Rudolph Knight, App. v. Department Of Labor And Industries, Res. ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
RUDOLPH E. KNIGHT, No. 69514-2-
Appellant,
v.
ORDER GRANTING MOTIONS
DEPARTMENT OF LABOR & FOR RECONSIDERATION,
INDUSTRIES, WITHDRAWING AND REPLACING
OPINION
Respondent.
Both parties filed motions for reconsideration of the court's April 7, 2014 opinion
The court has considered the motions and determined that reconsideration should be
granted, the opinion withdrawn, and a substitute published opinion be filed.
Now, therefore, it is hereby
ORDERED that the opinion of this court filed April 7, 2014 is withdrawn and a
substitute published opinion is filed.
Dated this 16th day of June, 2014.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
RUDOLPH E. KNIGHT, No. 69514-2-1
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Respondent. FILED: June 16, 2014
Verellen, A.C.J. — Under the "traveling employee" doctrine, the employee
bears the burden of proving that he or she is eligible for workers' compensation
benefits, including that he or she was not on a distinct departure from the course of
employment at the time of his injury. Because Rudolph Knight failed to meet this
burden, the trial court properly granted summary judgment for the Department of Labor
and Industries (Department). We affirm and deny Knight's request for attorney fees and
costs.
FACTS
In December 2008, Knight worked as a catastrophic claims adjustor for State
Farm. Although his home base was in Seattle, he began working on assignment in
Galveston, Texas, shortly after Hurricane Ike struck the area. While working on
location, Knight stayed in a hotel in a suburb of Houston and used a company van for
No. 69514-2-1/2
transportation. He was responsible for homeowner and flood claims in Texas City,
directly across the bay from Galveston Island.
Knight returned to Texas on December 1 after spending Thanksgiving weekend
visiting family. He was not scheduled to work December 2 but decided to drive 30 miles
from his hotel to Galveston Island to survey the devastation and get a better
understanding of what was going on there. He explained that even though he had
already been working there for two months, he wanted to survey the area because he
was coming off of a long weekend away and he wanted to get "back into the frame of
mind of dealing with that specific situation."1
While Knight was driving back to his hotel, he noticed some men riding dune
buggies and pulled onto the beach to watch. This is the last thing that he remembers
until his wife visited him in the hospital more than 24 hours later.
His wife talked to him around 1:00 p.m. on December 2 while he was watching
the dune buggy riders and she heard the riders approach Knight. She then ended the
phone call so that she could go to work.
At 5:30 p.m., paramedics responded to a 911 call and found Knight lying on his
back in the surf and mumbling "help me."2 According to the lead paramedic, Craig
Wunstel, Knight had some small lacerations and bruising and was treated with fluid for
both hypothermia and intoxication. Wunstel asked Knight if he had been drinking or
using drugs. Knight denied using drugs but said that he "had a lot of alcohol to drink."3
1 Report of Proceedings (RP) (June 20, 2011) at 77.
2 RP (June 22, 2011) at 8.
3 Id. at 23.
No. 69514-2-1/3
Knight also told Wunstel that the last thing he remembered was getting tired and
passing out on the beach.
Police Officer Ernesto Garcia also responded to the scene. While inside the
ambulance with Knight, he observed that Knight smelled of alcohol. He did not take any
witness statements from anyone else on the beach that evening. Neither Wunstel nor
Officer Garcia know how Knight was injured.
Dr. Blake Chamberlain treated Knight at the hospital emergency room.
Dr. Chamberlain testified that Knight smelled of alcohol and that Knight told him that he
drank "[a] lot."4 Knight also told Chamberlain that he had been "riding in [the] dunes"
but could not remember what type of vehicle he was on.5 Based upon Knight's actions,
slurred speech, sleepiness, and the smell of his breath, Dr. Chamberlain's initial
diagnosis was alcohol intoxication. Dr. Chamberlain did not notice any large bruises or
signs of apparent trauma but ordered two CT (computed tomography) scans. The CT
scans showed a subarachnoid hemorrhage in Knight's brain. Dr. Chamberlain
amended his diagnosis to include this injury.
Knight was then transferred to Methodist Hospital because it was better equipped
to handle his brain injury. Testing at Methodist Hospital indicated that Knight's
subarachnoid hemorrhage was likely caused by a brain injury and not an aneurysm.
Bruising on Knight's face indicated that he suffered a contrecoup injury, meaning there
was some kind of blunt trauma to his head that caused a "sloshing" of the brain where
the brain knocked up against the other side of the skull and caused his injury.
