252, 421 P.2d at p. 100.) Acceptance of the offer need not be attended by formality and, as in Egan and Buckner, may be by conduct alone, but it must be such as to result in 'an implied contract of employment', 'the existence and terms of which (are) manifested by the conduct of the respective parties.' (Anaheim General Hospital v. Workmen's Comp. App. Bd. (Craig), su...