Safeway Stores, Inc. v. Workers' Compensation Appeals Board

*531 Opinion

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.” (Lab. Code, § 3600.) Pointer filed an application with the Workers’ Compensation Appeals Board (hereinafter Board) and his application was assigned to a workers’ compensation judge for hearing. (Lab. Code, § 5309.) The judge decided to hold a hearing limited to Safeway’s…

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.”

Labor Code section 5950 permits our review of “an order, decision, or award” of the Board. Although the statute does not expressly say that the “order, decision, or award” must for such a review be “final,” that requirement will reasonably be implied. And Gumilla supplies the omitted concept by holding—“A writ of certiorari does not lie to review an order [of the Board] made in a matter prior to the final adjudication thereof.” (Latter italics added; 187 Cal., p. 639.)

*539 Our review of an “order, decision, or award” of the Board is substantially, if not precisely, subject to the rule which will govern the customary appeal from a judgment. The rule is tersely stated by Kerley v.…

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." (Lab. Code, § 3600.) Pointer filed an application with the Workers' Compensation Appeals Board (hereinafter Board) and his application was assigned to a workers' compensation judge for hearing. (Lab. Code, § 5309.) The judge decided to hold a hearing limited to…