4 RP (June 22, 2011) at 73.
5 Id.
No. 69514-2-1/4
Dr. Chamberlain testified this type of injury could be sustained by falling on sand and
was not consistent with an injury received by a blow to the head with a fist, but admitted
that there was no way to know for sure how Knight was injured.
Unfortunately, while at Methodist Hospital, Knight's cognitive condition worsened.
He was not able to express himself clearly and he developed a wandering eye. This
was possibly due to complications from an angiogram performed at the hospital.
Knight filed an application for workers' compensation benefits. The Department
ultimately rejected his claim, and Knight appealed to the Board of Industrial Insurance
Appeals (Board). The Board affirmed the Department's decision, finding that Knight
suffered his head injury because he became intoxicated, collapsed on the beach, and
struck his head on the sand. It concluded that Knight's decision to become intoxicated
was a distinct departure from his course of employment.
Knight appealed to King County Superior Court. The Department moved for
summary judgment, arguing that there was no genuine issue of material fact that Knight
abandoned his employment when he drank to the point of intoxication. In the
alternative, the Department argued that Knight abandoned his employment by driving
from his hotel to the beach and watching the dune buggy riders. The trial court agreed
with both arguments and granted summary judgment to the Department.
Knight appeals.
No. 69514-2-1/5
DISCUSSION
Judicial review of a decision by the Board is de novo and is based solely on the
evidence and testimony presented to the Board.6 Either party is entitled to a jury trial to
resolve factual disputes, but "the findings and decision of the board shall be prima facie
correct and the burden of proof shall be upon the party attacking the same."7 Appeals
are governed by the civil rules, including CR 56 for summary judgment.8
Summary judgment decisions are reviewed de novo.9 Summary judgment is
proper if there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.10 A genuine issue of material fact exists if"reasonable
minds could differ on the facts controlling the outcome of the litigation."11 "When
determining whether an issue of material fact exists, the court must construe all facts
and inferences in favor of the nonmoving party."12
"Summary judgment is subject to a burden-shifting scheme."13 The initial burden
to show the nonexistence of a genuine issue of material fact is on the moving party.14
6 RCW 51.52.115; Johnson v. Weyerhaeuser Co.. 134 Wn.2d 795, 800 n.4, 953
P.2d 800 (1998); Dep't of Labor & Indus, v. Fankhauser. 121 Wn.2d 304, 308, 849 P.2d
1209(1993).
7 RCW 51.52.115.
8 RCW 51.52.140; McClelland v. ITT Ravonier, Inc.. 65 Wn. App. 386, 390, 828
P.2d 1138 (1992)).
9 Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
10 CR 56(c).
11 Ranger Ins. Co.. 164 Wn.2d at 552.
12 Id,
13 \±
14 id; see also Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16,
26, 109 P.3d 805 (2005).
No. 69514-2-1/6
"A defendant may move for summary judgment by showing that there is an absence of
evidence to support the plaintiff's case."15 Once this initial showing is made, the burden
shifts to the plaintiff to make a showing sufficient to establish the existence of an
element essential to his case.16 In a claim for workers' compensation benefits, the
injured worker bears the burden of proving that he is entitled to benefits.17 If this burden
cannot be met as a matter of law, summary judgment for the Department is proper. A
nonmoving party must set forth specific facts showing a genuine issue for trial and may
not rely on speculation.18
Workers' Compensation Benefits
Knight argues that the Department had the burden on summary judgment to
show that Knight abandoned the course of his employment at the time of his injury. We
disagree.
In Washington, an injured worker's right to benefits is statutory. An employee
shall receive benefits for an injury only if it occurs "in the course of employment."19
While the act should be liberally construed in favor of those who come within its terms,
15 Sligar v. Odell, 156 Wn. App. 720, 725, 233 P.3d 914 (2010).
16 Id. (quoting Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182(1989)).
17 Superior Asphalt & Concrete Co. v. Dep't of Labor & Indus., 19 Wn. App. 800,
804, 578 P.2d 59 (1978) (holding that it was appellant's burden to prove that her
husband's death occurred in the scope of employment and that she was eligible for
widow's benefits).
18 Young, 112 Wn.2d at 225-26.
19 RCW 51.12.010.
No. 69514-2-1/7
individuals who apply for benefits are held to strict proof of an injury in the course of
employment.20
In Ball-Foster Glass Container Co. v. Giovanelli, our Supreme Court adopted the
traveling employee doctrine for employees on out-of-town business travel.21 "A
traveling employee is generally considered to be in the course of employment
continuously during the entire trip, except during a distinct departure on a personal
errand."22 Under this doctrine, "when travel is an essential part of employment, the risks
associated with the necessity of eating, sleeping, and ministering to personal needs
away from home are an incident of employment even though the employee is not
actually working at the time of injury."23 The rule recognizes that a traveling employee is
subjected to hazards he could otherwise avoid if he were home and that the hazards of
travel become the hazards of the employment.24 "Since the traveling employee doctrine
is an exception to the general rule that injury is not compensable when it occurs off the
employer's premises, when the worker is not actually engaging in work activity,
coverage should be limited to injuries fairly attributable to the risks of travel."25
20 Cvrv. Dep't of Labor & Indus.. 47 Wn.2d 92, 97, 286 P.2d 1038 (1955)
(quoting Olvmpia Brewing Co. v. Dep't of Labor & Indus., 34 Wn.2d 498, 505, 208 P.2d
1181 (1949)): DeHaas v. Cascade Frozen Foods. Inc., 23 Wn.2d 754, 759, 162 P.2d
284 (1945); Clausen v. Dep't of Labor & Indus.. 15 Wn.2d 62, 68, 129 P.2d 777 (1942)).
21 163 Wn.2d 133, 142, 177 P.3d 692 (2008).
22 JU
23 Id,
24 Id. (quoting Chavez v. ABF Freight Svs.. Inc., 2001-NMCA-039, 130 N.M. 524,
528.27P.3d 1011).
25 Id. at 145.
No. 69514-2-1/8
The proper inquiry in determining if a traveling employee has left the course of
employment is "whether the employee was pursuing normal creature comforts and
reasonably comprehended necessities or strictly personal amusement ventures."26 In
making this inquiry, courts analogize to the "personal comfort" doctrine, i.e., that acts of
personal comfort "'do not take the employee out of the scope of employment because
they are necessary to his health and comfort.'"27 A "distinct departure" occurs only if
"the extent of the deviation is so substantial that an intent to abandon the job
temporarily may be inferred or the method chosen is so unusual and unreasonable that
the act cannot be considered incidental to the course of employment."28
Generally, intoxication is a defense to paying benefits when the claimant has
become so intoxicated that he abandons his employment.29 This generalization also
makes sense in the traveling employee context. While drinking alcohol in moderation
may be considered a personal comfort if it helps an employee relax at the end of the
workday, drinking to the point of intoxication is a distinctly personal activity that is
2614 at 143.
27 Id at 150 (quoting N.&L Auto Parts Co. v. Doman, 111 So.2d 270, 272 (Fla.
Dist. Ct. App. 1959)).
28 JU
29 Flavorland Indus.. Inc. v. Schumacker, 32 Wn. App. 428, 434, 647 P.2d 1062(1982). An exception exists if an employer encourages, finances, or creates an
atmosphere that allows employees to become intoxicated. See id, at 435-36 (where
there was evidence that employer knew employee drank at a weekly meeting, expected
him to buy drinks for others, encouraged the drinking, and paid for the drinks, whether
employee became so intoxicated that he abandoned his employmentwas properly
presented to the jury). But such facts are not alleged in this case.
No. 69514-2-1/9
outside of the scope of employment.30 Becoming intoxicated is not necessary to the
employee's health and comfort and, in fact, may be detrimental to the employee's
health. Furthermore, Knight presents no argument and cites no authority that an
employee who drinks to the point of intoxication remains within the scope of
employment under the traveling employee doctrine, especially where the employer had
no involvement in such intoxication.
Knight and the Department both agree that the traveling employee doctrine
applies because Knight was traveling on assignment for State Farm in Texas when he
was injured. But they disagree whether Knight was still within the scope of his
employment at the time of his injury. The Department argues that Knight was on a
personal errand when he stopped to watch the dune buggy riders at 1:00 p.m. and
when he drank to the point of intoxication. Even assuming that he was still within the
course of his employment when he stopped to watch the dune buggy riders, there is
substantial evidence that by 5:30 p.m., he was both intoxicated and injured. Sometime
between 1:00 p.m. and 5:30 p.m., Knight drank to the point of intoxication and suffered
his head injury. There is no direct or circumstantial evidence as to which event
occurred first. Because of this lack of evidence, it is impossible to determine whether
Knight was injured before or after he became intoxicated. Therefore, the outcome of
this case depends upon who had the burden of proving whether or not Knight was on a
distinct departure from his employment due to his intoxication at the time of his injury.
