Judy v. HANFORD ENVIRONMENTAL HEALTH

• Decision Date: 24 April 2001
• Docket Number: No. 19047-1-III.,19047-1-III.
• Citation: 106 Wash.App. 26,22 P.3d 810
• Court: Washington Court of Appeals
• Parties: Mary Esther JUDY, Appellant, v. HANFORD ENVIRONMENTAL HEALTH FOUNDATION, Larry B. Smick, D.O., and Bechtel Hanford Incorporated, Respondents.

22 P.3d 810

106 Wash.App. 26

Mary Esther JUDY, Appellant, v. HANFORD ENVIRONMENTAL HEALTH FOUNDATION, Larry B. Smick, D.O., and Bechtel Hanford Incorporated, Respondents.

No. 19047-1-III.

Court of Appeals of Washington, Division 3, Panel One.

April 24, 2001.

David E. Williams, Crithlow, Williams & Schuster, Richland, for Appellant.

Jerome R. Aiken, Meyer, Fluegge & Tenney, Yakima, Larry E. Halvorson, Halvorson & Saunders, Seattle, Frederick T. Rasmussen, Lisa M. Herb, Stokes, Lawrence, Seattle, for Respondents.

SWEENEY, J.

Mary E. Judy sued her employer and an occupational health organization for injuries sustained on the job. The questions presented are whether the failure to inform her of her physical limitations following a negative physical capacities evaluation amounted to a deliberate injury on the part of her employer or a breach of the duty of care by the physician responsible for her occupational evaluation. We conclude that the employer's conduct, while arguably negligent, did not meet the certainty threshold required by Birklid v. Boeing Co.¹ We also conclude that the Hanford Environmental Health Foundation was not Ms. Judy's employer and was therefore not entitled to the immunity afforded by the Industrial Insurance Act. Nor did it breach any duty of care to Ms. Judy. We therefore affirm the trial court's summary dismissal of the action.

FACTS

The Hanford Reservation is owned by the United States and managed by the Department of Energy (DOE). DOE operates through various contractors. One of these is Bechtel Hanford, Inc. Bechtel employed Ms. Judy as a manual laborer in its Decontamination and Decommissioning (D & D) classification.

Hanford Environmental Health Foundation (HEHF), also under contract with DOE, provides occupational medical services at Hanford. Its responsibilities include medically evaluating workers to determine whether they can meet the physical qualifications of their jobs. Larry B. Smick, D.O., is a staff physician employed full time by HEHF to provide occupational health care to Hanford employees. Carl Loera, P.T., is an off-site physical therapist.

In May 1997, Bechtel referred Ms. Judy to HEHF for evaluation of her physical capacity to work as a D & D laborer. In June 1997, Dr. Smick referred Ms. Judy to Mr. Loera. Neither Dr. Smick nor any other HEHF employee actually saw Ms. Judy. On July 14, 1997, based on Mr. Loera's functional capacity evaluation, Dr. Smick reported to Bechtel that the demands of her job exceeded Ms. Judy's grip strength and lifting capacity. He concluded that "the worker is not physically capable of performing the physical essential functions of the job." Clerk's Papers at 286.

No one told Ms. Judy of the results. Nor did Bechtel act on Dr. Smick's report. And Ms. Judy continued to work as a laborer, without accommodation. On March 8, 1998, Ms. Judy was injured on the job. She applied for and received worker's compensation benefits.

In July 1998, Bechtel laid Ms. Judy off. Its termination letter cited the July 1997 HEHF evaluation that she was physically unable to perform the essentials of the job with or without accommodation. This was Ms. Judy's first notification of her functional limitations.

Ms. Judy sued HEHF and Dr. Smick for negligence, alleging breach of the duty to inform her of her special vulnerability to injury. She later amended her complaint to include Bechtel as a defendant. She alleged Bechtel forfeited the employer immunity afforded by the Industrial Insurance Act (IIA) because it willfully disregarded actual knowledge that her injury was certain to occur.

HEHF and Dr. Smick moved for summary judgment (CR 56(b)), claiming the action was barred by the immunity provided by the IIA. Bechtel filed a CR 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The court granted both motions.

DISCUSSION

BECHTEL HANFORD

Industrial Insurance Immunity— Intentional Acts. The IIA immunizes employers from civil tort actions for workplace injuries. Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 242, 588 P.2d 1308 (1978). The Act provides the exclusive remedy for injured workers. RCW 51.04.010; Shoreline Concrete, 91 Wash.2d at 241, 588 P.2d 1308. Employers are immune from civil lawsuits for nonintentional workplace injuries. Flanigan v. Dep't of Labor & Indus., 123 Wash.2d 418, 422, 869 P.2d 14 (1994).

But RCW 51.24.020 creates an exception to the exclusive remedy rule. An employer is not exempt if it has actual knowledge that injury is certain to occur and willfully disregards that knowledge. Birklid v. Boeing Co., 127 Wash.2d 853, 865, 904 P.2d 278 (1995).

