Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

Arthur Lee ESTERS, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, Defendant and Respondent.

No. B029054.

Decided: May 03, 1988

Popkoff & Stern and Gary N. Stern, Los Angeles, for plaintiff and appellant. Lawler, Felix & Hall, Stephen T. Swanson and Bart L. Kessel, Los Angeles, for defendant and respondent.

Arthur Lee Esters (appellant) appeals summary judgment granted in favor of respondent General Motors Corporation (General Motors) in his personal injury action.

General Motors operated an assembly plant at South Gate where appellant was employed from 1955 to 1982.   In March 1982, the South Gate plant was shut down and appellant laid off.   From 1982 to 1984, appellant sought and obtained other employment.

In 1984, appellant was offered a job at the General Motors plant in Van Nuys.   As a precondition to employment, he was required to submit to and pass a pre-employment physical examination.   The examination was performed at the Van Nuys plant and included a chest X-ray.   Appellant was told that he had passed the examination and began work the next day.

Several months later, appellant was hospitalized because he was having problems breathing.   Subsequently, it was established, by chest X-ray, that he had a cancerous lesion on his left lung.   A quarter of his left lung was surgically removed.

Appellant then sued General Motors for negligence, alleging misdiagnosis or failure to properly diagnose his cancerous condition.   General Motors answered and raised as an affirmative defense its contention that appellant's claim was compensable solely by workers' compensation.   Making the same argument, General Motors moved for summary judgment.   Its motion was granted, judgment entered, and this appeal taken.   We reverse.

The issue to be resolved is whether submission to a pre-employment physical examination creates an employer-employee relationship as a matter of law.

“It is settled principle of law that the summary judgment procedure is a drastic remedy and should be used with extreme caution so that it does not become a substitute for the open trial method of determining facts.   [Citation.]  A motion for summary judgment should be denied if the papers submitted show there is a triable issue of fact.  [Citations.]  It is the burden on the party moving for summary judgment to negate the existence of triable issues of fact in a fashion that entitled it to judgment on the issues raised by the pleadings.  [Citation.]  And if an issue of fact is present, the trial judge abuses his discretion in granting such a motion.   [Citation.]  The function of the trial court is issue finding, not issue determination.  [Citation.]  In examining the papers filed, those of the moving party are to be strictly construed while those of the opposing party are to be liberally construed.  [Citation.]”  (Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 596–597, 186 Cal.Rptr. 395.)

The sole remedy for an industrial injury lies within the workers' compensation statute if the injury “aris[es] out of and in the course of the employment․”  (Lab.Code, § 3600.)  “For an injury to arise ‘out of and in the course of employment’ [citations], there obviously must be a subsisting employment.”  (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (1976) 59 Cal.App.3d 647, 652, 130 Cal.Rptr. 831.)  “In all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.”  (Lab.Code, § 3602, subd. (c).)

Generally, the workers' compensation statute is liberally construed in favor of extending benefits.  (Maher v. Workers' Comp. Appeals Board (1983) 33 Cal.3d 729, 733, 190 Cal.Rptr. 904, 661 P.2d 1058.)   However, there is a “marked tendency ․ of many courts to be more exacting in requiring proof of an employment relationship when the relationship is urged by the employer as a defense to a common law action, than when the issue arises in a workmen's compensation action.  [Citations.]”  (Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 779, fn. 8, 100 Cal.Rptr. 377, 494 P.2d 1.)   This is because to “thrust upon a worker an employee status to which he has never consented ․ might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common-law damages.”   (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., supra, 59 Cal.App.3d at p. 653, 130 Cal.Rptr. 831.)

In the case before us, General Motors argues that an employment relationship existed between it and appellant at the time he submitted to what both sides term a “pre-employment” physical examination, thus foreclosing him from bringing this action for damages flowing from that examination.   General Motors advances two arguments in defense of its summary judgment.   First, it argues that appellant was a continuing employee rather than a prospective employee at the time of the examination.1  Its second argument is that by submitting to the examination, the main purpose of which was to benefit General Motors, an employment relationship arose as a matter of law.   For this latter contention General Motors relies on Maher v. Workers' Comp. Appeals Bd., supra, 33 Cal.3d 729, 190 Cal.Rptr. 904, 661 P.2d 1058.   Although General Motors presents these as related arguments, we perceive them to be distinct.

As to the issue of whether appellant was a new or continuing employee, the parties use both the terms “laid off” (appellant) and “furloughed” (respondent), which clearly presents a conflict in the evidence as to appellant's status.   Whether the court's ruling can be sustained depends upon the correctness of its view that by submitting himself to a “pre-employment” physical, appellant, a former employee of respondent, entered into or revived an employment relationship with General Motors.

Initially, we note that this appears to be a case of first impression in California.2  However, the specific question upon which the case turns, what constitutes an employment relationship, is not new as is evident from the number of cases cited to us.

Respondent urges us to rely on Maher v. Workers' Comp. Appeals Bd., supra, 33 Cal.3d 729, 190 Cal.Rptr. 904, 661 P.2d 1058.   In Maher, appellant was hired on April 20, 1979, and submitted to a tuberculosis test required by state law on April 21, 1979.   Two days later she was notified that her skin test was positive.   She was ordered by her employer to submit to treatment if she was to continue working at the hospital.   As a result of that treatment, she sustained injuries for which she sought compensation under the statute.   The Supreme Court set forth as the principle issue in that case “whether the injury Maher sustained as a result of the medical treatment required by her employer” met the standard of the two-pronged requirement of the workers' compensation system:  (1) a compensable injury arising out of and occurring within the course of the employment (Lab.Code, § 3600) and (2) the equally fundamental principle that requires liberal construction in favor of awarding benefits.   (Maher, supra, 33 Cal.3d at p. 733, 190 Cal.Rptr. 904, 661 P.2d 1058.)   The court held that, notwithstanding the fact that the treatment was for a preexisting, nonindustrial injury, Maher was entitled to compensation because the treatment benefited her employer.  (Id. at p. 737, 190 Cal.Rptr. 904, 661 P.2d 1058.)

General Motors interprets Maher as standing for the proposition that any activity of a job applicant which may benefit the employer converts the applicant to an employee subject to the workers' compensation statute.   This reading of Maher ignores crucial factual and legal distinctions that render Maher inapposite to the case before us.

In the first place, the appellant in Maher was not a job applicant at the time she was injured, as she had already been hired by the employer.   Second, her injury was not the result of employer negligence in conducting a pre-employment physical but was the result of medical treatment required by the employer as a condition of her continued employment.   Therefore, Maher does not address the question of whether an action that is of mutual benefit to an employer and a job applicant or putative employee converts that person into an actual employee.   An opinion is not authority for a proposition not therein considered.  (Valentine v. City of Oakland (1983) 148 Cal.App.3d 139, 149, 196 Cal.Rptr. 59.)

In our view, Laeng v. Workmen's Comp. Appeals Bd., supra, 6 Cal.3d 771, 100 Cal.Rptr. 377, 494 P.2d 1, is equally distinguishable from the case before us.

In Laeng, a job applicant was injured in the process of running an obstacle course as part of a “tryout” competition for a job as a city refuse worker.   The purpose of the obstacle course was to test the applicant's physical agility, a characteristic required for the job.   The applicant's attempts to recover under the compensation statute were rebuffed on the ground that, at the time of the injury, he was not employed by the city.   The Supreme Court reversed the decision of the appeals board.

While recognizing that the applicant was not an employee “in a strict, contractual sense of that term,” the Supreme Court held that it need not be bound by “technical contractual or common law conceptions of employment” in determining the scope of the compensation statute.   Rather, the court choose to be guided by the remedial purpose of the statute and its mandate of liberal construction in favor of compensation.  (Id. at pp. 774, 777–776, 100 Cal.Rptr. 377, 494 P.2d 1.)

The court noted that workers' compensation “fundamentally proposes to protect individuals from any ‘special risks' of employment․”  It was observed that the broad definition of employee under Labor Code section 3357 includes, with certain restrictions, “any person rendering service for another.”   (Laeng, supra, 6 Cal.3d at pp. 774, 777, 100 Cal.Rptr. 377, 494 P.2d 1.)   Accordingly, it proposed as the “proper test” to determine the existence of an employment relationship “whether ‘the claimant has achieved sufficient connection with the employment to bring him within the orbit of the risks of that employment’․”  (Id., at p. 782, 100 Cal.Rptr. 377, 494 P.2d 1, quoting 1 Larson, Workmen's Compensation Law (1968) § 26.20.)

A crucial factor under this test is the extent of the employer's control over the putative employee.   The court said:  “[D]uring the tryout the applicant subjects himself to the employer's control, and the employer, in turn, assumes responsibility for directing the applicant's activities.   In many respects, the control exercised by the employer in this context parallels the degree of control that is frequently identified as the hallmark of the employment relationship [citations].”  (Laeng, supra, 6 Cal.3d at p. 782, 100 Cal.Rptr. 377, 494 P.2d 1;  cf. State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., supra, 59 Cal.App.3d at p. 654, 130 Cal.Rptr. 831 [Laeng distinguished where job applicant not in a tryout situation].)  Additionally, the court considered the extent to which the candidate's activities, performed under the employer's direction and control, benefited the employer.   The court cited with approval the conclusion of a New York court that “ ‘[a] tryout is for the benefit of the employer, as well as the applicant, and if it involves a hazardous job we see no valid reason why the applicant should not be entitled to the protection of the statute.’  [Citation.]”  (Laeng, supra, 6 Cal.3d at p. 778, 100 Cal.Rptr. 377, 494 P.2d 1, quoting Smith v. Venezian Lamp Co. (1957) 5 App.Div.2d 12, 168 N.Y.S.2d 764, 766.)

