COUNTY OF LOS ANGELES v. <<

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

COUNTY OF LOS ANGELES, Legally Uninsured, Petitioner, v.

Civ. 59601.

Decided: June 18, 1981

John H. Larson, County Counsel, Milton J. Litvin, Division Chief, Workers' Compensation Division, and Patrick A. Wu, Deputy County Counsel, Los Angeles, for petitioner. Rose, Klein & Marias, by Marvin N. Shapiro, Los Angeles, for respondent Francis P. Conroy. Vonk, Krimen, Hershenson & Evans by Frank Evans, Los Angeles, for respondent State Compensation Insurance Fund.

Petitioner County of Los Angeles (County) contends that respondent Workers' Compensation Appeals Board (Board) erred in finding that respondent Francis P. Conroy (hereinafter also “applicant”) was an employee of County within the meaning of the Workers' Compensation Act. We agree and annul the award by the WCAB of workers' compensation benefits to applicant against County.

SUMMARY OF WCAB PROCEEDINGS

Applicant was receiving welfare payments from petitioner County. (Welf. & Inst.Code, s 17000.)1 In order to receive his welfare payments from County, applicant consented to being assigned to various public agencies to perform services. (Welf.Inst.Code, s 17200.)2 Upon performing services, applicant could receive County welfare benefits. If applicant refused to perform such services and if County believed such refusal was unjustified, the benefits would be terminated. The number of hours applicant would have to work was determined by the number of hours at the federal minimum wage a person would have to work to equal the monthly general relief allotment that applicant was to receive. County assigned relief recipients to work at various County departments or to other governmental agencies.

Herein, applicant was assigned to work at Inglewood Unified School District (hereinafter “school district”), insured by respondent State Compensation Insurance Fund. The school district assigned applicant to work as a watchman, usually working 4:30 p. m. to midnight. The school district did not pay applicant and it was under no obligation to reimburse the County for the services rendered by applicant.

While in the course of his duties as a night watchman for school district, applicant on August 12, 1971, sustained injury. Applicant claims this injury is compensable under the Workers' Compensation Act. County claims first that applicant's injury is not compensable under the Workers' Compensation Act as Labor Code, s 3352, subdivision (b) excludes from coverage as employees under the act “Any person performing services in return for aid or sustenance only, received from any religious, charitable or relief organization.” In the alternative County asserts that if applicant is an employee under the Act, then the school district and not the County is the employer liable for workers' compensation benefits.

The workers' compensation judge held that applicant was an employee of County within the meaning of the Workers' Compensation Act and that therefore County, and not the school district, was liable for workers' compensation benefits. The Board affirmed the judge's decision and denied County's petition for reconsideration. The Board's written opinion states in pertinent part:

“The (County) contends that the judge erred in his finding as to industrial injury because the applicant is not an employee under the workers' compensation laws and there was no employment relationship between the applicant and the (County). We disagree.

“Although Labor Code Section 3352 excludes from the definition of ‘employee’ for workers' compensation purposes' ‘ (a)ny person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization,’ we do not believe that the defendant County was the type of charitable or relief organization contemplated by the exclusion. The defendant County has a duty to provide general assistance to eligible persons (see Welfare and Institutions Code Section 17000). It could not, therefore, be discouraged from providing such aid and sustenance if it were found to have liability for workers' compensation benefits as might a charitable or relief organization that has no statutory duty to provide the aid and sustenance.

“We think County of Los Angeles v. WCAB (Duke) (1974) 39 CCC 809, writ denied, is controlling in this case. In Duke, the Court of Appeal denied the County of Los Angeles' petition for review of an Appeals Board decision that a welfare recipient who was required to perform certain office duties by the County as a condition for receiving welfare was an employee of the County at the time of (her) injury.

“As to the defendant County's argument that the applicant was performing a service for the Inglewood Unified School District, and not the County, at the time of injury, we note that the County had the right to exert a considerable amount of control over the applicant. The County could withhold payment from the applicant for failing to perform the tasks assigned and could terminate his employment while continuing to pay the general assistance if it chose. Therefore, even if we assume, without deciding, that the school district was a special employer of the applicant, the defendant County would remain jointly and severally liable for the industrial injury as a general employer, where at the time of injury two employers exert some measure of control over an employee, both should be held liable. (Liability Assur. Corp. v. IAC 179 Cal. 432, (177 P. 273) 5 IAC 228). The County had the right to exert control over the applicant and is therefore liable for the industrial injury sustained by him. (See Guarantee Ins. Co. v. IAC 22 Cal.2d 516 (139 P.2d 905) 8 CCC 154.)”

CONTENTIONS

County now seeks review of the Board's decision that applicant was an “employee” of County. County asserts that the requiring of applicant to perform public duties as a condition of receipt of welfare does not make applicant an “employee” within the meaning of the Workers' Compensation Act or in the alternative if applicant is an “employee” under the Act he was an employee of the school district and not County.

DISCUSSION

The case law supports County's position that applicant is not an “employee” within the meaning of the Workers' Compensation Act.

The landmark case on this question is McBurney v. Industrial Acc. Com. (1934) 220 Cal. 124, 30 P.2d 414. There the injured, McBurney, was required to perform assigned work as a condition of receipt of public relief from the County of Los Angeles. The county assigned McBurney to work for the City of Monrovia, which directed him to work on some drainage ditches. During the course of said work McBurney was injured on December 28, 1932. The Supreme Court first noted that “the essential characteristics of a contract of hire are not present.” (McBurney, supra, 220 Cal. at p. 127, 30 P.2d 414.) The court then stated the issue and the resolution thereof as follows:

“Does the fact that a person while receiving such aid is sent out under work orders at a definite sum per hour or day thereunder supply such essentials (of contract of hire)? We are persuaded that it does not, on the record here presented. The petitioner's case was classified as an ‘open welfare case’. That meant that he was entitled to relief and would be for some time to come. He would receive the relief whether he worked or not. The assistant director of relief projects testified that the bureau of county welfare provides work under a number of classifications, or a number of circumstances; that there were welfare cases when a doubt arose as to whether an applicant for relief would work if he had a chance; that in such a case a work test was prescribed for the man; that for this work he might not be paid at all, or might be paid a nominal sum, or he might be paid a substantial sum, even the equivalent of a going wage; that during the period of depression and wide-spread unemployment there were many able-bodied men willing to work who would be entitled to relief under the act of 1901, but who felt an abasement in accepting it with idleness and therefore preferred while receiving the relief to be engaged in some kind of activity; that the plan evolved has proved its merit by experience and is beneficial in two aspects; first, it demonstrates to the welfare authorities the sincerity and good faith of the applicant, or the opposite; and secondly, it relieves the recipient of the odium of idleness while receiving aid from public funds.

“When the county supports an indigent man, the county ‘is entitled to his services and earnings to aid in his support’. (48 Cor.Jur., p. 543.) If a contract for hire existed the petitioner would be entitled to enforce payment from the funds of the county of the reasonable value of the services rendered. His status as here disclosed would not lend support to such a cause of action; and we conclude that a contract of hire did not exist between the county and the petitioner at the time in question.”

(McBurney, supra, 220 Cal. at pp. 127-128, 30 P.2d 414.)

In 1933 several pertinent statutory changes were made. By Statutes 1933, chapter 761, page 2005, effective August 21, 1933, it was provided in pertinent part that “Work may be required of an able-bodied indigent as a condition of relief. Such work shall be created for the purpose of keeping the indigent from idleness and assisting in his rehabilitation and preservation of self-respect.” This provision, it is noted, is substantially similar to current Welfare and Institutions Code section 17200. (Ante, fn. 2.)

The Workmen's Compensation Act of 1917, section 8(a) was amended by Statutes 1933, chapter 1022, section 1, page 2613 to provide that an employee under the act excluded “any person or persons who perform services in return for aid or sustenance only, received from any religious, charitable or relief organization.” Statutes 1933, chapter 1022, section 2, page 2615, added a new section 121/2 to the Workmen's Compensation Act of 1917, which provided: “Where any employee is injured while engaged on any unemployment work relief program conducted by the State or a political subdivision or any State or governmental agency, the disability payments due under this act shall be determined solely on the monthly earnings or anticipated earnings of such person from such program, such payments to be within the minimum and maximum limits set forth in this act.” Both of these changes to the Workmen's Compensation Act of 1917 were effective October 25, 1933.

Subsequent to these statutory changes, several court of appeal decisions again held that a welfare recipient was not an “employee” under the Workmen's Compensation Act.

