STATE COMPENSATION INSURANCE FUND v. WORKERS COMPENSATION APPEALS BOARD OF STATE OF CALIFORNIA (1981)

Fay Stender, a lawyer, was shot six times in her home on Grant Street in Berkeley, California, by an assailant unknown to her.   On May 28, 1979, shortly after midnight, this person entered her home by trickery on the other occupants.   He then sought out Stender upstairs in her bedroom and forced her at gunpoint to write on paper the following note:  “I FAY STENDER have betrayed George Jackson and the prison movement when he and it needed me the most.”   He made Ms. Stender sign the note, requiring her to produce identification as proof that she was Fay Stender.   He then demanded money which was given to him and forced Ms. Stender downstairs to the kitchen for more money.   As she was getting additional money he became agitated, turned, shot her six times and fled, taking the note with him.

On June 6, 1979, applicant Fay Stender filed an application for adjudication of claim (# 79 SF 278002) with respondent Workers Compensation Appeals Board, alleging she had sustained a specific industrial injury while employed as an attorney for Stender and Stender, petitioner's insured herein.   On August 9, 1979, she filed a second claim (# 79 SF 279119) with respondent alleging cumulative injury while employed as attorney for Stender and Stender from January 1, 1970, to May 28, 1979.

The two claims were consolidated for hearing.   After hearing and findings, reconsideration was granted in both cases and on April 22, 1980, respondent by decision found no cumulative injury had been sustained in case number 79 SF 279119.   In case 79 SF 278002, it further decided that Fay Stender, while employed as an attorney on or about May 28, 1979, in California by Stender and Stender, sustained injury arising out of and occurring in the course of the employment and that petitioner State Compensation Insurance Fund was the employer's insurance carrier on the date of injury.

Applicant filed a petition for review in case 79 SF 279119 (1/Civil 50407) and State Compensation Fund filed a petition for review in case 79 SF 278002 (1/Civil 50426).   This court denied both petitions.   The Supreme Court granted hearing in 1/Civil 50426 and retransferred to this court with directions to issue a writ of review.   The writ of review issued on March 10, 1981, and return was filed April 3, 1981.

Based upon the entire record, our review should not be extended further than to determine whether the appeals board acted without or in excess of its powers, or the order decision or award was unreasonable, or the order decision or award was not supported by substantial evidence.  (Lab.Code, § 5952;  LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.)

The issue to be decided is whether, based upon the entire record, we can say as a matter of law there is substantial evidence to support a causal connection between the injury and Ms. Stender's employment, so that the injury can be said to arise from that employment.

For the reasons set forth we conclude that there is substantial evidence to support the board's decision.

Section 3600 of the Labor Code provides as a condition of compensation that an injury to an employee must arise out of his employment.   This requirement refers to a causal connection between the employment and the injury.   (California Comp. & Fire Co. v. WCAB (Schick) (1968) 68 Cal.2d 157, 160, 65 Cal.Rptr. 155, 436 P.2d 67.)

The concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition.   Its variegated threads can be woven into either loose or tight patterns, and we cannot believe the Legislature using the term in the context of liability without fault meant to designate a strict design.   Every precept of construction in the Act argues for the liberal interpretation.  (State Comp. Ins. Fund v. Ind. Acc. Comm. (1959) 176 Cal.App.2d 10, 20, 1 Cal.Rptr. 73.)

 When one speaks of an event “arising out of employment,” the initiative, the moving force, is something other than the employment;  the employment is thought of more as a condition out of which the event arises than as the force affirmatively producing the event.   In tort law the beginning point is always a person's act, and the act causes certain consequences.   In workmen's compensation law, the beginning point is not an act at all;  it is a relation or condition, namely employment․  The primary test of legal cause in the U.S. is foreseeability․  But foreseeability has no relevance if one is not interested in the culpability of the actor's conduct.   There is nothing in the theory of compensation liability that cares whether the employer foresaw particular kinds of harm.   The only criterion is connection in fact with the employment, whether it is foreseeable in advance, or apparent only in retrospect․  (Arthur Larson, Range of Compensable Consequences in Workmen's Compensation 21 Hastings Law Journal (February, 1970) Number 3 pp. 609, 610.)

A review of the evidence before the board is persuasive.

Fay Stender had been a lawyer in California since 1956.   She was employed by the law firm of Stender and Stender from 1975 to the date of the injury and petitioner was the insurance carrier.

She first became involved in prison law practice in 1970 when she and co-counsel undertook to represent George Jackson, an inmate at Soledad Prison near Soledad, California.   Jackson, along with two others, was accused of murder of a prison guard.   During this period, Stender cooperated with the lawyers representing the other defendants.   There were many meetings in her home on Grant Street in Berkeley where she was subsequently shot.

From 1970 through 1979, she was involved in activities as a lawyer in prisoner rights, prison reform and the “Prison Law Project” until 1973 when the project was no longer funded.   She was currently available in her practice for referral of prisoners to lawyers known “still to be working in the prison area.”   Within the last three years prior to her injury she had received correspondence from prisoners at her home, and ex-prisoners came to her home concerning prison law matters.

Ms. Stender's prison law work continued, although with a different approach, during the times relevant to petitioner State Compensation Funds' coverage.   She co-authored a treatise entitled “Prisoners' Rights Litigation,” for 22 American Jurisprudence, Trials (1975), gave lectures throughout the United States, and was a participating member of the California State Bar Commission on Corrections from 1974.   She was a member of the American Bar Association's subcommittee on “Legal Rights of Offenders and Ex-Offenders,” and participated as attorney of record in individual cases in the federal and state courts on habeas corpus proceedings.   In addition, she reprinted the manual developed for prisoners, entitled “Manual for Habeas Corpus for Jail and Prison Inmates.”

