Ball-Foster Glass Container Co. v. Giovanelli

This case asks us to determine whether, under the

traveling employee doctrine, a worker from out-of-state, injured while working in

Washington, is entitled to workers' compensation benefits under the Industrial

Insurance Act (IIA), Title 51 RCW. The Department of Labor and Industries, an

industrial appeals judge, the Board of Industrial Insurance Appeals, the superior

court, and the Court of Appeals all relied on the traveling employee doctrine to find

the injured worker in this case entitled to workers compensation benefits. We

affirm.

FACTUAL AND PROCEDURAL HISTORY

Alfred Giovanelli is a highly skilled and experienced firebrick mason.

Although he resides in Pennsylvania, he regularly travels around the country to work

on glass furnace rebuilds. Petitioner Ball-Foster Glass Container Company

(currently known as Saint-Gobain Corporation) owns and operates 18 glass

container manufacturing plants around the country, including one in Seattle. Saint-

Gobain Corporation (St. Gobain) scheduled a rebuild of one of its glass furnaces at

its Seattle plant in 2001. Pursuant to St. Gobain's contract with the International

Union of Bricklayers and Allied Craftsmen Union, half of the masons used on the

rebuild were referred by the local union hall and the other half were referred by

Sonny Champ Refractories, a privately owned company with whom St. Gobain

regularly contracts to provide labor and supervision on rebuild projects. Thus, half

of the masons hired were local and half were from out-of-state. Sonny Champ,

owner of Sonny Champ Refractories, would sometimes work as superintendent for

St. Gobain's rebuilds and would regularly hire Giovanelli to work as his crew

foreman. Giovanelli began working on St. Gobain projects in the 1980s and worked

exclusively for St. Gobain for at least five years before being injured. Test.

Giovanelli, Tr. (Apr. 25, 2003) at 21-24. Giovanelli worked on five rebuilds for St.

Gobain in 1998, three in 1999, and five in 2000. Giovanelli was working on his

third rebuild for St. Gobain in 2001 when he sustained the injuries underlying this

claim.

Under the union contract, St. Gobain paid for travel to and from the work

location for all of the out-of-state masons, including Giovanelli. Giovanelli was also

paid his hourly wage for eight hours while traveling to Seattle and an additional

eight hours for traveling home. Neither the local or out-of-state masons signed any

paperwork until they arrived at the plant to begin work. All of the masons were

hired as Washington employees and deductions applicable to Washington

employees were taken from their paychecks. St. Gobain paid the out-of-state

masons a per diem of $78 for every day they were employed during the project,

regardless of whether the mason was required to work that day. St. Gobain also

provided Giovanelli with a rental car. St. Gobain points out that, unlike a typical St.

Gobain employee, Giovanelli and the other out-of-state masons did not receive

medical, dental, life insurance, or 401K benefits, nor were they reimbursed for the

actual cost of hotel and meal expenses, over the per diem payment.

The day Giovanelli was injured he was with the superintendent of St.

Gobain's Seattle project, Royce A. (Sonny) Champ. Both men were staying at the

same hotel. In evidence submitted during Champ's testimony, Champ gave a

statement to police that he and Giovanelli had noticed a sign that Sunday that read

"Music in the Park." Board Ex. 9, Royce A. Champ statement to Det. W.

Butterfield, Apr. 24, 2003.

While Giovanelli was expected to be available to work on Sundays, he was

not scheduled to work on Sunday, August 12, 2001, the day of the accident. When

the accident occurred, he and Champ had started to walk across the street directly in

front of their hotel -- and were headed to the nearby park -- when Giovanelli was hit

and injured by a moving car. Decision and Order of the Board, Undisputed Facts,

(July 31, 2003) at 2-3. Giovanelli sustained serious injuries, including multiple

fractures, degloving of his skin, and a head injury that resulted in permanent

blindness. Giovanelli applied for workers' compensation benefits and the

Department of Labor and Industries (Department) ordered St. Gobain to allow the

claim.1 St. Gobain appealed the order and, following a hearing, the industrial

insurance appeals judge issued a proposed decision and order affirming the

Department's order. St. Gobain appealed to the Board of Industrial Insurance

Appeals (Board). The Board denied the petition for review and adopted the

industrial insurance appeals judge's proposed decision and order as its own. St.

Gobain appealed to the King County Superior Court. The Department moved for

summary judgment. The trial court initially denied the summary judgment motion

but before trial was set to begin, granted it. Relying on Shelton v. Azar, Inc., 90

Wn. App. 923, 954 P.2d 352 (1998), the trial court found Giovanelli was "in the

course of employment" when he was injured because he was traveling at the

direction of his employer and his travel was for a purpose benefiting the employer.

Based on this finding, the trial court found there was no issue of material fact and

the case could be decided as a matter of law. CR 56(c).

St. Gobain appealed the trial court's decision to the Court of Appeals. The

Court of Appeals affirmed the trial court, and St. Gobain petitioned this court for

review. Ball-Foster Glass Container Co. v. Giovanelli, 156 Wn.2d 1024, 133 P.3d

473 (2006).

ISSUE

Does Giovanelli qualify for workers' compensation benefits under the

traveling employee doctrine?

ANALYSIS

Washington, like most other states, adopted a workers' compensation act

nearly a century ago. See 1 Arthur Larson & Lex K. Larson, Larson's Workers'

Compensation Law § 2.08 (2006). Our workers' compensation act is a compromise

between employers and workers. Dennis v. Dep't of Labor & Indus., 109 Wn.2d

467, 469, 745 P.2d 1295 (1987). Employers are liable for workplace injuries

without regard to fault in exchange for limited liability, and employees forfeit

common law remedies which may exceed that available under workers'

compensation law, in exchange for swift and certain relief. Industrial injuries are

viewed as a cost of production. Dennis, 109 Wn.2d at 470.

Workers' compensation is a particularly dynamic field of legislative activity,

as the forces of labor and industry assert their interests at each legislative session.

However, while specific criteria vary from state to state and change over time, the

general standard governing compensability of an injury is remarkably uniform and

unchanging. The general coverage provision in the workers' compensation acts of

43 states as well as the Longshore and Harbor Workers' Compensation Act, 33

U.S.C. § 901, all share the language first used in the "British Compensation Act

formula: injury 'arising out of and in the course of employment.'" 1 Larson &

Larson, supra, § 3.01.

Washington is one of the few states that depart from the formula. Dennis,

109 Wn.2d at 480. Under Washington law, there is no requirement that an injury

"arise out of" employment, only that the worker was within "the course of
employment" when injured.2 RCW 51.32.010. The language of the statute shows

the intent of the Washington Legislature to adopt a broader and more

comprehensive statute than other states. Stertz v. Indus. Ins. Comm'n, 91 Wash.

588, 594, 158 P. 256 (1916). Although the Washington standard is more lenient,

the practical significance of this distinction has been lessened as the "arising out of"

prong in other jurisdictions has evolved from something akin to a "proximate cause"

requirement to a "but for" test. 1 Larson & Larson, supra, § 3.06 (observing that

some jurisdictions now apply a broader unitary "work connection test" examining

whether the injury is related to a risk incidental to employment).

As stated by the United States Supreme Court, "the statutory phrase

'arising out of and in the course of employment,' which appears in most

workmen's compensation laws, is deceptively simple and litigiously prolific."

Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 479, 67 S. Ct. 801, 91 L. Ed.

1028 (1947).

Although each case must be resolved in view of the particular facts,

over time a number of intermediate standards for evaluating whether an injury

occurs "in the course of employment" have developed as courts apply this

statutory language to cases presenting similar fact patterns. See Ridgway v.

