Bakersfield City School Dist. v. WCAB (Boyd)

Filed 9/21/07 Bakersfield City School Dist. v. WCAB (Boyd) CA5

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. William K. OBrien, Frank M. Brass, and Alfonso J. Moresi, Commissioners. Terrance E. McEvoy, Workers Compensation Administrative Law Judge.

Hanna, Brophy, MacLean, McAleer & Jensen, and Jerry W. Pearson, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Joseph Pluta, for Respondent Robert Boyd.

-ooOoo-

______________________

*Before Harris, A.P.J., Levy, J., and Dawson, J.

The Bakersfield City School District (School District) petitions for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code,^[1] 5950; Cal. Rules of Court, rule 8.494.) The School District contends the injuries sustained by a maintenance employee while he aided police apprehend a suspect off-campus did not arise out of and occur in the course of his employment. We agree with the WCAB and conclude the employees injuries are compensable.

BACKGROUND

Robert Boyd worked as an air-conditioning mechanic for the School District. His job duties included traveling between school sites to repair air-conditioning units.

On August 31, 2006, Boyd was traveling in a School District vehicle from Thorner Elementary School to his next assignment at Voorhies Elementary School. While sitting at a traffic light within several blocks of four schools, Boyd noticed a man across the street running away from a police officer. The officer was about 200 yards behind when the suspect ran into an apartment complex.

Boyd went through the traffic light and turned into a private parking lot. He intended to observe and report to the police, but when the suspect attempted to leave the apartment complex, Boyd became concerned the suspect may have tried to run to one of the nearby schools. Boyd got out of the truck and tried to block the runners path by standing in his way and pushing him into some shrubs. The suspect got up and tried to circumvent Boyd, who again pushed the suspect into the shrubs; in doing so, Boyd tripped over the curb and landed with his arm extended injuring his right shoulder. Boyd was aware that his job description did not include apprehending suspects fleeing from police, but he had been told by his supervisors to be aware of suspicious characters and that he could be used in emergency situations to protect children.

The matter proceeded to a January 30, 2007, hearing before a workers compensation administrative law judge (WCJ). On February 14, 2007, the WCJ concluded Boyd was not acting within the course and scope of his employment when he injured his right shoulder, and thus the injury is not compensable on an industrial basis. On April 24, 2007, the WCAB granted Boyds petition for reconsideration, reversed the WCJ, and concluded Boyds injury arose out of and occurred in the course of his employment with the School District.

DISCUSSION

An employer is liable for workers compensation benefits only where the injury aris[es] out of and in the course of the employment . ( 3600, subd. (a).) An act arises out of and occurs in the course of employment when the employee engages in conduct reasonably directed toward the fulfillment of his employers requirements, performed for the benefit and advantage of the employer. (Garzoli v. Workmens Comp. App. Bd. (1970) 2 Cal.3d 502, 506.) The burden of proving that an injury is compensable falls on the employee and generally presents a question of fact to be determined in light of the circumstances. (Pettigrew v. Workers Comp. Appeals Bd. (2006) 143 Cal.App.4th 397, 405; Wright v. Beverly Fabrics, Inc., supra, 95 Cal.App.4th at p. 353.) But where the pertinent facts are not in dispute, resolution of the question becomes a matter of law subject to de novo appellate review. (Dimmig v. Workmens Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864.) In resolving this issue, we are guided by the Legislatures command in section 3202 that workers compensation laws be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment. (Wright v. Beverly Fabrics, Inc. supra, at p. 353.) Nevertheless, any factual findings made by the WCAB must be supported by substantial evidence. So long as those findings are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award. (Judson Steel Corp. v. Workers Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664.) On issues of credibility, this court is bound by the WCABs conclusions. (Pettigrew v. Workers Comp. Appeals Bd., supra, 143 Cal.App.4th at p. 404.)

The School District contends the WCAB both misinterpreted the law and failed to support its decision with substantial evidence in finding Boyds injury arose out of and occurred in the course of his employment. The School District begins by suggesting this court adopt the WCJs opinion that Boyds testimony was disingenuous regarding his belief that he was acting to protect student safety in aiding the police. As the School District notes, the conclusions of a WCJ are entitled to great weight as having been present at the hearing with the opportunity to observe the demeanor of the witnesses. (Garza v. Workmens Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319.) Garza acknowledged, however, that the WCAB is entitled to reject the referees findings on credibility maters if substantial evidence supports contrary findings. (Ibid.)

The WCJ reported in a March 13, 2007, recommendation to the WCAB:

In an attempt at trial to bring his actions within the implied employment relationship, vague testimony was offered that there may have been a school bus stop within the vicinity of the fleeing suspect or that there were schools within a couple of blocks. However, the undersigned WCJ discounted that testimony as after the fact justifications for [Boyds] actions and were not real reasons for his actions on that day in question.

Boyds testimony is not as vague as suggested by the WCJ. Summarizing Boyds testimony, the WCJ recorded in the Minutes of Hearing:

The area where the incident happened was approximately three blocks away from Thorner Elementary School. Other schools in the area were Eissler Elementary School and Chipman Junior High, approximately three blocks away. Highland High School was also near the area, approximately two blocks away from the incident. [] He had a state of mind that there were schools in the area. He did not know why the suspect was running from the police, but he was concerned the suspect may have tried to run to one of the schools. He was also aware that there are bus stops in the area.