Ms. Judy contends Bechtel willfully disregarded actual knowledge that she was physically incapable of doing her job; and this, she believes, is knowledge that injury was certain to occur. Bechtel thereby forfeited the protections of the IIA. Id. Bechtel responds that the Birklid exception to employer immunity requires more than mere negligence, or even gross negligence. In fact, even acting with substantial certainty that injury will result is not enough. Folsom v. Burger King, 135 Wash.2d 658, 666-67, 958 P.2d 301 (1998).

To pierce the statutory shield protecting employers from civil suits, the worker must prove two elements. First, that the employer had certain knowledge injury would occur. Stenger v. Stanwood Sch. Dist., 95 Wash.App. 802, 812, 977 P.2d 660 (1999). Second, that the employer willfully disregarded that knowledge. Id. at 813, 977 P.2d 660. Unless a reasonable jury could conclude that both prongs are met, summary judgment was required. Id. Nothing here even approaches this threshold.

The deliberate conduct test of Birklid is narrowly applied. It does not include negligence. In some jurisdictions, conduct with "substantial certainty" of causing injury is sufficient to meet the test. But this is not so in Washington. Birklid expressly rejects the "substantial certainty" test. Birklid, 127 Wash.2d at 865, 904 P.2d 278. In Birklid, workers became ill from exposure to chemical fumes. Boeing management saw them becoming ill, knew they would become ill, but continued to use the chemical. The court held that this was "willful disregard." Id. at 863, 904 P.2d 278.

Ms. Judy relies on Birklid and Stenger to support her position here that Bechtel willfully disregarded her risk of injury. Both cases are easily distinguished. In Birklid, Boeing knew, from substantial experience, that employees exposed to phenol-formaldehyde would get sick. Supervisors had predicted problems based on previous use of the compounds. Birklid, 127 Wash.2d at 857, 904 P.2d 278. Boeing knew that the safe exposure level set by the manufacturer was not safe because employees got sick at that exposure level. Id. So when employees did get sick, the court concluded it was no accident. Id. at 863, 904 P.2d 278. The consequences may not have been desired. But Boeing knew that the consequences were inevitable.

That same level of certainty was also present in Stenger. Stenger, 95 Wash.App. at 816-17, 977 P.2d 660. There, a young, multi-handicapped, special education student had caused between 1,316 and 1,347 injuries to school district staff. He had inflicted injuries on almost a daily basis. Supervisors knew that their staff would continue to suffer injuries if they worked with this student. Id. at 812-13, 977 P.2d 660. Given this level of certainty, the court accepted the worker's argument that "the [d]istrict accepted some level of injury to the staff" as a consequence of working with this student. Id. at 815, 977 P.2d 660. Or at least a jury could reasonably conclude that the district had willfully disregarded its knowledge that injuries would continue. Id. at 816-17, 977 P.2d 660. The court then reversed a summary dismissal.

This level of certainty is not present here. It can hardly be said that Ms. Judy's employer knew she would be injured, or that injury was such a certainty it should have known. Ms. Judy was presently performing the job. She injured her back while operating a pallet jack and a large box fell on the tracks. Dr. Smick's report to Bechtel did not predict with certainty actual future injuries. It simply discussed her limitations. This does not then impart actual knowledge that injuries will occur.

Here, it is arguably foreseeable, or maybe even substantially certain, that Ms. Judy would eventually be injured. These facts do not, however, rise to the level of actual knowledge of certain injury required by Birklid.

CR 12(b)(6) Rather Than CR 56 Dismissal. Ms. Judy contends the court erred by granting judgment on the pleadings. She stated a cause of action under the willful disregard exception to the immunity provisions of the IIA and therefore stated a valid claim. Ms. Judy complains that the trial judge denied her the opportunity to present evidence beyond the pleadings which might have supported her cause of action.

Bechtel responds that the court considered additional evidence and therefore essentially "converted" the motion to one for summary judgment.

Summary dismissal must be denied if a right of recovery can be established under any provable set of facts. Smith v. Acme Paving Co., 16 Wash.App. 389, 393, 558 P.2d 811 (1976) (citing Fleming v. Smith, 64 Wash.2d 181, 185, 390 P.2d 990 (1964)). There is, however, no need to convert a motion to dismiss on the pleadings into one for summary judgment when the operative facts are undisputed, the core issue is one of law, and whatever else might be presented would not change the disposition of the motion. Ortblad v. State, 85 Wash.2d 109, 111, 530 P.2d 635 (1975).

Here, by alleging willful disregard, Ms. Judy's complaint did state a claim upon which relief could be granted. Judgment on the pleadings, either under CR 12(b)(6) or CR 12(c)² was therefore technically incorrect. Bechtel's motion should have been for summary judgment under CR 56. The facts are, however,...