Combined Ins. Cos. of Am., 98 Idaho 410, 414, 565 P.2d 1367 (1977)

(Bistline, J., concurring). Several doctrines address situations in which an

employee is injured while off the employer's premises and/or not actually

engaged in work duties.3 The common principle underlying each of these

doctrines is that it is generally not necessary that a worker was actually

performing the duties for which he or she was hired at the time of an accident

in order for an injury to be compensable. It is sufficient if the injury arises

out of a risk that is sufficiently incidental to the conditions and circumstances

of the particular employment. In doubtful cases, the act is to be construed

liberally in favor of compensation for the injured worker. McIndoe v. Dep't

of Labor & Indus., 144 Wn.2d 252, 257, 26 P.3d 903 (2001).

Although new to this court, the traveling employee doctrine is not a novel

concept. The traveling employee doctrine, also known as the "commercial traveler

rule," or the "continuous coverage rule," is the prevailing view throughout the

United States. See Buczynski v. Indus. Comm'n, 934 P.2d 1169, 1173 (Utah Ct.

App. 1997). 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. 2 Arthur Larson & Lex K. Larson, Larson's Workers'

Compensation Law § 25.01 (2006). The rationale for this extended coverage is that

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 the employment even though the employee is not actually working at

the time of injury. Buczynski, 934 P.2d at 1174 (quoting State Accident Ins. Fund

Corp. v. Reel, 303 Or. 210, 735 P.2d 364 (1987)). The rule recognizes that a

traveling employee is subjected to '"hazards [he or] she would otherwise have the

option of avoiding,'" and that the hazards of travel become the hazards of the

employment. Chavez v. ABF Freight Sys. Inc., 2001-NMCA-39, 130 N.M. 524,

528, 27 P.3d 1011 (internal quotation marks omitted) (quoting Ramirez v. Dawson

Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 12, 995 P.2d 1043).

In Shelton, the Court of Appeals adopted the traveling employee doctrine,

stating the general rule as: "When employees are required by their employers to

travel to distant jobsites, courts generally hold that they are within the course of

their employment throughout the trip, unless they are pursuing a distinctly personal

activity." Shelton, 90 Wn. App. at 933 (emphasis added).

Consistent with our decisions recognizing the exceptions to the coming and

going rule, we now recognize that traveling employees are entitled to expanded

coverage for travel-related injuries. Of course, the traveling employee doctrine does

not require coverage for every injury. A traveling employee may depart on a

personal errand just like any other type of employee, thus losing the right to

compensation benefits during such departures. Silver Eng'g Works, Inc. v.

Simmons, 180 Colo. 309, 505 P.2d 966 (1973). Both the nature of the activity and

the manner in which the employee performs it must be reasonable. See Ray Bell

Const. Co. v. King, 281 Ga. 853, 642 S.E.2d 841 (2007).

In evaluating whether a worker has left the course of employment, we believe

the proper inquiry is whether the employee was pursuing normal creature comforts

and reasonably comprehended necessities or strictly personal amusement ventures.

Although distinguishing between reasonable personal ministrations and purely

personal amusement ventures may be difficult, courts have had little difficulty

denying compensation for unusual or unreasonable activities. See, e.g., E. Airlines

v. Rigdon, 543 So. 2d 822 (Fla. Dist. Ct. App. 1989) (denying compensation for

employee injured during skiing trip at resort over 50 miles from hotel); Buczynski,

934 P.2d 1169 (hot tub injury occurring in hotel 150 miles away from convention

center and days before convention not compensable).

There will, of course, be difficult cases where reasonable minds may differ.

Therefore, in order to provide guidance to the courts of this state we believe the

approach followed in Texas, which has a workers' compensation act similar to ours,

strikes the proper balance. See Shelton v. Standard Ins. Co., 389 S.W.2d 290 (Tex.

1965). The test used by Texas courts is whether the injury '"has its origin in a risk

created by the necessity of sleeping or eating away from home . . . .'" No. River

Ins. Co. v. Purdy, 733 S.W.2d 630, 632-33 (Tex. Ct. App. 1987) (alterations in

original) (quoting Shelton, 389 S.W.2d at 293). This test focuses the court's inquiry

upon whether the injury relates to a risk incidental to employment or from an

entirely independent act.