These activities were performed from the offices of the employer partnership, Stender and Stender, and the fees generated by clients referred to the partnership as a result of this activity went into the employer's account.

Ms. Stender later identified the assailant as Edward Brooks, an ex-felon and former inmate in the California Penal System.   A sociologist and expert witness concerned for many years with sociological aspects of prisoners and the prison system testified that prisoners previously aware of representation and activity by lawyers in the area of “prison law” could perceive a later reduction or cessation of “prison law” work by an attorney as a “betrayal” of such prisoners, thus indicating a possible motivation for the assault.

 In considering whether an injury arose “out of” and was “proximately caused by the employment,” it has been repeatedly recognized and emphasized that questions of workers' compensation are not controlled by common law rules as to “proximate cause” in tort cases and that reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee.   (Truck Ins. Exchange v. Ind. Acc. Com. (1946) 27 Cal.2d 813, 816, 167 P.2d 705.)   Though an injury to be compensable must arise out of the employment, that is, occur by reason of a condition or incident of employment, the injury need not be of a kind anticipated by the employer nor peculiar to the employment in the sense that it would not have occurred elsewhere.  (Madin v. Industrial Acc. Com. (1956) 46 Cal.2d 90, 92, 292 P.2d 892.)   It is not uncommon for lawyers to be assaulted by reason of their employment as lawyers in representing and counseling clients.   In Graybeal v. Board of Supervisors of Montgomery County (1975) 216 Va. 77, 216 S.E.2d 52, 54, compensable injury was found for a prosecutor who was severely injured as a result of a bomb being placed at his home by someone he had prosecuted for a crime years earlier.

The Virginia court's treatment is instructive.  “Considering, then, that in the context of the present case ‘arising’ means ‘originating,’ we believe the claimants nighttime injury from the exploding bomb placed on the top of his family car no less arose in the course of his employment than if he had been shot by his revenge-seeking assailant in the courtroom immediately following the murder trial, or if he had been injured by a bomb triggered to explode in his office upon his return from the courtroom.   The difference is in degree only and not in substance.   In the realities of the present case, the course from prosecution to desire-for-revenge to injury was unbroken, constituting a single work-connected incident.”  (Graybeal, supra, 216 S.E.2d at p. 54.)

There was substantial evidence that the assailant was primarily interested in Ms. Stender for her work as a lawyer in the “prison movement” field which was still a significant portion of her activities during the coverage period by petitioner State Compensation Insurance Fund.

 The assailant's particular preoccupation with the text of the note, his ambivalence on the demand for additional money and his requirement for proof of identity is further evidence of a causal connection between her employment and the injury.   If we look for a causal connection between the employment and the injury, such connection need not be the sole cause;  it is sufficient if it is a contributory cause.  (Madin v. Industrial Acc. Com., supra, 46 Cal.2d 90, 92, 292 P.2d 892;  Wiseman v. Industrial Acc. Comm. (1956) 46 Cal.2d 570, 573, 297 P.2d 649.)   Sufficient causal relationship was found in Murphy v. WCAB (1978) 86 Cal.App.3d 996, 1000, 150 Cal.Rptr. 561, where applicant's husband went to the grocery store where she worked and shot her, at least partly motivated by the fact that he did not like the independence that her job afforded her and the prospect that she might make more money than he.  (See also Ross v. WCAB (1971) 21 Cal.App.3d 949, 956, 99 Cal.Rptr. 79, and California Comp. & Fire Co. v. WCAB (Schick), supra, 68 Cal.2d 157, 65 Cal.Rptr. 155, 436 P.2d 67, discussed in Murphy.)

 In this case, the assault was not at the employer's premises, but at the employee's home.   If the injury arises out of the employment, its time or place will not defeat compensation.  (McCarty v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 677, 681, 117 Cal.Rptr. 65, 527 P.2d 617.)   Once it is accepted that nexus with the employment in these cases is not spatial or temporal but causal, we are ready for the final step, which is to conclude that the quantitative lapse of time—like the quantitative distance from the employment—is completely immaterial.  (Larson, Workmen's Compensation Desk Edition § 29.20 pp. 5–141.)   In Thorton v. Chamberlain Manufacturing Corp. (1972) 62 N.J. 235, 300 A.2d 146, 149 where claimant had reprimanded a co-worker and some nine days after claimant had terminated his employment while coming out of a tavern was assaulted by co-worker, causing loss of vision in his right eye, the New Jersey Supreme Court in ordering award for claimant stated:  “The sense of the concept is that an injury ‘arises' in the course of employment whenever the work in fact envelops the victim with a danger which goes with him when he leaves the course of his employment.   When that is so, the accident has its origin in the course of employment, and that fact may remain decisive notwithstanding that the injurious end accrued after the victim left the physical ambit of his employment.”

 We are bound by the fundamental principle that to effectuate the purposes of the compensation statute, all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee.   (Lab.Code, § 3202;  Calif. Comp. and Fire Co. v. WCAB (Schick), supra, 68 Cal.2d 157, 161, 65 Cal.Rptr. 155, 436 P.2d 67.)

The decision of the Workers' Compensation Appeals Board is affirmed.

McCULLUM, Judge.

CALDECOTT, P. J., and RATTIGAN, J., and McCULLUM, J.,* concur.