BUSICK v. WORKMEN COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, Division 2, California.

Ruth Marie BUSICK, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, and Albright Express Company, Allstate Insurance Company, Employers Mutual Liability Insurance Company of Wisconsin, Ruth Busick dba J. R. L. Trucking Company and the Home Insurance Company, Respondents.

ALLSTATE INSURANCE COMPANY, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, and Employers Mutual Liability Insurance Company of Wisconsin, Respondents.

Civ. 36677, 36887.

Decided: January 18, 1971

Zonni, Ginocchio & Taylor, by Marco J. Zonni, Los Angeles, for respondent and petitioner Allstate Ins. Co. Samuelsen, Bolson, Whitehead & Benes, San Bernardino, by C. Ringwalt, San Francisco, for respondent Employers Mut. Liability Ins. Co. of Wisconsin. No appearances for respondents Albright Express Co., J. R. L. Trucking Co., and Home Ins. Co. Alpern & Vallier, by Daniel L. Dintzer, Los Angeles, for petitioner. Rupert A. Pedrin and Lionel K. Hvolboll, San Francisco, for Workmen's Compensation Appeals Board.

This consolidated action is based upon petitions by Workmen's Compensation claimant Ruth Busick and Allstate Insurance Company, the compensation insurance carrier for Albright Express Company, claimant's former employer. Each seeks review of decisions of the Workmen's Compensation Appeals Board.

The factual background is essentially not in dispute and we adopt the statement of facts set forth by the appeals board in its opinion and decision after reconsideration.

‘Defendant Albright Express Company was operated by Chase Albright and his wife. It was an informal, husband and wife operation, and, as Mrs. Albright described it, ‘our contract was our marriage license.’ Among the employees of the firm were [claimant] and a salesman named Rasbidoski. [Claimant] was the bookkeeper. Rasbidoski, who also acted as dispatcher, had brought new business to the Albright Company which, according to his deposition, had doubled its gross income.

‘In the spring of 1968, [claimant] and Rasbidoski began having difficulty getting along with the Albrights. In July they discussed the possibility of starting a trucking business of their own since Rasbidoski controlled accounts which he expected would follow him to any new association.

‘On August 9, 1968 [claimant] called Mrs. Albright to tell her that she wanted to quit. Mrs. Albright replied that she should take a week or two of vacation to think about it. [Claimant] had no further contact with the Albrights until the day she was shot. On Wednesday, August 14, 1968, after an argument with Albright, Rasbidoski resigned.

‘Meanwhile the plans for a new trucking business had developed to the point that [claimant] intended to see whether it would be possible to purchase trucks. If this had been impossible and if the business had not materialized, she would have considered returning to the Albrights. * * *

‘[Claimant] and Rasbidoski were successful in obtaining trucks which were delivered on Saturday, August 17. Two of Albright's drivers quit and went to work for the new company which commenced hauling operations under the name of J. R. L. Trucking on August 19.

‘When Rasbidoski, Busick, and the drivers left the employ of the Albright firm, each was owed wages which were not yet due. Albright's payroll procedure provided for payment on Friday for the work performed the week ending the previous Friday. Busick had a week's salary coming to her. Rasbidoski collected a week's pay on Friday, August 16, but had three days' additional wages due him the following Friday for work performed during the week ending August 16.

‘According to Mrs. Albright, she and her husband began receiving hints that Rasbidoski and Busick had started a competing business. The Albright firm was losing customers and had lost the two drivers. Chase Albright was unhappy with Busick and Rasbidoski for leaving.

‘On that Friday, August 23, 1968, Rasbidoski called Albright Express to ask whether or not the checks were ready. Mrs. Albright said they were not prepared, but called back shortly to advise that the checks could be picked up. This message was received by [claimant]. Upon learning that the checks were ready, Rasbidoski called to ask whether he could send someone over to the Albright firm to pick up all the checks. Mrs. Albright replied that Mr. Albright required that he and [claimant] ‘come up there personally * * * to pick up (the) checks and sign for them, being they were termination checks.’

‘Rasbidoski and [claimant] then went in her automobile to an office of the State Board of Equalization on an errand for J. R. L. Trucking Company. After attending to this business Rasbidoski drove [claimant's] car to the Albright premises. When they arrived, [claimant] did not want to go inside. Chase Albright, however, met Rasbidoski and said, ‘She'll have to come up here on the dock to get it, herself.’ Rasbidoski returned to the car and relayed the message to applicant. She alighted from the car, and they both walked up on the dock. She sustained the injuries for which she now seeks benefits when Albright shot her after asking, ‘Are you all prayed up.’ He then shot Rasbidoski and killed himself. He expressed no reason for the shooting as it occurred.

‘According to the deposition of Mrs. Albright, [claimant's] check had not been prepared at the time of the shooting. Mrs. Albright was waiting for her to telephone and advise what was owing. This could have been discussed, and the check made out when [claimant] returned with Rasbidoski if it had not been for Chase Albright's precipitant action.’

In its opinion dated and filed May 6, 1970, the Workmen's Compensation Appeals Board found (1) that the injury to claimant did not arise out of nor occur in the course of her employment; (2) that Allstate Insurance Co. was the insurance carrier for Albright Express Co.; and (3) that claimant reasonably incurred litigation expenses for medical evidence.

Consequently the board issued an award in favor of claimant and against Allstate Insurance Co. for litigation expenses only.

The board also ordered dismissal of Employers Mutual Liability Insurance Co., of Wisconsin as an insurer of Albright. It is this latter order which is the basis for Allstate's petition.

THE BUSICK PETITION

Labor Code section 5952 provides:

‘The review by the court shall not be extended further than to determine, based upon the entire record which shall be certified by the appeals board, whether:

(a) The appeals board acted without or in excess of its powers.

(b) The order, decision, or award was procured by fraud.

(c) The order, decision, or award was unreasonable.

(d) The order, decision, or award was not supported by substantial evidence.

(e) If findings of fact are made, such findings of fact support the order, decision, or award under review. Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.'

Inasmuch as the findings of the appeals board support the orders made and there is no allegation of fraud or contention that the board exceeded its powers we are confined to a determination of whether the board's decision was unreasonable or lacked the support of substantial evidence.

At the outset it is apparent from the facts that the injury was not sustained by claimant in the actual course of her employment. Claimant had ceased to be employed by Albright on August 9, 1968, and on the date of the injury was in fact engaged in a competing business.

Thus the question is narrowed to the relatively simple one of whether the facts require a finding that as a matter of law the injury ‘arising out of * * * the employment’ and under such circumstances as to be considered constructively in the ‘course of the employment’ and was proximately caused by the employment. (Lab. Code, § 3600.)

The board specifically and impliedly found that Mr. Albright's assault on claimant followed by his act of suicide was the result of his despair and resentment over business reversals suffered as a result of competition from his former employees. One might conjecture that his apparent emotional instability reached such extreme proportions principally because his competitors were former employees and to that extent the assault ‘arose out of the employment.’ However, claimant cannot contend that if Albright had stalked and assaulted her at some location other than his own place of business, that the injury would have been compensable solely because she was a former employee.

There is substantial evidence in the record to support the board's finding that Albright's reasons for the assault were unrelated to claimant's employment.

The question then turns upon whether claimant's casual visit to Albright's premises in order to pick up her check and which fortuitously provided Albright with the opportunity to take vengeance upon her, turned an assault, which could have been committed at any place and at any time, into an industrial injury. We think not.

We adopt the board's analysis of the factor of claimant's purpose of collecting her check as follows:

‘The rules applicable to the compensability of injuries sustained in connection with collecting one's pay have been summarized as follows:

“The settlement of accounts between employer and employee is of mutual advantage. An injury sustained while the employee is on the employer's premises to collect wages is in the course of employment if it takes place during working hours, or shortly thereafter. However, an employee's return to the premises some hours after work solely to pick up a pay check is purely a personal errand that does not fall within this rule.

“Injury occurring while the employee is attempting to obtain payment of wages after quitting or being discharged, but before he is able to leave the employer's premises is also compensable. If the terminated employee's departure is delayed because the place of his employment is isolated and transportation unavailable, injury may be compensable during a longer period after service has actually ended.” (2 Hanna, Law of Employee Injuries, pp. 9–19 to 9–20.)

‘The injury in the case now before the Board did not occur before [claimant] left the employer's premises not shortly thereafter, nor was there any question of her departure being delayed. The shooting took place two weeks after [claimant] had resigned and after she had taken action which was wholly inconsistent with the continuance of any vestige of an employment relationship.

‘While it is probably true that the duty to pay and the right to receive compensation are integral parts of the contract of employment, Albright's duty was to pay [claimant] on Friday, August 16, 1968 for the last week during which she worked. When he failed to perform this duty, [claimant's] position was that of a creditor rather than that of an employee whose employment relationship is give the parties a reasonable opportunity to settle their accounts.