Given that the rationale of the traveling employee doctrine is that an

employee is entitled to increased coverage commensurate with the increased risk

associated with travel, in evaluating the compensability of injuries occurring off-

duty, the focus should be whether the injury is fairly attributable to the increased

risks of travel. Thus, we believe the standard for determining whether an activity is

a "distinct departure" should be consistent with the standard applicable to injuries

that occur on the jobsite, while the employee is not actually engaged in work, such

as during a rest break or lunch period. This is consistent with the reasoning of

decisions by this court, the Court of Appeals, and the Board.

The Board has recognized that an injury resulting from a wholly independent

act of the employee for his own benefit or gain, particularly where the employee's

act has no connection with the employee's work, is generally not compensable. See

Young v. Dep't of Labor & Indus., 200 Wash. 138, 93 P.2d 337 (1939). The Board

has observed, "[w]e believe the Legislature by enacting RCW 51.32.015 [extending

coverage to lunch period injuries on the jobsite] intended to give the same coverage

during the lunch hour as that applicable during the work period." In re Morrill, No.

29,704, Bd. of Indus. Ins. Appeals (Wash. Dec. 7, 1970). The Board's analysis is

sound and applies as well to the traveling employee doctrine.

The relevant inquiry for purposes of workers' compensation is whether the

injury is related to a risk of employment. A general reasonableness standard

without a finding of a connection to the employee's work would go too far in

covering the social and recreational activities of traveling employees. The injury

must have its origin in a travel related risk. A rule allowing coverage for all

reasonable activities untethers the concept of employment risk from the "course of

employment" analysis. 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.

Application

Giovanelli Is a Traveling Employee

Applying the traveling employee doctrine to the facts of this case, we must

first determine whether Giovanelli falls within the category of "traveling employee."

There are two widely recognized definitions of a traveling employee. Under

Larson's formulation of the rule, a traveling employee is one "whose work entails

travel away from the employer's premises." 2 Larson & Larson, supra, § 25.01.

An alternate definition provides: "A traveling employee is 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." 2 John P. Ludington, Modern Workers

Compensation § 111:15 (Matthew J. Canavan ed., 1993).

The traveling salesperson and the long-haul truck driver are prototypical

examples of traveling employees. However, workers who have no fixed site of

employment or whose business is travel are not the only categories of employees

who fall within the definition. Traveling employees also include those on temporary

assignment at a fixed location.

Courts routinely apply the traveling employee doctrine to hourly wage

workers who travel to a fixed site to perform a job assignment of temporary

duration. This scenario frequently arises in the context of construction workers sent


to work on a discrete project. See, e.g., Brown v. Palmer Constr. Co., 295 A.2d

263 (Me. 1972). Courts have little difficulty treating itinerant construction workers

as traveling employees when the worker is required, as a condition of the

employment, to travel to a distant jobsite, away from home, and find overnight

lodging, particularly when the employer provides compensation for the worker's

travel expenses.

For example, in Olinger Construction Co. v. Mosbey, 427 N.E.2d 910 (Ind.

App. 1981), a construction worker was assigned to a jobsite 150 miles from his

home. He lived in a motel while working on the project where, one night, a former

co-worker entered his room and stabbed him. The Indiana court held that his death

was compensable. The court rejected the employer's argument that the traveling

employee rule was inapplicable to a worker assigned to a fixed jobsite for a job of

temporary duration, stating, "because of his job . . . his activities, such as eating and

sleeping in a distant location, are done for the benefit of the employer." Olinger,

427 N.E.2d at 915.

St. Gobain contends that Giovanelli should be treated as a "local hire" rather


than as a traveling employee. They contrast his situation with that of Ernie Peters, a

permanent St. Gobain employee who traveled from the corporate headquarters in

Muncie, Indiana to oversee the furnace rebuild. Unlike Peters, St. Gobain argues,

Giovanelli was not "required" to accept the work assignment in Seattle, but could

have elected to stay home.

