IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE RUDOLPH E. KNIGHT, Appellant,

v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent. No. 69514-2-

ORDER GRANTING MOTIONS FOR RECONSIDERATION, WITHDRAWING AND REPLACING OPINION

Both parties filed motions for reconsideration ofthe court's April 7, 2014 opinion The court has considered the motions and determined that reconsideration should be granted, the opinion withdrawn, and a substitute published opinion be filed. Now, therefore, it is hereby ORDERED that the opinion ofthis courtfiled April 7, 2014 is withdrawn and a substitute published opinion is filed. Dated this 16th day ofJune, 2014. 

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# CqK o --*• s {.T* ^IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE RUDOLPH E. KNIGHT, Appellant,

v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent. No. 69514-2-1

PUBLISHED OPINION FILED: June 16, 2014 ~-A;— jr i'r- C— ni 9r.

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### Verellen, A.C.J. — Under the "travelingemployee" doctrine, the employee bears the burden of proving that he or she is eligible forworkers' 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 summaryjudgmentforthe Department of Labor 

### and Industries (Department). We affirm and deny Knight's request forattorney fees and

costs. FACTS In December 2008, Knight worked as a catastrophic claims adjustorfor 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 forNo. 69514-2-1/2 transportation. He was responsible for homeowner and flood claims inTexas City, directly across the bay from Galveston Island. Knightreturned 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 ofwhatwas 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 ofdealing withthat specific situation."1 While Knightwas driving back to his hotel, he noticed some men ridingdune 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. His wife talked to him around 1:00 p.m. on December2 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. 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. Knightdenied using drugs but said that he "had a lot ofalcohol to drink."3



### 1Report ofProceedings (RP) (June 20, 2011) at 77. 2RP (June 22, 2011) at 8. 3 Id. at 23.No. 69514-2-1/3 Knight also told Wunstel that the last thing he remembered was getting tired and passing out on the beach. Police Officer Ernesto Garcia also responded to the scene. While inside the ambulance with Knight, he observed that Knight smelled ofalcohol. He did not take any witness statements from anyone else on the beach that evening. NeitherWunstel nor Officer Garcia know how Knight was injured. 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 Knightalso told Chamberlain that he had been "riding in [the] dunes" 

### but could not rememberwhat 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 ofapparent trauma but ordered two CT (computed tomography) scans. The CT
scans showed a subarachnoid hemorrhage in Knight's brain. Dr. Chamberlain amended his diagnosis to include this injury. Knight was then transferred to Methodist Hospital because itwas better equipped to handle his brain injury. Testing at Methodist Hospital indicated that Knight's subarachnoid hemorrhage was likelycaused 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" ofthe brain where the brain knocked up againstthe other side ofthe skull and caused his injury.
4RP (June 22, 2011) at 73. 5 Id.No. 69514-2-1/4


### Dr. Chamberlain testified this type ofinjury could be sustained byfalling on sand and
was not consistent with an injuryreceived by a blow to the head with a fist, but admitted 

### that there was no way to know for sure how Knightwas injured. Unfortunately, while at Methodist Hospital, Knight's cognitive condition worsened. 

### Hewas 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. 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, findingthat Knight suffered his head injurybecause he became intoxicated, collapsed on the beach, and struck his head on the sand. Itconcluded that Knight's decision to become intoxicated
was a distinct departure from his course ofemployment. Knight appealed to King County Superior Court. The Department moved for summaryjudgment, arguing that there was no genuine issue ofmaterial fact that Knight abandoned his employment when he drank to the point of intoxication. Inthe 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 summaryjudgmentto the Department. Knight appeals.No. 69514-2-1/5

DISCUSSION 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 ofthe 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 summaryjudgment.8 Summary judgment decisions are reviewed de novo.9 Summary judgment is proper ifthere is no genuine issue ofmaterial fact and the moving party is entitled to 

### judgment as a matter oflaw.10 Agenuine issue of material fact exists if"reasonable minds coulddiffer 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 

### "Summaryjudgment is subject to a burden-shifting scheme."13 The initial burden 

### to show the nonexistence of a genuine issue ofmaterial fact is on the moving party.14
6RCW 51.52.115; Johnson v. Weyerhaeuser Co.. 134 Wn.2d 795, 800 n.4, 953 

### P.2d 800 (1998); Dep't of Labor &Indus,v. Fankhauser. 121 Wn.2d 304, 308, 849 P.2d 1209(1993). 7 RCW 51.52.115. 8RCW 51.52.140; McClelland v. ITTRavonier, Inc.. 65 Wn. App. 386, 390, 828 P.2d 1138 (1992)). 9Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). 10 CR 56(c). 11 Ranger Ins. Co.. 164 Wn.2d at 552. 12 Id, 13 \± 

### 14id; see alsoVallandigham v. Clover ParkSch. Dist. No. 400, 154Wn.2d 16, 26, 109 P.3d 805 (2005).No. 69514-2-1/6
"Adefendant may move for summaryjudgment by showing that there is an absence of 

### evidence to supportthe 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 forworkers' compensation benefits, the 

### injured worker bears the burden of provingthat he is entitled to benefits.17 Ifthis burden cannot be met as a matter of law, summaryjudgmentfor the Department is proper. A nonmoving party must setforth specific facts showing a genuine issue for trial and may 

### not rely on speculation.18 Workers' Compensation Benefits Knightargues thatthe Department had the burden on summaryjudgmentto 

### show that Knightabandoned the course of his employment at the time of his injury. We disagree. InWashington, an injured worker's right to benefits is statutory. An employee 

### shall receive benefits for an injury only if itoccurs "in the course ofemployment."19 While the act should be liberally construed infavor ofthose who come within its terms,

15 Sligar v. Odell, 156 Wn. App. 720, 725, 233 P.3d 914 (2010). 16 Id. (quoting Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)). 17 SuperiorAsphalt &Concrete Co. v. Dep't of Labor & Indus., 19 Wn. App. 800, 

### 804, 578 P.2d 59 (1978) (holding that itwas appellant's burden to prove that her husband's death occurred inthe scope ofemployment and that she was eligible for widow's benefits). 18 Young, 112 Wn.2d at 225-26. 19 RCW 51.12.010.No. 69514-2-1/7
individuals who apply for benefits are held to strict proof of an injury inthe course of 

### employment.20 In Ball-Foster Glass Container Co. v. Giovanelli, our Supreme Court adopted the 

### travelingemployee doctrine foremployees on out-of-town business travel.21 "A traveling employee is generally considered to be inthe course ofemployment continuously during the entire trip, except during a distinct departure on a personal errand."22 Underthis doctrine, "when travel is an essential part ofemployment, the risks associated withthe necessity ofeating, sleeping, and ministering to personal needs away from home are an incident ofemployment even though the employee is not 

### actuallyworking at the time ofinjury."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 itoccurs off the 

### employer's premises, when the worker is not actuallyengaging in workactivity, 

### coverageshould be limited to injuries fairly attributable to the risks oftravel."25

20 Cvrv. Dep't of Labor &Indus.. 47 Wn.2d 92, 97, 286 P.2d 1038 (1955) 

### (quoting Olvmpia Brewing Co. v. Dep'tof Labor &Indus., 34 Wn.2d 498, 505, 208 P.2d 1181 (1949)): DeHaas v. Cascade Frozen Foods. Inc., 23 Wn.2d 754, 759, 162 P.2d 

### 284 (1945); Clausen v. Dep't of Labor &Indus.. 15Wn.2d 62, 68, 129 P.2d 777 (1942)). 21 163 Wn.2d 133, 142, 177 P.3d 692 (2008). 22 JU 23 Id, 

### 24 Id. (quoting Chavez v. ABF FreightSvs.. Inc., 2001-NMCA-039, 130 N.M. 524, 528.27P.3d 1011). 25 Id. at 145.No. 69514-2-1/8
The proper inquiry in determining if a traveling employee has leftthe course of employment is "whetherthe employee was pursuing normal creature comforts and 

### reasonably comprehended necessities or strictlypersonal 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 ofthe scope ofemployment because 

### they are necessary to his health and comfort.'"27 A"distinctdeparture" occurs onlyif "the extent ofthe deviation is so substantial that an intentto abandon thejob temporarily may be inferred or the method chosen is so unusual and unreasonable that 

### the act cannot be considered incidental to the course ofemployment."28 Generally, intoxication is a defense to paying benefits when the claimant has 

### become so intoxicated that he abandons his employment.29 This generalization also makes sense inthe traveling employee context. While drinking alcohol in moderation 

### may be considered a personal comfortifit helps an employee relax at the end of the 

### workday, drinking to the point ofintoxication is a distinctly personal activity that is

2614 at 143. 

### 27 Id at 150 (quoting N.&LAuto Parts Co. v. Doman, 111 So.2d 270, 272 (Fla. Dist. Ct. App. 1959)). 

### 28 JU 29 Flavorland Indus.. Inc. v. Schumacker, 32 Wn. App. 428, 434, 647 P.2d 1062 

### (1982). Anexception exists if an employerencourages, finances, or creates an 

### atmosphere that allows employees to become intoxicated. See id, at 435-36 (where there was evidence that employerknew employee drank at a weekly meeting, expected 

### him to buydrinks for others, encouraged the drinking, and paid for the drinks, whether employee became so intoxicated that he abandoned his employmentwas properly presented to the jury). Butsuch facts are not alleged in this case.No. 69514-2-1/9 

### outside of the scope ofemployment.30 Becoming intoxicated is notnecessary to the employee's health and comfort and, in fact, may be detrimental to the employee's health. Furthermore, Knight presents no argument and cites no authority that an employee who drinks to the point of intoxication remains withinthe scope of 

### employment underthe traveling employee doctrine, especially where the employer had

no involvement in such intoxication. 

### Knightand the Department both agree that the traveling employee doctrine applies because Knight was traveling on assignmentfor State Farm inTexas when he
was injured. Butthey disagree whether Knightwas still withinthe scope of his 

### employment at the time of his injury. The Department argues that Knightwas on a personal errand when he stopped to watch the dune buggy riders at 1:00 p.m. and when he drank to the point ofintoxication. Even assuming that he was still within the
course of his employment when he stopped to watch the dune buggy riders, there is substantial evidence that by 5:30 p.m., he was both intoxicated and injured. Sometime between 1:00 p.m. and 5:30 p.m., Knight drank to the point of intoxication and suffered his head injury. There is no direct or circumstantial evidence as to which event occurred first. Because of this lack ofevidence, it is impossible to determine whether Knight was injured before or after he became intoxicated. Therefore, the outcome of this case depends upon who had the burden of proving whether or not Knight was on a distinct departure from his employment due to his intoxication at the time of his injury.

30 See, e.g., SuperiorAsphalt. 19 Wn. App. at 806 (inthe context ofthe "coming and going rule," decedent's intoxication was evidence that he was not in the course of his employment when involved in an accident during his commute).No. 69514-2-1/10
Indetermining which party bears this burden, we find SuperiorAsphalt & 

### Concrete Co. v. Department of Labor &Industries helpful.31 There, Division Three of 

### thiscourt considered who had the burden ofproving whether anemployee was acting in the course of employmentwhile commuting from the job site in a company car. 

