Cynthia Dillon v. Dept Of Labor & Industries ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CYNTHIA DILLON,
No. 70923-2-1
Appellant,
DIVISION ONE
DEPARTMENT OF LABOR &
INDUSTRIES OF THE STATE OF
WASHINGTON AND BARDAHL
MANUFACTURING, A WASHINGTON
CORPORATION UNPUBLISHED OPINION
Respondents. ) FILED: December 8, 2014
Spearman, C.J. — Cynthia Dillon was injured on her way home from work
as she walked through her employer's parking area. She challenges the trial
court's determination that her injuries are not covered under Title 51 RCW, the
Industrial Insurance Act (Act), which precludes coverage for injuries sustained in
a parking area. We conclude that Dillon's injuries are not covered under the Act
and affirm.
FACTS
In the fall of 2010, Cynthia Dillon worked for Bardahl Manufacturing, Inc.
as a lab technician assistant. On November 24, 2010, after Dillon had completed
her work for the day, she prepared to leave the building through an "employees
only" door, which was one of two exits in the building. Dillon left the building and,
after walking about fifteen steps, slipped and fell on a patch of black ice.
Dillon fell near a drain in a paved area just outside the Bardahl facility. The
area was bounded on one side by a public roadway. On the other side of the
No. 70923-2-1/2
paved area, opposite the roadway, was the employee's only door, which was
bounded by an exterior wall on one side and a roll top bay door on the other. The
bay door was rarely used, as secured shelves ran along the inside of it. When
the bay door was opened, it was solely for ventilation purposes. Employees had
set out an ash tray in the paved area between the roadway and doors; this area
had become known as the employee smoking area. Bardahl generally did not
use this area to conduct business, though it was occasionally used for storage
and employees frequently dumped buckets of water used in the business in a
drain located in the area.
The paved area directly in front of the doors contained no signage, painted
lines, or other markings denoting parking spaces and no employees were
assigned to park in this area. Nevertheless, employees customarily parked in this
area. At any given time during Bardahl's hours of operation, several vehicles
could be found parked in a line running parallel to the adjacent exterior wall and
continuing around a corner of the building. Dillon testified that she believed one
car was parked in this area when she fell. In addition, on the far side of the bay
door were four angle parking spaces, which were clearly identified by "Reserved
Parking" signage. Clerk's Papers (CP) at 24. Cars parked in the reserved spaces
would have been so close to the smoking area that their rear bumpers abutted or
crossed the common boundary with the smoking area.
After Dillon's fall, she experienced significant pain and sought medical
treatment. Shortly thereafter, she filed an application for worker's compensation
with the Department of Labor & Industries (Department), claiming she was
entitled to benefits under the Act. The Department determined that Dillon's
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injuries were not covered under the Act because they had occurred in a parking
area and had not occurred in the course of employment. The Department denied
Dillon's motion for reconsideration.
Dillon appealed the Department's decision to the Board. A hearing was
held before an industrial appeals judge (IAJ) at which Eric Nicolaysen, the owner
of Bardahl, gave undisputed testimony that the area where Dillon fell had been
used for parking for fifty years or more. Nicolaysen, Dennis Fisk, a Bardahl
employee, also gave undisputed testimony that while the area where Dillon fell
was occasionally used for storage and the drain was frequently used by
employees to dump water used in the business, the area was not generally used
to conduct business.
Robert Thorpe, a land use consultant, testified on Dillon's behalf that the
use of the area where she fell as a parking area was not appropriate under city,
state, and federal code. He opined that there should be a lane or "walking area"
in the parking area for access under the American with Disabilities Act (ADA), for
"fire access," and for "unloading chemical materials. Certified Appeal Board
Record (CABR)1 (Thorpe) at 62, 69. He testified that the law required a fire lane
through the smoking area, which "could be combined with ADA and emergency
access" and could be a "multiple-use lane, walkway or lane." CABR (Thorpe) at
67. He noted that the cars in the angled reserved parking spaces were "in
designated areas." Id. at 70. By contrast, it was his opinion that the cars parked
along the exterior wall and in front of the employee entrance were "parked where
1 CABR (Dillon; Fisk; Nicolaysen; Thorpe).
No. 70923-2-1/4
they shouldn't be parked." jd. at 70-71. In Thorpe's estimation, the area should
have been "an open lane for ADA" and "for. . . turning movements and parking
requirements." Id. at 70-71.
The IAJ found Thorpe's testimony unpersuasive because Dillon cited "no
authority for the proposition that an area used as a parking area falls outside of
the parking lot exception set forth in RCW 51.08.013 because the parking area
should have been used for another purpose." CABR at 43. The IAJ concluded
that, at the time of her fall, Dillon was not acting in the course of employment
under RCW 51.08.013. The IAJ issued a proposed decision and order affirming
the Department's order. Dillon petitioned for review to the Board, which denied
her petition and adopted the lAJ's proposed decision and order as its final
decision.
Dillon appealed the Board's decision to King County Superior Court. After
a bench trial, the trial court adopted the Board's findings of fact and conclusions
of law, entered additional findings of fact and conclusions of law, and entered a
judgment and order affirming the Board's decision. Dillon appeals.
DISCUSSION
Standard of Review
In an industrial insurance case, we review the decision of the trial court,
not the decision of the Board. See, Rogers v. Dep't of Labor & Indus.. 151 Wn.
App.174, 179-81, 210 P.3d 355 (2009); RCW 51.52.140. "[Ojur review in
workers' compensation cases is akin to our review of any other superior court
trial judgment." \_± at 181. Thus, we limit our review to determining whether
substantial evidence supports the findings made by the trial court and then
No. 70923-2-1/5
review de novo whether the trial court's conclusions of law flow from the findings.
Id.; see also, Gorre v. City of Tacoma, 180 Wash. App. 729, 324 P.3d 716 (2014),
amended on reconsideration in part, as amended. Unchallenged findings are
verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801,
809, 828 P.2d 549 (1992).
Because the Board's consideration of the statutory term "parking area" is a
matter of statutory interpretation, we review its decision on this issue de novo.
Univ. of Washington, Harborview Med. Ctr. v. Marengo, 122 Wash. App. 798, 802,
95 P.3d 787 (2004). Our fundamental objective in interpreting a statute is to
ascertain and carry out the Legislature's intent. Id-
Coverage under the Act
The Act provides coverage for a worker who is injured while "'[a]cting in
the course of employment."' RCW 51.08.013(1) defines "acting in the course of
employment" as follows:
'Acting in the course of employment' means the worker acting at his
or her employer's direction or in the furtherance of his or her
employer's business which shall include time spent going to and
from work on the jobsite as defined in RCW 51.32.015 and
51.36.040, insofar as such time is immediate to the actual time that
the worker is engaged in the work process in areas controlled by
his or her employer, except parking area.
Under this provision and what has come to be known as the "coming and going"
rule, a worker is acting in the course of employment and covered under the Act
for injuries sustained while coming and going from work on the jobsite in areas
controlled by his or her employer. Marengo, 122 Wash. App. at 801. However,
"specifically excepted from coverage are injuries occurring in 'parking areas'
while going to or from work." Madera v. J.R. Simplot, Co., 104 Wash. App. 93, 96,
No. 70923-2-1/6
15 P.3d 649 (2001); accord, Ottesen v. Food Servs. of Am., Inc., 131 Wash. App.
310, 315, 126 P.3d 832 (2006); see also, Bolden v. Dep't of Transp.. 95 Wn.
App. 218, 221, 974 P.2d 909 (1999); Bergsma v. Dep't of Labor & Indus.. 33 Wn.
App. 609, 615, 656 P.2d 1109 (1983).
Dillon claims that she is entitled to compensation under the Act because,
in her view, she was injured while going home from work in an area controlled by
her employer. She recognizes the parking area exception to coverage under the
Act, but argues that the area where she fell was not a "parking area" within the
meaning of the Act. We disagree.
As the legislature did not define the term "parking area," we look to the
ordinary meaning of the term in construing the Act. In Boeing Co. v. Roonev. 102
Wash. App. 414, 418, 10 P.3d 423 (2000), we determined that the parking area
exclusion applied only to areas where vehicles actually parked, not to a grassy
slope that was adjacent to a parking lot, but on which vehicles were never
parked. Similarly, in Madera, we looked to dictionary definitions of "parking,"
which included "the leaving of a vehicle in an accessible location" and "an area in
which vehicles may be left." Marengo. 122 Wash. App. at 803 (citations omitted).
Based on these definitions, we concluded that a drive-through lane where an
employee had been injured when she slipped and fell on a patch of ice was not a
"parking area" under RCW 51.08.013(1). Madera. 104 Wash. App. at 95. In
Marengo. 122 Wash. App. at 803, we held that a stairwell in a parking garage was
a means of getting to and leaving from a parking area and not a place where
vehicles park. Consequently, it was not a "parking area" under RCW
51.08.013(1).
