Espinoza v. WCAB
Filed 2/5/13 Espinoza v. WCAB CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION FIVE
STEWART ESPINOZA,
Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD and LOS ANGELES COUNTY
JAIL,
Respondents.
No. B239438
(W.C.A.B. No.
ADJ6748204)
PROCEEDINGS
to review a decision of the Workers' Compensation Appeals Board. Affirmed.
Hitzke
& Associates, Sean P. Handy, Daniel L. Hitzke, Robert D. Porter for
Petitioner.
Fuller
Jenkins, Kellie A. Wright, Craig Fuller for Respondent.
________________________
On January 17, 2012, the Workers'
Compensation Appeals Board (WCAB) found that petitioner Stewart Espinoza, while
an inmate of the
County Men's Central Jail, was not an employee of the County of Los Angeles
(County) at the time that he was injured while working as a cook in the jail,
and that he was therefore not eligible for workers' compensation benefits. Espinoza filed a petition for review which we
denied on May 17, 2012. The Supreme Court granted Espinoza's petition
for review on August 29, 2012
and transferred the matter to this court with directions to vacate the order
denying the petition for a writ of review.
We issued a writ of review on September 20,
2012 pursuant to the Supreme Court's direction.
Having
afforded the parties an opportunity to file briefs, and following oral
argument, we conclude once again that the WCAB's decision should stand.
Whether
Espinoza was County's employee depends in this case on whether he performed the
work he was doing voluntarily or whether he was required to work as a condition
of his incarceration. So formulated, the
issue at hand is primarily a problem of proof.
The solution to this problem was the enactment in 1970 by the Los
Angeles County Board of Supervisors of an order, referred to hereafter as Order
#91, which provides that persons confined in the county jail may be compelled to
perform labor under the direction of a county official. Order #91 goes on to state that "[n]o
prisoner engaged in labor pursuant to this order shall be considered as an
employee of, or to be employed by the County or any department thereof, nor
shall any such prisoner come within any of the provisions of the Workmen's
Compensation Insurance and Safety Act of 1917 . . . ."
For
the reasons set forth below, we conclude that Order #91 is proof of the fact
that Espinoza was not performing work voluntarily but rather that, under Order
#91, he was required to work as a condition of his incarceration.
Prior to the trial
before the workers' compensation administrative law judge (WCJ), Espinoza and
County stipulated that Espinoza was working as a cook in the county jail on
November 1, 2005 when he sustained an
was found to be County's employee, the injury arose in the course and scope of
employment.
title="">[1] Thus, the only issue in the case is whether
Espinoza was County's employee.
name="_ftnref2" title="">[2]
Espinoza
did not testify. Instead, there was an
offer of proof that the WCJ rendered as follows: "He [Espinoza] thought his work was
voluntary, and was never told his work was mandated by the terms of his
incarceration. He received preferential
treatment in exchange for the work."
Order
#91 was enacted by the Board of Supervisors in response to the decision in
Comp. App. Bd. (1970) 8 Cal.App.3d 978 (Childs). Childs
was a case in which real party in interest David Childs, then an inmate in the
Los Angeles County Jail, was working on a road project in Malibu in November
1966 when he was injured. Childs
testified without objection or contradiction in the hearing before the WCJ that
he volunteered for the job and was not required to work. (Childs
at p. 981.) He was in fact being paid 50
cents an hour. (Childs at p. 979.) County
contended that his work was not voluntary but that he was working as a result
of County's "authority over his person" which flowed from Penal Code
section 4017.
title="">[3] (Childs
at p. 981.)
Childs
conceded that if there were a County ordinance that required him to work, he
would not be a volunteer. (
"In the present case, in the absence of a
county ordinance requiring inmates to perform such labor as incident to the
incarceration it becomes necessary only to examine the relationship between the
inmate and the county. We have already
determined his work was voluntary. He
performed a service in return for a gratuity . . . ." (Childs
at p. 983.)
Order
#91 was promulgated following the Childs
decision. The prefatory letter to the
Board of Supervisors refers to Childs
and states that prior to this decision, jail inmates were not considered
employees entitled to workers' compensation benefits. Order #91 states in relevant part that
persons confined in the county jail "may" be compelled to perform
labor under the direction of a county official and it goes on to state that
"[n]o prisoner engaged in labor pursuant to this order shall be considered
as an employee of, or to be employed by the County or any department thereof,
nor shall any such prisoner come within any of the provisions of the Workmen's
Compensation Insurance and Safety Act of 1917 . . . ."