30 See, e.g., Superior Asphalt. 19 Wn. App. at 806 (in the context of the "coming
and going rule," decedent's intoxication was evidence that he was not in the course of
his employment when involved in an accident during his commute).
No. 69514-2-1/10
In determining which party bears this burden, we find Superior Asphalt &
Concrete Co. v. Department of Labor & Industries helpful.31 There, Division Three of
this court considered who had the burden of proving whether an employee was acting in
the course of employment while commuting from the job site in a company car.
Generally, an employee is not in the course of employment while going to or from the
job site unless the employer furnishes the employee's vehicle as an incident of
employment.32 But if the vehicle is provided solely for the employee's convenience or
the employee is "on a recreational excursion which is not incident to employment or in
furtherance of the employer's interests," his commute using a company car is not within
the course of employment.33
In Superior Asphalt, the employee used his employer's vehicle to commute three
to four hours from the job site to his home for the weekend.34 Work ended around 11:00
a.m. and the employee began his commute home.35 Approximately 12 hours later, the
employee was six miles from home when he drove the employer's car across the center
line, collided with another car, and died.36 The employee's blood alcohol level was
0.23.37 Due to the amount of time that lapsed after the employee left the job site and his
intoxication, the superior court concluded that the employee's widow was not entitled to
31 19 Wn. App. 800, 578 P.2d 59 (1978).
32 id, at 802-03.
33 JU at 803.
34 id, at 802.
35 Id,
36 id,
37 Id.10
No. 69514-2-1/11
benefits because the employee left the course of his employment and was engaged in a
"frolic of his own" at the time of the accident.38 On appeal, the employee's widow
argued that the employee had resumed his direct route back home at the time of the
accident.39 Division Three affirmed, holding that the widow did not meet her burden to
prove that the employee ended his frolic at the time of the accident and that "[i]t was
appellant's burden to prove her right to receive benefits under the act."40
Although Superior Asphalt involved the "coming and going" rule rather than the
traveling employee doctrine, we find it is instructive. If a commuting employee has the
burden to show that he was not on a frolic at the time of his injury, a traveling employee
should also bear the burden of showing that he was not on a distinct departure from his
employment at the time of injury. Under both doctrines, the employee must establish
that an injury occurred in the course of employment.
When the Department moved for summary judgment, it had the initial burden to
show the nonexistence of a genuine issue of material fact. The Department met this
burden by showing that there is an absence of evidence to support Knight's case;
mainly that there is no evidence that he was still within the scope of employment at the
time of his injury.
The burden then shifted to Knight to show that there is a genuine issue of
material fact that he was within the scope of his employment at the time of his injury.
38 id, at 804.
39 id,
40 Id.11
No. 69514-2-1/12
Based on the lack of evidence, any theory as to how his injury occurred was purely
speculative and summary judgment was warranted.
Knight argues that Ball-Foster created a presumption that a traveling employee is
acting within the course of employment at the time of injury unless the Department
proves that the employee departed on a personal errand. But Knight misconstrues the
Ball-Foster analysis. Knight relies upon the Supreme Court's question whether the
employerestablished that the employee distinctly departed from his employment at the
time of injury. He asserts that the Supreme Court therefore signaled that the employer
always has this burden. But in Ball-Foster, the employer was self-insured and the
Board ordered it to pay for the employee's benefits.41 The employer appealed to the
trial court, and the Department moved for summary judgment.42 As the nonmoving
party, the employer then had the burden to demonstrate a genuine issue of material fact
for trial. Here, because Knight is the nonmoving party, he bears this burden. Ball-
Foster's straightforward application of the rules on summary judgment did not articulate
a presumption in favor of the employee. No Washington case law supports Knight's
contention that the employer bears the burden of establishing a distinct departure under
the traveling employee doctrine.43
41 Ball-Foster, 163 Wn.2d at 139.
42 id,
43 Knight also relies on Shelton v. Azar, Inc., 90 Wn. App. 923, 954 P.2d 352(1998). But in Shelton. the court applied the traveling employee doctrine to award
benefits to an employee injured in a car accident on his way from the airport to a hotel,
id, at 926. A third party to the accident argued that the coming and going rule should be
applied to deny benefits because the employee had been at that work location for over
two months, id, at 936. That case did not in any way address who has the burden to
prove that a traveling employee is on a distinct departure from employment at the time
of an injury.