‘A voluntary visit by an employee to the employer's premises at a time other than the normal pay day for the purpose of collecting his pay, moreover, has been held to be a strictly personal matter which is in no way incidental to the employment. (Robbins v. Yellow Cab Co., 13 C.C.C. 201; Nubla v. Mercy Hosp., 32 C.C.C. 300.)’

Claimant relies on Pacific Indem. Co. v. Industrial Acc. Com., 26 Cal.2d 509, 159 P.2d 625; and Argonaut Ins. Co. v. Industrial Acc. Com., 221 Cal.App.2d 140, 34 Cal.Rptr. 206.

In Pacific Indemnity two employees were employed as grape pickers on a piece work basis. After picking grapes until noon on a Saturday they went by automobile to their home to pick up a work card which showed the amount of money due for the week. They then headed for the employer's office to pick up their pay. Enroute they stopped at a reservoir on employer's property to wash up as they ‘were dirty’ from the morning's work. They drowned in the reservoir. The board found that the deaths occurred in the course of employment and made death benefit awards. The court affirmed the award.

In Argonaut an employee was working on a construction crew in a mountainous area 250 miles from his home. His job was completed for the season at 2:00 p. m. on November 10. It was customary for the employees to drive to a nearby post office to pick up their checks. On November 10, the employee cleaned up and headed for the post office at about 4:00 p. m. Enroute his car skidded off the highway and he was killed. The board awarded death benefits. The court affirmed the award.

In each of these cases the court answered in the affirmative, the fundamental question of whether there was substantial evidence to support the board's finding that the accident ‘arose out of’ and ‘was in the course of the employment.’ Neither case stands for the proposition that an injury occurring while an employee is enroute to collect his pay is, under all circumstances and as a matter of law, compensable.

Furthermore, the cases are factually distinguishable.

In Pacific Indemnity the critical issue was whether the ‘washing up’ on employer's premises was an incident of employment. In the Argonaut case the workmen were specifically directed to report to the post office upon leaving the job site. In both cases the injury occurred on the very day of employment and it could be fairly said that the employer-employee relationship had not yet, in a practical sense, terminated.

In the final analysis the board is charged with the responsibility of administering the Workmen's Compensation Law in such a manner as to achieve its overall objective. This responsibility is circumscribed only by the limited review envisioned by Labor Code section 5952.

The opinion of the board in this case is supported by substantial evidence and is not unreasonable.

We are mindful that Labor Code section 3202 mandates a liberal interpretation of the provisions of this law with the purpose of extending its benefits for the protection of persons injured in the course of their employment. In other words, these provisions should be so applied as to best effect the protection of persons legitimately injured in their employment.

This broad, overriding objective is not served by torturing the law to extend workmen's compensation coverage simply because a person is injured at the hands of a tortfeasor who appears to be otherwise judgment proof.

To do so can only have a debilitating effect on the workmen's compensation structure and the economy of the state which underpins it.

THE ALLSTATE PETITION

While Allstate's petition is rendered essentially moot by our decision in the Busick matter, the point raised by Allstate is of sufficient importance to warrant discussion.

As noted above, Allstate was found by the board to be the insurer for Albright Express Co. and Employers Mutual was dismissed.

On August 1, 1968, Albright was covered for workmen's compensation by Employers Mutual. On that date an agent of Allstate obtained and application for a workmen's compensation insurance policy from Albright. This new policy was issued by Allstate effective August 15, 1968.

Allstate's agent, in his discussion with Albright, stated he would cancel the Employers Mutual policy. No written notice was actually given to Employers Mutual by either Albright or Allstate.

Employers Mutual first learned of the Allstate policy in September of 1968 when they obtained the information from the California Inspection Rating Bureau. Employers, on September 10, 1968, cancelled their policy effective August 15, 1968.

The Employers Mutual policy contained a standard provision requiring a ten day written notice of cancellation.

Inasmuch as no such written notice was ever given, Allstate now contends that Employers should be held to be co-insurer of any liability which may arise out of the incident in the Busick matter.

There is no evidence in the record to indicate that Allstate's policy envisioned joint coverage with another carrier. To the contrary, Allstate's agent undertook to cancel Employers' policy.

The efficacy of the cancellation was a matter between Albright and Employers.

It is clear that Albright desired and intended to cancel the Employers' policy simultaneously with the effective date of the Allstate policy.

