SAFEWAY STORES, INC., Petitioner, v. WORKERS’ COMPENSATION APPEALS BOARD, RICHARD E. POINTER et al., Respondents.
Civ. No. 46807
First Dist., Div. One.
Apr. 14, 1980.
104 Cal. App. 3d 528
Hanna, Brophy, MacLean, McAleer & Jensen and Michael H. Young for Petitioner.
Richard W. Younkin, William B. Donohoe, Dexter W. Young, Pisor, Vadney, George & Bennett, Elliott M. Pison and Bertram Cohen for Respondents.
GRODIN, J.---Richard E. Pointer, the applicant for benefits in this case, was employed by petitioner Safeway Stores, Inc. as a data processing clerk at petitioner‘s plant in Fremont, California. On the night of November 2, 1975, he reported for work at his usual starting time, which was 3 p.m., but instead of leaving at his usual quitting time, which was 11:15 p.m., he remained at work until 5:30 the following morning in order to help complete a semiannual grocery inventory. There was some evidence of a computer malfunction. At 5:30 a.m. he left to go home, and as he got out of his car to enter his house he was attacked by an unknown assailant and suffered injury as a result.
Safeway, which is self-insured for purposes of the Workers’ Compensation Act, declined to provide benefits or treatment under the act on the ground (among others) that the injury did not arise “out of and in the course of the employment.” (
On Pointer‘s petition for rehearing, however, the Board arrived at a contrary conclusion. Finding that Pointer‘s injury did arise out of and in the course of his employment, the Board ordered that the matter be returned to the trial level for further hearing and decision on all other issues. Safeway then sought review of this decision by petition for writ of review filed with this court. We initially denied the petition, but the Supreme Court has granted it, and ordered that it be heard before this court. Lien Services of Northern California, asserting lien claims against potential compensation recovery, is also a party to this proceeding. Its position is identical with that of the applicant.
I. Reviewability.
Question exists at the outset whether the Board‘s order on reconsideration in this matter is reviewable under
In Gumilla v. Industrial Acc. Com. (1921) 187 Cal. 638 [203 P. 397], the writ applicant sought review of an Industrial Accident Commission order granting a rehearing in a case which was originally decided in the applicant‘s favor, claiming that the petition for rehearing had been untimely filed. The Supreme Court denied the writ, stating: “A writ of certiorari does not lie to review an order made in a matter prior to the final adjudication thereof. The Industrial Accident Commission proposes to decide the case again after the order granting the rehearing, but it has not yet done so. Final action thereon has not yet been taken. Under these circumstances, the application for a writ of review of the order granting a hearing is premature. [Citations.]” (Id., at pp. 639-640.)
Relying on Gumilla, this and other districts of the Court of Appeal have from time to time denied as premature petitions in cases where the Board has remanded for further proceedings (e.g., So. Cal. R. Trans. Dist. v. Workers’ Comp. Appeals Bd. (1976) 41 Cal.Comp.Cases 350; Minton v. Workers’ Comp. Appeals Bd. (1975) 40 Cal.Comp.Cases 313; Pacific Gas & Elec. Co. v. Workers’ Comp. Appeals Bd. (1978) 43 Cal.Comp.Cases 1081). This was, in fact, the basis upon which this court initially denied the instant petition. There have been cases, however, in which the appellate court has granted a petition for review despite remand. (E.g., Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (1979) 44 Cal.Comp.Cases 304; City of Los Angeles v. Workers’ Comp. Appeals Bd. (1979) 44 Cal.Comp.Cases 421; City and County of San Francisco v. Workers’ Comp. Appeals Bd. (1979) 44 Cal.Comp.Cases 539.) Notwithstanding the frequency with which this type of question must arise throughout the state, it appears that no published appellate opinion since Gumilla has squarely addressed it. The resultant ambiguity is particularly acute in view of the possibility that if a Board order determinative of a threshold issue is subject to review despite remand, failure to seek review at that time might preclude a subsequent petition on that issue. (Cf. Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (1978) 82 Cal.App.3d 39 [147 Cal.Rptr. 30].)
In addition to the Supreme Court‘s language in Gumilla, support for the proposition that review should await decision after remand may be found in article XIV, section 4 of the California Constitution, to the effect that the administration of the workers’ compensation laws shall accomplish justice in all cases “expeditiously, inexpensively, and without incumbrance of any character.” (Italics added.) Allowing parties to utilize the appellate process on individual issues in a single compensation claim could create a danger of defeating that constitutional objective. Arguably employers and their carriers, with relatively superior financial position vis-à-vis the average injured worker, could take advantage of the opportunity for purposes of delay and force piecemeal litigation.