### Generally, an employee is notin the course ofemploymentwhile going to orfrom the job site unless the employer furnishes the employee's vehicle as an incident of 

### employment.32 Butifthevehicle isprovided solelyforthe employee'sconvenience or the employee is "on a recreational excursionwhich is notincidentto employmentorin furtherance of the employer's interests," his commute using a company car is notwithin the course of employment.33 InSuperiorAsphalt, the employee used his employer's vehicle to commute three to four hours from thejob site to his home for the weekend.34 Work ended around 11:00 

### a.m. and the employee began his commute home.35 Approximately 12 hours later, the employee was six miles from home when he drove the employer's car across the center 

### line, collided with another car, and died.36 The employee's blood alcohol level was 

### 0.23.37 Due to the amount of time that lapsed after the employee leftthe job site and his intoxication, the superior court concluded thatthe employee's widow was not entitled to



### 31 19Wn. App. 800, 578 P.2d 59 (1978). 32 id, at 802-03. 33 JU at 803. 34 id, at 802. 35 Id, 36 id, 37 Id.

10No. 69514-2-1/11
benefits because the employee leftthe course of his employment and was engaged in a 

### "frolic of his own" at the time of the accident.38 On appeal, the employee's widow argued that the employee had resumed his direct route back home at the time ofthe 

### accident.39 Division Three affirmed, holding that the widow did not meet her burden to prove that the employee ended his frolic at the time ofthe accident and that "[i]t was 

### appellant's burden to prove her rightto receive benefits under the act."40 Although SuperiorAsphalt involved the "coming and going" rule ratherthan the traveling employee doctrine, we find it is instructive. If a commuting employee has the burden to show that he was not on a frolic at the time of his injury, a traveling employee should also bearthe burden ofshowing that he was not on a distinct departure from his employment atthe time of injury. Under both doctrines, the employee must establish that an injury occurred inthe course ofemployment. When the Department moved for summaryjudgment, ithad the initialburden to show the nonexistence of a genuine issue ofmaterial fact. The Department metthis 

### burden by showing that there is an absence ofevidence to support Knight's case; mainlythatthere is no evidence that he was still withinthe scope ofemployment at the time of his injury. The burden then shifted to Knight to show that there is a genuine issue of material fact that he was within the scope of his employment atthe time of his injury.

38 id, at 804. 39 id, 40 Id.

11No. 69514-2-1/12 

### Based on the lackofevidence, anytheory as tohow hisinjury occurred was purely speculative and summaryjudgment was warranted. 

### Knight argues that Ball-Fostercreated a presumption that a traveling employee is acting within the course ofemployment at the time ofinjury unless the Department proves that the employee departed on a personal errand. But Knight misconstrues the Ball-Foster analysis. Knight relies upon the Supreme Court's question whetherthe 

### employerestablished that the employee distinctly departed from his employment at the 

### time ofinjury. Heasserts that the Supreme Court therefore signaled that the employer always has this burden. But in Ball-Foster, the employerwas self-insured and the 

### Board ordered it to pay for the employee's benefits.41 The employer appealed to the 

### trial court, and the Department moved for summaryjudgment.42 As the nonmoving party, the employerthen had the burden to demonstrate a genuine issue ofmaterial fact 

### for trial. Here, because Knight is the nonmoving party, he bears this burden. BallFoster's straightforward application ofthe rules on summaryjudgmentdid not articulate


### a presumption in favor ofthe employee. NoWashington case law supports Knight's contention that the employer bears the burden ofestablishing a distinct departure under 

### the traveling employee doctrine.43

41 Ball-Foster, 163 Wn.2d at 139. 42 id, 

### 43 Knightalso relies on Shelton v. Azar, Inc., 90 Wn. App. 923, 954 P.2d 352 (1998). But in Shelton. the court applied the traveling employee doctrine to award benefits to an employee injured in a car accident on his way from the airport to a hotel, id, at 926. A third party to the accident argued that the coming and going rule should be applied to deny benefits because the employee had been at that work location for over two months, id, at 936. That case did not in any way address who has the burden to prove that a traveling employee is on a distinct departure from employment at the time of an injury.

12No. 69514-2-1/13 

### Knight argues that hisdecision to stop on the beach and watch the dune buggy riders was an activity withinthe personal comfort doctrine and did not take him outside 

### of the scope ofemployment. Evenifwe accept this premise, becoming intoxicated is 

### beyond the personalcomfortdoctrine, and Knight did not meet his burden onsummary judgmentto show that his injuryoccurred before he became intoxicated. 

