LOPEZ v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Third District, California.

Sara N. LOPEZ et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Mary E. Denney Family Trust, et al., Respondents.

No. C024076.

Decided: December 23, 1996

Sara Nunez Lopez, individually and as guardian ad litem and trustee for Veronica, Berta, Guadalupe and Marlene Lopez, minors, and Ramon Lopez (hereafter “petitioners”), filed this petition for writ review after respondent Worker's Compensation Appeals Board (“the Board”) decided that the death of Sara Lopez's husband, Cironio Lopez (hereafter “decedent”), was not compensable. We shall annul the decision of the Board and remand the matter to the Board with directions to issue a new decision awarding petitioners the requested benefits.

FACTUAL AND PROCEDURAL BACKGROUND

Decedent worked for respondent Marshall Orchards (“Marshall”). He lived in a bunkhouse on Marshall's premises.

On April 8, 1994, decedent spent the night at the Yuba City home of his brother, Guillermo Lopez (hereafter “Lopez”). Lopez also worked for Marshall but at a different job site.

The next morning, Lopez undertook to drive decedent to the bunkhouse and drop him off there so that another fellow worker could pick him up and take him to his job site. To get from the public highway to the bunkhouse, Lopez had to make a left turn across oncoming traffic onto a private road on Marshall's property. When he reached the intersection of the highway and the private road, he stopped because he could not immediately make the turn. (The parties dispute whether this was because the truck of Hector Nunez, another Marshall employee, blocked the road, or because oncoming traffic prevented an immediate turn. For reasons stated below, this dispute is immaterial to our decision.) As Lopez waited in the intersection signaling his intention to turn, a truck came up fast behind his car and rearended it, propelling it into the adjacent lane in the direction of the turn. Another truck, coming from the opposite direction, crashed into the passenger side of Lopez's car, killing decedent.

Petitioners applied for worker's compensation death benefits on decedent's behalf. The parties stipulated that the matter would be submitted for decision on the issues of the “going and coming” rule and the “bunkhouse” rule.1

Following briefing, a Worker's Compensation Judge (“WCJ”) issued a decision finding that decedent's injury was not industrial and ordering that petitioners take nothing. As relevant, the WCJ found that the “entrance and exit” and “special risk” exceptions to the “going and coming” rule did not apply because (1) decedent was not required to make the left turn onto Marshall's premises on a daily basis, (2) he was not exposed to greater risk than any member of the general public, and (3) there was no evidence that his employment created a particular risk.2

Petitioners filed a petition for reconsideration with the Board, relying only on the “entrance and exit” exception to the “going and coming” rule.

The WCJ filed a report recommending denial of the petition. In addition to restating his prior findings of fact and law, he made a new finding that decedent's co-employee Hector Nunez did not create a special risk to decedent by blocking the private road with his truck. In the WCJ's view, the deposition testimony of Guillermo Lopez, which suggested that Nunez had blocked the road, did not correspond to the physical evidence as shown in the police report on the accident. The WCJ concluded that Nunez's truck was not a significant factor in the accident and that Lopez had not proceeded with his turn because he was waiting for a break in the oncoming traffic.

The Board issued an order denying reconsideration and adopting the reasoning of the WCJ's report.

This petition for writ review followed.

DISCUSSION

I

We first address respondents' contentions that petitioners have waived the right to be heard. As will appear, these contentions lack merit.

A. Rule 57(a).

Rule 57(a) of the California Rules of Court, governing petitions to review orders and awards by the Board, provides in part: “If it is claimed that the decision is not supported by substantial evidence, the petition must fairly state all the material evidence relative to the point at issue.” (All subsequent references to rules are to the Cal. Rules of Court.) The court may summarily deny a petition which fails to comply with this rule. (Seckels v. Department of Indus. Relations (1929) 98 Cal.App. 647, 648-649 [construing former rule XXVI, § 4]. See Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 922-923.)

Respondents assert that we should summarily deny this petition under rule 57(a) because petitioners state as a fact that Hector Nunez's truck blocked the private road onto which Guillermo Lopez was trying to turn, failing to mention that the Board expressly found otherwise. We reject this contention because the omitted fact is not material to our decision.

The dispositive issue in this case is whether decedent was exposed to a “special risk” causally related to his employment. This question does not turn on the precise traffic conditions at the moment of decedent's accident. Rather, as we explain below, the fact that an employee had to make a left turn across traffic to enter a private road onto the employer's property is enough to establish the “special risk.” The proximate cause of decedent's fatal accident would be material in a tort action for wrongful death, but it is not material to the question whether decedent's injury is compensable under the “special risk” exception to the “going and coming” rule. Therefore respondent's rule 57(a) argument fails.

