DIMMIG v. WORKMEN COMPENSATION APPEALS BOARD (1971)

Petitioners are the widow and children of William Dimmig, who prior to his death was employed by Memorex Corporation. Dimmig was killed on October 30, 1969 when his automobile was struck by another automobile as he was returning to his Cupertino home after attending a night class at Notre Dame College in Belmont. Petitioners applied for workmen's compensation death benefits, claiming that Dimmig was in the course of his employment at the time of his death. The referee and respondent appeals board denied benefits; petitioners seek review.

Dimmig was hired by Memorex in August 1969, a few months prior to his death. Before joining Memorex he had been working for another corporation as contracts administrator and attending college at night in order to obtain a bachelor's degree. Memorex had established a plan of reimbursing employees for tuition and other costs incurred in taking job-related courses on the employee's own time. The stated purpose of the program was ‘to encourage Memorex personnel to further their education in order to perform more effectively in their present jobs and increase their qualifications and knowledge for advancement.’ Employees were eligible to begin participation in the program after six months' employment. An employee working toward a bachelor's degree would receive full reimbursement for courses which related to his job, and half reimbursement for other courses required for the degree, even though not related to his job.

It is not disputed that an employee's participation in an off-premises educational program may be held to be part of the employment if it is within the contemplation of the employment contract. (See 1 Larson, Workmen's Compensation Law (5th ed. 1968) § 27.31(a), p. 452.45.) It is a question of fact within the competence of the appeals board to determine on conflicting evidence whether, in a given situation, the training program in the course of which an employee is injured was within the contemplation of the contract. It is true, as petitioners point out, that in this record there is some evidence pointing in the direction of liability. Management was aware, at the time when Dimmig was being considered for employment, that he was working toward his degree and that he desired to continue on that course. Dimmig's friends considered that continuation of college work was a condition of Dimmig's employment. An employment supervisor waived the requirement of six months' employment for eligibility for reimbursement. Reimbursement was payable only after satisfactory completion of courses. There were also several indications that Dimmig himself thought that the employer expected him to continue his education.

It may well be that the circumstances just reviewed would have supported a determination that Dimmig's participation in the educational program was within the course and scope of employment. But there was other evidence in the case. Dimmig was selected in preference to another applicant who had a law degree, but the job had previously been held by someone who had no college degree. Several Memorex executives testified that Dimmig's employment was not conditioned on his going to college and obtaining a bachelor's degree. One of the officers involved in Dimmig's selection testified that he was hired because of his previous job experience in contract administration and because he was considered ‘promotable.’ There was testimony that the question of education was not a major factor in the hiring discussions and that the company made a practice of including in the written offer to an applicant for employment any special conditions to continued employment. Further, there was evidence that company policy, known both to company executives and to employees, was that employees would be reimbursed for travel expense on activities required by the company, while no transportation costs were reimbursable in connection with the educational program. It is undisputed that the employer had no power to control the content of Dimmig's degree program, or select what courses he would take.

The existence or non-existence of ‘employment,’ where there is conflicting substantial evidence, is a question of fact as to which the board's determination is conclusive. (Schaller v. Industrial Acc. Comm. (1938) 11 Cal.2d 46, 77 P.2d 836.) So is the question whether the injury was sustained within the scope of employment. (Alexander v. Workmen's Comp. App. Bd. (1968) 262 Cal.App.2d 756, 69 Cal.Rptr. 190.)

In the circumstances of this case, although there was no important direct conflict in the testimony of the witnesses, the inferences which may reasonably be drawn from the evidence are in conflict. Hence the determination made by the appeals board is to be upheld. (LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.)

Order affirmed.

I dissent. There is no conflict of evidence on the matter of benefits to the employer, but merely a question of law. The referee, whose opinion was adopted by the appeals board as its statement of reasons for the decision, realized this. He said: ‘The record is clear that all parties considered school attendance to beneficial to both the employer and employee.’ (Emphasis added.) He was of the opinion, however, that education was a ‘fringe benefit’ similar to a vacation or a health program and that the case was comparable to one in which an employee on vacation or visiting a doctor, might be injured. He said that an appellate court might not agree, a statement further showing that he did not regard the case as one of substantial factual conflict, wherein this court would have no right to make an independent review.

Where there is no real dispute as to the facts the question whether an injury was suffered in the course of employment is one of law and a purported finding of fact on that question is not binding on an appellate court. (Reinert v. Industrial Acc. Comm., 46 Cal.2d 349, 358, 294 P.2d 713; Hines v. Industrial Acc. Comm., 184 Cal. 1, 4, 192 P. 859; Rausch v. Workmen's Comp. App. Bd., 274 Cal.App.2d 357, 358, 79 Cal.Rptr. 148.)

In the sense that the payment of tuition was not of the same nature as a salary, it was a ‘fringe benefit’ to the employee; but it was not comparable to a vacation or a personal visit to a doctor.^* An employee is at leisure (more or less) on vacation; he is engaged in mental labors at the college (incidentally, decedent gave a formal oral report to his class on the fatal night). If an employee visits a physician, he but remotely, as with a vacation, confers a benefit on his employer. From the employer's standpoint, there is a palpable distinction between the kinds of ‘fringe benefit.’ In this case, the employer was interested in the place and manner of study. The employer would have no right (even if interested) to tell the employee where or how to spend his vacation. Nor would the employer have the right to select the employee's physician. Nor would the employer, under the health plan ventioned by the referee, have the right (or the interest) to pay different sums, depending on the treatment, as the employer of decedent did depending on the various subjects of study.

The benefit in our case was not remote, but direct, as shown by: 1) the program, described by the employer as designed to enable employees to perform more efficiently in their present jobs and to increase their qualifications for advancement, 2) the reimbursement which was contingent on satisfactory completion of the work and was higher (100%) for job-related courses than for other courses, 3) in decedent's case, the special waiver (made for but three of 73 participants) of the six-month period from commencement of employment.

The majority opinion is based, it seems to me, on the premise that there is conflict chiefly as to the reason why the decedent was employed, and perhaps, as to the necessity of his taking the courses in order to keep his job, or to get a promotion. But an act need not be expressly or impliedly required by the contract of employment; it is enough if it is reasonably of benefit to the employer. (Boynton v. McKales, 139 Cal.App.2d 777, 789, 294 P.2d 733; Shell Oil Co. v. Industrial Acc. Comm., 199 Cal.App.2d 426, 428–429, 18 Cal.Rptr. 540; Dept. of Water & Power, etc. v. Workmen's Comp. App. Bd., 252 Cal.App.2d 744, 746–747, 60 Cal.Rptr. 829.) The fact that transportation costs were not paid by the employer is unimportant; the tuition by the to be so paid. (The referee found an exception to the going and coming rule—not that of payment of transportation, but that of special mission.)

‘Take-nothing’ awards have been set aside by the courts on ‘course of employment’ grounds in cases of no greater, and sometimes less, benefit to the employer than in the case before us. (Reinert v. Industrial Acc. Comm., 46 Cal.2d 349, 294 P.2d 713; Rausch v. Workmen's Comp. App. Bd., 274 Cal.App.2d 357, 79 Cal.Rptr. 148.)

I would annul the take-nothing award.

FOOTNOTES

FOOTNOTE.  We say ‘personal’ to distinguish such a visit from exceptional cases, such as where an employee is injured on the way to a doctor immediately following an industrial injury.

CHRISTIAN, Associate Justice.

DAVID, J.*, concurs.