In this light we now consider the two factors specifically set forth in Laeng as determinants of an employment relationship:  the right to control and benefit to the employer.

While some degree of control and direction by the employer is involved in the requirement that a potential employee submit to a pre-employment physical examination, under Laeng an employment relationship is created only when the degree of control simulates that which the employer exercises over its actual employees.   This, in turn, appears to be related to whether the prospective employee is placed in a situation which parallels actual working conditions.  (Laeng v. Workmen's Comp. Appeals Bd., supra, 6 Cal.3d 771, 100 Cal.Rptr. 377, 494 P.2d 1.)   Requiring a prospective employee to submit to a pre-employment physical, here consisting of a chest X-ray and other passive examination, does not involve the degree of control, or the exposure to the “ ‘special risk’ of employment,” that led the Laeng court to hold that the prospective employee was covered by the statute.

Similarly, Laeng's analysis of the “employer benefit factor” emphasized the magnitude of the benefit which accrues to the employer from activities which simulate real working conditions.   It concluded that the compensation statute should extend in such circumstances even to a person who is not an actual employee.   A pre-employment physical examination which does not involve a tryout, while undoubtedly of some benefit to the employer, does not parallel actual working conditions and we are unwilling to say, as a matter of law, that such an examination creates an employment relationship.

The New York courts have similarly held that New York's compensation statute does not bar an action arising from a pre-employment physical.   The court said:  “The principal factors to be considered in determining whether an employer-employee relationship exists under this law are the right to control, the method of payment, who furnishes the equipment and the relative nature of the work.  [Citations.]  Clearly, these factors demonstrate that a pre-employment physical would not be covered by the Workers' Compensation Law.”  (Rastaetter v. Charles S. Wilson Mem. Hospital (1981) 80 App.Div.2d 608, 436 N.Y.S.2d 47, 47–48;  emphasis added.) 3  None of the other relevant indicia identified by Rastaetter, in addition to right to control, were present in the case before us.

We conclude that appellant did not enter into an employment relationship by submitting to a pre-employment physical.   This activity did not constitute a “special risk” or “sufficient connection” with the employment so as to bring him “ ‘within the orbit of the risks of that employment’ ․”  (Laeng v. Workers' Comp. Appeals Bd., supra, 6 Cal.3d at p. 782, 100 Cal.Rptr. 377, 494 P.2d 1.)

Moreover, the policy considerations in our case differ from those in cases where the court was guided by the policy of liberal construction to extend benefits to a claimant who had been denied them.   Here, the appellant seeks to avoid the status of employee which General Motors would “thrust upon” him.   (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., supra, 59 Cal.App.3d at p. 653, 130 Cal.Rptr. 831.)   Without in the least denigrating the policy of liberal construction, we are, nonetheless, inclined to view the putative employment relationship more critically when it is urged by the employer as a shield, rather than by a claimant seeking benefits.

The trial court abused its discretion in granting summary judgment.   The judgment is reversed.   Appellant to recover costs.


1.   Both in the court below and here, General Motors refers to appellant's contractual obligations but the contract was not submitted as part of the summary judgment motion.   What was properly before the court below was conflicting evidence as to appellant's status with General Motors when he went to work at Van Nuys.   For instance, appellant had been employed at General Motors's South Gate plant from 1955 until it closed in March 1982.   While he apparently kept his seniority, it was also undisputed that he did not work for General Motors between 1982 and 1984, but had other employment.   In light of this conflict, summary judgment should not have been granted based on representations made as to contract obligations.

2.   In Roberts v. U.S.O. Camp Shows, Inc. (1949) 91 Cal.App.2d 884, 205 P.2d 1116, the appellant, employed as a musician, was required to submit to various vaccinations as a condition of his employment.   It was held that injuries he sustained as a result of the vaccinations were compensable.   Similar results were reached in two compensation cases, Meyer v. Atchison, Topeka & Santa Fe Ry. Co. (1941) 6 Cal.Comp.Cases 308;  Wise v. Pacific Electric Ry. Co. (1943) 8 Cal.Comp.Cases 17–18.In Roberts, there appeared to be no question that appellant was already an employee of the employer when he submitted to the vaccine.   In the two compensation cases, though less clear, the applicants also appear to have been employees.   At any rate, these decisions are lacking in any analysis which might assist our resolution of the case before us.

3.   The intermediate appellate courts of Texas and Arkansas reached the opposite conclusion on different fact situations.  (Lotspeich v. Chance Vought Aircraft (Tex.Civ.App.1963) 369 S.W.2d 705;  Woodell v. Brown & Root, Inc. (1981) 2 Ark.App. 106, 616 S.W.2d 781.)   We do not find those decisions persuasive.

WOODS, Presiding Justice.

McCLOSKY and ROTHMAN,* JJ., concur.