B. Petitioners' alleged failure to verify the petition for reconsideration.

Labor Code section 5902 (“§ 5902”) provides in part: “The petition for reconsideration [before the Board] ․ shall be verified upon oath in the manner required for verified pleadings in courts of record ․” However, verification of the petition for reconsideration is not a jurisdictional requirement. (Wings West Airlines v. Workers' Comp. Appeals Bd. (1986) 187 Cal.App.3d 1047, 1055.)

Here, the petition for reconsideration was not verified. Respondents petitioned the Board to dismiss the petition on this ground, among others.

In his opposition to respondent's request for dismissal, petitioners' counsel replied that he could not have filed a timely petition for reconsideration if he had had to get it verified before filing because his clients lived in Mexico. This averment is uncontested and was made under penalty of perjury.

The Board implicitly denied the motion to dismiss by ruling on the merits of the petition for reconsideration without mention of the lack of verification.

We believe the Board's implicit rejection of the motion to dismiss was proper. Counsel proffered a compelling reason for lack of verification--his clients resided in Mexico--and respondents have shown no prejudice from a lack of verification. Consequently, like the Board, we shall reach the merits of the dispute.

II

Workers' compensation liability exists “against an employer for any injury sustained by his or her employees arising out of and in the course of the employment ․” (Lab. Code, § 3600.) We must construe all provisions of the workers' compensation scheme liberally in favor of compensation. (Lab. Code, § 3602.)

Ordinarily an employee cannot obtain workers' compensation for an injury suffered while going to or coming from the workplace (the “going and coming” rule). The courts have crafted numerous exceptions to this rule, however. (Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 345, 352-353.) One of these is the “special risk” exception, invoked by petitioners here.

“If, prior to entry upon the premises, an employee suffers injury from a special risk causally related to employment, the injury is compensable under the ‘special risk’ exception to the going and coming rule. The facts that an accident happens upon a public road and that the danger is one to which the general public is likewise exposed ․ do not preclude the existence of a causal relationship between the accident and employment if the danger is one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.” (General Ins. Co. v. Workers' Comp. Appeals Bd. (Chairez) [hereafter “Chairez”] (1976) 16 Cal.3d 595, 600; citations and internal quotation marks omitted.)

The “special risk” exception applies if (1) the employee would not have been at the location where the injury occurred but for the employment, and (2) the risk is “distinctive in nature or quantitatively greater than risks common to the public.” (Parks v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 585, 590; Chairez, supra, 16 Cal.3d at pp. 600-601.)

If an employee must enter the employer's premises by making a left turn on a public road in the face of oncoming traffic, this may constitute a “particular risk--one distinctive in nature--not shared by the public generally.” (Chairez, supra, 16 Cal.3d at p. 600.) Thus an employee injured while attempting to make such a left turn across traffic is entitled to compensation under the “special risk” exception. (Ibid.; Greydanus v. Industrial Acc. Com. (1965) 63 Cal.2d 490, 493; Pacific Indem. Co. v. Industrial Acc. Com. (Henslick) [hereafter “Henslick”] (1946) 28 Cal.2d 329, 337-338.)

The Board found that decedent's accident did not come within this exception for several reasons, but all are insufficient to support the Board's finding.

A. The fact that decedent did not make the left turn every day.

The Board notes first that decedent did not have to make the left turn onto Marshall's property every day because he lived on the premises; it was only the unusual circumstance that he visited his brother the night before the accident which caused him to be in the position where he was when the accident occurred. But these facts are not dispositive. (Nor is the additional fact, noted by respondents, that decedent was not required to work at the location where Lopez was attempting to drop him off--a location on Marshall's property from which decedent was to have continued on to his job site.) The Board and respondents have cited no authority, and we have found none, which makes the applicability of the “special risk” exception turn on the frequency of the employee's exposure to the risk. All that is required is that the employee's work put him in the position in which he was exposed to the risk on the occasion of his injury. (Parks, supra, 33 Cal.3d at p. 590; Chairez, supra, 16 Cal.3d at pp. 600-601.)

