Opinion
No. 64162-0-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-2-38115-3, Michael Heavey, J., entered August 14, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Leach, A.C.J., and Ellington, J.
Domestic servants are specifically excluded from coverage under the Industrial Insurance Act, Title 51 RCW. The fact that an employee works for the same employer in different capacities does not evoke coverage when the injury is sustained during employment as a domestic servant. The superior court is affirmed.
FACTS
Juana Alegria was employed by James Dore and Nancy Medina to cook, clean and care for their infant son at their home in Renton. For two years, from approximately 2004 to 2006, Alegria worked exclusively in the Dore residence performing household duties and providing childcare. During that time period, Alegria was paid in cash. In March 2006, Alegria also began to work at the nightclub managed by Medina and owned by Dore. She worked there on the weekends for approximately two hours a night. When Alegria began to work at the nightclub, she was paid by check drawn on the business for both jobs.
On September 22, 2006, Alegria was injured at the Dore home while employed as a baby-sitter and housekeeper. Alegria filed a claim for worker's compensation. On June 1, 2007, the Department of Labor and Industries (Department) denied the claim because Alegria was a domestic servant and therefore excluded from coverage under the Industrial Insurance Act, RCW 51.12.020(1). Alegria appealed the determination to the Board of Industrial Insurance Appeals (Board). A hearing was held before an Industrial Appeals Judge (IAJ). The IAJ affirmed the Department's order. The Board denied Alegria's petition for review and adopted the proposed decision and order from the IAJ as its own. Alegria appealed to the superior court which held a bench trial. The superior court adopted as its own the Board's findings and facts and conclusions of law and added the following finding of fact:
Ms. Alegria was injured during the course of her employment with Mr. Dore as a baby-sitter and housekeeper in his private home on September 22, 2006. Ms. Alegria was the only person Mr. Dore employed at his home as a baby-sitter and housekeeper.
Alegria appeals.
ANALYSIS
Judicial review in this court is governed by RCW 51.52.140, which provides that an "[a]ppeal shall lie from the judgment of the superior court as in other civil cases." This statutory scheme results in a different role for this court than is typical for appeals from administrative decisions. Rather than sitting in the same position as the superior court, under the Act, this court reviews only "`whether substantial evidence supports the trial court's factual findings and then review[s], de novo, whether the trial court's conclusions of law flow from the findings.'" In carrying out this review, we take the record in the light most favorable to the party who prevailed in superior court and do not reweigh or rebalance the competing testimony and inferences, or apply anew the burden of persuasion. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the matter asserted.
Rogers v. Dep't of Labor Indus., 151 Wn. App. 174, 180, 210 P.3d 355 (2009).
Rogers, 151 Wn. App. at 180 (quoting Watson v. Dep't of Labor Indus., 133 Wn. App. 903, 909, 138 P.3d 177 (2006)).
Harrison Mem'l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002).
Ferencak v. Dep't of Labor Indus., 142 Wn. App. 713, 719-20, 175 P.3d 1109 (2008).
Washington is one of the 26 states that exclude domestic service from worker's compensation. Algeria contends that the trial court erred in holding she was excluded from industrial insurance coverage under RCW 51.12.020(1), which excludes "[a]ny person employed as a domestic servant in a private home by an employer who has less than two employees regularly employed forty or more hours a week in such employment." In Everist v. Department of Labor Industries, this court defined domestic servants as persons hired or employed primarily for the performance of household duties and chores, the maintenance of the home, and the care, comfort, and convenience of members of the household. Under the statute and case law, Alegria's duties at the Dore home were those of a domestic servant. Alegria testified before the Board that she cooked, washed clothes, and cleaned for the Dore household. Indeed, she described her work at the nightclub as a couple of hours for only two days as "[t]hat wasn't my work. My work was at his house." There is substantial evidence to support this finding.
4 Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law §§ 72.01 (2010).
57 Wn. App. 483, 789 P.2d 760 (1990).
Alegria does not dispute that she was performing as a domestic servant; rather, she argues that she performed additional cleaning duties, which would be covered under the Act, for the same employer for approximately two hours a night on the weekends. For both employment areas, Alegria was then paid by one check drawn on the ADL, Inc. business account. This duality of employment, she argues, brings her under the umbrella of the Act. Algeria argues that Dana's Housekeeping, Inc. v. Department of Labor Industries supports her position. The facts in Dana's are markedly different from those here. Dana's was a commercial housekeeping business that challenged the imposition of an industrial insurance tax assessment on its business. Dana's argued that the 140 housecleaners it employed to clean customers' homes were exempt from coverage by virtue of the domestic servant exclusion. The court interpreted RCW 51.12.020(1)'s exclusion as only applying to noncommercial entities and limited to private homes. Critical to the court's decision was the fact that a domestic servant should be defined "with reference to whether the master attempts to profit in an entrepreneurial capacity from the servant's labor." Here, Dore employed one person in his home. He offered her the chance to make additional money on the weekends when she was not working at his home. The fact that he paid her with a check drawn on his commercial business does not alter that she was one employee engaged in domestic service at his private home.
