COVERAGE AND EXCLUSIONS
Chore service workers
Where a worker serves as a chore service worker on behalf of the Department of Social and Health Services (DSHS) and provides services to a particular individual and DSHS does not determine the rate of compensation or the number of hours worked, DSHS is not the employer at the time of injury. ....Beryl June Davis, 90 3688 (1992)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 9192-2-14920-6.]
Corporate officers (RCW 51.12.020(a) (1979); RCW 51.12.020(8) (1987)(1992))
Under the 1991 amendments to RCW 51.12.020(8), in order to be excluded from coverage a corporate officer must be a bona fide officer, voluntarily elected, and must exercise substantial control in the daily management of the corporation. ....Amos Hammer Cutting, Inc., 05 14484 (2006) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 06-2-00915-8.]
Corporate officers, elected and empowered by the articles of incorporation or by-laws, who are also directors and shareholders, are excluded from the mandatory coverage of the act pursuant to RCW 51.12.020(8)(1987), provided that they have voluntarily assented to such status. Analysis of New West, concerning 1979 version of RCW 51.12.020, is equally applicable to 1987 version as changes were only technical and there are no substantive distinctions between the two versions of the statute. ....Western Gold Shake, 89 3349 (1990) [dissent] [Editor's Note: See later statutory amendments, Laws of 1991, ch. 246, § 4 (effective January 1, 1992) and In re Amos Hammer Cutting Inc, BIIA Dec., 05 14484 (2006); The Board's decision was appealed to superior court under Thurston County Cause No. 90-2-02907-4.]
Corporate officers, elected and empowered by the articles of incorporation or by-laws, who are also directors and shareholders, are excluded from the mandatory coverage of the Act pursuant to RCW 51.12.020(9) (1979), provided that they have voluntarily assented to such status. The statute imposes no limitation on the number of corporate officers who can be so excluded; the statute does not require any minimum stock ownership; and the statute does not require that officers who are excluded from mandatory coverage exercise substantial control over the business operation. ....New West Manufacturing, Inc., 88 3634 (1989) [dissent] [Editor's Note: See later statutory amendments to RCW 51.52.020(8), Laws of 1991, ch. 246, § 4 (effective January 1, 1992) and In re Amos Hammer Cutting Inc, BIIA Dec., 05 14484 (2006)]
Course of trade, business or profession of employer (RCW 51.12.020(3))
Two laborers hired by a dentist to remodel railroad cars over a six-year period for the purpose of housing the dentist's ongoing dentistry practice were mandatorily covered workers and the remodeling effort was in the course of the dentist's profession in light of the duration of the employment relationship and the "ongoing," rather than prospective, nature of the business. ....John Ryan, 86 1153 (1987)
Effect of allowed Federal Employees Compensation Act claim
Where a claimant developed asbestos-related disease due to exposure at a variety of employers due to exposure at different employers between 1952 and the mid-1980s, the Department's rejection of a claim due to the allowance of a Federal Employees Compensation Act [FECA] claim was in error since the Department was responsible for interim treatment benefits under the asbestos fund while it identified the liable insurer. Noting the result may be different under the provisions of RCW 51.12.102(1) if coverage is provided under the Longshore and Harbor Workers' Compensation Act, the Department should pursue the federal program on the claimant's behalf, if appropriate. ....Richard Corkum, 90 0280 (1991)
Elective adoption
An officer and shareholder of a corporation is covered under the elective adoption provisions of RCW 51.12.110 where, when the corporation was first formed, he was not a shareholder and was therefore subject to the mandatory coverage provisions of the Act, and the corporation continued to report his hours and remit the required premiums after he became a shareholder. Under these circumstances no formal notice of elective adoption was required under RCW 51.12.110. ....Richard Wooding, 67,593 (1985)
Extraterritorial
The enactment of RCW 51.12.120 regarding extraterritorial coverage did not abrogate the requirement that a worker be employed by an "employer" within the meaning of RCW 51.08.070. Thus, the extraterritorial coverage provisions do not apply unless the employer is engaged in doing business in this state. ....Kenneth Hermanson, Dec'd., 42,395 (1975)
Federal Employees Compensation Act
Allowance of a federal hearing loss claim precludes acceptance of a state claim. A worker loses any right to benefits under Title 51 if the person has a valid claim arising from the Federal Employees Compensation Act. ....John Sikes, 02 13513 (2004) [Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 04-2-00669-7]
Inmates
County jail inmates who perform work as trustees are not 'volunteers' as defined by RCW 51.32.035. ….David Wissink, 00 21485 (2002)[Editor's Note: The Board's decision was appealed to superior court under Stevens County Cause No. 02-2-00049-3]
Interstate truckers – Owner-operators
Drivers who sign a lease‑back agreement but do not have a significant economic interest in the truck covered under the agreement are not exempt from coverage as owner-operators who lease their truck to a common carrier under RCW 51.08.180. Distinguishing Department of Labor & Indus. v. Mitchell Brothers Truck Line, Inc., 113 Wash. App. 700 (2002). ....Dale Sanders Trucking Co., 07 11358 (2008)
Jockeys
The worker employed as an exercise rider is not covered under the Act when preparing a horse for a race during a race meet. WAC 296-17-239, WAC 296-17-45001, WAC 296-17-73105. ….Richard Ochoa, 96 2423 (1997) [dissent] [Editor's Note: The facts are almost identical to those described in In re John Heath, BIIA Dec., 68,742 (1985) and In re Rick Obrist, BIIA Dec., 68,775 (1985), but WAC 296-17-239 and new rules warrant a different result. The Board's decision was appealed to superior court under Spokane County Cause No. 97-2-05018-3.] [Reversed, Ochoa v. Department of Labor & Indus., 143 Wn. 2d 422 (2001)]
