* Oscar Gomez, App-cross Resp V. Dept Of Labor & Industries, Resp-cross App

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FILED
7/15/2020
Court of Appeals
Division 	I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
OSCAR GOMEZ, 	No. 78826-4-I
Appellant, 	ORDER GRANTING MOTION
TO PUBLISH
V.
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
Respondent.
The respondent, Department of Labor and Industries of the State of Washington,
having filed a motion to publish opinion, and the hearing panel having reconsidered its
prior determination and finding that the opinion will be of precedential value; now,
therefore it is hereby:
ORDERED that the unpublished opinion filed April 27, 2020, shall be published
and printed in the Washington Appellate Reports.
For the Court:
JLQAWV.
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FILED
4/27/2020
Court of Appeals
Division 	I
State of Washington
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
OSCAR GOMEZ, 	) 	No. 78826-4-I
Appellant, ) 	DIVISION ONE
v. 	)
) 	UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND )
INDUSTRIES OF THE STATE OF 	)
WASHINGTON, 	)
Respondent. )
ANDRUS, A.C.J. — 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
Gomez filed for workers’ compensation benefits with the Department of
Labor & Industries (the Department) under the Industrial Insurance Act (lIA)
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
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No. 78826-4-1/2
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.
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 Wn. App.
617, 619, 17 P.3d 1195 (2001); Franklin County Sheriffs Office v. Sellers, 97
Wn.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 December21, 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.
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No. 78826-4-1/3
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
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No. 78826-4-1/4
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.
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.
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No. 78826-4-1/5
A. Standard of Review
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 Wn. App. at 621. The Board’s findings and
decisions “shall be prima facie correct[,] and the burden of proof shall be upon the
party attacking the same.” ROW 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 Wn.2d 186, 200, 378 P.3d 139 (2016).
The ordinary civil standards of review govern appeals from superior court
decisions in industrial insurance cases. ROW 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 Wn.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 Wn.2d 421, 440, 671 P.2d 230 (1983);
McDonald, 104 Wn. App. at 627. 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
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.
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No. 78826-4-116
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. Dep’t of
Labor & Indus., 181 Wn. 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.” ki. at 797-98.
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 Wn.2d at 201-02.
Thus, as a matter of law, Gomez bore the burden before the Board to show
that his injury was in the course of employment. .[ç~ 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. RCW5I.52.115; Knight, 181 Wn. App. at 798, 802 (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
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No. 78826-4-1/7
the well-established burden of proof, and the trial court did not abuse its discretion
by refusing to give an instruction that would have been an incorrect statement of
the law.
Gomez relies on Rowley to argue that he cannot prove a negative, i.e., that
he abandoned his employment. His reliance on Rowley is misplaced. In that case,
our Supreme Court addressed two separate issues. The first was whether the
Department bears the burden of proof when denying a claim under RCW
51 .32.0201 because the worker was committing a felony at the time of injury.
Rowley, 185 Wn.2d at 201. It held the burden of proof under the felony payment
bar falls to the Department. jç~ “Common sense dictates that a worker should not
be required to prove a negative—noncommission of a felony—in order to obtain
benefits under the IlA.” Id. at 205.
But the court addressed a second issue—whether the claimant bears the
burden of proving the Department’s decision to apply the felony payment bar is
incorrect on appeal to the Board. j4, at 206. It concluded that the only viable
interpretation of RCW 51 .52.050(2)(a), the statute governing appeals to the Board
from Department orders, is to require the worker to show both injury in the course
of employment and insufficient evidence to support the application of the felony
payment bar. 	j.çj~. at 208. It reached this conclusion, in part, based on the language
“If injury or death results to a worker... while the worker is engaged in the attempt to commit, or
the commission of, a felony, neither the worker nor the widow, widower, child, or dependent of the
worker shall receive any payment under this title
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No. 78826-4-118
in ROW 51.52.115,2 the statute governing appeals from the Board to the superior
court, which places the burden of proof ‘squarely on the appellant.” 	j.ç~., at 207.
While Rowley held the Department bears the burden of proof of the felony
payment bar before the Board, the case did not change the burden of proof for
establishing that an injury occurred in the course of employment. It reaffirmed that,
in cases such as this, workers challenging Board decisions bear the burden of
proving their injuries occurred in the course of employment. j~ at 200-02; ~
~ Robinson v. Dept of Labor & Indus., 181 Wn. App. 415, 424-26, 326 P.3d
744 (2014); Knight, 181 Wn. App. at 802; Superior Asphalt & Concrete Co. v. Dep’t
of Labor & Indus., 19 Wn. App. 800, 804, 578 P.2d 59 (1978).
We conclude the trial court did not abuse its discretion by denying Gomez’s
proposed instruction on abandonment.
C. Negligence
Next, Gomez argues the trial court erred by denying his negligence
instruction—”The [IIA] allows compensation regardless of any consideration of
fault. Therefore, in resolving the issues before you[, you] are not to consider fault
or negligence of the worker as how it affects his rights under [the IIA].” See
Washington Pattern Jury Instruction (WPI)3 155.05.
