| IN RE: LAURA M. BECHNER | ) | DOCKET NO. 45,777 |
| ) | ||
| Claim No. G-712000 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Laura M. Bechner, by
- Lasher & Sweet, per
- Earl Lasher & Chris Stamos
- Employer, Stevens Pass, Inc., by
- Graham, Cohen & Wampold, per
- Norman Cohen
- Department of Labor and Industries, by
- The Attorney General, per
- Thomas O'Malley, Assistant
This is an appeal filed by the employer, Stevens Pass, Inc., on July 11, 1975, from an order of the Department of Labor and Indus- tries dated May 26, 1975, which adhered to its prior order dated April 15, 1975, allowing the claim. Sustained
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is be- fore the Board for review and decision on a timely Petition for Review filed by the employer to a Proposed Decision and Order issued by a hearing examiner for this Board on November 3, 1976, in which the order of the Department dated May 26, 1975 was sustained.
The Board has reviewed the evidentiary rulings of the hearing examiner and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The basic issue, upon which this appeal was tried, is whether or not the claimant was in the course of her employment for Stevens Pass, Inc., at the time she sustained an injury while skiing on March 8, 1975. The pertinent facts are quite well set forth in our hearing examiner's Proposed Decision and Order, and we are in agreement with his proposed disposition of this appeal, namely, to sustain the Department's allowance of the claim.
The employer raises two arguments in its Petition for Review: (1) There is no medical evidence of an injury to the claimant; and [2]
(2) The claimant was not in the course of her employment, if it is assumed there was an injury.
From our review of the record, we find the first argument an indulgence in sophistry. During the hearing proceedings before our hearing examiner, there was obviously no doubt in anyone's mind that the claimant sustained an "injury" within the meaning of the Act, i. e., a traumatic happening or incident, and a physical condition resulting therefrom, on March 8, 1975; and the only real issue joined was whether at the time of such injury the claimant was in the course of her employment as a ski-school instructor.
The employer was clearly well aware that the claimant had been injured on a ski slope, and there is significant testimony from the employer's own witnesses admitting to that fact. On direct-examination, Robert G. Vincent, manager of the ski shop at Stevens Pass, testified as follows:
"Q Was she a full-time employee in the lodge when she hurt herself?
A Yes."
On direct-examination of Richard Sola, director of the ski school at
Stevens Pass, the following was elicited:
"Q Directing your attention to March 8th of 1975, do you remember any particular day that Laura Bechner got hurt? Do you remember the day she got hurt?
A Yes."
On cross-examination of Mr. Sola, the following question was asked
and answered, without objection:
"Q Are you aware that Laura Bechner was injured or hurt, or had an incident which required medical attention at Stevens Pass on March 8, 1795?
A Yes." (Emphasis supplied)
This latter testimony, particularly, and prior and subsequent comments thereon by employer's counsel in colloquy with our hearing examiner, satisfies us that the employer had effectively conceded [3] That claimant sustained an injury on March 8, 1975, and the only matter disputed was the "course of employment" issue.
Turning, then, to the employer's argument that the claimant was not in the course of her employment when she was injured, we disagree therewith. No assertion was made nor evidence submitted that there was any misconduct on the claimant's part which would operate to take her out of the course of her employment. Not only was she skiing with the employer's knowledge and acquiescence, but such so- called "free" skiing was encouraged by the ski-school director in order that she, as well as the other part-time ski instructors, could gain greater familiarity with the ski runs and improved skiing skills.
The evidence is undisputed that the claimant was injured on the premises of the employer during the hours the ski school operations were open. The evidence fairly establishes that she had attended the ski school clinic until approximately 10:00 or 10:15 a. m., then was on a "rotating" duty in the ski-school office from 10:30 to 11:00 a. m., and was to have taught a class of "tiny-tots" at 1:30 p. m. Further testimony was that, as a part-time instructor, one of her duties was to be present at the ski slope and "on call" in the event that someone came in to take ski lessons. Since she was only paid on a commission basis, her availability would benefit the employer financially. The claimant's presence on the ski slope clad in a distinctive jacket and wearing the badge of a ski instructor was clearly of benefit to the employer's business by advertising the availability of ski lessons.
The claimant's skiing was closely associated with the employer's business of selling ski lift tickets and ski instruction. It is not unreasonable to conclude in this particular case, as pointed out by our hearing examiner, that the claimant's taking advantage of the privileges to enjoy herself was also still in furtherance of her employer's interests as a legal matter. We conclude that "free" [4] skiing by this part-time instructor at the time and place she was doing so when injured, was an accepted and normal regular incident and condition of her ski-instructing employment. She was "in the course of employment" within the meaning of that phrase under our Act. See RCW 51.08.013. See, also, Larson on Workmen's Compensation Law, Vol. 1, Secs. 20.00, 22.00, 22.12, and 22.21.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the en- tire record before us, we are persuaded that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law.
The hearing examiner's proposed findings, conclusions and order are hereby adopted as this Board's findings, conclusions and order and are incorporated herein by this reference.
It is so ORDERED.
Dated this 29th day of December, 1976.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
PHILLIP T. BORKChairperson
/s/
SAM KINVILLEMember