Jockeys injured while employed as "exercise boys" are subject to the mandatory coverage provisions of the Act notwithstanding the jockey exclusion of RCW 51.12.020(7). ....John Heath, 68,742 (1985) [dissent]; Rick Obrist, 68,775 (1985) [dissent]
Limited liability company
Limited liability companies are not the same as corporations or partnerships for industrial insurance purposes and they are not excluded from coverage. ....David Brooks, Dec'd.,96 4438 (1998) [dissent] [Editor's Note: Laws of 1999, ch. 68, (effective July 25, 1999) allows limited liability companies the same treatment as corporations and partnerships for coverage under industrial insurance. The Board's decision was appealed to superior court under King County Cause No. 98-2-05744-1SEA]
Longshore and Harbor Workers' Compensation Act
A claim should not be rejected on the basis the injury occurred while in the course of employment subject to federal jurisdiction as the last injurious exposure rule was not intended to apply as a basis to deny a state claim. The Department is required to determine the nature and extent of the worker's in-state employment and whether any of such employment impacted the worker's condition and, pursuant to RCW 51.12.100(4), may provide interim benefits pending a final determination. ....John Robinson, 91 0741 (1992) [Accord, Department of Labor & Indus. v. Fankhauser, 121 Wn.2d 304 (1993)
Widow who makes a prima facie showing, however slight, that her husband suffered injurious exposure to asbestos in employment covered by Title 51 RCW, is entitled to benefits pursuant to RCW 51.12.102(1), even though the evidence indicates the federal Longshore and Harbor Workers' Compensation Act insurer will ultimately be responsible for the claim. ....Dorothy Gula, Dec'd.,88 2196 (1990)
The Department must make its own determination regarding federal coverage, rather than wait for the pending federal claim to be resolved. [RCW 51.12.100]. ....David Buren, 65,127 (1984) [Editors Note: See later statutory amendments, Laws of 1988, ch. 271, § 1 (RCW 51.12.102)]
Partners (RCW 51.12.020(5))
In determining whether limited partners are excluded from mandatory coverage pursuant to RCW 51.12.020(5) the Board considers the intent of the parties, as evidenced by their agreement, their acts and conduct, and all the facts and circumstances of the case. Where there was no sharing of profits and losses, the working relationship between the individuals was in reality that of employer and employees, and the sole purpose of the partnership agreement was to evade the benefits and burdens of the Industrial Insurance Act in contravention of RCW 51.04.060, the limited partners were held to be "workers" subject to mandatory coverage under the Act. ....K E W Construction, 87 0152 (1988)[Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No.88-2-02759-2.]
Reciprocity agreements
Worker hired by an Oregon corporation and transported to Washington where he was killed while harvesting corn, was not covered by Washington's Industrial Insurance Act. Under the terms of the reciprocity agreement permitted by RCW 51.12.120(6) and RCW 51.04.020(9) the worker was an Oregon employee, "temporarily" employed in Washington, and therefore subject to Oregon's Workers' Compensation Law. ....Clifford Perkins, Dec'd.,89 2047 (1990)
Religious or charitable organizations
Church members engaged in a church tree-planting operation and receiving only a small personal stipend in addition to the basic necessities of food, clothing and shelter, are not engaged in employment subject to the mandatory coverage of the Act and are specifically excluded from coverage by RCW 51.12.020(4). ....Gospel Outreach, 45,742 (1977) [dissent]
Self employment
A claim should not be rejected on the basis the condition developed while the worker was self-employed and not covered by the industrial insurance laws as the last injurious exposure rule was not intended to apply as a basis to deny a claim. The Department is required to determine the nature and extent of the worker's covered employment to determine whether any of such employment impacted the worker's condition. (Citing In re John L. Robinson, BIIA Dec., 91 0741 (1992) (federal) and In re Gary Peck, Dckt No. 91 6243 (January 19, 1993) (another state)). ....Louis Williams, 92 4110 (1993)
Social events
A worker engaged in activities related to preparation of an employer's social event is not participating in a social event within the meaning of the exclusion from coverage contained in RCW 51.08.013(b). ....Sharon Rice, 07 18132 (2008) [Editor's Note: The Board's decision was appealed to superior court under Kittitas County Cause No. 08-2-00423-9.]
Sole proprietors (RCW 51.12.020(5))
Whether an independent contractor is exempt from coverage under the sole proprietor exclusion of RCW 51.12.020(5) depends upon factors such as whether the person (1) has a principal place of business eligible for a business deduction for IRS purposes, (2) maintains a separate set of books or records reflecting income and expenses, (3) has done everything legally necessary to establish a business in the state of Washington, (4) has obtained necessary licenses and tax identification numbers, (5) provides services to more than one person or entity, and (6) holds him or herself out to the general public as an independent business person. An additional consideration is "which way does the money flow?" ....Fiedler Industries, 89 0822 (1990) [Editor's note: See later statutory amendments, Laws of 1991, ch. 246, § 1 (effective January 1, 1992)]
Waiver of benefits (RCW 51.04.060)
RCW 51.04.060 invalidates a contractual agreement to the extent that it purports to exclude a worker from coverage who would otherwise be covered by the Industrial Insurance Act. It is inappropriate, however, to rely on RCW 51.04.060 to make the threshold determination whether the employment relationship is within the coverage of the Act. ....Rainbow International, 88 2664 (1990) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 90-2-00248-6.]