John Klor
Wallace Klor & Mann, PC
WSIA Amicus Subcommittee Chair
March 2008
There have been a few notable appellate cases to take note of in the past few months.
Ball Foster Glass v. Giovanelli
The Washington Supreme Court in a 5-4 decision adopted an expansive view of the Traveling Employee Rule in Ball-Foster Glass Container Company v. Alfred Giovanelli, et al, (2/21/08). It held a worker from out-of-state, injured while working in Washington, is entitled to workers' compensation benefits, unless the employee engages in a "distinct departure" on a personal errand. Claimant, a resident of Pennsylvania, was a highly skilled firebrick mason who traveled around the county for his employer to work on glass furnace rebuilds. On a Sunday, when claimant was on call but not required to be at work, he was injured when hit by a car while crossing the street. He was going to a park in front of the hotel where he was staying.
The court identified two tests to identify a traveling employee: 1) a person whose work entails travel away from the employer's premises; or 2) one whose job requires travel from place to place or to a place away from a permanent residence or the employee's place of business. The court ruled the entire relationship between the employer and employee needs to be examined, not just the one job. Therefore, as a traveling employee, claimant was in the course of employment continuously during his trip to Seattle unless he had distinctly departed from the course of employment at the time of injury.
To determine whether claimant had distinctly departed from the course of employment, the court adopted a test similar to the personal comfort doctrine. Under that doctrine an injury occurring during an act which ministers to the worker's personal comfort (i.e. bathroom break) is compensable, unless the deviation is so substantial that the intent was to abandon the job temporarily. However, based on this decision, a traveling employee is entitled to broader coverage. The court said "the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise". The court held claimant did not "distinctly depart" from the course of employment when he took a "Sunday Stroll" to the park.
The dissenting judges focused on the nature of the activity, which they believed were unrelated to the employer's interest. There was evidence in the record that claimant was on his way to an outdoor concert. The majority dismissed this evidence as not well developed. The dissent argued that claimant was engaging in an activity which was solely recreational, therefore, outside the course of employment.
Jenkins v. Weyerhaeuser Company
In Jenkins v. Weyerhaeuser Company (2/20/08) Division II of the Washington Court of Appeals addressed the issue of segregation of presbycusis or age related hearing loss (ARHL). Claimant at the time of his retirement in 1980 had no ratable noise related hearing loss (NRHL). 23 years later when he did have a ratable loss he filed a claim that was initially allowed by the Department of Labor and Industries.
The court said this issue was anticipated by the Supreme Court in Boeing v. Heidy, 147 Wn.2d 78 (2002) which held that ARHL could not be segregated from a hearing loss claim because it was measured on a statistical model that could not be individualized in any particular claim. In Jenkins, claimant had no ratable NRHL when he last worked. Therefore all his subsequent hearing loss was due to ARHL or other non-work related causes.
The Jenkins court ruled that Weyerhaeuser established, on an individualized basis, that Jenkins’ disability was not work related. It held that an employer is not required to compensate for injuries that are not work related.
Look for more updates as cases are issued by the Courts.
as of 3/4/2008
