Spring 2008 SBH Quarterly Newsletter
PDF FormatWashington Workers' Compensation: Court Decisions
Unemployment compensation and other government mandated general fund employer payments excluded in a worker’s wage calculation.
The court held unemployment compensation paid by the employer was similar to social security and medicare contributions and should be excluded from the calculation of a person’s wage. Ivan Feren Ak v. Dep’t of Labor & Indus, 175 P3d 1109, 175 P3d 1109 (Wash.App. Div. 1 January 22, 2008).
An employer avoided PPD for a hearing loss claim filed 23 years after retirement.
An employee filed an occupational disease claim 23 years after his retirement. At retirement, he had no ratable hearing loss disability as evidenced by employer generated audiograms. When the employee filed the hearing loss claim decades later, he had significant impairment. Expert medical testimony established the employee suffered no ratable hearing loss at the time of his retirement and that noise-related hearing loss does not progress if the person is no longer exposed to the harmful noise. In addition, the change in hearing loss after retirement was likely due to presbycusis or other medical factors. The court held this fact scenario was distinguishable from Heidy, 147 Wn.2d 78 (2002) and held the employer not liable for the PPD because the evidence failed to establish the noise-induced hearing loss was a proximate cause of his ratable hearing loss disability. Jenkins v. Weyerhaeuser Co., Wn.App. , 177 P3d 180 (Wash.App. Div. II February 20, 2008).
Traveling employee on a temporary assignment is continuously in course of employment during trip.
The employee was an out-of-state resident temporarily working on a project in Washington. He was not scheduled to work on Sunday but was expected to be available to work. On the day of the accident, he started to walk with his supervisor across the street directly in front of the hotel where he was staying. He was headed to a concert in the park across the street from the hotel when a car hit him in the intersection. The Washington Supreme Court evaluated whether the traveling employee was pursuing normal creature comforts and reasonably comprehended necessities or strictly personal amusement ventures. The court found a Sunday stroll was not a distinct departure for a personal errand and did not remove the employee from the course of employment. Ball-Foster Glass Container Co. v. Giovanelli, Wn., 177 P3d 692 (February 21, 2008).
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