In Los Angeles Co. v. Indus. Acc. Com. (Jones ) (1934) 2 Cal.App.2d 614, 38 P.2d 828, a welfare recipient was injured on or about November 24, 1933, during the course of duties assigned to him. Annulling the Commission's award of benefits, the court noted that the injured was not an employee under the Workmen's Compensation Act of 1917, as he was required to perform work as a condition of relief. The court also observed that the injured was not an employee as “(t)he case comes squarely within” the 1933 amendments to section 8(a) of the Workmen's Compensation Act which excluded “from the definition of employee those who ‘perform services in return for aid or sustenance only.’ ” (Los Angeles Co., supra, 2 Cal.App.2d at p. 615, 38 P.2d 828.) The court also stated that the 1933 addition of section 121/2 to the Workmen's Compensation Act of 1917 “does not bring within the definition of ‘employee’ one who is performing services as in this case. The words ‘where an employee is injured while engaged on any unemployment work relief program’ cannot be construed as meaning ‘where one is engaged on any unemployment relief program he becomes thereby an employee within the meaning of this act, notwithstanding the provisions of section 8a thereof.’ If the legislature intended to enact in substance a section having the meaning which respondent commission seeks to attribute to it, it has failed in its purpose, and the omission will have to be supplied, if at all, by further enactment rather than by a construction not warranted by the language used.” (Ibid.)

In Board of Education v. Indus. Acc. Com. (Stout) (1934) 3 Cal.App.2d 411, 39 P.2d 521, a Los Angeles County welfare recipient worked as a gardener at the direction of the county for the Los Angeles Board of Education (through a federal relief program. The injured received relief only in exchange for services performed on the relief project. Again the court held that the injured's accident, which occurred on January 15, 1934, and while the injured was working for the Los Angeles Board of Education as part of the work relief project, was not within the Workmen's Compensation Act. The court held that the injured “was not an employee of either the county of Los Angeles or the Board of Education.” (Id. at p. 414, 39 P.2d 521.) The court also further explored section 121/2 of the Workmen's Compensation Act, and stated that this section merely “provides a measure of determining disability payments if and when such are found to be lawfully due some injured employee under the terms of the Workmen's Compensation Law.” (Board of Education, supra, 3 Cal.App.2d at pp. 414-415, 39 P.2d 521.)

In accord are State Comp. Ins. Fund v. Indus. Acc. Com. (Phillips) (1935) 3 Cal.App.2d 665, 40 P.2d 277; State Comp. Ins. Fund v. Indus. Acc. Com. (Christensen) (1935) 3 Cal.App.2d 532, 39 P.2d 870, and County of Los Angeles v. Indus. Acc. Com. (Munguia) (1934) 3 Cal.App.2d 754, 39 P.2d 477.

In 1937, Workmen's Compensation Act of 1917 was codified into the newly established Labor Code. (Stats. 1937, ch. 90, pp. 185-329.) In language identical to that of section 8a of the Workmen's Compensation Act as amended in 1933, section 3352 of the new Labor Code provided that the term “employee” as within the coverage of the Workmen's Compensation Act excluded “Any person performing services in return for aid or sustenance only, received from any religious, charitable or relief organization.” Section 121/2 of the Workmen's Compensation Act of 1917 (as amended in 1933) became Labor Code section 4456 under the 1937 codification and has since remained essentially unchanged.

Since the 1930's certain types of public assistance payments have been covered under the Workers' Compensation Act. “Enrollees in economic opportunity programs under Public Law 88-452 are covered for workers' compensation for rendering service in connection with a work project. (Labor Code Secs. 4201-4209.) Insurance coverage for these programs is authorized by Ins. Code Sec. 11656.9 (P) Coverage is also provided for those welfare recipients in work or work-training projects authorized under Welfare and Institutions Code Sec. 11300. This is the so-called W.I.N. program administered by the California Department of Employment Development. (See also Unempl. Ins. Code Secs. 5000, et seq.) Under (former) Welfare and Institutions Code Sec. 11308.6 ((now Unemp. Ins. Code, section 5007.5) a welfare recipient had good cause to refuse to participate in a training or work-project if it involves an offer for work from the employer who has not ‘secured’ payment of workers' compensation benefits.” (1 Herlick, Cal. Workers' Compensation Law Handbook (2d ed. 1978) s 2.8, pp. 39-40; see also, Welf. & Inst. Code, ss 12302.2, 19607; Lab. Code, s 3351.5; Edwards v. City of Chico (1972) 28 Cal.App.3d 148, 104 Cal.Rptr. 481.)

There is no indication that applicant herein was under any program that required workers' compensation coverage. Rather here applicant seems to have received general county relief pursuant to Welfare and Institutions Code ss 17000 et seq.

