By Gene Barton

One would think, in the normal course of things, that when a worker is hit by a car on his way to a park concert on a day off, it would not be an industrial accident. Well, think again.

The availability of workers’ compensation benefits for non-resident employees brought into the state to work received a boost on August 8 when Division One of the Court of Appeals handed down its decision in Ball-Foster Glass Container Co. v. Giovanelli.1 It was the third consecutive setback in the case for Ball-Foster’s parent, St. Gobain Corp., which previously had lost an appeal to the Board of Industrial Insurance Appeals and lost on summary judgment on an appeal in King County Superior Court.

The crux of the court’s decision was its determination that out-of-state workers such as Alfred Giovanelli -- at least those who are paid a per diem for every day they are in the state -- are on the clock virtually 24/7 when they are brought into Washington by their employers to work on specific jobs.

Giovanelli, a resident of Pennsyl-vania, began work in 1970 specializing as a firebrick mason building furnaces for glass and steel industries. He only accepted jobs offered by St. Gobain, which looked to Sonny Champ Refractories to provide it with masons and supervisors for glass furnace rebuilds. When Champ offered Giovanelli a job working on a furnace in Seattle, he accepted, but did not fill out paperwork until he arrived at the Seattle plant. He was hired as a full-time, temporary employee of St. Gobain and was paid from the Seattle plant’s payroll. Deductions for unemployment tax were paid to Washington.2 Most importantly, however, “[i]n addition to his regular wages, he received a per diem for each day away from home, including Sundays.”3

After three weeks of work on the Seattle job, Giovanelli had a Sunday off. He watched some television in his hotel room and later went to a flea market, then returned. Giovanelli and Sonny Champ, who also was in Seattle, decided to walk to a nearby park to listen to some music. On the way to the park, Giovanelli -- who apparently was crossing the street against the light -- was hit by a car. The accident permanently blinded him.4

In finding in favor of Giovanelli, the Court of Appeals first noted the liberal construction rule under the Industrial Insurance Act. At the same time, however, the court mentioned that “the Act only provides coverage for industrial injuries incurred during the course of employment.”5

The court’s decision came down to a formal adoption of the “traveling employee” rule, which also had provided the basis for the ruling by the Board of Industrial Insurance Appeals. The court previously had “recognized that the reasoning in Washington cases is consistent with the ‘traveling employee’ rule,” but had not actually adopted the doctrine. In its prior case, the court had explained the rule as follows:

When employees are required by their employers to travel to distant jobsites, courts generally hold that they are within the course of their employment throughout the trip, unless they are pursuing a strictly personal activity . . . .6

The court first found that, although the facts did “distinguish Giovanelli from permanent employees who are required to travel at the behest of their employer,” there was only one conclusion to be reached: “he was a ‘traveling employ-ee.’”7 Second, the court rejected St. Gobain’s arguments that Giovanelli was either an “itinerant worker” or a “local hire.” With respect to the former, the court found that “Giovanelli was not a wandering worker who happened to look for employment in our state.”8 As to the latter, the court relied, in part, on an Illinois case to reject St. Gobain’s argument, finding that Giovanelli “was contacted before he came to Washington, and offered the job that he accepted.”9 The court found these circumstances consistent with the Washington rule “that a contract is considered as having been entered into at the place where the offer is accepted or where the last act necessary to a meeting of the minds or to complete the contract is performed.”10

Finally, the court considered St. Gobain’s arguments regarding whether Giovanelli had “abandoned his course of employment” on that fateful Sunday. Relying on its prior ruling in Shelton v. Azar, the court noted that “a ‘traveling employee’ abandons the course of employment by engaging in a ‘distinctly personal activity.’”11

In Shelton, we recognized that injuries arising out of necessary activities such as sleeping in hotels and eating in restaurants when away from home are

compensable. Similar to an employee sleeping in a hotel or eating in a restaurant, an employee, who is receiving a per diem and walks across a street near his hotel, is not departing on a “distinctly personal activity.”12

The Court of Appeals placed extensive emphasis on the fact that Giovanelli received a per diem “for all days, including Sundays.”13 This was the key distinction that the court continually cited to negate St. Gobain’s various arguments, including its last one: an attempt to bring the case into line with a 1930 case in which a logger, living in a logging camp, had been denied workers’ compensation benefits after being injured during a trip on a company-owned railroad speeder.14

Whether there is room for employers to argue that a worker is not a “traveling employee” under similar circumstances, absent a per diem, remains to be seen. n

1 117 P.3d 365, 2005 Wash. App. LEXIS 1965 (Div. One, August 8, 2005). Although Ball-Foster Glass Container is listed as the appellant, its parent company, St. Gobain Corp., is referred to as the apparent party in interest throughout the decision.

2 2005 Wash. App. LEXIS 1965 at *2.

3 Id. at *8--9. Curiously, the per diem is not mentioned in the court’s initial rendition of the case facts.

4 Id. at *2--3, 12.

5 Id. at *5--6.

6 Id. at *6--7 (quoting Shelton v. Azar, Inc., 90 Wn. App. 923, 933, 954 P.2d 352 (1998)).

7 Id. at *8--9.

8 Id. at *9.

9 Id. at *9--10 (citing Chicago Bridge & Iron, Inc. v. Industrial Comm’n, 618 N.E. 2d 1143 (Ill. Ct. App. 1993)).

10 Id. at *10 (quoting Norm Adver. v. Monroe St. Lumber Co., 25 Wn.2d 391, 396, 171 P.2d 177 (1946)).

11 Id. at *11 (quoting Shelton, 90 Wn. App. at 933).

12 Id. at *12 (quoting Shelton, 90 Wn. App. at 933).

13 Id. at *14.