PITTS v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Fifth District, California.

Johnathan PITTS et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Stephen Reynolds, Respondents.

F001796.

Decided: June 28, 1983

Ramos, Herlihy & Broadbeck, Michael J. McClain and John W. Jackson, San Francisco, for petitioners. Green & Azevedo and Stephen R. Beck, Modesto, for respondent Stephen Reynolds. No appearance for respondent W.C.A.B.

OPINION

Upon the petition of the employer, Johnathan Pitts, we granted review of the decision of the Workers' Compensation Appeals Board (Board) which held injuries suffered by the employee, Stephen Reynolds, arose out of his employment.   That is the sole issue.   We shall conclude under the facts that the employee has failed to show a sufficient nexus between his employment as a farm worker and an assault upon him by a third person motivated by a personal grievance to bring the injuries received under the umbrella of compensability.

Reynolds had been employed as a farmhand by Pitts since August 1981.   On October 23, 1981, Reynolds was working in a bean field with two other persons.   Reynolds was operating a bean harvester when, between 8 and 9 p.m., after dark, Joe Carver and two other men entered the field and viciously assaulted Reynolds causing him severe injuries.

In September and October 1981 Reynolds purchased $2,000 worth of cocaine from Joe Carver on credit.   In an effort to obtain payment, Carver began trying to contact Reynolds through his employer.   He called a number of times.   Most of the calls were taken by Pitts' girl friend.

On October 22, 1981, the day before the assault, Carver called and asked Pitts where he could go to talk to Reynolds.   Pitts gave Carver directions on how he could get to the field in which Reynolds would be working on October 23.

Reynolds testified that the field was far off from the main road, in an isolated area.   In the judge's summary of the evidence, he stated “The place where [Reynolds] was working at the time of the injury was difficult to find and he doubts that Carver could have found him without directions.”   Pitts agreed that the field is difficult to find without specific directions and that Carver probably could not have found the field without specific directions.

The only significant evidentiary dispute concerns what Pitts knew or suspected of Carver's intent in wanting to see Reynolds.   From the judge's summary of the evidence,1 it appears that Pitts, in sum, stated he did not know the specifics of the relationship between Reynolds and Carver.   He knew, by hearsay, that Reynolds had purchased cocaine from Carver.   He did not know that Reynolds owed Carver any specific sum of money.   Pitts twice talked to Carver on the telephone.   No express or implied threats were made against Reynolds, and he did not know what Carver wanted to talk to Reynolds about.   The message received from Carver was passed on to Reynolds.   The judge's “Report and Recommendation on Petition for Reconsideration” adopted by the Board found, “The fact that the telephone calls occurred was relayed to [Reynolds] within hours or a day of the time of occurrence of each call.”

 Pitts' girl friend said she was “getting bad vibes” from all these calls.   Pitts asked Reynolds whether there was “anything funny,” and Reynolds stated there was not.   Reynolds said he had known Carver 15 years, that Carver was “good people,” and that Reynolds said he was not worried about any problem.   Pitts had no idea Carver was going to beat up Reynolds or he would not have directed him to the field.   Though Pitts told Carver on October 22 where Reynolds would be working on the 23rd, Pitts did not tell Reynolds he had so informed Carver.

Reynolds agreed that he had received several messages from Pitts' girl friend reporting phone calls from Carver.   He said the calls concerned the debt he owed Carver.   He did not return the calls.   He did not tell Pitts not to tell Carver where he (Reynolds) would be located.

Reynolds further stated that he told Pitts he had purchased cocaine from Carver, and Pitts told Reynolds “that Carver had said that he was a member of Hell's Angeles [sic ] and they would come out to take care of [Reynolds], unless [Reynolds] paid the money that was owed.”   Reynolds had told Pitts that he owed Carver money.   There were at least three or four times Pitts told Reynolds that Carver had made threats.   He admits that he told Pitts he had known Carver for 15 years and that Carver was “good people.”

In his “Opinion on Decision” and “Report and Recommendation on Petition for Reconsideration,” the judge resolved the conflict between Pitts and Reynolds in favor of Pitts, finding in the opinion on decision:

“This Judge discounts [Reynolds'] contention that defendant Pitts was aware that Carver was seeking applicant for disciplinary purposes.   There was no showing that Pitts harbored any ill will for applicant and this Judge doubts that Pitts would have told Carver where to find [Reynolds] if he thought that anything significantly disadvantageous to [Reynolds] was likely to occur.”

The judge further found that Pitts knew Carver had sold Reynolds cocaine and that Reynolds owed Carver a debt.

DISCUSSION

In essence, the board found the injury arose out of Reynolds' employment by virtue of (1) the isolation of the place of employment;  (2) the employer told the assailant how to get to the job site, knowing that Carver was seeking out Reynolds to collect a debt;  Carver could not have found the location without such advice;  and (3) the employer did not tell the employee that he had given Carver directions to where Reynolds could be found.