It is true that in some of the decisions construing the exception the courts noted that the employee whose claim was before them had to face the risk every day, but none conditions its holding on that fact. (See Parks, supra, 33 Cal.3d at p. 592; Greydanus, supra, 63 Cal.2d at p. 493.)3 Furthermore, those courts did not have to decide whether the injured employees would have been entitled to compensation had they not been exposed to the risks at issue every day. Cases are not authority for propositions not considered. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 428.)

It is undisputed that decedent was in the place where the accident occurred because he was on his way to work and would not have been in that position but for his employment. Thus, whether or not he was exposed to that risk every day, and whether or not his work site was at or near the spot where he faced exposure to the risk, the facts are sufficient to meet the first prong of the “special risk” test. (Parks, supra, 33 Cal.3d at p. 590; Chairez, supra, 16 Cal.3d at pp. 600-601.)

B. The purported absence of a greater risk to decedent than to the general public.

The Board also found the “special risk” exception inapplicable because decedent was not exposed to a greater risk than the members of the general public. This finding is unsupported by the record and misconstrues controlling authority.

The second prong of the “special risk” test is that the injured employee was exposed to a risk which is “distinctive in nature or quantitatively greater than risks common to the public.” (Parks, supra, 33 Cal.3d at p. 590; Chairez, supra, 16 Cal.3d at pp. 600-601.) Here, it is undisputed that the general public had no occasion to make the left turn which Lopez was trying to make across traffic when decedent was killed: the road onto which Lopez sought to turn was a private road on Marshall's property. Moreover, there is no evidence that any member of the public ever made that left turn. Thus the risk decedent faced was both “distinctive in nature” and “quantitatively greater than risks common to the public.” (Ibid.)

It is of no moment that a member of the public might have been exposed to the same degree of risk had he or she attempted to make the same left turn. The same hypothetical risk to members of the public exists in every left-turn case where the public is not physically barred from making the turn. Therefore, to find that decedent suffered no “special risk” merely because this hypothetical risk to the general public existed here, we would have to conclude that all or most of the cases holding that a left turn across traffic created a special risk to an employee were wrongly decided. Given the venerability and theoretical consistency of this line of cases, we may not so conclude. Rather, we find that the Board misunderstood the second prong of the “special risk” test and that its finding on this point is unsupported by substantial evidence (or, indeed, by any evidence at all).

C. The purported absence of a “particular risk” to decedent.

Finally, the Board found no evidence that decedent's employment created a “particular risk such as existed in Parks, supra.” This bare assertion, unsupported by analysis, does not justify the Board's decision. As we have explained, the facts here meet the two-prong test for the “special risk” exception set out in Parks, supra, 33 Cal.3d at page 590.

Respondents try to salvage the Board's finding by citing the alternative “zone of danger” test set out in Parks, supra, 33 Cal.3d at page 592. Their effort is unavailing. Parks uses the “zone of danger” expression as a geographical label for the particular risk which existed in that case. Here, decedent entered the “zone of danger” when Lopez's car reached the point of the attempted left turn onto Marshall's property. Thus Parks cannot be distinguished from this case based on the “zone of danger” test.

III

In light of the above, we need not discuss petitioners' contention that the conduct of co-employee Hector Nunez created a “special risk” to decedent.

DISPOSITION

The Board's decision is annulled and the matter is remanded with directions to enter a new decision awarding the requested benefits to petitioners.

FOOTNOTES

1.  The “bunkhouse” rule provides that a living space furnished by an employer to an employee becomes part of the employer's premises for workers' compensation purposes, so that an injury the employee sustains there is compensable if the employee is making reasonable use of the living space, or there is a connection between the employment and the injury, or the living space puts the employee in a peculiar danger. (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Vargas/Macias) (1982) 133 Cal.App.3d 643, 652-653.) The WCJ and the Board found this rule inapplicable. Petitioners do not renew their argument on this point here. Therefore we do not discuss it further.

2.  Petitioners in their briefing before the Board consistently referred to the exception they relied on as the “entrance and exit” exception rather than the “special risk” exception. However, the “entrance and exit” and “left turn” exceptions are actually subsets of the “special risk” exception. (See Part II of the Discussion.) We therefore use the broader term in our analysis.

3.  Henslick, supra, one of the earliest decisions cited by the parties, does not discuss whether the employee, who was injured while making a left turn into his employer's parking lot, had to make that turn every day (or even whether he had ever made it before). The court noted, however, that it did not matter for purposes of the “special risk” exception that there were other means of access to the employer's parking lot. (28 Cal.2d at pp. 330, 338.)

SIMS, Associate Justice.

SPARKS, Acting P.J., and DAVIS, J., concur.