Alegria also worked sometimes as a coat checker at the nightclub for which she received tips.
ADL, Inc. is the S-Corporation that owned the nightclub/discotheque.
76 Wn. App. 600, 886 P.2d 1147 (1995).
Dana, 76 Wn. App. at 602.
Dana, 76 Wn. App. at 611.
Dana, 76 Wn. App at 611 (citing Griebel v. Indus. Comm'n, 133 Ariz. 270, 273, 650 P.2d 1252, 1255 (Ct. App. 1982)).
Alegria's reliance on Doty v. Town of South Prairie is misplaced. Doty involved the question of whether or not a volunteer fire fighter was covered under the Act. The court held the exclusion of volunteers was unambiguous and they were thus not covered under the Act. Nonetheless, Alegria argues that Doty's citation to Cockle v. Department of Labor Industries and its reiteration that the Act has a mandate of liberal construction argues for its liberal application here. But Cockle dealt with calculation of benefits, not with a disputed classification of an individual.
155 Wn.2d 527, 120 P.3d 941 (2005).
142 Wn.2d 801, 16 P.3d 583 (2001).
Doty, 155 Wn.2d at 533.
Previously the Act provided relief only to workers injured while performing extra-hazardous work. In 1971, the Act was amended to cover all employment unless specifically exempted. No Washington cases have decided this precise issue. However, cases decided before the amendment, lend some guidance for the resolution of the matter here. For example, Denny v. Department of Labor Industries recognized the principle that an employee can be employed in a dual capacity, with one phase of his activity falling within the extra-hazardous employment and the other without. In Denny, the employee of a trucking company spent his morning soliciting business and his afternoons handling shipping. Since the employee was not engaged in the performance of the extra-hazardous employment when he was injured, he was not covered under the Act even though he was continuously working for one employer. Here, Algeria was engaged in her domestic servant capacity when she was injured. Whether she might be covered while working at the nightclub is immaterial to the work she was in fact performing when she was injured. Merely paying someone wages with a corporate check does not remove someone from an exempt category which is specifically excluded.
Laws of 1971, 1st Ex. Sess., ch. 289, §§ 2 (codified at RCW 51.12.010).
172 Wash. 631, 21 P.2d 275 (1933).
See also Morris v. Dep't of Labor Indus., 179 Wash. 423, 430, 38 P.2d 395 (1934) (holding that where two activities are separate and distinct from each other with a clear line of demarcation existing between them, and the employee is not engaged in the extra-hazardous duty at the time of injury, the employee is not covered by the act even though he is acting in his course of employment).
Decisions from other jurisdictions have recognized that one employer can operate two different businesses, one subject to workman's compensation and the other not. In Aetna Casualty and Surety Co. v. Estate of Thomas, the court held that a decedent who was employed as a domestic servant at the employer's home and as a yardman at the corporation was not covered when he drowned in the swimming pool at the employer's residence. The court recognized that it was the capacity in which the person was serving that dictates whether or not coverage exists. And, in Brown v. Leavitt Lane Farm, Nebraska's Supreme Court held that a worker injured in the course of farming, an exempt business, was not covered even though the employer also engaged in a nutrition business which was covered. An "employer's actions with regard to the business which is subject to the workmen's compensation law do not affect the employer's business which is statutorily exempt from the compensation law."
547 S.W.2d 694 (Tex. Civ. App., 1977).
See also Blache v. Maryland Cas. Co., 283 So. 2d 319 (L.a. App., 1973) (maid employed by doctor was injured in his home during the course of her employment was not covered even though there was testimony indicating that she also cleaned the doctor's office and occasionally took messages).
340 N.W.2d 4, 6 (Neb., 1983).
Brown, 340 N.W.2d at 6.
Finally, Alegria argues that the language exempting domestic employees is ambiguous when applied to the facts here. Alegria asserts that the language used in RCW 51.12.020, i.e., "[t]he following are the only employments which shall not be included within the mandatory coverage of this title," does not contemplate a worker who fills more than one role for the same employer. Such an argument is specious. It is clear that the term "only employments" refers to the 13 enumerated work areas that follow that statement. Any other reading of the statute would be tortuous. As the Department notes in its brief, if the legislature had intended such a "sole function" limitation, it could easily have done so by insertions of "solely" or "only" into the statute — "[a]ny person [solely or only] employed as a domestic servant. . . ." But it did not do so, and words cannot be added to a statute where the legislature has not included such language. Accordingly, we affirm the superior court.
(Emphasis added.)
Dot Foods, Inc. v. Dep't of Revenue, 166 Wn.2d 912, 920, 215 P.3d 185 (2009).
WE CONCUR: