Justin D. Buchanan v. Dept Of Labor And Industries Of The State Of Wa

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
o '-• ; —-
JUSTIN D. BUCHANAN, j
No. 74565-4-1 n
Appellant, ) i
DIVISION ONE
v. )
DEPARTMENT OF LABOR AND ; UNPUBLISHED OPINION -P~ O —
vis :r <
INDUSTRIES OF THE STATE OF
WASHINGTON,
Respondent. ) FILED: December 5, 2016
Spearman, J. — Under the going and coming rule, a worker is generally
not within the course of employment while traveling between home and the
jobsite. Justin D. Buchanan traveled to a jobsite to retrieve personal tools that he
had stored at the site. While returning home, he was injured. The superior court
denied his claim for worker's compensation, holding that the injury did not occur
during the course of employment. Because Buchanan fails to show that an
exception to the going and coming rule applies, we affirm.
FACTS
Buchanan is a carpenter who worked through a placement agency,
Madden Industrial Craftsmen, Inc. Madden contracts with construction
companies to provide laborers at an agreed pay rate. Tradesmen who work for
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Madden contact the company when they are seeking a job assignment. Workers
may accept or decline any assignment. The worker receives a portion of the
hourly rate paid by the customer and Madden retains a portion as its fee.
Madden employees are responsible for their own transportation. Per industry
standard, carpenters provide and maintain their own tools.
Buchanan worked for Madden for about three years on several different
construction projects. Buchanan, who does not drive, used public transportation
to commute to jobsites. He carried his tools in a backpack that, when loaded,
weighed about one hundred pounds. On most jobs, Buchanan could securely
leave his tools at the site during the project to avoid carrying them on his
commute each day. If Buchanan could not safely store his tools at the jobsite, he
took them home each night.
In the summer of 2013, Buchanan was working, through Madden, at a
project in Fremont. Buchanan commuted from his home in Kent, which took one
to two hours each way. He left his tools in a secure location at the Fremont
jobsite each night.
One day, carpenters were released from the jobsite early to allow
electricians to work on the project. Buchanan expected to return the next day and
he stored his tools on site. While Buchanan was on his way home, he received a
call from the project manager informing him that work was nearing completion
and Buchanan was no longer needed. Buchanan called Madden and left a
message reporting that the Fremont job had ended.
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A Madden employee returned Buchanan's call and offered him a new
assignment starting the next day. Buchanan accepted. Buchanan did not tell
Madden that he had left his tools at the Fremont site or that he would return to
get them.
Buchanan returned to Fremont and arrived at the site in the early evening.
He retrieved his tools and began his journey home. The light rail was crowded
and Buchanan had to stand with his backpack. He began to experience back
pain when he transferred from the light rail to a bus. The bus was also crowded
and Buchanan again had to stand. When Buchanan got off the bus and began
the short walk home, the pain in his back increased. Eventually, his back gave
out and he fell. Buchanan went to the hospital the following morning. He stated
that he was diagnosed with decompression of a disk in his spine.
Buchanan filed an industrial insurance claim. The Department of Labor &
Industries concluded that the injury did not occur while Buchanan was in the
course of his employment and denied the claim. Buchanan appealed to the
Board of Industrial Insurance Appeals (BIIA), which granted summary judgment
for the Department. Buchanan appealed to the superior court, which concluded
as a matter of law that Buchanan was not acting in the course of his employment
when he was injured. The superior court granted summary judgment in favor of
the Department and affirmed the Board's decision. Buchanan appeals.
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DISCUSSION
Buchanan argues that the superior court erred in concluding that his injury
did not occur in the course of his employment and thus was not covered by the
Industrial Insurance Act (HA), Title 51 RCW.
We review the trial court's decision on summary judgment de novo,
engaging in the same inquiry as the trial court. Cochran Electric Co., Inc. v.
Mahonev, 129 Wash. App. 687, 692, 121 P.3d 747 (2005) (citing Wilson v.
Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982)). In an action under the
IIA, the decision of the BIIA is prima facie correct. Id at 692 (citing RCW
51.52.115). The burden of proof is on the party challenging the board's
determination. Id (citing Belnap v. Boeing Co.. 64 Wash. App. 212, 216-17, 823
P.2d 528 (1992)).
A worker who is injured "in the course of his or her employment" is entitled
to benefits under the IIA. RCW 51.32.010. A worker is "in the course of
employment" when the worker is "acting at his or her employer's direction or in
the furtherance of his or her employer's business " RCW 51.08.013(1). An
employee's trips between home and work are generally outside the course of
employment, a principle known as the going and coming rule. Belnap, 64 Wn.
App. at 221. An exception to the going and coming rule exists for trips that serve
a dual purpose. Cochran, 129 Wash. App. at 695-96 (citing In re Marlene Ann
Martin, BIIA, Docket No. 852862 (1987)).
Buchanan asserts that his trip to retrieve his tools falls within the dual
purpose exception to the going and coming rule. The dual purpose exception
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applies when an employee is injured in transit and the travel "served both a
business and personal purpose." Id. at 695-96 (citing Martin. BIIA, Docket No.
852862). The key issue is whether the trip was necessary to the business, id
(citing Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929)). The BIIA
has phrased the test as whether "the business mission [was] of such character or
importance that it would have necessitated a trip by someone [else] if this
employee had not been able to handle it in combination with his homeward (or
business-ward) joumey[.]'" Martin. BIIA, Docket No. 852862 at 2 (quoting 1
Arthur Larson, The Law of Workmen's Compensation, §18.21, at 4-277).
