6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Delane Slater, Respondent,
v.
Hoopa Valley Tribe, PSI, c/o Tribal First, Appellant.
No. A-99-012 (C-96-076) (July 27, 2001)
(Reconsideration denied, December 7, 2001)
SYLLABUS*
Arbitrator held that employee casino injured in off-site automobile accident was not eligible for worker’s compensation benefits. Trial court reversed and remanded with instructions that the parties conduct additional discovery and present additional evidence to the arbitrator. Tribe as casino operator appealed. Court of Appeals holds (1) parties are responsible for their litigation strategy and, absent incompetence or negligent representation, it was error for trial court to remand for additional discovery; (2) witness’ opinion as to the motivation of a party does not constitute substantial evidence; (3) no substantial evidence supported the arbitrator’s decision. Court of Appeals therefore directs judgment in favor of employee and orders a remand to the arbitrator for the determination of damages.
Before: Larry King, Chief Justice; Volney Cothran, Justice; Yvonne Leveque Kobluk, Justice.
Appearances: D. Pat McAleer, counsel for Appellant, Hoopa Valley Tribe; Lawrence O. Eitzen, counsel for Respondent; Delane Slater, Respondent.
OPINION
Cothran, J.:
This matter came before the Hoopa Valley Tribal Court of Appeals pursuant to Appellant Hoopa Valley Tribe's Notice of Appeal, filed on October 4, 1999 and amended on October 8, 1999. Appellant appeals from the trial court's September 23, 1999 Opinion reversing and
6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001) p. 60
remanding the Arbitrator's decision which held that Delane Slater was not eligible for Workers' Compensation benefits. The Court heard arguments August 11, 2000.
Jurisdiction
This Court has personal jurisdiction over Respondent Delane Slater pursuant to §1.1.04(b) of the Hoopa Valley Tribal Code (H.V.T.C.). The acts which are the subject of this appeal occurred within the exterior boundaries of the Hoopa Valley Indian Reservation, giving rise to this Court's territorial jurisdiction. This Court has subject matter jurisdiction over this appeal pursuant to H.V.T.C., Title 1, §1.1.04(b) and Title 46, §5(Q)(8).
Background
Mr. Slater was employed as a security guard for the Lucky Bear Casino and the Hoopa Valley Tribe. Security guards used radios to communicate with each other during their shifts. On June 10, 1996, Mr. Slater arrived at work without the ear piece he used for his radio. Shortly after arriving at work, Mr. Slater informed his supervisor, Michael Ames, that he had left his ear piece at home. Mr. Ames told him, "Don't let it happen again." (Tr. at 22). Mr. Ames did not request or direct Mr. Slater to go home to retrieve his ear piece. (Tr. at 22).
Later during Mr. Slater's shift a second conversation occurred. During this second conversation, Mr. Slater asked Mr. Ames whether he could go home to get his ear piece. Mr. Slater alleges that Mr. Ames at that point gave him permission to go. Darlene Marshall, the Surveillance Manager for the Lucky Bear Casinos, testified at trial that she had overheard the conversation, that she persuaded Mr. Ames to allow Mr. Slater to take his break and that Mr. Ames acquiesced. Mr. Slater testified that Ms. Marshall was not present during the conversation with Mr. Ames. Whether Darlene Marshall was actually present during this conversation is disputed. After the second conversation, Mr. Slater drove home.
During the alleged break, while driving home, Mr. Slater was involved in an auto accident during which he sustained serious injuries. On June 19, 1996, Mr. Slater filed a claim for workers' compensation benefits. The claim was denied on June 27, 1996, based on a determination that Mr. Slater's injuries had not occurred in the course and scope of his employment. Mr. Slater then filed an application for workers' compensation benefits with the Hoopa Valley Tribal Court.
An Arbitrator was selected to hear the matter pursuant to the Hoopa Valley Workers' Compensation Ordinance (Title 46). The parties agreed on a trial date of December 17, 1998. One of the witnesses was Mr. Ames, Mr. Slater's immediate supervisor. When, two days before his scheduled deposition, Mr. Ames could not be located, counsel for both parties agreed to reschedule the deposition. Mr. Slater's attorney subsequently notified the Tribe's attorney that he did not want to continue the trial date in order to complete Mr. Ames's deposition. Both counsel agreed to proceed to trial as scheduled. Neither side subpoenaed any witnesses.
6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001) p. 61
The matter proceeded to a hearing before the Arbitrator on December 17, 1998. The Tribe offered several documents into evidence. Each side called two witnesses. Both parties submitted post‑trial briefs. At trial, Mr. Slater testified that the purpose of his trip home was to retrieve his earpiece. Ms. Marshall testified that she believed Mr. Slater's primary purpose was to drive his wife's car.
On February 10, 1999 the Arbitrator issued his written decision. In that decision, the Arbitrator found, inter alia, that retrieval of the ear piece was not Mr. Slater's "primary" purpose for leaving work on June 10, 1996 and, therefore, that the trip was not undertaken in the course and scope of his employment. The Arbitrator further found Darlene Marshall's testimony regarding the purpose of Mr. Slater's trip to be more credible than that of Mr. Slater himself. The Arbitrator found that Mr. Slater was not entitled to receive workers' compensation benefits.
Mr. Slater timely appealed from Arbitrator's decision to the Hoopa Valley Tribal Court, alleging that the Arbitrator had committed prejudicial error by failing to insure that the hearing was equitable, orderly and expeditious. Upon review, the Tribal Court found prejudicial error. The Tribal Court reversed the Arbitrator's decision and remanded it for a new hearing with instructions regarding introduction of certain evidence,
with instructions to call Mr. Ames as a witness; or make a record that he was unavailable with prior sworn deposition testimony admitted in evidence; or, in the alternative, provide a record that he was unavailable and no prior testimony is available.
It is from this decision that Appellant Hoopa Valley Tribe now appeals
Issue #1
DID THE HOOPA VALLEY TRIBAL COURT, ACTING IN THE CAPACITY OF AN APPEALS COURT, PURSUANT TO THE PROVISIONS OF THE WORKERS' COMPENSATION ORDINANCE (TITLE 46), VIOLATE THE STANDARDS AND LIMITATIONS ON THE SCOPE OF REVIEW WHEN IT REVERSED THE ARBITRATOR'S DECISION AND REMANDED IT WITH INSTRUCTIONS THAT THE PARTIES CONDUCT FURTHER DISCOVERY AND PRESENT ADDITIONAL EVIDENCE?
Litigants are generally given great latitude with regard to their strategies at trial. Although the strategy decisions of the parties may not elicit every piece of the puzzle, those decisions, nonetheless, are given great deference. H.V.T.C. §2.5.19 (a)1 & (b)2 allow the court
6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001) p. 62
to call witnesses on its own motion and interrogate those witnesses. The court's power to call witnesses is discretionary, however, and does not create an 'affirmative duty' to use that power.
In the case before us, had the arbitrator believed the presence of Mr. Ames was necessary, the arbitrator could have called Mr. Ames to testify. The arbitrator's decision not to usurp the litigants' strategies must also be given the same deference as the strategies themselves. An exception to this deferential standard occurs when a party is incompetent or grossly negligent and the failure to present evidence was not based on strategy. In this matter, however, there is no allegation of gross negligence or ineffective counsel. Therefore, we hold that the Trial Court's instructions to remand for Mr. Ames' testimony improperly second‑guessed the strategies of the parties.
Issue #2
WAS THERE SUBSTANTIAL EVIDENCE TO SUPPORT THE ARBITRATOR’S RULING TO DENY RESPONDENT OF WORKERS' COMPENSATION BENEFITS?
Standard of Review
An appellate court reviews factual determinations under the "substantial evidence standard" and legal determinations under the de novo standard. Title 46 §Q(4). The substantial evidence standard is fairly deferential and one of the most easily met evidentiary standards. See Hoopa Valley Indian Housing Authority v Gerstner, 3 NICS App. 250 (Hoopa Valley 1993). See also, BLACK'S LAW DICTIONARY.3
An appellate court may overturn the factual determinations of the trial court, if it examines the whole record, analyzes each fragment of evidence, and decides whether the evidence constitutes sufficient 'substantial evidence' to support the lower court's factual findings. The Court of Appeals may either affirm, modify, or reverse the judgment. H.V.T.C. §1.4.04. If the factual findings are not supported by substantial evidence, we must reverse.
Discussion
Appellant urges this Court to set aside the decision of the trial court and reinstate the arbitrator's decision that Mr. Slater was not within the scope of his employment when the accident occurred and, therefore, not eligible for workers' compensation benefits. Appellant
6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001) p. 63
contends that the arbitrator's decision was supported by the record and based on substantial evidence and, thus, should have remained undisturbed by the trial court. We disagree.
