Gomez v. Dep't of Labor & Indus. of Wash.

• Decision Date: 27 April 2020
• Docket Number: No. 78826-4-I,78826-4-I
• Citation: 467 P.3d 1003,13 Wash.App.2d 644
• Court: Washington Court of Appeals
• Parties: Oscar GOMEZ, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

13 Wash.App.2d 644

467 P.3d 1003

Oscar GOMEZ, Appellant,

v.DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

No. 78826-4-I

Court of Appeals of Washington, Division 1.

FILED April 27, 2020

Ordered Published July 15, 2020

David Carson, Carson Law Practice, Po Box 1855, Sumner, WA, for Appellant/Cross-Respondent.

Valerie Kay Balch, Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, for Respondent/Cross-Appellant.

Andrus, A.C.J. ¶1 Oscar Gomez challenges a jury's determination that he was intoxicated by alcohol to such an extent that he abandoned his employment, thereby rendering him ineligible for workers’ compensation benefits. He contends the trial court erred by refusing three of his proposed jury instructions. Because the given instructions correctly stated the law, did not mislead the jury, and allowed Gomez to argue his theory of the case, we affirm.

FACTS

¶2 Gomez filed for workers’ compensation benefits with the Department of Labor & Industries (the Department) under the Industrial Insurance Act (IIA) following a collision in which he rear-ended someone while driving a company vehicle back to the company's offices after a landscaping job. The Department denied his claim for benefits, concluding he was not in the course of employment at the time of injury. On appeal, an Industrial Appeals Judge (IAJ) affirmed the Department's order and made findings. The Board of Industrial Insurance Appeals (Board) denied his petition for review, making the IAJ's proposed decision and order final.

¶3 Because Gomez does not assign error to the Board's findings, they are the established facts of this case. McDonald v. Dep't of Labor & Indus., 104 Wash. App. 617, 619, 17 P.3d 1195 (2001) ; Franklin County Sheriff's Office v. Sellers, 97 Wash.2d 317, 324, 646 P.2d 113 (1982). The findings of fact provide:

2. Mr. Gomez worked as a foreman/group leader for Rich Landscaping Nursery for three to four years, loading work trucks, driving co-workers to the worksite, and then assisting with raking, cleaning, leaf blowing, and other landscape related tasks.

3. On December 21, 2015, Mr. Gomez consumed alcohol during his lunch break. He worked for approximately 2.5 hours and then drove a vehicle to transport himself and co-workers. During this trip, with Mr. Gomez at the wheel, he was involved in a vehicle collision while traveling from Everett, Washington, to Redmond, Washington, on a route that was not approved by his employer.

4. Just before the collision, Mr. Gomez was spotted by a passenger in another vehicle, weaving in and out of traffic. Mr. Gomez cut off this other vehicle, causing the driver to slam on his brakes to avoid collision. Other motorists slammed on their breaks as well to avoid colliding with Mr. Gomez, as his truck slipped in front of them too.

5. After the collision, two samples of Mr. Gomez's breath showed he had blood-alcohol concentration measuring .192 and .186, respectively.

6. At the time of the trip, Mr. Gomez was intoxicated by alcohol to such an extent that he abandoned his employment.

7. Mr. Gomez did not sustain an industrial injury in the course of employment with Rich Landscaping Nursery.

¶4 Gomez appealed the Board's decision to King County Superior Court. The superior court instructed the jury as to the Board's material findings of fact, as stated above. It also gave the following instructions relevant to this appeal:

INSTRUCTION NO. 6

The findings and decision of the Board of Industrial Insurance Appeals are presumed correct. This presumption is rebuttable and it is for you to determine whether it is rebutted by the evidence. The burden of proof is on Oscar Gomez to establish by a preponderance of the evidence that the decision is incorrect.

When it is said that a party has the burden of proof on any proposition, or that any proposition must be proved by a "preponderance" of the evidence, or the expression "if you find" is used, it means that you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true.

INSTRUCTION NO. 7

Mr. Gomez claims the findings and decisions of the Board are incorrect that:

1. At the time of the trip [between the jobsite and the employer], Mr. Gomez was intoxicated by alcohol to such an extent that he abandoned his employment.

2. At the time of the trip [between the jobsite and the employer], Mr. Gomez was not in course of employment, [sic]

3. The Department order dated April 14, 2016, is correct and is affirmed.

INSTRUCTION NO. 10

Before this claim can be allowed, Oscar Gomez must prove that he was "acting in the course of his employment" as a worker with Rich Landscaping on December 21, 2015.