The Board's decision herein relies upon its prior decision in County of Los Angeles v. WCAB (Duke) (1974) 39 Cal.Comp. Cases 809. In Duke the claimant of workers' compensation benefits was a recipient of county welfare and was required to perform services for the County of Los Angeles at an information desk in a county building. She received county relief based upon her need and was only required to work for the number of hours it would take her to work off the total amount of the aid at the federal minimum wage rate. The workers' compensation referee (now called “workers' compensation judge”) held that the claimant was an employee of the county as (1) the injured was not a “volunteer” because she did not freely consent to perform services for the county; (2) the county was not within the charitable relief exclusion of Labor Code s 3352; (3) claimant was assigned to work for the purpose of rehabilitation with the ultimate goal being her permanent removal from the welfare rolls and therefore she was not performing services for “aid or sustenance only”; (4) her work was similar to that of an “apprentice” or a “person undergoing rehabilitation” both of which classifications are covered by the workmen's compensation laws; and, (5) the county treated job training programs differently from work and relief programs. In Duke the Board denied reconsideration and affirmed the referee's decision. Without any opinion, the Court of Appeal Second Appellate District, Division 4, denied County's petition for writ of review in the Duke matter and the Supreme Court denied a hearing.3 (40 Cal.Comp. Cases 814; see State of California v. Industrial Acc. Com. (1961) 196 Cal.App.2d 10, 16 Cal.Rptr. 323.)

Here, unlike Duke, there is no evidence that applicant was in any type of rehabilitation or re-training program. Further, contrary to the Board's assertion, based upon Los Angeles Co. v. Indus. Acc. Com. (Jones) supra, 2 Cal.App.2d 614, 38 P.2d 828; State Comp. Ins. Fund v. Indus. Acc. Com. (Phillips), supra, 3 Cal.App.2d 665, 40 P.2d 277; Board of Education v. Indus. Acc. Com. (Stout), supra, 3 Cal.App.2d 411, 39 P.2d 521; State Comp. Ins. Fund v. Indus. Acc. Com. (Christensen), supra, 3 Cal.App.2d 532, 39 P.2d 870, and County of Los Angeles v. Indus. Acc. Com. (Munguia), supra, 3 Cal.App.2d 754, 39 P.2d 477, County is a “charitable, or relief organization” within the meaning of Labor Code s 3352, and also applicant was indeed “performing services in return for aid or sustenance only” within the meaning of that provision. Therefore, pursuant to Labor Code s 3352 applicant is not an “employee” within the coverage of the Workers' Compensation Act, and accordingly the Board erred in finding him to be entitled to workers' compensation benefits.

Applicant, however, argues in his brief that the cases holding welfare recipients not to be employees within the meaning of Workers' Compensation Act “are 45 years old and no longer consistent with today's social philosophy. Further, if our present social problems are to be solved in the courts, it is necessary that we do not rely on cases from a period distant in time just because they were, for their time, good law.” We deem it appropriate to respond to this argument.

While we are enjoined to construe the workers' compensation laws liberally in favor of the injured workers, we cannot ignore statutory language. (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 8, 128 Cal.Rptr. 673, 547 P.2d 449; Zarate v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 598, 603, 160 Cal.Rptr. 408.) It is clear from the prior appellate decisions that the Workers' Compensation Act does not, in general, cover welfare recipients. If the “social philosophy” has changed, then it is for the Legislature to amend the Workers' Compensation Act as it has already chosen to do in certain areas as hereinbefore noted.

SUMMARY AND DISPOSITION

Applicant as a welfare recipient is not an “employee” within the meaning of the Workers' Compensation Act. Accordingly, workers' compensation benefits cannot be awarded against either County or the school district. The Board's decision is annulled and the matter remanded to the WCAB.

FOOTNOTES

1.  Welfare and Institutions Code s 17000 provides:“Every county and every city and county shall relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease or accident, lawfully resident therein, when such persons are not supported and relieved by their relatives or friends, by their own means, or by state hospitals or other state or private institutions.”

2.  Welfare and Institutions Code section 17200 provides:“Work may be required of an indigent, who is not incapacitated by reason of age, disease, or accident, as condition of relief. Such work shall be created for the purpose of keeping the indigent from idleness and assisting in his rehabilitation and the preservation of his self-respect.”

3.  In its opinion herein the Board made a point of the fact that the court of appeal denied a petition for writ of review in Duke. Properly speaking, Duke may only be cited as a decision of the Board and not as a decision of the court of appeal. (Pac. Tel. & Tel. v. Workers' Comp. Appeals Bd. (1980) 112 Cal.App.3d 241, 247, fn. 2, 169 Cal.Rptr. 285.)

HANSON, Associate Justice.

SPENCER, P. J., and LILLIE, J., concur.