See EMPLOYER-EMPLOYEE Jurors
BJORN VIKING BOLIN ) DOCKET NO. 68,166
CLAIM NO. S-668634 ) DECISION AND ORDER
APPEARANCES:
This is an appeal filed by the claimant, Bjorn Viking Bolin, on July 6, 1984 from an order of the Department of Labor and Industries dated July 2, 1984, which adhered to the provisions of a prior order rejecting the claim for the reasons that (1) the condition was not the result of an industrial injury, (2) claimant was not under the industrial insurance laws at the time of injury, and (3) at the time of injury the claimant was not in the course of employment. Affirmed.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the employer to a Proposed Decision and Order issued on March 14, 1985 in which the order of the Department dated June 2, 1984 was reversed, and the claim remanded to the Department of Labor and Industries with direction to issue an order requiring the self-insured employer to accept the claim and thereafter to take such action as is indicated or required by law. [2]
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
Several issues have been presented by this appeal. The Proposed Decision and Order suggested that there were only two issues; whether the claimant was in an employment covered by the Act, and whether he was in the course of such "employment" at the time of his injury. It was proposed that if an employment is not excluded, specifically, by RCW 51.12.020, it must be included under RCW 51.12.010. It was further concluded that the claimant, a juror, was a covered employee because jurying was not specifically excluded under the statute. Using this line of reasoning there was, therefore, no need to discuss whether this claimant qualified as an "employee" under our Industrial Insurance Act.
The employer contends that the reasoning of the Proposed Decision and Order begged the issue, that it was in error in holding that the claimant is a covered employee merely because he was involved in an activity which was classified in the proposed Order as an employment. The employer also contends that the claimant does not qualify as an employee as that term is defined by the statutes and the case law in this state.
We are persuaded that the employer's argument is correct, and that it cannot be held that this claimant was a covered "employee" merely [3] because he was involved in a service or "employment" not statutorily excluded. It must be admitted that logging, for example, is an "employment" that is covered under the Act, but whether a specific person is an employee of a logging firm depends upon other factors, including the essence of the employer-employee relationship.
It must be acknowledged that jurying is a unique activity. The method of choosing a jury, its duties, and compensation for the duties, are all set by statute. All jurors are "hired" -- or more properly stated, chosen for service--the same way, perform the same duties, and are paid, at least within the confines of each county, the same compensation. They receive a fixed standard amount for their services, plus reimbursement for mileage based on distances from their residences to the courthouse.
It is well settled law in this state that the test as to whether an employment relationship exists depends upon whether the employer has the right to control the servant's physical conduct in the performance of his duty and whether there is consent by the employee to this relationship. Novenson v. Spokane Culvert and Fabricating Co., 91 Wn. 2d. 550 (1979). Under the definition of "employer" in RCW 51.08.070, the term appears to mean one who "contracts" with another to perform his personal labor for that other. We find, in this case, no contract of employment, no control over the claimant by the county, and no consent by the claimant to such a relationship. [4]
Ten other jurisdictions have considered this question. Nine of these states have come to the same conclusion, i.e., jurors are not covered employees under workers' compensation laws. The single exception is in the State of Ohio. In Industrial Commission of Ohio v. Rogers, 171 NE 35, the court interpreted the provisions of a statute providing that workers' compensation benefits are provided to all persons in the service of a county under "appointment or contract of hire". At no time did the Ohio court consider that the juror was employed under a contract of hire, but did decide that he was in the service of the county under "appointment". We have no similar statute in the State of Washington using the word "appointment." Therefore, the reasoning of the Ohio court is not applicable nor persuasive.
