Opinion
E032906.
7-16-2003
AMERICAN CHEM-TECH, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD and JOE DELATORRE, Respondents.
Laughlin, Falbo, Levy & Moresi, J. David Kristjanson for Petitioners. Workers Compensation Appeals Board, Vincent Bausano, Assistant Secretary for Respondent, Workers Compensation Appeals Board. Law Offices of Moga & Hurley, Michael Hurley for Respondent, Joe Delatorre.
Jose (Joe) Delatorre (Decedent) died as the result of an automobile accident. On behalf of herself and Decedents children, Sandra Delatorre, the surviving spouse, (Applicants) applied for workers compensation benefits on the ground that the accident arose out of Decedents employment. The Workers Compensation Board (Board) agreed. We find the evidence insufficient to show compensability, and we will annul the award.
STATEMENT OF FACTS
Decedent was killed when the van in which he was riding crashed and rolled in Las Vegas, Nevada. The accident occurred at about 4 oclock on a Saturday morning under mysterious circumstances which, for the purposes of this case, remain mysterious.
The van belonged to Decedents employer, American Chem-Tech (Employer). No other vehicle appears to have been involved, and the accident was attributed by police to excessive speed. Four persons were in the van when it crashed, two of whom died. Besides Decedent, a teenager was killed and two others injured. The dead teenager was African-American, while the other two were either African-American or Hispanic. All three of the teenagers had approximately .10 percent blood alcohol, while Decedent had no alcohol or drugs in his system.
A few minutes before the accident, a van, believed to have been that which later crashed, was stopped at a small grocery store. A Hispanic man at least 40 years old came in with a young African-American man. The store clerk observed another African-American male in the van. The Hispanic man bought two bottles of wine, while the younger man attempted to walk out with a candy bar. When the clerk objected, the Hispanic man made a gesture which the clerk took to indicate that the African-American male had a gun. After some argument, a third man (perhaps the one seen in the van) came in and there was a dispute over the car keys, which he eventually took. All the men then left. The clerk told police that the younger men appeared to be drunk or on drugs, while the Hispanic man did not. One of the younger men also told the clerk that he was "wanted in L.A."
Decedent was 40, precisely.
Apparently, all three of the younger men came from the Los Angeles area.
Decedent had worked for Employer for a number of years, and was currently acting as a supervisor of crews installing fiberglass pools. In March of 1997, Employer directed Decedent, who normally worked out of the Ontario office and lived in that area, to go to Las Vegas. According to Decedents widow, the assignment to Las Vegas was to be temporary and Decedent expected to be back in California in a few weeks. Employers representatives, on the other hand, testified that Decedent had been given a permanent position (which was a promotion) running the Nevada operations from the Las Vegas office. At the time of his death, Decedent was staying in a motel in Las Vegas, paid for by Employer. This would have been normal policy for a temporary assignment, and also for a permanent assignment until the employee could find a residence.
Although the evidence in support of this belief was primarily, or entirely, hearsay, the formal rules of evidence need not be followed in workers compensation proceedings. (Lab. Code, §§ 5708, 5709.) Hearsay is permitted. (Mote v. Workers Comp. Appeals Bd. (1997) 56 Cal.App.4th 902, 913.)
His wife testified that while working in California, Decedent drove a company van and often took it home for personal use, such as picking his children up from school. Employers representatives testified that this would not have been permitted under standard policy, and that even for an employee on temporary assignment, the vans were to be used only for work purposes; if an employee was allowed to use a van while temporarily assigned, he was supposed to drive it only from his motel to the warehouse and job sites and back. Employer had a written policy against personal use of the vans which Decedent would have been required to sign. The vans seated only two; the rear of the vans was for storage and transport of chemicals and other materials.
The testimony by the two sides on the point does not appear consistent with their "best interests." If Decedent was permitted to use the van for private purposes, as his wife testified, this would undercut any assumption that he was on Employers business at the time of the accident. On the other hand, if private use was forbidden, as Employers representatives testified, this might suggest that he was on company business at the time. Realistically, however, as Decedent did not have his own vehicle in Las Vegas, his use of the van for his own errands would not be at all surprising.
According to Decedents wife and a nephew, who had worked with him for Employer a few years earlier, Decedent sometimes worked seven days a week and for hours ranging from 4 oclock in the morning to 7 oclock at night. It was sometimes necessary to start early in the morning to hire day laborers. Early work was also required when the weather was very hot, so that the fiberglass could be installed during cooler parts of the day. However, as Employers representatives pointed out, no such temperature accommodation would have been necessary in Las Vegas in March. Instead, according to this testimony, normal work hours would begin no earlier than 5:45 a.m.
Although the question was not specifically asked, the testimony of Employers representatives at least suggests that it was not commonplace for a supervisor to hire day laborers, if it was done at all. Employer regularly advertised for employees and the testimony contains several references to a fixed "payroll." Furthermore, Decedents "petty cash" was not provided for the purpose of paying day workers.