The WCJ did not set forth any evidence or reasoning for rejecting Boyds testimony, and we can find no grounds to discard the WCABs consideration of it. The only evidence of Boyds intent instead contradicted the WCJs opinion. (See Lamb v. Workmens Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [WCAB must accept as true the intended meaning of uncontradicted and unimpeached evidence].) Moreover, the Board is empowered on reconsideration to resolve conflicts in the evidence, to make its own credibility determinations, and to reject findings of the WCJ and to enter its own findings on the basis of its review of the record. (Rubalcava v. Workers Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 908.) Regardless, the WCABs basis for finding Boyds injury compensable did not rely exclusively on his stated explanation that he sought to protect school children. The WCAB explained:

Injury sustained by an employee acting in response to an emergency or other situation, whether it is classified as a rescue, response to an emergency, or exercise of common decency, is within the course of employment. (See Martinez v. Workers Comp. Appeals[] Bd. (1976) 15 Cal.3d 982, 986, [41 Cal.Comp.Cases 51]; North American Rockwell Corp. v. Workers Comp. Appeals[] Bd. (Saksa)(1970) 9 Cal.App.3d 154, 159 [35 Cal.Comp.Cases 300]. Although most employees are not hired to specifically respond to emergency situations, it is a reasonable expectation under the employment contract that situations requiring a normal human response to situations which threaten and/or directly concern the employer will occur. Such acts, though not part of the employees required duties, are nevertheless proper and normal. (Martinez, supra, 15 Cal.3d 982, 986-987 [41 Cal.Comp.Cases at 53-54] ) (off-duty church fiesta worker sustained injuries in the course of employment while trying to prevent theft of employers beer. The action was a reasonable expectation of employment, especially in light of the church councils decision to self-police instead of hiring security guards); see Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 354-357, [67 Cal.Comp.Cases 51, 56-59] (when applicant was injured while visiting work on her day off and helping fellow employees hold up collapsing shelf, her actions were incidental to her employment, were within her employment contract, were in furtherance of employers business, protected employers assets, and were reasonable expectancy of her employment, so that injury was industrial despite absence of paid wages). They are therefore considered to occur in the course of employment. No employment contract can list every act an employee may or may not do. For example, an employee is not usually hired to prevent theft of the employers property, but it is expected that such an action might occur as a normal human response to a particular situation. (Martinez, ibid.) Similarly, humane or friendly acts for the benefit of other, may be classified as within the course of employment because such conduct is desirable and because, as stated in Martinez, [h]uman services cannot be employed without taking the whole package. [Citations.]

Courts have recognized that human activities cannot be neatly pigeonholed into recognized categories for purposes of deciding the course of employment issue. For example, in Fremont Indemnity Co. v. Workers Comp. Appeals[] Bd. (Makaeff) (1977) 69 Cal.App.3d 170, 177 [42 Cal.Comp.Cases 297], an injury causing death was compensable when the decedent crashed while permissively driving a sports vehicle owned by companys president on an authorized work break. The court commented: Certainly [driving] was a human response to the situation--whether that response was triggered by a desire to please the company president, by a desire to relax, or a little bit of both. Therefore, in drawing the line between purely personal acts and those deemed work-related we apply the basic principle that an employee doing those reasonable things within the time and space limits of the employment which the employment contract expressly or impliedly permits is acting in the course of the employment. (See 1 Hanna, Law of Employee Injuries and Workers Compensation (rev. 2d ed. 2007)  4.137[1] & [2], pp. 4-148 4-150.)

The School District contends the WCABs decision lacks substantial evidence because the circumstances of Boyds injury differed from those of the cases cited by the WCAB. For example, Boyd was not protecting the School Districts property like in Martinez v. Workers Comp. Appeals Bd., supra, 15 Cal.3d at 985, where a parishioner volunteering at a church carnival was injured while protecting a beer booth while off duty. Further, Boyd did not have express permission from his employer to engage the suspect, unlike the decedent employee who had been expressly authorized to drive his employers personal sports vehicle during a work break in Fremont Indemnity Co. v. Workers Comp. Appeals Bd., supra, 69 Cal.App.3d at p. 173. And unlike both Wright v. Beverly Fabrics, Inc., supra, 95 Cal.App.4th at pp. 359-350 and North American Rockwell Corp. v. Workers Comp. Appeals Bd., supra, 9 Cal.App.3d at pp. 156-157, Boyd was not injured on the employers premises while aiding a coworker.

As Boyd appropriately observes, none of the cases cited by the WCAB and the School District limit workers compensation recovery to only the circumstances presented. To the contrary, No contract of employment can list every act that an employee may or may not do in the course of his employment. (North American Rockwell Corp. v. Workmens Comp. Appeals Bd., supra, 9 Cal.App.3d at p. 158.) The WCAB here concluded Boyd acted reasonably when engaging in a minor deviation from the course of his employment to assist the police to apprehend a fleeing suspect, in light of his perception of danger to schools in the vicinity, combined with an absence of a specific employment policy prohibiting his conduct. We agree and find the WCABs determination supported by substantial evidence.

DISPOSITION

The petition for writ of review, filed on June 5, 2007, is denied. This opinion is final forthwith as to this court.

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^[1] Further statutory references are to the Labor Code.