Dept. of Labor and Industries v. AVUDES

996 P.2d 593
CourtWashington Supreme Court
DecidedApril 6, 2000
Docket68103-1
StatusPublished

This text of 996 P.2d 593 (Dept. of Labor and Industries v. AVUDES) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dept. of Labor and Industries v. AVUDES, 996 P.2d 593 (Wash. 2000).

Opinion

996 P.2d 593 (2000)
140 Wash.2d 282

STATE of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, Petitioner,
v.
Eladio AVUNDES, Respondent.

No. 68103-1.

Supreme Court of Washington, En Banc.

Argued January 25, 2000.
Decided April 6, 2000.

*594 Bryan Harnetiaux, Debra L. Stephens, Michael J. Pontarolo, Spokane, Amicus Curiae on Behalf of Washington State Trial Lawyers Association.

William D. Hochberg, Edmonds, Amicus Curiae on Behalf of Washington State Labor Council and Washington State Building and Construction.

Perkins, Coie, Nancy T. Day, Seattle, Amicus Curiae on Behalf of Washington Self-Insurers Association, Washington State Farm Bureau and Building Industry Association of Washington.

Christine Gregoire, Attorney General, Richard Steven Puz, Asst., Olympia, for Petitioner.

Calbom & Schwab, David L. Lybbert, Moses Lake, for Respondent.

JOHNSON, J.

This case requires us to decide whether an injured worker's employment was essentially intermittent under RCW 51.08.178(2). The Department of Labor and Industries (Department) found the worker's employment was essentially intermittent and, therefore, determined his wages by the wage averaging provision set forth in RCW 51.08.178(2)(b). The Board of Industrial Insurance Appeals (BIIA) reversed, finding the worker not intermittent under RCW 51.08.178(2). The superior court and the Court of Appeals affirmed. We affirm.

FACTS

Respondent Eladio Abundes (Abundes)[1] was employed as a general farm laborer. On May 24, 1994, he was injured while cutting asparagus. At the time of injury, he had worked 50 days at that job. He applied for workers' compensation benefits under the Industrial Insurance Act, Title 51 RCW, and his application was approved. The Department classified Abundes as an exclusively seasonal, part-time or intermittent worker under RCW 51.08.178(2), and used the wage averaging calculation set forth in that subsection of that statute to determine his base monthly wage. Under subsection (2), the worker's total wages for the past 12 months are averaged to determine a base monthly wage. Abundes contends his monthly wage should be calculated under RCW *595 51.08.178(1), which looks only at the current monthly wage to determine a base monthly wage. In Abundes' case, the two calculation methods produce significantly different numbers.

In the 14 months prior to his accident, Abundes had worked 19 different jobs, working each project until it was complete. These jobs varied in length from one day to approximately six weeks. The Department presented no evidence to establish when the asparagus harvest would end. The parties agree that Abundes intended to secure full-time work throughout the year.

The BIIA ruled in Abundes' favor and directed the Department to calculate Abundes' monthly wage under RCW 51.08.178(1). The Department appealed, first to the superior court and then to the Court of Appeals. The Court of Appeals, in affirming the BIIA, characterized the issue as "whether Mr. Abundes' [sic] `current employment or his ... relation to his ... employment is essentially part-time or intermittent.'" Department of Labor & Indus. v. Avundes, 95 Wash.App. 265, 271, 976 P.2d 637 (1999) (quoting RCW 51.08.178(2)(b)) (alteration in original). The Court of Appeals concluded the employment was neither part-time nor intermittent and, therefore, could not be classified under subsection (2) for the purpose of determining workers' compensation benefits. The Department sought review in this court, which we granted.

ANALYSIS

This court has recognized that the Industrial Insurance Act "is to be liberally construed in order to achieve its purpose of providing compensation to all covered employees injured in their employment, with doubts resolved in favor of the worker." Dennis v. Department of Labor & Indus., 109 Wash.2d 467, 470, 745 P.2d 1295 (1987); see also RCW 51.12.010 ("[t]his title shall be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment."). Until 1988, the amount of compensation paid under the act was determined primarily by the calculation formula under RCW 51.08.178(1), which reads in part:

For the purposes of this title, the monthly wages the worker was receiving from all employment at the time of injury shall be the basis upon which compensation is computed unless otherwise provided specifically in the statute concerned. In cases where the worker's wages are not fixed by the month, they shall be determined by multiplying the daily wage the worker was receiving at the time of the injury:
(a) By five, if the worker was normally employed one day a week;

....

(g) By thirty, if the worker was normally employed seven days a week.
... The daily wage shall be the hourly wage multiplied by the number of hours the worker is normally employed. The number of hours the worker is normally employed shall be determined by the department in a fair and reasonable manner, which may include averaging the number of hours worked per day.

RCW 51.08.178(1).

In 1988, the Legislature amended RCW 51.08.178 and added subsection (2), which reads as follows:

In cases where (a) the worker's employment is exclusively seasonal in nature or (b) the worker's current employment or his or her relation to his or her employment is essentially part-time or intermittent, the monthly wage shall be determined by dividing by twelve the total wages earned, including overtime, from all employment in any twelve successive calendar months preceding the injury which fairly represent the claimant's employment pattern.

RCW 51.08.178(2). This case requires us to determine when and how subsection (2) applies.

Under RCW 51.08.178

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