No. 70923-2-1/7
In each of these cases, we determined whether a given area was a
"parking area" based on whether the area was actually used for parking. The
Board has taken a similar approach to interpreting RCW 51.08.013(1). For
example, in In re Burnett. 1978 WL 182672 at *1-2 (1978), an employer had set
aside a section of its property to be used as a parking area by its employees. The
area was fenced and paved and parking stalls had been painted. The area,
however, was not actually used for parking vehicles. Instead, the employer used
much of the area for storage. When an employee filed a claim for injuries
sustained in the area, the Board determined that the parking area exception did
not apply, noting that the area was no longer used for parking at the time of the
injury. The Board emphasized that it was the actual use of the area that
controlled, explaining:
There is nothing magic about a fence that would forever stamp the
whole area inside of it as a 'parking area' if, in fact, much of such
area was being used for something else. The particular location
where the claimant fell was a storage area on the employer's
premises; it clearly was not used for parked cars.
Burnett. 1978 WL 182672 at *2 (emphases added).
Notwithstanding Thorpe's testimony, the undisputed evidence in this case
was that the area in which Dillon fell had been used as a parking area for over
fifty years. By Dillon's own testimony, at the time she fell, at least one car was
parked in the area between the employee only entrance and the drain. The trial
court considered the actual use of the area where Dillon fell and correctly
concluded it was a "parking area" within the meaning of RCW 51.08.013. There
was no error.
No. 70923-2-1/8
Dillon points out that, although an employee generally is not covered
under the Act for injuries sustained in a parking area, where the area is also part
of the employee's "jobsite," as defined in the Act, the parking area exception may
not apply. Dillon argues that the area where she fell is a jobsite because Bardahl
employees occasionally emptied buckets of water used in the business in a
nearby drain. The argument is without merit.
"Jobsite" is defined as "the premises as are occupied, used or contracted
for by the employer for the business or work process in which the employer is
then engaged." See RCW 51.32.015 and 51.36.040. Even assuming that Bardahl
employees dumping buckets of water falls within this definition, it is of no help to
Dillon. It is not enough that the parking area is a jobsite as to some employees, it
must be a jobsite as to the employee claiming benefits under the Act. Olson v.
Stern. 65 Wash. 2d 871, 877, 400 P.2d 305 (1965) (parking area was jobsite as to
on-shift employee performing his work duties but not as to off-shift employee on
his way home after work). Here, there was no evidence that the area was a
jobsite as to Dillon. It is undisputed that Dillon was never assigned any duties in
the area where she fell and that, at the time of her fall, she was not performing
work duties, but was on her way home. Thus, under Olson. Dillon's injuries were
not sustained in a jobsite and are not exempt from the parking area exception.
Dillon contends that even if she was injured in a parking area that was not
part of her jobsite, she is entitled to recover under the Act because she was
injured on a "hazardous route" within the meaning of Hamilton v. Dep't of Labor &
Indus., 77 Wash. 2d 355, 363, 462 P.2d 917 (1969). But her reliance on Hamilton is
misplaced. In that case the court adopted the "hazardous route rule," extending
8
No. 70923-2-1/9
the scope of coverage under the Act to areas not owned or controlled by the
employer under specified circumstances. The rule is inapplicable here because it
is undisputed that the area of Dillon's accident was owned and controlled by her
employer. But even if that were not so, the rule would be of no help to her
because the Hamilton court expressly noted the legislature's intent "to exclude
from coverage injuries occurring to an employee in a parking area maintained
either on or off the employer's premises. . . ." Hamilton, 77 Wash. 2d at 362.
Accordingly, we noted in Bergsma that "[i]f Hamilton had been injured on [her
employer's] parking lot while on her way to work, she would have been precluded
from recovery." Bergsma. 33 Wash. App. at 614. Because Dillon was injured while
walking through the Bardahl parking area on her way home from work the
hazardous route rule is inapplicable.
Attorney Fees
Dillon requests an award of reasonable attorney fees and costs on appeal
pursuant to RAP 18.1 and RCW 51.52.130. But because she is not the prevailing
party, the statute is inapplicable and we decline her request. Pearson v. States^ ^g
Dep't of Labor &Indus.. 164 Wash. App. 426, 445, 262 P.3d 837 (2011), as % %^
co
modified (Nov. 28, 2011).
Affirmed.
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WE CONCUR:
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