Gomez cites to ROW 51.04.010 for the proposition that fault is not a
consideration. App. Br. at 6. He quotes only a portion of this statute:
2 “In all court proceedings under or pursuant to this title 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.”
~ 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 155.05 (7th ed. 2019)
(WPI).
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No. 78826-4-1/9
The state of Washington, therefore, exercising herein its police and
sovereign power, declares that all phases of the premises are
withdrawn from private controversy, and sure and certain relief for
workers, injured in their work, and their families and dependents is
hereby provided regardless of questions of fault and to the exclusion
of every other remedy, proceeding or compensation, except as
otherwise provided in this title; and to that end all civil actions and
civil causes of action for such personal injuries and all jurisdiction of
the courts of the state over such causes are hereby abolished,
except as in this title provided.
ROW 51 .04.010. But this selective quoting ignores the first sentence of the statute,
which makes it clear that the lIA addresses “injuries received in employment.” ki.
(emphasis added).
The issue the jury was asked to decide was whether the Board was correct
when it found that Gomez was not acting in the course of employment at the time
of his injury. The court’s instructions gave the jury detailed guidance about what
factors to consider, and nothing in the instructions suggested that negligence was
an issue. The instructions allowed Gomez to argue that any question of negligence
was immaterial, as negligence was not identified as a factor in the relevant
instructions.
Instruction 10 informed the jury that Gomez must prove he was acting in the
course of employment at the time of the injury and explained what action would
constitute “acting in the course of. . . employment.” And Instruction 11 explained
the actions that would require finding that Gomez abandoned his employment.
Based on the question presented to the jury, negligence was simply not at issue.
The trial court did not abuse its discretion in concluding that Gomez’s requested
instruction could have misled the jury.
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No. 78826-4-1/10
The mere fact that a proposed instruction is legally correct does not mean
that it is an abuse of discretion not to give it. ~ Gammon v. Clark Egui~. Co.,
104 Wn.2d 613, 617-1 8, 707 P.2d 685 (1985). It is true that negligence is not an
issue under the IIA. But even the comment to WPI 155.05 provides, “This
instruction may not be applicable in all cases. For example, in a case in which
aggravation is asserted subsequent to an award, the reasonableness of the
claimant’s conduct after the award may become an issue. ~ McDougle v. De~’t
of Labor & Indus., 64 Wn.2d 640, 393 P.2d 631 (1964).” As the trial judge
commented, he did not want the jury to think that Gomez’s conduct was irrelevant.
Here, while negligence was not at issue, the nature of Gomez’s conduct was,
because the outcome of the case depended on whether Gomez was so intoxicated
that he was no longer furthering his employer’s interests.
Furthermore, the instructions that were given allowed Gomez to argue his
theory of the case—that even though he was intoxicated at the time of the injury,
he was performing work for his employer and his claim should be allowed.
Because Gomez’s proposed instruction could have confused the jury and
he was able to argue his theory of the case without it, it was not an abuse of
discretion to decline to give it.
D. Waiver
Lastly, Gomez argues the trial court erred by denying his proposed
instruction regarding waiver of IA benefits.
First, RAP 9.6(b)(1)(G) provides that the “clerk’s papers shall include, at a
minimum[,] any jury instruction given or refused that presents an issue on appeal.”
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No. 78826-4-Ill 1
(Emphasis added.) Gomez did not designate his proposed jury instructions in the
clerk’s papers, instead, leaving it to this court to search through the jury instruction
conference in the report of proceedings for the relevant language. While the first
two proposed instructions were stated verbatim in the jury instruction conference,
Gomez’s proposed waiver instruction was not. The trial court read into the record,
“employer’s policy about drinking on the job, or employee intoxication, has no
[ejifect on the rights provided workers.” It was unclear, however, if this was the
entirety of the instruction. Nevertheless, it appears that Gomez would have been
satisfied with the wording of the statute from which he derived his proposed
instruction. Therefore, we review that language as though it was Gomez’s final
proposed and refused instruction.
ROW 51 .04.060 provides, “No employer or worker shall exempt himself or
herself from the burden or waive the benefits of. . . [the IIA] by any contract,
agreement, rule or regulation, and any such contract, agreement, rule or regulation
shall be pro tanto void.” As the trial judge noted, the employer did not try to exempt
themselves from IA coverage and, therefore, this proposed instruction was
irrelevant.
Instead, the employer had a policy related to drinking on the job, and
whether Gomez violated that policy was an additional factor to consider in
determining whether Gomez was acting in the course of employment. Instruction
10 defined “acting in the course of employment” as performing duties as required
by employment, or at the direction of the employer, or in the furtherance of the
employer’s business. That Gomez failed to comply with company policy about
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No. 78826-4-1/12
alcohol goes to the question of whether he was acting in the course of employment
and does not implicate improper waiver of hA benefits. And Gomez could argue,
based on the instructions the court gave, that the employer’s testimony about its
company policies did not take Gomez out of the course of employment. Therefore,
as with Gomez’s proposed negligence instruction, the trial court did not abuse its
discretion in denying an instruction that could have misled the jury when Gomez
was otherwise able to argue his theory of the case.
Affirmed.
~	71.C.9.
WE CONCUR:
~-
~
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