A distinction based on whether an employee had the option to decline a work

assignment that entails travel would resurrect the assumption of risk doctrine, a tort

concept that is inapt in evaluating the compensability of a work-related injury.

Workers' compensation acts were in great part necessitated by the judicial

foreclosure of common law remedies for injured workers through application of the

assumption of risk doctrine. The adoption of the IIA represents the rejection of the

assumption of risk doctrine in favor of no fault insurance for work-related injuries.

No distinction may be drawn between an employee who volunteers for a job that

entails travel and one who is "required" by the employer to do so. The question is

whether the job assignment entails travel such that the risks of travel become part of

the risks of employment.

A more difficult issue is whether a worker who accepts a series of temporary

assignments, with breaks in between, can be viewed as a traveling employee. As

noted, there are two definitions of a "traveling employee." Giovanelli clearly

qualifies under the first definition, as "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." 2 Modern Workers Compensation, supra, § 111:15. Giovanelli's job

assignment to Seattle required him to travel to a place away from his permanent

residence. In recognition of that fact, St. Gobain agreed not only to reimburse him

for his travel expenses, but also to compensate him for making the journey itself. It

paid him for his travel time to and from Seattle and a per diem during his entire stay

in Seattle, including his days off.

Under Larson's formulation, which is more widely relied upon by courts, a

traveling employee is one who travels "away from" an employer's premises. 2

Larson & Larson, supra, § 25.01. Viewing Giovanelli's Seattle-based job

assignment in isolation, he was hired to travel to, not away from, the employer's

premises, and thus falls outside the definition. However, considering the nature and

history of Giovanelli's employment relationship with St. Gobain, he qualifies as a

traveling employee even under Larson's more restrictive test.

Chicago Bridge & Iron v. Industrial Commission, 248 Ill. App. 3d 687, 618

N.E.2d 1143, 188 Ill. Dec. 573 (1993) involved an employee, like Giovanelli, who

worked at different jobsites on behalf of his employer to complete short-term

projects requiring his expertise. While en route to a job assignment, he was injured

in a traffic accident. In concluding the worker was entitled to coverage as a

traveling employee, the Illinois court considered the nature of the employment

relationship as a whole, rather than focusing narrowly on the particular job

assignment. In view of the worker's ongoing and exclusive relationship with the

employer, the court concluded that he qualified as a traveling employee,

notwithstanding the breaks in employment between job assignments.

Similarly, Atkins v. Workmen's Compensation Appeal Board, 651 A.2d 694

(Pa. Commw. 1994), involved a construction worker who was sent to jobsites in

different states to work on projects of limited duration. Based on a claim filed in

Pennsylvania for an injury while on a job in Georgia, the court concluded that the

worker's job was not principally localized anywhere in view of the worker's

ongoing relationship with his employer.

What Chicago Bridge and Atkins demonstrate is that in the context of

determining an injured worker's eligibility for workers' compensation, courts should

examine the nature of the employment relationship with a wide angle lens, rather

than narrowly focusing on a discrete job assignment or period of employment.

Accordingly, in evaluating whether Giovanelli is a traveling employee, the

proper focus is not Giovanelli's particular job assignment to St. Gobain's Seattle

plant, but his ongoing employment relationship with St. Gobain, the multinational

corporation, which has 18 glass manufacturing plants nationwide. Like the workers

in Chicago Bridge and Atkins, Giovanelli had an ongoing and exclusive employment

relationship with his employer. Giovanelli worked for St. Gobain more than 15

years, exclusively for the previous five years. His job assignments were coordinated

and travel expenses were authorized and reimbursed through St. Gobain's

headquarters in Muncie, Indiana. St. Gobain contemplated that Giovanelli would

return home after the Seattle job was finished, until it was time to travel to the next

scheduled furnace rebuild. For all of its furnace rebuilds, St. Gobain relied on

Giovanelli's skill and expertise to help ensure the expeditious completion of each

project. Failing to recognize Giovanelli as a traveling employee under the facts of

this case would be to elevate form over substance, contrary to the remedial purpose

of our IIA.

The record is clear: Giovanelli did not merely leave home to seek out better

employment. Rather, St. Gobain, through its agent, Sonny Champ, sought him out

at his Pennsylvania home and offered him a temporary assignment in Seattle just as

it had done numerous times over many years. The terms of the offer were that

Giovanelli would fly to Seattle on a specified date, after arranging his flight through

the corporate office in Indiana, receive travel pay as well as reimbursement of travel

expenses, enjoy the use of a company paid rental car, and receive a per diem to

defray the costs of food and lodging during his stay in Seattle.

St. Gobain contends that Giovanelli is not a traveling employee because it did

not compensate him for his travel expenses but merely offered "premium pay" as an

incentive to accept the Seattle job. It argues that treating Giovanelli as a traveling

employee dramatically expands liability every time an employer offers relocation

expenses or a housing subsidy. But this is not a case where Giovanelli was

relocating for a job; both St. Gobain and Giovanelli expected he would fly home at

the end of his assignment.

Giovanelli's willingness to travel from state to state to work on St. Gobain's

furnace rebuilds clearly benefited St. Gobain and furthered its business. St. Gobain

relied on Giovanelli, along with a small group of firebrick specialists, which it

designated "travelers," to provide the expertise necessary to allow it to

expeditiously complete a furnace rebuild. It is fair and proper to provide expanded

coverage commensurate with the expanded risks of employment faced by Giovanelli

and similarly situated "travelers" and to hold St. Gobain liable for injuries related to

the expanded risks of employment.

As a traveling employee, Giovanelli was "in the course of employment"

continuously during his trip. The next question is whether he "distinctly departed"

from the course of employment at the time of his injury.

Giovanelli Did Not Distinctly Depart on a Personal Errand

Although Giovanelli was not required to accompany his supervisor, Sonny

Champ, on a Sunday stroll, that does not mean he took himself outside the course of

employment by doing so.4 In determining whether there has been a "distinct

departure" that takes one outside the course of employment, courts analogize to the

"personal comfort" doctrine. Bergmann Precision, Inc. v. Indus. Comm'n, 199

Ariz. 164, 15 P.3d 276 (Ct. App. 2000). "Compensation in such areas is predicated

on the premise that these acts do not take the employee out of the scope of

employment because they are necessary to his health and comfort." N. & L. Auto

Parts Co. v. Doman, 111 So. 2d 270, 272 (Fla. Dist. Ct. App. 1959).

Under the personal comfort doctrine, a worker who engages in acts that

minister to personal comfort does not thereby leave the course of employment

unless 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. 2 Larson

& Larson, supra, ch. 21. The personal comfort doctrine applies to such acts as

eating, resting, drinking, going to the bathroom, smoking, and seeking fresh air,

coolness, or warmth. 2 Larson & Larson, supra, §§ 21.02-.07.

This court has recognized the principle behind the doctrine. See, e.g., Tilly v.

Dep't of Labor & Indus., 52 Wn.2d 148, 324 P.2d 432 (1958) (employee remains

within the course of employment during a bathroom break). The personal comfort

doctrine has also long been applied by the Board. See, e.g., In re Cawley, No.

41,864, Bd. of Indus. Ins. Appeals (Wash. May 6, 1974) (allowing claim for worker

who choked on a piece of steak during lunch and died of asphyxiation).

The scope of activities covered by the personal comfort doctrine depends on

the particular circumstances of employment. A traveling employee is entitled to

broader coverage than a nontraveling employee because a traveling employee is in a

significantly different position of risk than a nontraveling employee. The

nontraveling employee may satisfy his personal needs without leaving the comfort of

home. In contrast, 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.

St. Gobain contends that Giovanelli was engaging in an "inherently

dangerous" activity at the time of his injury by crossing a multilane thoroughfare

without first assuring himself that he had the right of way. Seeking personal comfort

should fall outside the course of employment only if the method chosen is "unusual

or unreasonable." See 2 Larson & Larson, supra, § 21.08. The record here does

not support St. Gobain's assertion that Giovanelli walked against the light, and to

the extent Giovanelli's Sunday stroll was "inherently dangerous," as St. Gobain

contends, much of the risk can be attributed to the circumstances of his employment.

