Knight v. Dep't of Labor & Indus.

• Decision Date: 07 April 2014
• Docket Number: No. 69514–2–I.
• Citation: Knight v. Dep't of Labor & Indus., 321 P.3d 1275, 181 Wash.App. 788 (Wash. App. 2014)
• Court: Washington Court of Appeals
• Parties: Rudolph E. KNIGHT, Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

181 Wash.App. 788

321 P.3d 1275

Rudolph E. KNIGHT, Appellant,

v.DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 69514–2–I.

Court of Appeals of Washington, Division 1.

April 7, 2014.

Lee Stewart Thomas, Courtnei D. Milonas, Harpold Thomas, P.C., Kent, WA, for Appellant.

Eric Daniel Peterson, Attorney at Law, Anastasia R. Sandstrom, Attorney General's Office, Seattle, WA, for Respondent.

PUBLISHED OPINION

Verellen, A.C.J.

¶ 1 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

¶ 2 In December 2008, Knight worked as a catastrophic claims adjuster 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 transportation. He was responsible for homeowner and flood claims in Texas City, directly across the bay from Galveston Island.

¶ 3 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

¶ 4 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.

¶ 5 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.

¶ 6 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 Knight also told Wunstel that the last thing he remembered was getting tired and passing out on the beach.

¶ 7 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.

¶ 8 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 scans. The CT scans showed a subarachnoid hemorrhage in Knight's brain. Dr. Chamberlain amended his diagnosis to include this injury.

¶ 9 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. 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.

¶ 10 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.

¶ 11 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.

¶ 12 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.

¶ 13 Knight appeals.

DISCUSSION

¶ 14 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

¶ 15 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

¶ 16 “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 “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 provingthat 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

¶ 17 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.

¶ 18 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, individuals who apply for benefits are held to strict proof of an injury in the course of employment. ²⁰

¶ 19 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 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.”...