The workers compensation referee found that Decedent fell within the "commercial traveler" rule (see infra) because his assignment to Las Vegas was temporary. In this respect, she found the testimony of Employers witnesses unpersuasive. She also largely discounted the testimony by Employers witnesses (who appeared by deposition) on the basis that they did not demonstrate familiarity with Employers day-to-day operations in Las Vegas. Applying the "commercial traveler" rule, she found that Decedents death occurred in the course of and arose out of his employment. Benefits were accordingly awarded.
The referees decision was upheld by the Board, and Employer sought a writ of review. (Lab. Code, § 5950.) We issued the writ. Neither Applicants nor the Board filed a return to the petition; Applicants, however, had earlier filed an informal response and we will treat that as a return for the purpose of examining its argument and authorities.
All subsequent statutory references are to the Labor Code.
In its petition, Employer argues generally that the decision is not supported by substantial evidence, and also that the trial court erred in applying the "commercial traveler" rule. We address the latter contention first.
A.
Was Decedent a "Commercial Traveler"?
In reviewing factual determinations by the Board, we defer to the findings as long as they are supported by substantial evidence in light of the whole record. (Lab. Code, § 5952; Western Growers Ins. Co. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.) We do not reweigh the evidence. (Ibid.)
The "commercial traveler" doctrine applies to employees who are required to work away from home at a location to and from which they cannot reasonably commute. Employers witnesses testified that his assignment to Las Vegas was permanent. However, Decedents wife testified that he told her that it was temporary and that he would return in a few weeks. (See fn. 2, supra.) The nephew, Rizo, testified to the impression that Decedent would shortly return. As noted, it was for the workers compensation referee and the Board to determine credibility. We find substantial evidence to support the finding that Decedents assignment to Las Vegas was in fact temporary.
Employer argues, however, that the referee improperly excluded from evidence a one-way airline ticket in Decedents name. Applicants assert that the referee did so because the ticket had not been disclosed as evidence at the mandatory settlement conference or in the pretrial statement. ( § 5502, subd. (e); see San Bernardino Community Hospital v. Workers Comp. Appeals Bd. (1999) 74 Cal.App.4th 928, 937.) It is not clear from the record that this is the case, but even if there was error, it was not prejudicial. Contrary to Employers position, the ticket would have had limited evidentiary value because it cannot be assumed that a round-trip ticket would have been purchased for Decedent even if his employment was to be temporary. If his precise date of return was not known in advance, Employer might well have thought it advisable to wait and purchase the return ticket later. Employer might also have considered that Decedent might elect to drive or be driven back to California. The ticket would have proved nothing and any error (and none is visible from the record) was harmless.
We therefore accept that the commercial traveler doctrine applies to this case.
B.
The commercial traveler rule provides that when an employee is temporarily assigned to a work site away from home, he is considered to be in the course of his employment at all times during the assignment. (Wiseman v. Industrial Acc. Com. (1956) 46 Cal.2d 570, 297 P.2d 649.) In that case, an employee on a business trip died when a fire engulfed his hotel room. The fire started while the employee was engaged in an adulterous, alcoholic interlude, and probably resulted from an errant cigarette being smoked either by the employee or his guest. However, these circumstances were held irrelevant, because it was the employees work obligation that brought him to the place where he died. (Id. at p. 573.)
However, even a "commercial traveler" is not entitled to benefits under the workers compensation laws for all injuries which he suffers during a temporary assignment. Section 3600, which generally provides the conditions for compensation, requires that an injury not only occur during the course of his employment, but also that it arise out of the employment. ( § 3600, subd. (a).) Another formulation of this second prong is that the injury be "proximately caused by the employment." ( § 3600, subd. (a)(3).) "In the course of" and "arising out of" are distinct concepts, and both must be established before an injury is compensable. In a recent "commercial traveler" case, the Supreme Court confirms that "the requirement of Labor Code section 3600 is twofold" and that the "arising out of" prong requires a causal connection between the employment and the injury. (LaTourette v. Workers Comp. Appeals Bd. (1998) 17 Cal.4th 644, 651, 951 P.2d 1184.) The court in LaTourette also confirmed that even for a "commercial traveler," "an injury is not compensable if the employees activities amounted to a purely personal undertaking." (Id. at p. 653; internal quotation marks and citation omitted.)
Instructive is the case of Western Airlines v. Workers Comp. Appeals Bd. (1984) 155 Cal. App. 3d 366, 371, 202 Cal. Rptr. 74.) There, a flight attendant on paid layover could have been considered a "commercial traveler" and her subsequent rape by a casual acquaintance occurred in the course of her employment. However, as the court found, it did not arise out of her employment because the assailants motive was purely personal and had nothing to do with the fact that the victim was a flight attendant or worked for the airline. As the court commented in LaTourette, "in the case of a commercial traveler, workers compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort, and safety of the employee. [Citation and internal quotation marks omitted.] It does not, however, apply to any and all activities. Personal activity not contemplated by the employer may constitute a material departure from the course of employment." (LaTourette v. Workers Comp. Appeals Bd., supra, 17 Cal.4th at p. 652.)