The hotel where he and the other "travelers" lodged was near SeaTac airport,

adjacent to International Boulevard, which, as St. Gobain correctly states, is a busy,

multilane thoroughfare. But for his need to lodge away from home during his job

assignment, he would not have been there.

The risk of getting injured while negotiating unfamiliar streets is among the

classic "street risks" covered by the traveling employee doctrine, along with hotel

fires and mishaps at restaurants. Under the street risk doctrine, injuries to

employees whose duties increase their exposure to the hazards of the street arise out

of employment. 1 Larson & Larson, supra, § 6.01. If the employment occasions

the worker's use of the street, the risks of the street become part of the risks of

employment. Accordingly, "when a traveling employee slips in the street, or is

struck by an automobile when traveling on foot or is involved in an accident while

driving between the hotel and a restaurant, the injury has been held compensable."

2 Larson & Larson, supra, § 25.03[1] (emphasis added) (footnotes omitted).

St. Gobain asserts that Giovanelli is not entitled to coverage because he was

not en route to a restaurant. Rather, St. Gobain contends that Giovanelli was

engaged in a "purely recreational activity" at the time of his injury, which has "no

business purpose." Yet the rationale of the personal comfort doctrine is that

ministering to one's personal comforts is not a "purely personal" activity because

attending to one's personal health and comfort furthers the employer's interest by

ensuring that an employee is healthy, well-rested, and comfortable, and thus able to

perform his or her job functions more efficiently. Giovanelli worked 14 hours per

day, six days per week. Going for a Sunday stroll on his single day off was a

reasonable activity that falls well within the personal comfort doctrine. As one court

observed:

To restrict [a traveling employee] to the confines of his room or place
of transacting business in his lodging place and hold that he is not
covered except when either actually, directly conducting his
employer's business or engaged in some activity which is strictly a
necessity of life, would unduly limit the intended beneficial purpose of
this remedial social insurance, which is to be liberally construed."

McDonald v. State Highway Dep't, 127 Ga. App. 171, 176, 192 S.E.2d 919

(1972).

In taking a Sunday stroll to the park on his single day off, Giovanelli did not

"distinctly depart" from the course of employment on a "personal errand." Neither

the nature of his activity nor the manner in which he engaged in it was unreasonable

or unusual. The risk of getting injured while crossing the street in front of his hotel

during a walk to the park was a risk of his employment. Accordingly, he is entitled

to compensation.

Providing coverage to St. Gobain's traveling employees is entirely

appropriate under our IIA. St. Gobain made the economic decision to use

"travelers" presumably because the value they bring to the project, in terms of

greater efficiency and quality of work product, more than offsets the increased costs

associated with their use. To the extent our decision increases St. Gobain's costs of

production by increasing its insurance premiums for the workers engaged in the

manufacture of glass containers at its plants, our IIA will operate as the legislature

intended.

* * *

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=776555MAJ

Although new to this court, the traveling employee doctrine represents the

prevailing view throughout the United States, is consistent with our IIA, and has

been applied by our statutorily created Board of Industrial Insurance Appeals and a

specialized corps of administrative law judges. Accordingly, we adopt the traveling

employee doctrine as an analytical tool to determine insurance coverage in this case.

Further, we hold that a traveling employee remains in the course of employment

except during a distinct departure on a personal errand. In evaluating the

compensability of injuries occurring off-duty, our focus is whether the injury is fairly

attributable to the increased risks of travel, given that the rationale of the traveling


employee doctrine is that an employee is entitled to increased coverage

commensurate with the increased risk associated with travel. The personal errand

doctrine and deviation analysis appropriate to nontraveling employees applies in

determining whether a traveling employee has distinctly departed from the course of

employment.

We affirm the Court of Appeals.

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