12
No. 69514-2-1/13
Knight argues that his decision to stop on the beach and watch the dune buggy
riders was an activity within the personal comfort doctrine and did not take him outside
of the scope of employment. Even if we accept this premise, becoming intoxicated is
beyond the personal comfort doctrine, and Knight did not meet his burden on summary
judgment to show that his injury occurred before he became intoxicated.
Knight argues that the Department provided no direct evidence that he was
intoxicated before or at the time of his injury. But, as discussed above, it was not the
Department's burden to show that Knight was intoxicated at the time of his injury.
Rather, Knight had the burden to show that at the time of his injury, he had not distinctly
departed from the course of his employment by becoming intoxicated.
Knight argues that whether he abandoned his employment through intoxication is
a material question of fact for the jury. In support of this argument, he cites Orris v.
Linglev.44 But Orris is readily distinguished. In that car accident case, the court held
that summary judgment was inappropriate because a toxicology report raised a genuine
issue of material fact about whether the driver was so intoxicated that he abandoned the
course of his employment.45
44 172 Wn. App. 61,288P.3d 1159 (2012). review denied. 177Wn.2d 1020
(2013).
45 id, at 68. Orris was injured in a car accident and Lingley, the driver, died, id,
at 64. The Department awarded Orris workers' compensation benefits for his injuries,
id. The death investigation toxicology report showed the presence of THC
(tetrahydrocannabinol) and cannabinoids in Lingley's body, id, at 67. Orris then sued
Lingley's estate for negligence, but the estate argued that Orris's receipt of benefits was
his exclusive remedy under the act, precluding a lawsuit against the estate, id, at 66.
The trial court granted summary judgment for the estate, but Division Three of this court
reversed, recognizing that while the act generally provides an exclusive remedy for
injuries, an injured worker may sue a negligent coworker if that coworker was not acting
in the course of employment at the time of the injury, id, at 66.
13
No. 69514-2-1/14
Knight does not raise a genuine issue of material fact precluding summary
judgment. The Department presented extensive evidence that Knight was intoxicated
when he was found and treated after 5:30 p.m. Both Officer Garcia and Dr. Chamberlain
testified that Knight smelled like alcohol. And paramedic Wunstel and Dr. Chamberlain
testified that Knight admitted that he had a lot of alcohol to drink. Knight cites to no
evidence in the record that raises a genuine issue of material fact that he was not
intoxicated.
Knight also argues that Dr. Chamberlain testified that even if Knight was
intoxicated, his head injury could have occurred before intoxication. But because there
is no evidence as to what happened to Knight between 1:00 p.m. and 5:30 p.m., this
testimony is pure speculation and does not defeat summary judgment.
Knight argues that summary judgment was inappropriate because "a jury could
reasonably find that Mr. Knight was the victim of a crime or accident; that he did not
purposefully drink at all or at the very least did not drink to the point of abandonment;
and that when the injury occurred Mr. Knight was not intoxicated."46 But Knight points to
no evidence in the record supporting any genuine issue of material fact for trial.
Because there is absolutely no evidence of what happened to Knight between 1:00 p.m.
and 5:30 p.m. except that he concluded the period both injured and intoxicated, his
theories rely on pure speculation.
Knight argues that other jurisdictions do recognize a presumption that a traveling
employee is within the scope of employment and that it is the employer or agency's
burden to show a distinct departure. Because neither the statute nor Washington case
46 Appellant's Br. at 31.
14
No. 69514-2-1/15
law support such a presumption and burden shift to the Department, we do not find this
argument persuasive.
Attorney Fees
Knight requests reasonable attorney fees and costs on appeal under RAP 18.1
and RCW 51.52.130. RAP 18.1 allows an award of attorney fees and costs on appeal if
applicable law authorizes them. An award of fees and costs under RCW 51.52.130
requires both that the injured worker requesting fees prevail in the action and that the
accident fund or medical aid fund be affected.47 Because Knight does not prevail on
appeal, he is not entitled to attorney fees or costs under this authority.
We affirm the trial court.
WE CONCUR:
M-
6?X,*J.
47 Pearson v. Dep't of Labor & Indus.. 164 Wn. App. 426, 445, 262 P.3d 837(2011).
15