Pacific Employers Insurance v. Industrial Accident Commision

NOURSE, P. J. The petitioner as the insurance carrier of a general employer seeks to review an award of the respondent commission based upon a holding that the general and the special employers were both liable for payment of compensation. Both being fully covered by compensation insurance, the award was made against the two insurance carriers.

Viewing the evidence in the light most favorable to respondent, as we are required to do in a proceeding of this nature, it appears that Dinwiddie Construction Company held a general contract to perform certain work for a cement company in Davenport in Santa Cruz County. In the course of its operations Dinwiddie let a subcontract to W. R. Ballinger & Son on a cost plus basis. Under the terms of this contract Dinwiddie agreed to and did furnish its own employees to help the” employees of Ballinger in the work under the subcontract. All these employees were carried on the Dinwiddie payroll and were paid by Dinwiddie checks. Prior to the time of the accident no one of these employees had been carried on the Ballinger payroll, and all had been under the direct supervision and control of Dinwiddie.

A short time before the accident Ballinger had completed its work under the subcontract and had removed from the premises all the men and equipment with the exception of two men and two trucks. These, on the special request of Dinwiddie, were permitted to remain a few days to clean up and to remove some other equipment to the plant of another cement company in the vicinity. The injured employee, who was then on the regular payroll of Dinwiddie, was directed by Dinwiddie’s superintendent to assist the two employees of Ballinger and in the course of this work he suffered the injuries on which the award was based. During all this work the employee was under the direction of Dinwiddie’s superintendent. The two employees of Ballinger with whom he was working at the time of the injuries were under the same di[379]rection, the Ballinger superintendent and foreman having left the premises with the rest of their crew several days previously.

When the applicant was injured the superintendent and timekeeper for Dinwiddie arranged hospitalization and medical care, but later in the same day they took the position that he was an employee of Ballinger and so notified the doctor and the hospital. Dinwiddie then requested Ballinger to pay his wages for the day and to assume the responsibility of his injury. This was done and the payrolls were readjusted to show that the injured employee was on the Ballinger payroll on the day of the injury, and medical care was furnished the employee for several months at the expense of Ballinger’s insurance carrier.