On the other hand, permitting review of Board orders which determine such threshold issues as whether the injury arises out of and in the course of employment2 may in many cases better serve the statutory scheme and its objectives. In this state, the workers’ compensation system is self-executing: i.e., once an industrial injury is sustained, the employer and the carrier are obligated to afford the injured worker all compensation benefits to which he or she is entitled without a prior order, decision, or award by the Board; and when payment of compensation has been unreasonably delayed or refused, a penalty may be imposed. (
Because of the self-executing character of California‘s workers’ compensation statute, an employer confronted with an adverse determination by the Board on a threshold issue of the sort involved in this case may reasonably be said to be “affected” by the Board‘s order within the meaning of
Finally, viewing the order in this case as “final” within the meaning of Gumilla would go far toward reconciling what would otherwise be a statutory anomaly.
We are persuaded by the legal and policy arguments in favor of permitting review in a case of this sort. Accordingly we determine that the matter is properly before us, and proceed to the merits.
II. The Merits.
The merits of the case require examination and application of that slippery concept known as the “going and coming rule.” The product of judicial gloss upon the statutory conditions of liability, that rule precludes compensation for injuries suffered “during a local commute enroute to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances.” (Hinojosa v. Workmen‘s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 [104 Cal.Rptr. 456, 501 P.2d 1176].) Justice Tobriner, writing for a unanimous court in Hinojosa, set forth the history of the rule and an analysis of its many exceptions in such thorough fashion as to render further general comment by us redundant. We focus, rather, upon the exception which the Board in this case found applicable-the “special mission” exception-and inquire whether the Board‘s finding is consistent with the evidence and applicable law.
“‘Special mission’ or ‘special errand’ has been defined as ‘a business journey undertaken by an employee at the specific request of his employer.’ (2 Hanna, Cal. Law of Employee Injuries and Workmen‘s Compensation (2d ed.) § 9.03[1][e], p. 9-25.) Thus, an employee going to work early to prepare coffee for his fellow workers not at the instance of his employer was not a special mission. (General Ins. Co. [v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 595].) However, a special trip made at a special time may be a special mission. (Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289... [sheriff injured while traveling to work before required shift at the request of employer]; L.A. Jewish etc. Council v. Ind. Acc. Com. (1949) 94 Cal.App.2d 65... [librarian killed while driving to work early to inspect and discuss the purchase of books].)” (Southern California Rapid Transit Dist., Inc. v. Workers’ Comp. Appeals Bd. (1979) 23 Cal.3d 158, 166 [151 Cal.Rptr. 666, 588 P.2d 806].) “The employee‘s conduct is ‘special’ if it is ‘extraordinary in relation to routine duties, not outside the scope of employment.’ (Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 295....) The special mission rule ‘is ordinarily held inapplicable when the only special component is the fact that the employee began work earlier or quit work later than usual.’ [Citation.]” (General Ins. Co. v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 595, 601 [128 Cal.Rptr. 417, 546 P.2d 1361].)
In General Ins. Co. v. Workers’ Comp. Appeals Bd., supra, the court held that an employee was not on a “special mission” simply because he chose to go to work 45 minutes early in order to make coffee for his fellow employees. Preparing coffee, the court observed, was “at most, part of the routine duties of the first arriving employee,” and the employer “did not request or even expect” that employees would arrive early for that purpose. (16 Cal.3d at p. 601.) The court distinguished cases “where the employee goes to work early not for the purpose of performing routine duties, but for an extraordinary purpose at the special request of the employer,” and cases “where the employee is required to make an extra trip to work in addition to his ordinary commute.” (Ibid.) By contrast, the applicant‘s trip was “an ordinary commute for the purpose of performing an ordinary chore.” (Id., at p. 602.)
On the other hand, in Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289 [38 Cal.Rptr. 352, 391 P.2d 832], the court held the special mission exception applicable to a deputy sheriff who was called at home six hours ahead of his scheduled reporting time, told to report for duty as soon as possible, and injured in an automobile accident while on his way to work pursuant to that instruction. Even though his hours of work were irregular as compared to most jobs, he nevertheless had scheduled hours of duty, set a day ahead; and, the court reasoned, “[i]n reporting to work hours ahead of his regularly scheduled shift he was doing more than merely making his services available at the place where they were needed. Making the trip at that time was a special ser-
This case is much closer to Schreifer than to General Ins. Co. with respect to facts deemed relevant by the courts in those cases. Here, as in Schreifer, the employee‘s extra duty was at the employer‘s request and satisfied an important and out-of-the-ordinary business need.4 The extra duty, moreover, entailed almost a doubling of the employee‘s normal shift duration. Indeed, in these respects Pointer‘s case is stronger than Schreifer‘s, because Pointer‘s assignments were more regular and the record contains evidence as to the unusual nature of the work he was called upon to perform. Schreifer would seem to control, therefore, unless there is some difference of legal dimension between going to work early on a special mission and coming home late.5 Petitioner has advanced no such difference, and we find none. The journey home is obviously as foreseeable and essential a part of the special service which an employee is called upon to perform after his regular hours as is the journey to work in the case of an early special duty assignment.
In view of this state‘s policy of liberal construction in favor of the employee, “any reasonable doubt as to the applicability of the going and coming doctrine must be resolved in the employee‘s favor.” (Hinojosa v. Workmen‘s Comp. Appeals Bd., supra, 8 Cal.3d 150, 155-156; Dimmig v. Workmen‘s Comp. Appeals Bd. (1972) 6 Cal.3d 860, 867 [101 Cal.Rptr. 105, 495 P.2d 433]; Garzoli v. Workmen‘s Comp. App. Bd. (1970) 2 Cal.3d 502, 505 [86 Cal.Rptr. 1, 467 P.2d 833].) We conclude that the Board did not err in finding that Pointer‘s injury arose out of and in the course of his employment.
Newsom, J., concurred.
ELKINGTON, Acting P. J.-I dissent.
As noted in the majority opinion, we review a tentative ruling of the Board, concluding that the worker‘s injury and disability were employment related and remanding the matter to the workers’ compensation judge for consideration of other issues. As I view the case and as in Gumilla v. Industrial Acc. Com. (1921) 187 Cal. 638, 640 [203 P. 397]: “Final action thereon has not yet been taken. Under these circumstances, the application for a writ of review of the order...is premature.”
Appellate courts of this state and of other jurisdictions have long clung to the “one judgment rule,” in determining a decision‘s reviewability. “The reason for the one judgment rule is that ‘piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and... a review of intermediate rulings should await the final disposition of the case.‘” (Knodel v. Knodel (1975) 14 Cal.3d 752, 760 [122 Cal.Rptr. 521, 537 P.2d 353]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 36, pp. 4050-4051; and see Horton v. Jones (1972) 26 Cal.App.3d 952, 956-957 [103 Cal.Rptr. 399]; Caruso v. Snap-Tite, Inc. (1969) 275 Cal.App.2d 211, 214 [79 Cal.Rptr. 642]; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497-498 [15 Cal.Rptr. 177]; Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 154 [8 Cal.Rptr. 107]; Murphy v. Fong Shuck (1957) 151 Cal.App.2d 64, 65 [311 P.2d 80].)
The rule is “‘a fundamental principle of appellate practice in the United States.‘” (Gosney v. State of California (1970) 10 Cal.App.3d 921, 928 [89 Cal.Rptr. 390]; Brown v. Memorial Nat. Home Foundation (1958) 158 Cal.App.2d 448, 455 [322 P.2d 600] [cert. den., 358 U.S. 943 (3 L.Ed.2d 352, 79 S.Ct. 353)].) It “permits an appeal to be taken only from a final judgment which disposes of all the issues presented in the action.” (Horton v. Jones, supra, 26 Cal.App.3d 952, 957.)
The rule is equally, and logically, applicable as here to review by way of certiorari. In such a proceeding the nation‘s high court has stated: “‘From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error,... have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.‘” (Baltimore Contractors v. Bodinger (1955) 348 U.S. 176, 178 [99 L.Ed. 233, 236, 75 S.Ct. 249].)
Many reasons point to the desirability of continued application of the rule to the Board‘s procedures. There is of course need that they be handled expeditiously and not frustrated by repetitive reviews. Workers and their counsel are entitled to a reasonable degree of procedural certainty. It is manifestly foreign to our system that there be multiple collateral appeals from one decision. Must the worker or employer promptly seek review of each tentative determination such as that before us? If our decision shall stand it would appear that he must do so, or suffer deprival of any review. For the “law of this state does not allow...a review of any decision or order from which an appeal might previously have been taken....” (Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 648 [57 Cal.Rptr. 687]; and see authority there collected.) And, having obtained such a review, will he then be denied his statutory right to seek later review of the Board‘s final award, or part of it? And what will be his, or the employer‘s, or the Board‘s, procedural posture should the latter reconsider and desire to change its tentative determination after, and if, we shall affirm it? There are undoubtedly other and perhaps even more persuasive reasons, which do not presently come to mind.
I would, as did the court in Gumilla, dismiss or deny the application for review as premature.
Petitioner‘s application for a hearing by the Supreme Court was denied June 18, 1980. Clark, J., and Richardson, J., were of the opinion that the application should be granted.