The evidence Appellant presented to the arbitrator consisted of the following;
1) Darlene Marshall testified that she did not hear Mr. Ames actually give permission to Mr. Slater to retrieve the earpiece during the first conversation between Mr. Slater and Mr. Ames.
2) Ms. Marshall further testified that she believed Mr. Slater's actual intent in returning home was to drive his wife's car, not to retrieve the earpiece.4
3) The Tribe offered evidence that at the time of the accident Mr. Slater had been speeding and was driving without a valid operator's license.
4) The Tribe offered evidence showing that employees were required to have a valid operator's license if driving was a condition of employment.
On the other hand, Respondent Slater contends that the trial court properly determined the Arbitrator's Decision was not supported by substantial evidence. Mr. Slater further argues that the evidence instead supports a finding that he had been acting within the course of his employment at the time of the accident and, therefore, that he was entitled to workers' compensation benefits.
Four pieces of direct testimony support Mr. Slater's position:
1) Mr. Slater's testimony:
… Nigel came in. He was hooking up his ear piece to his radio and was hooking it up. And he [Nigel] looked ‑ he asked me where my ear piece was and I said I left it at home. And that's when I asked Mike, my supervisor, if I can go home and get it. And he goes "yes." And I asked him, "Do I punch out?" He goes "no." He told me to hurry up so I left. Tr. at 14.
2) Debra Carpenter's testimony:
Q. And what did Mr. Ames tell you?
A. I told him that [Mr. Slater's wife] wanted to know why was Delane coming home.
6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001) p. 64
Q. And what did he tell you?
A. Coming after his ear piece.
Tr. at 33.
3) Darlene Marshall's testimony:
[Delane] stated 'let me have a break and I can get it then.' And Mike kind of stopped and he kept looking at me and I didn't say, 'oh, go ahead' right at that point. And he said, 'you just got here,' you know. And then he said, 'Oh, come on, I'll take a break and then I can pick up the ear piece while I'm home.' And I was the one who looked at Mike and said, 'Oh, give him a break, go ahead.' Tr. at 44.
4) Mr. Slater's testimony that, while employees are required to clock out if they intend to exit the premises, he did not punch out prior to driving home on the day in question. Tr. at 9.
Weighing and determining the credibility of witnesses is the sole province of the trier of fact and is given great deference. The testimony which the arbitrator found most credible was Ms. Marshall's stated belief that Mr. Slater's trip was primarily for the purpose of driving his wife's car. Ms. Marshall's opinion is derived from the jesting Respondent received during the evening.
Ordinarily, our analysis would end here. In the case at bar, however, Ms. Marshall's testimony is opinion testimony which, although admissible, is unsupported by any other evidence. Lay opinion as to motivation, in and of itself, cannot constitute substantial evidence. Therefore, Ms. Marshall's testimony5 as to motivation is not sufficient to support the arbitrator's findings.6
Since Ms. Marshall's opinion is not dispositive in this matter, this court then examines the remaining evidence to determine if a factual basis exists to support a determination of substantial evidence. Appellant relies on Ms. Marshall's testimony that she did not hear Mr. Ames give Mr. Slater permission during the first conversation between Mr. Slater and Mr. Ames. However, Ms. Marshall also testified she had urged Mr. Ames to give Mr. Slater permission, during the second conversation, and was present when Mr. Ames gave such permission. Tr. at 44. It is clear from the record that it is this second conversation that the business purpose relies.
6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001) p. 65
In this matter, the Court accepts the proposition that the employer consented to the 'coming and going'7 as being part of the employment for two reasons. 1) Mr. Slater was granted permission to take the rest break and retrieve the earpiece during the break. 2) Mr. Ames told Mr. Slater not to clock out. Accepting the facts, with no substantial contrary evidence, the Court has no choice but to find that in the realm of the testimony presented, substantial evidence does not exist to support Appellant's position. The question then becomes, does the remaining evidence prove otherwise?
Appellant also presented evidence that Mr. Slater had been speeding and driving without a license. Such violations, however, are irrelevant in determining if the accident occurred in the scope of employment.
Finally, Appellant presented evidence that if a tribal employee's duties required him to drive, he must possess a valid operator's license. Appellant failed to show, however, that driving was a condition of Respondent's employment. The Court recognizes, of course, that an employee might on occasion be required to go somewhere or do something related to his job. This, however, does not constitute a condition of employment in the manner in which Appellant would have us interpret the phrase. Furthermore, we decline to adopt a rule that, in effect, would vitiate an employee's employment protection while he was engaging in various work‑related special missions, business conferences, or functions, merely because driving was not a condition of his employment.
