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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

OSCAR GOMEZ,

Appellant,

v.

DEPARTMENT OF LABOR AND 

INDUSTRIES OF THE STATE OF 

WASHINGTON,

Respondent.

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No. 78826-4-I

DIVISION ONE

UNPUBLISHED OPINION

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 (IIA) 

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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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 Sheriff's 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 December 21, 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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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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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-ofemployment 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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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.” RCW 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. RCW 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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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.” Id. 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. Id. 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. RCW 51.52.115; 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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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. Id. “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 IIA.” 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. Id. 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. Id. at 208. It reached this conclusion, in part, based on the language 

 1 “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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in RCW 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.” Id. 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. Id. at 200-02; see, 

e.g., Robinson v. Dep’t 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 RCW 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.”

3 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 155.05 (7th ed. 2019) 

(WPI).
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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.

RCW 51.04.010. But this selective quoting ignores the first sentence of the statute, 

which makes it clear that the IIA addresses “injuries received in employment.” Id.

(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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The mere fact that a proposed instruction is legally correct does not mean 

that it is an abuse of discretion not to give it. See Gammon v. Clark Equip. Co., 

104 Wn.2d 613, 617-18, 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. See McDougle v. Dep’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 IIA 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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(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 

[e]ffect 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. 

RCW 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 IIA 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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alcohol goes to the question of whether he was acting in the course of employment 

and does not implicate improper waiver of IIA 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.

WE CONCUR: