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Hartford Accident and Indemnity Co. v. Workers' Compensation Appeals Board6/15/1982
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
Civ. No. 27589
1982.CA.40606 ; 132 Cal. App. 3d 796; 183 Cal. Rptr. 440
June 15, 1982
HARTFORD ACCIDENT AND INDEMNITY COMPANY, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD, RESPONDENT; JUDY HAYNES ET AL., REAL PARTIES IN INTEREST
Towner, Kristjanson, Bellanca & Hill and Brian A. Hill for Petitioner.
No appearance for Respondent.
Douglas Murray for Real Parties in Interest.
Opinion by Kaufman, J., with Morris, P. J., and Gardner, J., concurring.
Kaufman
Petitioner, Hartford Accident and Indemnity Company (Hartford), the workers' compensation insurer of Walsh & Associates, seeks review of an opinion and decision of the Workers' Compensation Appeals Board (the Board), after reconsideration, awarding the dependent widow and seven children of Starling Timothy Haynes (the decedent) death benefits on account of his death resulting from injuries sustained in a motorcycle accident while he was returning to his temporary home after attending a class required by his union's apprenticeship program.
On review Hartford advances numerous contentions including that the evidence establishes the defense of intoxication as a matter of law; that there is no substantial evidence to support the Board's determination the decedent came within the "commercial traveler" exception to the going and coming rule; that the injury and resulting death did not arise out of and occur in the course of the employment; that the employee was engaged in horseplay at the time of the accident so that recovery is barred; that the injury and death resulted from the employee's intoxication so that recovery is barred; and that Hartford and the employer (the defendants) were denied procedural due process by the
WCAB trial judge's receiving evidence outside the presence of the parties after the case had been submitted for decision and striking the testimony of a police officer. We have concluded that the "commercial traveler" exception to the going and coming rule has no application to the case and that the defendants were deprived of their procedural rights. The decision must therefore be annulled. We do not address the other contentions except insofar as they may bear on the dispositive issues.
Facts
In May 1979 the decedent had come to the Los Angeles area to seek employment as a surveyor with Walsh & Associates, a West Covina civil engineering firm, by which he had previously been employed. Walsh & Associates rehired the decedent in May 1979 as a chainman.
The decedent and his wife had decided to sell their home in Santa Maria and purchase a home in the Hesperia area. Escrows had been opened on both homes at the time of the accident. At the time of the accident the decedent was staying at his father's home in Hesperia. He used a motorcycle for transportation to save gas.
Since Walsh & Associates was a union shop the decedent was required to join the union as a condition of employment. To become a member of the union it was necessary to participate in an apprenticeship program which required the satisfactory completion of certain classroom work and on the job training. Apparently Walsh & Associates did not actively encourage its employees to attend the required classes; it did not provide reimbursement for transportation
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