### Knightargues that the Department provided no direct evidence that he was intoxicated before or at the time of his injury. But, as discussed above, itwas not the 

### Department's burden to show that Knightwas intoxicated at the time of his injury. Rather, Knight had the burden to show that at the time of his injury, he had notdistinctly departed from the course of his employment bybecoming intoxicated. Knight argues that whether he abandoned his employmentthrough intoxication is a material question of fact forthejury. In support of this argument, he cites Orris v. 

### Linglev.44 But Orris is readily distinguished. In that car accident case, the court held that summaryjudgmentwas inappropriate because a toxicology report raised a genuine issue of material fact about whether the driver was so intoxicated that he abandoned the
course of his employment.45


### 44 172 Wn. App. 61,288P.3d 1159 (2012). review denied. 177Wn.2d 1020 (2013).

### 45 id, at 68. Orris was injured in a car accident and Lingley, the driver, died, id, at 64. The Department awarded Orris workers' compensation benefits for his injuries, id. The death investigation toxicology report showed the presence ofTHC (tetrahydrocannabinol) and cannabinoids in Lingley's body, id, at 67. Orris then sued Lingley's estate for negligence, but the estate argued that Orris's receipt of benefits was his exclusive remedy under the act, precluding a lawsuit against the estate, id, at 66. The trial court granted summaryjudgment for the estate, but Division Three ofthis court reversed, recognizing that while the act generally provides an exclusive remedy for injuries, an injured worker may sue a negligent coworker ifthat coworker was not acting inthe course ofemployment at the time ofthe injury, id, at 66.

13No. 69514-2-1/14 Knight does not raise a genuine issue ofmaterial fact precluding summary judgment. The Department presented extensive evidence that Knightwas intoxicated when he was found and treated after 5:30 p.m. Both Officer Garcia and Dr. Chamberlain testified that Knightsmelled likealcohol. And paramedicWunstel and Dr. Chamberlain 

### testified that Knightadmitted that he had a lot of alcohol to drink. Knightcites to no evidence inthe record that raises a genuine issue ofmaterial fact that he was not intoxicated. 

### Knightalso argues that Dr. Chamberlain testified that even if Knightwas intoxicated, his head injury could have occurred before intoxication. Butbecause there is no evidence as to what happened to Knightbetween 1:00 p.m. and 5:30 p.m., this 

### testimony is pure speculation and does not defeat summaryjudgment. 

### Knight argues that summaryjudgmentwas inappropriate because "a jury could 

### reasonably find that Mr. Knight was the victim of a crime or accident; that he did not purposefully drink at all or at the very least did notdrink to the point of abandonment; 

### and that when the injury occurred Mr. Knightwas notintoxicated."46 ButKnight pointsto
no evidence in the record supporting any genuine issue of material fact fortrial. Because there is absolutely no evidence of what happened to Knightbetween 1:00 p.m. 

### and 5:30 p.m. exceptthat he concluded the period both injured and intoxicated, his theories rely on pure speculation. 

### Knight argues that otherjurisdictions do recognize a presumption that a traveling employee iswithin the scope of employment and that it is the employer oragency's burden to show a distinct departure. Because neitherthe statute norWashington case 46 Appellant's Br. at 31.

14No. 69514-2-1/15 

### lawsupport such a presumption and burden shift to the Department, we do notfind this argument persuasive. AttorneyFees 

### Knight requests reasonable attorney fees and costs on appeal under RAP 18.1 

### and RCW 51.52.130. RAP 18.1 allows an award of attorneyfees and costs on appeal if applicable law authorizes them. An award offees and costs under RCW 51.52.130 

### requires both that the injured worker requesting fees prevail in the action and that the 

### accidentfund or medical aidfund be affected.47 Because Knightdoes notprevail on appeal, he is not entitled to attorney fees orcosts under this authority.
We affirm the trial court.

WE CONCUR: 

# M6?X,*J.

47 Pearson v. Dep't of Labor & Indus.. 164 Wn. App. 426, 445, 262 P.3d 837 (2011).

15