Conclusion
The substantial evidence standard gives considerable deference to the finder of fact and where a 'reasonable mind' might accept the evidence as adequate to support the conclusion, the conclusion shall be upheld. There is no substantial evidence to support the arbitrators decision. The evidence, however, meet the 'preponderance of the evidence' standard, which is necessary for Respondent to meet his burden of proof to prevail.
Order
Therefore, based on the foregoing, the decision of the trial court is affirmed, with the exception of the remand to the arbitrator for the testimony of Mr. Ames, which remand is hereby reversed.
This matter shall be remanded to the arbitrator solely for determination of damages.
6 NICS App. 59, SLATER v. HOOPA VALLEY (July 2001) p. 66
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Concurring Opinion
Leveque Kobluk, J.:
I concur with the result reached by the majority. However, the majority discusses issues not raised at the trial court level nor the appellate level and are not necessary for the determination of this case.
The issue on appeal was whether the trial court violated the standard of review when it determined there was insufficient evidence to support the arbitrator's decision and remanded for a new hearing with instructions regarding witness testimony.
The appropriate standard for the trial court to apply was whether there was substantial evidence to support the arbitrator's decision. It was improper for the trial court to substitute its fact finding for that of the arbitrator. It is up to the parties at the time of the hearing to present their case. It is not proper for trial court sitting as an appellate court to second guess the parties regarding what witnesses should or should not have been called or to make evidentiary rulings absent any objection at trial or rulings regarding issues not preserved or raised for appellate review.
It is up to this court to apply the appropriate standard of review. For the reasons stated in the majority opinion there is not substantial evidence to support the arbitrator's decision. On the contrary, the evidence leads to the conclusion that Mr. Slater was within the scope of his employment when the accident occurred. The undisputed evidence is Mr. Slater was going home to get the earpiece for his job. Any opinion testimony that Mr. Slater enjoyed driving his wife's car, drove without a license or sped at the time of the accident was irrelevant to the underlying and undisputed fact. A new hearing is not necessary regarding scope of employment and remand is appropriate for the determination of damages only.
However, in reaching its decision the majority refers to and relies on California law regarding workmen's compensation, specifically the "coming and going" doctrine. Such application of state law is not applicable or necessary to this appeal.
Further, the majority's rule of law regarding judicial deference to trial strategy absent incompetence or gross negligence is neither applicable nor necessary for this Court to decide the issues presented.
I concur with the result reached by the majority.
The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
§2.5.19(a) reads, Calling by Court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross‑examine witnesses thus called.
§2.5.19(b) reads, Interrogation by Court. The court may interrogate witnesses, whether called by itself or by a party.
Black's Law Dictionary defines 'substantial evidence' as "such evidence that a reasonable mind might accept as adequate to support a conclusion. Under the 'substantial evidence rule' reviewing courts will defer to an agency determination so long as, upon an examination of the whole record, there is a substantial evidence upon which the agency could reasonably base its decision." BLACK'S LAW DICTIONARY 1428 (6th ed. 1990).
Ms. Marshall testified: "... I felt, you know, what was happening was that the ear piece was just not the important part of wanting to have a break. The important part of wanting to have a break was that he got to have the car and he was going to drive home and back." Tr. at 40.
MS. MARSHALL: To be really honest how I felt, you know, what was happening was that the ear piece was just not the important part of wanting a break. The important part of wanting to have a break was that he got to have the car and he was going to drive home and back.5 Tr. at 40‑41.
In any event, the court finds persuasive 'the fact that [an] employee receives personal benefit [of a task or special mission] is not determinative when there is also a benefit to the employer.' (see Hinman v. Westinghouse Electric Co., 2 Cal.3d 956, 471 Pac.2d 988 (1970), (noting Meyer v. Blackman, 59 Cal.2d 668, 381 p.2d 916)). (see also Leonard Van Stelle Inc., et al v. Industrial Accident Comm. And Lorene I. Hartman, 382 P.2d 587, 31 Cal.Rptr. 467.
In Hinman v. Westinghouse Electric Co. the Court noted, "under the workmen's compensation law, [...,]although the employment relationship is ordinarily suspended when the employee is going or coming' the employer may agree, either expressly or impliedly, that the relationship shall continue during the period of 'going or coming,' in which case the employee is entitled to the protection of the act during that period." (noting Kobe v Industrial Acc. Comm., 35 Cal 33, 215 P.2d 736.) (Emphasis added).