Buchanan contends that his trip to retrieve his tools served both a
business and a personal purpose. He reasons that, because Madden profited
from his work by retaining a portion of his wages, it was in Madden's interest for
Buchanan to work the following day. Buchanan asserts that he would not have
been able to work the next day without his tools and thus, retrieving the tools
served Madden's business interest.1
In support of the argument, Buchanan asserts that his case is similar to
Cochran. But the case is distinguishable. In Cochran, an employee, Mahoney,
worked for Cochran Electric Company. 129 Wash. App. at 690. On a day off,
Mahoney took a company van to a garage for servicing. ]d at 691. While riding
his bike home from the garage, Mahoney was fatally struck by a car. ]d Cochran
1 Buchanan also asserted at oral argument that if he had not picked up his tools from the
Fremont jobsite, Madden may have sent someone else to retrieve them. We reject this argument.
The tools were Buchanan's personal property that he leftat the jobsite for his own convenience.
There is no indication in the record that retrieving Buchanan's tools was necessary to Madden or
that Madden would have sent some other employee to retrieve them.
No. 74565-4-1/6
asserted that, under the going and coming rule, the injury did not occur in the
course of employment. Id at 693. Cochran argued against applying the dual
purpose exception because the company did not require Mahoney to take the
van to the garage on his day off and Mahoney chose to return home by bike for
exercise, a personal purpose. ]d at 696.
This court rejected Cochran's argument. Id We held that, even if Mahoney
had a personal purpose in riding his bike home from the garage, the return trip
was "merely incidental to dropping offthe van for servicing." ]d We held that the
worker was acting within Cochran's guidelines for maintaining company vehicles
and took the van for servicing in furtherance of the company's interest. Id at 700.
Buchanan argues that, like the employee in Cochran, he was injured while
performing a special trip in furtherance of his employer's interest. He asserts that
Madden's requirement that carpenters report to work with their tools is similar to
the requirement in Cochran that employees keep company-owned vehicles in
good repair.
We disagree. In Cochran, the company required employees to maintain
company vehicles. The errand was necessary to the employer so that, had
Mahoney not taken the van to the garage, the company would have required
some other employee to do it. But here, Buchanan points to nothing in the record
suggesting that his trip was required by Madden or necessary to Madden's
business purpose. Cochran is inapposite and is of no help to Buchanan.
Buchanan next relies on three cases that he asserts illustrate the dual
purpose exception. See Hobson v. Dep't of Labor &Indus., 176 Wash. 23, 26, 27
No. 74565-4-1/7
P.2d 1091 (1934) (concluding that a watchman at a logging camp was acting in
the course of employment when the worker was on duty 24 hours a day, was
using a company vehicle, and was returning to camp after picking up food
supplies); MacKav v. Dep't of Labor & Indus., 181 Wash. 702, 704, 44 P.2d 793
(1935); (holding that the owner and operator of a tractor, hired to construct a
road, was acting in the course of employment when he left the work site and
travelled to a garage to have a tractor part repaired); Leary v. Dep't of Labor &
Indus., 18 Wash. 2d 532, 541-42, 140 P.2d 292 (1943) (concluding that a gateman
was on duty when, during his usual business day, he used a personal vehicle to
try to remove an obstruction from the gateway). But these cases do not address
the going and coming rule or the dual purpose exception. And none of these
cases involve circumstances similar to those here, where the employee made a
special trip to a jobsite to retrieve personal property. We conclude that
Buchanan's trip to pick up his tools was not within the dual purpose exception.
Buchanan next contends that he was acting in the furtherance of
Madden's business by picking up his tools. He asserts that his trip to retrieve his
tools furthered Madden's business because Madden stood to profit if Buchanan
worked the next day.
Under RCW 51.08.013, a worker is "[a]cting in the course of employment"
when the worker is "acting at his or her employer's direction or in the furtherance
of his or her employer's business . .. ." Buchanan contends that travel that
furthers the employer's business is an exception to the going and coming rule.
But because he provides no authority to support this proposition, we do not
No. 74565-4-1/8
consider the argument. Burke v. Hill. 190 Wash. App. 897, 916, 361 P.3d 195
(2015) review denied. 185 Wash. 2d 1020, 369 P.3d 501 (2016) (citing Cowiche
Canyon Conservancy v. Boslev. 118 Wash. 2d 801, 809, 828 P.2d 549 (1992)).
Finally, Buchanan relies on In re Julie Truslev. BIIA Docket No. 93 3124,
1994 WL 732115 (1994). App. Br. at 28. In that case, a teacher slipped and fell in
a school parking lot while carrying teaching supplies into the school. Id. at 1.
Although an employee is generally not in the course of employment while in the
parking lot, the BIIA held that the teacher was performing part of her job in
transporting essential supplies into the school. ]d By way of contrast, the BIIA
referred to a case in which an employee was injured during her commute home
from work while transporting work-related materials. ]d at 2. In that case, the
BIIA applied the going and coming rule and concluded that the worker was not
acting in the course of employment, id The BIIA stated that Trusley's case was
distinguishable because she was not injured during her commute but needed "to
handle or transport the critical tools of the trade after arriving at the jobsite . . .."
id
Buchanan argues that, like the teacher in Truslev, he was injured while
transporting materials necessary to his job. But Truslev noted that the outcome
would have been different had the teacher been injured on her way to or from
work. We conclude that Truslev does not support Buchanan's argument.
Buchanan's injury occurred during a trip from his jobsite to his home. Trips
to and from work are generally not part of an employee's course of employment
under the going and coming rule. Buchanan has not shown that his trip was
8
No. 74565-4-1/9
within an exception to the going and coming rule. We conclude that the trial court
did not err in determining that Buchanan's injury did not occur in the course of his
employment.2
Affirmed.
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WE CONCUR:
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2 Because we affirm the superior court, we do not address the Department's argument
against awarding attorney fees to Buchanan if he prevails.