It is conceded that the attack by Carver was because of a personal grievance against Reynolds and for the purpose of assaulting Reynolds and was not for any purpose connected with his employment.

  Because the injury occurred on the job, it was “within the course of his ․ employment” (Lab.Code, § 3600;  Argonaut Ins. Co. v. Workmen's Comp. App. Bd. (1967) 247 Cal.App.2d 669, 676, 55 Cal.Rptr. 810).   However, to “arise out of his employment” there must be a causal connection between the employment and the injury.  (California Comp. & Fire Co. v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 157, 160, 65 Cal.Rptr. 155, 436 P.2d 67.)

 As this court stated in State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 643, 654, 184 Cal.Rptr. 111:

“Thus, when a third party intentionally injures the employee and there is some personal motivation or grievance, there has to be some work connection to establish compensability.  [Citations.]  The reason for this rule would appear to be that when it is known that the assault was committed out of a personal motivation or grievance, then the chain of causation between the employment and the injury is broken.   Thus, when the assault is personally motivated, it could conceivably occur anywhere, thus precluding employer contribution resulting in noncompensability.   In other words, the connection between the employment and the injury is so remote that the injury is not an incident of the employment.”

The Supreme Court set the general standard in California Comp. & Fire Co. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d at page 160, 65 Cal.Rptr. 155, 436 P.2d 67:

“In finding that the injury arose out of the employment, this court held that a sufficient causal connection between the injury and the employment is shown where the employment was a contributory cause of the injury, that where the injury occurs on the employer's premises while the employee is in the course of his employment the injury also arises out of the employment unless the connection is so remote from the employment that it is not an incident thereof, and that an injury can arise out of the employment even though the employer had no connection with or control over the force which caused the injury.”

California Comp. & Fire Co. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d 157, 65 Cal.Rptr. 155, 436 P.2d 67 (hereinafter Schick ), and Transactron, Inc. v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 233, 137 Cal.Rptr. 142 are the leading cases in this area.   Neither, however, neatly fits the facts of the case at bench.

In Schick, the court found compensability where a divorced husband (Schick) shot and killed the employee, his former wife, while she was working for her employer.   A manufacturer of table pads employed the wife to measure customers' tables for the purpose of fabricating pads of suitable dimension.   Potential customers would call the employer when they wished to place an order, and the employer would send the employee (former wife) to the home of the purchaser to take the measurements.   The former husband rented an apartment under an assumed name and placed an order, requesting the employer to send someone to his apartment to take measurements.   When the former wife appeared at the door, the former husband shot her and thereafter committed suicide.   The court stated:

“There can be no doubt that her duties placed her in an isolated location, that the nature of her work was a factor in the husband's elaborate scheme and at the very least facilitated the assault, and that this was a contributory cause of her death.   As the board suggested, if Schick had attempted to accomplish his purpose in a more public place, a rescuer might have intervened in Mrs. Schick's behalf.   We cannot say that the assault upon her was so remotely connected with her employment that as a matter of law it must be held not to arise therefrom.”  (California Comp. & Fire Co. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d at pp. 160–161, 65 Cal.Rptr. 155, 436 P.2d 67.)

In Transactron, the court annulled an order of the board finding compensability.   Sharon, a receptionist/secretary employed by Transactron, while hiding in the rest room at her place of employment shortly after arriving at work, was shot and killed by her boyfriend, Busard.   Upon her arrival at work, she bent forward near her desk, looked through a window and said words to the effect, “ ‘There he comes.’ ”  (68 Cal.App.3d at p. 235, 137 Cal.Rptr. 142.)   She then left for the women's rest room.   The assailant, Busard, entered and asked a coworker, Sandra, for Sharon.   Another coworker said she thought Sharon was in the rest room.   Sandra told Busard she would check.   She did and found Sharon there crying.   Sharon expressed her fear of Busard and asked Sandra to call the police.   Sandra left the rest room and went to the office of her supervisor to ask for advice.   At this point, Busard headed toward the rest room.   The supervisor followed after him saying, “ ‘You can't go in there—that's the women's rest room.’ ”  (Id., at p. 236, 137 Cal.Rptr. 142.)   Busard entered the rest room and shot Sharon.

In annulling the award, the court noted that, unlike Schick, Sharon's work place had not placed Sharon in an isolated position and isolating Sharon was not part of any scheme or plan:

“The proper inference to be drawn is that the nature of the decedent's duties played no part in the assailant's evident intent to assault her.   Her probable presence on the employer's property during business hours could properly be inferred to have been within his knowledge.   However, it was not a part of any scheme or plan, it was merely a fact which provided a place for the assailant to do what he did.   The nature of her duties was not the proximate cause of her injury for it merely provided a stage for the event.   In other words, the employment was not a contributory cause of the injury.  [Citations.]”  (Transactron, Inc. v. Workers' Comp. Appeals Bd., supra, 68 Cal.App.3d at p. 238, 137 Cal.Rptr. 142.)