A worker was "acting in the course of employment" if, at the time of the alleged injury, he was engaged in the performance of duties required by his employment, or at the specific direction of the employer or in the furtherance of the employer's business, which shall include time spent going to and from the jobsite.

INSTRUCTION NO. 11

A worker's actions may constitute abandonment of employment. A worker otherwise acting in the course of employment deviates and departs therefrom during such time as the worker engages in a course of action which is entered into for the worker's own purposes and which is neither incident to employment or in furtherance of the employer's interests. A worker in-the-course-of-employment generally remains within the course of employment during the typical work-hours, while on the [jobsite] or sites.

A worker may be acting in the course of his employment even though he may be under the influence of intoxicating liquor. Intoxication can lead to abandonment of employment when the worker has become so intoxicated that the worker abandons employment.

Gomez did not object to any of these instructions.

¶5 The jury found the Board was "correct in deciding that at the time of the trip [between the jobsite and the employer,] Oscar Gomez was intoxicated by alcohol to such an extent that he abandoned his employment[.]" Gomez appeals the jury's verdict.

ANALYSIS

Gomez does not challenge the court's instructions to the jury. Instead, he argues the superior court erred when it refused to give his requested jury instructions regarding the burden of proof for abandoning employment and the relevance of fault and waiver for IIA appeals. We address each requested instruction below.

A. Standard of Review

¶6 For workers’ compensation appeals, the superior court holds a de novo hearing but does not hear any evidence or testimony other than that included in the Board record. McDonald, 104 Wash. App. at 621, 17 P.3d 1195. The Board's findings and decisions "shall be prima facie correct[,] and the burden of proof shall be upon the party attacking the same." RCW 51.52.115. Thus, the superior court may only reverse the Board's findings and decision if Gomez, as the appellant, shows by a preponderance of the evidence that the findings and decision were erroneous. Dep't of Labor & Indus. v. Rowley, 185 Wash.2d 186, 200, 378 P.3d 139 (2016).

¶7 The ordinary civil standards of review govern appeals from superior court decisions in industrial insurance cases. RCW 51.52.140. Appellate courts review jury instructions to determine whether they properly stated the law, were not misleading, and allowed each party to argue its theory of the case. Spivey v. City of Bellevue, 187 Wash.2d 716, 738, 389 P.3d 504 (2017). The abuse of discretion standard governs review of a trial court's decision to decline to give a requested instruction. See Petersen v. State, 100 Wash.2d 421, 440, 671 P.2d 230 (1983) ; McDonald, 104 Wash. App. at 627, 17 P.3d 1195. Because Gomez does not assign error to any of the instructions that the trial court gave, we review the trial court's decision to deny his requested instructions for an abuse of discretion.

B. Abandonment

¶8 Gomez argues the trial court erred when it denied his instruction stating that the Department bore the burden to prove that he was not acting in the course of employment when he was injured. This argument lacks merit.

¶9 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." RCW 51.12.010. "While the act should be liberally construed in favor of those who come within its terms, individuals who apply for benefits are held to strict proof of an injury in the course of employment." Knight v. Deps't of Labor & Indus., 181 Wash. App. 788, 796, 321 P.3d 1275 (2014). "Generally, intoxication is a defense to paying benefits when the claimant has become so intoxicated that he abandons his employment." Id. at 797-98, 321 P.3d 1275.

¶10 At the Board, when a party appeals a Department order, it must make a prima facie case that the Department's decision was incorrect. RCW 51.52.050(2)(a). The appealing party satisfies this burden "by showing (1) injury in the course of employment and (2) that the Department's order is unsupported by sufficient evidence." Rowley, 185 Wash.2d at 201-02, 378 P.3d 139.

Thus, as a matter of law, Gomez bore the burden before the Board to show that his injury was in the course of employment. Id. Gomez failed to make that showing, and the Board affirmed the Department's order denying benefits. Then, again as a matter of law, at the superior court it was Gomez's burden to show the Board's decision—that he was not acting in the course of employment—was incorrect. RCW 51.52.115 ; Knight, 181 Wash. App. at 798, 802, 321 P.3d 1275 (employee "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"). Gomez's requested instruction read, "The Department has the burden to show that a worker in the course of employment has abandoned employment." This instruction misstates the well-established burden of proof, and the trial...