The following cases are in agreement that jurors are not covered employees. Board of Commissioners of Eagle County, et al, 99 Colo. 83, 60 P.2d. 225 (1956); Seward v. County of Bernalillo, 61 NW 52, 294 P.2d. 625 (1956); Jochen v. The County of Saginaw, 363 Mich. 648, 110 NW 2d. 780 (1961); Hicks v. Guilford County, 267 N.C. 364, 148 SE 2d. 240 (1966), Silagy v. State, 101 N.J.Supp. 455, 244 A2d 542, (1968); In re O'Malley, 281 N.W.2d. 277 (1972); Metro Dade County v. Glassman, 342 So. 2d. 995 (1976); Lockerman v. Prince George County, 377 A.2d. 1177 (1977); and Jeansonne v. Parish of E. Baton Rouge, 354 S.2d. 619 (1977). In the Jeansonne case, the court expressed the reasoning in the majority of these cases. Interpreting a statute [5] providing that the Workmen's Compensation Act shall apply to every person in the service of a state or political subdivision thereof, the court stated that the law required a worker to be an employee of the state or political subdivision before the statute applied. The court reasoned:
"Employment presupposes an agreement entered into by the parties and the relationship between a juror and the parish there is no agreement. Both sides are bound by statute to perform as they do. The mere fact that the parish is required to pay some slight compensation to jurors is not sufficient to constitute them as employees."
Buttressing its reasoning, the court noted that prisoners likewise receive some compensation for their labor, but that such did not make them state employees. In Board of Commissioners of Eagle County et al, supra, the court commented:
"It is true that counties must discharge the burden of compensation but neither the service of the juror nor the obligation of the county comes of appointment or contract. The county does not negotiate with the citizens for its services as a juror, nor does the citizen apply to the county for appointment."
"When a citizen is summoned to jury duty to respond to a process running in the name of the people. By the majesty of the law, not by contract, does he become a juror."
The court observed that acting as a juror has to do with the gravest affairs of men and when determinations are made as to matters submitted to a jury, that collective action is not subject to control from any source whatsoever. Since in Eagle County the State Legislature had not acted to make jurors employees of the county, it was inappropriate for the judicial branch to so declare. [6]
This Board agrees with these various judicial observations. However, in the case before us the claimant and the employer are in agreement on only one point: If the claimant was not an employee of the county he may be considered to have been an employee of the court. Regardless of this agreement, we cannot accept this view. The reasoning of the various jurisdictions denying employee status is equally applicable in our view to the court itself as an employer. If the claimant was not an employee of the county, he likewise was not an employee of the judicial system.
We believe that the relationship of the county and the judicial system towards a juror is the same as that between a subpoenaed witness in a judicial proceedings and the parties responsible for his "employment". It would not be argued that a subpoenaed witness is an employee of the county, the judicial system, counsel for the parties, or any of the parties to a lawsuit. Witnesses also receive compensation for their services, as well as mileage, but as in the case of jurors, this is mandated and controlled by statute. The duty to appear is one of operation of law and submission to authority as a citizen of the state. No other relationship is created by virtue of such obedience.
FINDINGS OF FACT
After careful review of the record, the Board finds as follows:
1. On May 11, 1984, the Department of Labor and Industries received an application for benefits from Bjorn Viking Bolin, alleging that he sustained an industrial injury on April 18, 1984 while he was [7] working for the Kitsap County Superior Court. On May 18, 1984, Kitsap County, a self-insured employer, issued a notice of denial of the application for the reason that the claimant was not a worker as defined by RCW 51.08.180. On June 13, 1984 the Department issued an order rejecting the claim for the reasons that (1) the condition was not the result of an industrial injury (2) the claimant was not under the Industrial Insurance Laws at the time of injury and (3)at the time of the injury the claimant was not in the course of employment. On June 14,1984, claimant filed a protest with the Department. On July 2, 1984, the Department issued an order adhering to its order of June 13, 1984. On July 6, 1984, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On July 20, 1984, the Board issued an order granting the appeal, assigning it Docket No. 68,166 and directing that hearings be held on the issues raised by the appeal.
2. On April 18,1984, the claimant served as a juror for the Superior Court for Kitsap County at Port Orchard. The court recessed for the evening at approximately 4:20 p.m. The claimant then drove directly toward his home on Bainbridge Island until he was seriously injured in an automobile accident.
3. Kitsap County paid the claimant the sum provided by law of $14.35 for mileage at the rate of 20.5 [ per mile, and the sum of $10.00 for one day served as a juror on April 18, 1984.
4. The relationship created by one's duty to serve as a juror is not one of mutual consent and does not give rise to an employer/employee status.
CONCLUSIONS OF LAW
It is so ORDERED.
Dated this 30th day of August, 1985.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/_____________________________________
MICHAEL L. HALL Chairperson
/s/_____________________________________
FRANK E. FENNERTY, JR. Member
/s/_____________________________________
PHILLIP T. BORK Member