The court concluded:

“The role of employment in the shooting is inconsequential when it merely provides a place where the assailant can find the victim.  (See Perry v. W.C.A.B. (1970) 35 Cal.Comp.Cases 375.)   Where the nature of the employee's duties places her in no particularly dangerous or isolated position, or where the risk of harm is not limited to the place of employment and where the attack occurs on the premises not because the victim was performing the duties of employment at the time of assault but because she merely was there, and where the nature of employment was not part of an assailant's plan to isolate or trap the victim, the injury does not arise out of the employment.  [Citations.]”  (Transactron, Inc. v. Workers' Comp. Appeals Bd., supra, 68 Cal.App.3d at p. 239, 137 Cal.Rptr. 142.)

Schick does not stand for the proposition that the isolation of the employee in his employment, without more, is sufficient nexus with the employment to cause injuries received as the result of a personally motivated assault by a third party to arise out of the employee's employment.

 The Schick court placed emphasis not only upon the employer's isolation but upon the fact that the employee's duties formed an integral part of the assailant's elaborate scheme of attack, facilitating the assault and proximately contributing to the death.   In the case at bench, neither the judge nor the Board alluded to or found such a scheme;  moreover, the employee's duties played no part in the attack.   As was said in Transactron, the role of employment is inconsequential if it merely provides a place for the assault.  (Transactron, Inc. v. Workers' Comp. Appeals Bd., supra, 68 Cal.App.3d at p. 239, 137 Cal.Rptr. 142.)

The occupations or professions of substantially all employees require them at one time or the other during the regular workday to be in a position of isolation, even if it is no more than going somewhere alone in an automobile or by foot.   Many others regularly travel the isolated roads and byways of the countryside in pursuit of their employment.   Others live and work in isolation.   Isolation in a vacuum does not furnish sufficient connection with employment to render compensable injuries received as a result of a personally motivated attack by a third party.

 In this case, there is more than isolation, but very little more.   The employer knew the attacker was a creditor of the employee as the result of a drug transaction;  he was told by the employee that the assailant had been his friend for 15 years and was “good people”.   Further, it is conceded that the many telephone calls to the employer and his girl friend from the assailant were passed on to the employee.   The employee did not answer the calls.   The employee never requested that the employer not disclose his location to the assailant.   Crucial to our conclusion is the judge's express finding that the employer was not aware that the assailant intended harm to the employee and that the employer would not have told the assailant of the employee's whereabouts if he had thought harm would result.

Obviously, if the employer did not suspect that the assailant intended harm to the employee, he had no reason to advise the employee that he (the employer) had disclosed his location to the third party.

Reynolds relies upon Murphy v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 996, 1000, 150 Cal.Rptr. 561.   The reliance is misplaced.   In Murphy, the employer not only knew of the intended harm and failed to warn, but the employment formed the centerpiece of the assault.   The court summarized:

“In the instant case, the risk of harm was centered at the place of employment.   It is there that the husband planned to kill her.   Not only was the place of employment a focus of the assailant's scheme, but the employer knew it, knew the precise day and place that the attack would take place, failed to warn the employee of the specific threat to kill the next day, and refused to grant her repeated requests for a leave of absence or transfer.   Furthermore, the fact that petitioner was employed at Market Basket and the fact that she refused to speak to the decedent on the day of the shooting because she was performing her duties contributed to the decedent's motivation and precipitated the shooting.”  (Ibid.)

Absent a finding that the employer has knowledge that the third party intended injury to the employee, the cases have treated disclosure of an employee's place of employment of minimal importance in determining whether the assault arose out of the employment.   Thus, in Transactron, in commenting upon the disclosure to the assailant by the employee, Sandra, that Sharon was in the rest room, the court said:

“We do not consider this fact to be a significant factor in the determination of whether the injury arose out of her employment.   To predicate the right to compensation on the mere identification of the place where an employee is located on the employer's premises would lead inevitably to the conclusion that there is a compensable injury whenever a personal grievance results in an assault on the employer's premises during ordinary business hours.”   (Transactron, Inc. v. Workers' Comp. Appeals Bd., supra, 68 Cal.App.3d at p. 238, 137 Cal.Rptr. 142.)

In State Compensation Ins. Fund v. Workers' Comp. Appeals Bd., supra, 133 Cal.App.3d, this court stated at page 657, 184 Cal.Rptr. 111:

“Third, respondents' argument that the fact that defendants' foreman directed the assailants to the bunkhouse does not support the finding of compensability ․”

We hold that the connection between the assault and the employment was so remote that it cannot be said it arose therefrom.

 The award is annulled.

FOOTNOTES

1.   The actual transcript of the testimony was not before the Workers' Compensation Appeals Board and is not before us.

 GEO. A. BROWN, Presiding Justice.

HAMLIN and MARTIN, JJ., concur.