Allstate gratuitously undertook to act as Albright's agent in cancelling the Employers' policy. It cannot now be heard to assert that its own failure to effect the cancellation resulted in continuing the liability of Employers Mutual

The decision of the Workmen's Compensation Appeals Board in each case is affirmed.

I would reverse the order of the Board and direct the entry of an award in favor of Ruth Busick and against Allstate for the reasons and under the authorities set forth in the dissenting opinion of Commissioner WARREN D. ALLEN. That opinion follows:

The facts of this case [ ] are so spectacular and colorful as to obscure the fundamental question involved. One is easily blinded by the apparent conspiratorial effort to pirate the accounts of a former employer in traitorously setting up a competing business. No less distracting is the violent, brutal act of apparent retaliation on the part of the employer.

Stripped of its inflammatory aspects, however, the case would seem to be controlled by settled basic principles. Receipt by an employee of consideration for his services is an integral part of the employment contract, so that while the employee is engaged in the act of receiving such consideration, even though his services have been suspended or terminated, the employee is performing a necessary incident of the employment contract and is accordingly within the course of his employment. This is the rule clearly enunciated by such cases as Pacific Indem. Co. v. IAC(Vallez), 26 Cal.2d 509 [ ]; State Comp. Ins. Fund v. IAC (Glennan), 194 Cal. 28 [ ]; and Argonaut Ins. Co. v. IAC (Cuddy), 221 Cal.App.2d 140[ ].

In the instant case, we have the employer directing the precise manner in which Busick and Rasbidoski should receive the final payment of consideration for their services. Thus, readily distinguishable are such cases as Robbins v. Yellow Cab Company, 85 Cal.App.2d 811[ ], and Nubla v. Mercy Hosp., 32 CCC 300, wherein the employees, for their own convenience, at a time not specified by their employers, were held out of the course of their employment in returning to the employers' premises to pick up their paychecks.

The fact that the employer herein intentionally assaulted applicant does not render applicant's injuries therefrom noncompensable , under such cases as Azevedo v. IAC, 243 Cal.App.2d 370[ ]. Pursuant to the Azevedo test, it seems clear that Albright's assault upon applicant was ‘fairly traceable to an incident of the employment’ and not ‘the result of personal grievances unconnected with the employment.’ In my view, it is unreasonable to characterize an employer's assault upon his former employees as not fairly traceable to the employment and as the result of merely a personal grievance unconnected with the employment, where that assault has been apparently and at least presumptively precipitated by the employees' entry into competition with the former employer and by the employees' taking of accounts belonging to the former employer. Thus even assuming the assault was in retaliation for applicant Busick's having commenced a competing business [ ], the assault in my view was nevertheless clearly incidental to applicant's employment.

The majority seems to emphasize the fact that a substantial period of time passed between the termination of applicant's services and the shooting. It should be noted, however, that the Albrights had good reason to believe that Mrs. Busick might return to her job, since Mrs. Albright had insisted as of August 9, 1968 that applicant should not resign, but should take some vacation to think it over. We thus do not necessarily have the two week lapse of time between termination of services and the shooting incident which the majority uses to weaken the connection between the incident and the employment.

In this regard, the employer Albright's precise state of mind will, of course, never be known, nor should it control. For example, it seems unreasonable to conclude that applicant was not in the course of her employment because her employer did not in fact intend to pay her the final consideration due her. Applicant believed she was to receive her final check. Further, Albright, at the very least, used this belief and this last incident of employment to lure applicant into a position where he could perpetrate the assault upon her—for whatever were his precise motives. (See Calif. Comp & Fire Co. v. WCAB (Schick), 68 Cal.2d 157[ ].)

Those motives, however, in my view more than likely were related to or incidental to the employment relationship between Albright and Busick, so that a stronger case for compensability is made out than was presented in the Schick case, wherein the assault perpetrated by means of the victim's employment (as here) was for personal motives unconnected with that employment.

If we assume that applicant here had terminated her employment without any intention of competing with her former employer; that she was asked to return to the premises of her former employer to pick up her final check; that she did so, taking time out from her chores as a housewife, and was injured, not by a retaliatory assault, but by a simple fall on her exemployer's premises; it is questionable that the Board today would have any problems in finding her injury compensable. The extraordinary added elements of wrongdoing in this case should not change the result, since our system of workmen's compensation is constitutionally designed to operate ‘irrespective of the fault of any party.’ (California Constitution, Art. XX, Sec. 21.)

COMPTON, Associate Justice.

ALARCON, J.*, concurs.

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