We now turn to the decision of the Board. In determining compensability, the Board appears to have believed that because Decedent was a "commercial traveler" and was therefore deemed to have been within the course of his employment at the time of his death, Employer bore the burden of establishing that the death did not arise out of the employment. But the burden of establishing compensability is always on the party seeking benefits. ( § 3202.5.) Although this rule may be "softened" in situations in which it is difficult to establish the precise cause of the death or injury, the result is " . . . a quantum easing of the claimants burden rather than a shifting of the burden of proof to the employer." (California State Polytechnic University v. Workers Comp. Appeals Bd. (1982) 127 Cal. App. 3d 514, 519, 179 Cal. Rptr. 605.) Accordingly, the decision of the Board can only be upheld if there is substantial evidence to support the conclusion that, at the time of his death, Decedent was either engaged in Employers business, or in an activity necessarily arising from the fact of his assignment to Las Vegas.
That section provides that the "liberal construction" principle enunciated in section 3202 shall not "be construed as relieving a party from meeting the evidentiary burden of proof by a preponderance of the evidence."
The court in that case went on to reject the argument that assuming that it was proper to apply a "presumption of compensability," any such presumption dissipated when the employer produced some evidence that the employees death arose from a personal dispute. However, the holding of the case is that the burden of proof does not shift in favor of the employee merely because evidence is lacking.
We do not find such evidence. Certainly there is no evidence that his mere presence in Las Vegas, rather than at his home in Fontana, caused Decedent to be driving on the streets in the very early hours of the morning. He was far from his local place of residence and there is no reason to believe that he had been dining (see Leonard Van Stelle, Inc. v. Industrial Acc. Com. (1963) 59 Cal.2d 836, 837, 31 Cal. Rptr. 467, 382 P.2d 587), picking up dry cleaning, or doing anything else which was necessary for his "sustenance, comfort, and safety." (LaTourette v. Workers Comp. Appeals Bd., supra, 17 Cal.4th 644.) Indeed, the time of the accident makes it positively unlikely that Decedent was engaged in any such errand.
That leaves the theory upon which the family evidently relied: that Decedent was actually engaged in work activity, or at least on his way to do so. Although the question is closer, we find this too to be insufficiently supported.
To begin with, there was no evidence that Decedent had a job scheduled on that Saturday morning, although it was agreed that the company did sometimes perform work on Saturdays. Employers representatives testified that, given the time of year, work would not normally begin until about 5:45 a.m. at the earliest. While the Workers Compensation Appeals Board judge criticized this testimony on the basis that the witnesses had not established personal knowledge of the day-to-day operations, the rejection of evidence offered to establish that A is true does not create evidence that A is not true. (DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1268.)
We express no view on the correctness of this criticism.
Decedents wife and nephew did testify that Decedent sometimes began work as early as 4 oclock in the morning if it was necessary to hire day laborers. Unfortunately, although we generally defer to the Workers Compensation Appeals Board judges determination on credibility, this testimony is subject to the same objection as that which the Workers Compensation Appeals Board judge raised with respect to Employers witnesses. Neither the wife nor the nephew had any familiarity with the operations of the Las Vegas office or the practices and scheduling which prevailed there; nor were they aware of Decedents duties at that office. As a result, their testimony was entitled to minimal, if any, weight in these respects. On the other hand, there is substantial evidence that Decedent did not hire day laborers at the Las Vegas location, at least not on a regular basis; for example, that he did not have the cash available to do so. It is also undisputed that the vans provided by Employer had room for only a single passenger.
We would agree that the fact that the three teenagers from Los Angeles were almost certainly not prospective laborers is not controlling. If Decedent had seen three young men on a corner and had stopped to inquire if they were looking for work, the fact that they were actually criminals and carjackers would not be fatal to the compensability of Decedents resulting death. But this is not a reasonable inference or supposition. Decedent and the three young men were seen at a grocery store at approximately 3:45 a.m. and must therefore have "hooked up" even earlier. Not even the most extreme testimony from Decedents wife or nephew supports a conclusion that he could possibly have been looking for workers at such an hour.
The Workers Compensation Appeals Board judge seems to have felt that Decedent may well have been the victim of a criminal act. While this is not impossible, and perhaps not even improbable, it does not affect the underlying analysis with respect to compensability.
We recognize that the circumstances which preceded Decedents death are puzzling and not readily explained. It is also true that Decedents family is handicapped by the fact that he can shed no light on the subject, although it is not true that there were no other witnesses. However, it was their burden to provide at least some evidence that Decedent was engaged in Employers business when he began his fatal journey. No such competent evidence was introduced, and the award cannot stand.
It is not clear what efforts, if any, were made to find the surviving teenagers. At the deposition of Employers representative, Gina Bruscato, she testified that she had physical possession of some company records which might reflect scheduling and other relevant matters, but they were legally in the custody of Employers bankruptcy trustee. Although it would seem that such records could well have clarified such crucial points as the nature of Decedents presence in Las Vegas, they do not appear to have been pursued.
The order under review is annulled. The matter is remanded, and the Board is directed to enter a finding that Decedents death did not arise out of his employment and is not compensable.
We concur: Hollenhorst J., and Gaut J.