As
noted, the issue before the WCJ was limited to whether Espinoza was County's
employee.
The
WCJ reasoned that Order #91 only provides that a jail inmate "may" be
compelled to work, not that the inmates "shall" be compelled to
work. The WCJ went on to conclude that
there was no evidence that Espinoza was compelled to work. "He [Espinoza] did the work in order to
receive some extra benefits while in jail.
Nothing indicates the terms of his sentence required him to work in the
kitchen."
The WCAB disagreed. Noting that it was Childs that spawned Order #91, the WCAB pointed out that similar
ordinances have been held to exclude county jail inmates from workers'
compensation coverage. The WCAB cited as
an example the Tulare county ordinance in Parsons
v. Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 629 (
work "is not voluntary if it is performed subject to a County ordinance
that requires an inmate to work while incarcerated."
Parsons
was a case where the defendant was given a choice at sentencing between a
routine jail sentence or being placed on probation with the condition he serve
45 days at an industrial road camp. (
up on the first day at the road camp (where he was eventually injured), he was
told to work in the kitchen; he was not paid and did not receive any work-time
credits. (Parsons at p. 632.) The
the effect of the county ordinance:
"Tulare County ordinances
and resolutions enacted pursuant to Penal Code section 4017 require county jail
and correctional road camp inmates to work.
This statutory compulsion to work further negates any consensual
employment relationship under the facts of this case. The question of whether there was a
'voluntary' consensual relationship turned in Childs on the fact Los
Angeles County inmates were not required to work by ordinance (8 Cal.App.3d at
p. 983)." (Parsons at p. 639.)
In sum, the WCAB
appears to have concluded, principally on the strength of Parsons, that the existence of an ordinance requiring jail inmates
to work, standing alone, warranted the conclusion that the inmate's work is not
voluntary. The WCAB rejected the theory
that the word "may" in Order #91 made the inmates' work
voluntary: "If an inmate is
directed to work by the Sheriff, the work is necessarily not
voluntary." (Underlining in
original.)
Discussion
"The
traditional features of an employment contract are (1) consent of the parties,
(2) consideration for the services rendered, and (3) control by the employer
over the employee. [Citation.] Although these common law contract
requirements are not to be rigidly applied, a consensual relationship between
the worker and his alleged employer nevertheless is an indispensable
prerequisite to the existence of an employment contract under Labor Code
section 3351."
title="">[4] (Parsons,
126 Cal.App.3d at p. 638.)
Whether
a person incarcerated in a county jail is in a consensual employment
relationship depends on the policy that the county has chosen to follow. "The trial court
must determine whether a county inmate was an 'employee' on a case-by-case
basis using the general definition of employee.
(See generally, Parsons v.
Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 629, 636, fn. 3 [].)
should consider the following questions, inter alia: (1) Did the county require
plaintiff to work as a condition of incarceration?; (2) Did plaintiff volunteer
for the assignment?; and (3) What considerations were received, if any, for
example, monetary compensation, work-time credits, freedom from incarceration,
etc.?" (Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 334.)
If
the first of these questions is answered in the affirmative, the inquiry is at
an end. This is especially true of
cases, such as the one before us, where the county has a declared policy, set
forth in writing, that it requires jail inmates to work as a condition of their
incarceration. If such a policy is in
effect, inmates are simply not in a position to volunteer to work. It is to be kept in mind that the employment
relationship is consensual, which means that the county must consent to the
relationship. If it has a declared
policy to the contrary, an employment relationship cannot exist.
Given
that Order #91 precludes the establishment of an employment relationship, it is
not necessary to address the question whether Espinoza volunteered to
work. We note, however, the manifest
difficulties that would be encountered if Order #91 did not exist. With an inmate population the size of the
County's jail system, the problems of proving whether the County entered into
an employment relationship with a given inmate would be practically insurmountable. It would also lead to the highly undesirable
result of leaving some inmates in the workers' compensation system and some
outside of it, leaving the public agency with a completely unpredictable
financial exposure.
We
conclude that the WCAB decision is correct and that Order #91 precluded the
creation of an employment relationship.
Disposition
The decision of the Workers' Compensation
Appeals Board is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.
eventually rated with a whole person impairment of four percent and an
additional three percent for pain.
limitations and this finding has not been challenged.
