Mariane R. Simonson v. Dep't of Labor & Industries

• Court: Court of Appeals of Washington
• Decided: February 9, 2023
• Docket: 38737-2
• Status: Unpublished

Opinion

FILED FEBRUARY 9, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

MARIANE R. SIMONSON, et. al., ) No. 38737-2-III ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) DEPARTMENT OF LABOR ) AND INDUSTRIES, ) ) Respondent. )

LAWRENCE-BERREY, J. — Mariane Simonson appeals the superior court’s order

denying her industrial insurance claim due to her injury not occurring in the course of

employment. RCW 51.08.013(1) defines “course of employment” as including going to

and from work on the jobsite, “except parking area.”

Ms. Simonson injured her knee when she slipped on ice on the jobsite in a parking

area where she was prohibited from parking. We conclude that RCW 51.08.013(1) does

not distinguish between parking areas where injured workers may park and parking areas

where they are prohibited from parking. Because Ms. Simonson was injured in a parking

area on the jobsite before beginning her job duties, we affirm. No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

FACTS

Mariane Simonson worked as a certified nursing assistant at Newport Hospital in

Newport, Washington. She worked in the long-term care unit, which was housed in a

building on the northeast corner of the hospital campus.

One day in February 2019, Ms. Simonson arrived to work about 30 minutes before

her 2:00 p.m. shift began. She parked in a hospital parking lot across a public street from

the long-term care building and headed directly to work. She took the most direct route

from the parking lot to the front door of the long-term care unit. From that direction,

there was no sidewalk that led to the door, and Ms. Simonson had to walk through a small

visitor parking area in front of the building. It was icy and cold that day, and she fell in

the visitor parking area outside the long-term care unit, injuring her knee.

Over the next three months, Ms. Simonson’s injury worsened, and she filed a

claim for industrial insurance benefits because she was unable to work. The Department

of Labor and Industries rejected her claim on the basis that her injury did not occur in the

course of her employment. After the Department affirmed the rejection, Ms. Simonson

appealed to the Board of Industrial Insurance Appeals. She argued that because she fell

in a parking lot where she was prohibited from parking, the claim should be allowed.

2 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

Administrative appeal

At a hearing in front of an industrial appeals judge, Ms. Simonson and Leslie

Wiese, a human resources generalist at Newport Hospital, testified about the parking

situation at the hospital.

The hospital is surrounded by six employee parking areas, labeled lot A through

lot F. Employees are instructed to avoid parking in lots designated for patients and

visitors. Ms. Simonson understood she was allowed to park in lots B, C, and F. The

visitor parking area outside the entrance to the long-term care unit, where Ms. Simonson

fell, is not included as an employee parking area or designated with a letter. Ms.

Simonson testified that management occasionally parked in front of the building, but she

understood that she would be fined and her car towed if she parked there. Ms. Wiese

explained that the lot in front of the long-term care building has a few parking spots for

visitors and contains a pull-through area for loading residents into vehicles. She

confirmed that Ms. Simonson was not allowed to park in that lot.

Ms. Simonson testified that she occasionally helped patients in and out of vehicles

in the parking lot but when she was injured, she had not yet begun her shift at the hospital

and was not engaged in any of her duties as a certified nursing assistant.

3 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

The industrial appeals judge entered a proposed decision and order, finding that

Ms. Simonson was coming to work, had not begun her shift, and was not performing any

of her assigned certified nursing assistant job duties at the time of her reported injury. It

concluded that Ms. Simonson was not acting in the course of her employment within the

meaning of RCW 51.08.013 when she was injured. The Board denied Ms. Simonson’s

petition for review and adopted the industrial appeals judge’s proposed decision and

order.

Superior court appeal

Ms. Simonson appealed to the superior court and argued that the parking lot in

front of the long-term care unit was not a parking lot as to herself because it was

controlled by the employer and because by not parking in the parking lot, she benefited

the employer by facilitating visitor parking and patient loading. The Department

responded that the injury was not compensable under the Industrial Insurance Act, Title

51 RCW, because it occurred in a parking lot and Ms. Simonson was not performing her

job duties.

The superior court entered findings of fact and conclusions of law. It found that

Ms. Simonson was coming to work, had not begun her shift, and was not performing any

of her assigned job duties at the time she fell and injured herself in the parking lot

4 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

adjacent to her place of employment. It concluded that Ms. Simonson did not sustain an

industrial injury because RCW 51.08.013(1) categorically excludes injuries that are

sustained in parking areas. The superior court entered an order affirming the Board. Ms.

Simonson timely appealed the superior court’s order.

ANALYSIS

Ms. Simonson contends the superior court erred in applying the parking lot

exception to her industrial appeals claim. We disagree.

We review industrial insurance appeals from the superior court under the ordinary

standards of civil review. RCW 51.52.140; see also Rogers v. Dep’t of Lab. & Indus.,

151 Wn. App. 174, 179-81, 210 P.3d 355 (2009). Our review is limited to evaluating

whether substantial evidence supports the superior court’s findings of fact and whether

the superior court’s conclusions of law flow from those findings. Ruse v. Dep’t of

Lab. & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). We review the meaning of statutory

terms de novo. Dillon v. Dep’t of Lab. & Indus., 186 Wn. App. 1, 6, 344 P.3d 1216

(2014). While ambiguous provisions of the Industrial Insurance Act must be “‘liberally

construed’” in favor of the worker, workers claiming benefits “‘should be held to

strict proof of their right to receive the benefits provided by the act.’” Cyr v. Dep’t of

Lab. & Indus., 47 Wn.2d 92, 97, 286 P.2d 1038 (1955) (quoting Olympia Brewing Co. v.

5 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

Dep’t of Lab. & Indus., 34 Wn.2d 498, 505, 208 P.2d 1181 (1949), overruled in part by

Windust v. Dep’t of Lab. & Indus., 52 Wn.2d 33, 323 P.2d 241 (1958); see also City of

Bellevue v. Raum, 171 Wn. App. 124, 155 n.28, 286 P.3d 695 (2012).

Under RCW 51.32.010, “[e]ach worker injured in the course of his or her

employment” shall receive compensation under the Industrial Insurance Act. A worker is

acting in the course of employment when

acting at his or her employer’s direction or in the furtherance of his or her employer’s business which shall include time spent going to and from work on the jobsite . . . insofar as such time is immediate to the actual time that the worker is engaged in the work process in areas controlled by his or her employer, except parking area.

RCW 51.08.013(1). Washington courts have consistently applied this rule to find

that workers injured in parking areas on the jobsite when going to and from work

are not acting in the course of employment under the Industrial Insurance Act.

See, e.g., Dillon, 186 Wn. App. at 9; Ottesen v. Food Servs. of Am., Inc., 131 Wn.

App. 310, 317-18, 126 P.3d 832 (2006); Bolden v. Dep’t of Transp., 95 Wn. App.

218, 223, 974 P.2d 909 (1999); Bergsma v. Dep’t of Lab. & Indus., 33 Wn. App.

609, 616, 656 P.2d 1109 (1983).

6 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

It is undisputed that Ms. Simonson fell in her employer’s parking area while

going to work, before starting any work duties. Under the plain language of

RCW 51.08.013(1), she was not acting in the course of employment and thus is not

eligible for industrial insurance benefits for injuries from her fall.

Ms. Simonson contends that she was acting in the furtherance of her

employer’s business by showing up to work, so she was therefore acting in the

course of employment. This argument ignores the plain language of the

controlling statute. Although RCW 51.08.013(1) generally covers injuries

occurring when a worker is injured in the furtherance of the employer’s business—

which includes coming to and going from work on the jobsite—it explicitly

excepts a jobsite parking area. This was a conscious choice by the legislature

when it codified precedent in 1961. See Olson v. Stern, 65 Wn.2d 871, 876-77,

400 P.2d 305 (1965) (discussing historical development of the exception).

Ms. Simonson also contends that the parking lot “in which she fell was no

longer a [parking] lot as it pertains to her.” Reply Br. of Appellant at 6. She

argues the exception only applies if the parking lot is an employee parking lot. We

are unpersuaded. Her argument requires us to read into the statute an exception

only for employee parking lots. The statute makes no such distinction, and we will

7 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

not infringe on the legislature’s role by creating distinctions in a statute not present

in its text. Jenkins v. Bellingham Mun. Ct., 95 Wn.2d 574, 579, 627 P.2d 1316

(1981).

Ms. Simonson nonetheless relies on various Washington cases and Board

decisions to argue that the plain language of the statute should not apply to her.

With the exception of one Board decision, which we elect not to follow, those

cases are distinguishable and we discuss them in turn.

In University of Washington, Haborview Medical Center v. Marengo,

122 Wn. App. 798, 803, 95 P.3d 787 (2004), the court held that a worker who was

injured in his employer’s parking garage stairwell was not injured in a parking area

because the stairwell was “a means of getting to and leaving the parking area and

not a place where vehicles park.” Marengo does not establish, as Ms. Simonson

suggests, that a parking area can lose its character as a parking area in regard to

certain workers. Here, it is undisputed Ms. Simonson fell in the parking area

itself, not an adjacent area.

In Madera v. J.R. Simplot, Co., 104 Wn. App. 93, 98, 15 P.3d 649 (2001),

the court held that a worker injured in a drive-through lane, which went between a

roadway and a sidewalk on her employer’s premises, was not injured in a parking

8 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

area because the drive-through lane was not intended for parking and was more

like a loading zone. Madera also does not establish that a parking area can lose its

character as a parking area in regard to certain workers. Here, while the parking

lot contains a loading area for patients, there is no evidence that Ms. Simonson

injured herself in that area.

In Puget Sound Energy, Inc. v. Adamo, 113 Wn. App. 166, 169-70, 52 P.3d

560 (2002), the court held that a worker who was injured while getting into a

company truck in the employer’s parking area was nonetheless acting in the course

of employment because the employer required him to drive the truck home. He

was therefore still acting at the direction of his employer, not simply going to and

from work. Id. at 170. Here, it is undisputed that Ms. Simonson was not

performing any action at the direction of her employer and was doing nothing

more than “going to . . . work on the jobsite.” RCW 51.08.013(1). As discussed

above, the legislature clearly excepted her situation from coverage.

In In re Carey, Nos. 03 13166 & 03 15519, 2004 WL 2359740, at *3

(Wash. Bd. of Indus. Ins. Appeals July 12, 2004), the Board found that a worker

injured in an employer’s parking area while going to start her shift was nonetheless

acting in the course of employment because in response to a city mandate to

9 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

mitigate against traffic congestion, the employer required employees to park in

specified parking areas and subjected them to discipline if they parked elsewhere.

Thus, the employer exercised “supervisory control” in the parking area where the

worker was injured. Id. Unlike in Carey, Ms. Simonson was not required to park

in the parking lot in which she was injured. We also question this distinction.

Although we accord great weight to an agency’s interpretation of a statute that

falls within its area of expertise, deference is inappropriate if the agency’s

interpretation conflicts with the statute. Crosswhite v. Dep’t of Soc. & Health

Servs., 197 Wn. App. 539, 549, 389 P.3d 731 (2017). Employers routinely

exercise supervisory control over parking areas—designating where employees

may or may not park and even assigning individual parking spots. The Board’s

reasoning in Carey would render the parking area exception virtually meaningless.

This, we refuse to do.

In In re Dickey, No. 64,560, 1984 WL 547150, at *2 (Wash. Bd. of Indus.

Ins. Appeals May 30, 1984), the Board applied the “hazardous route” rule1 from

1 Under the rule, an injury is compensable under the act if it is sustained “while going to or coming from work over a route in close proximity to the employer’s premises when the route was the only or customary route or means of ingress and egress to the premises, and when the route involved a particular hazard not shared by the public generally.” Hamilton v. Dep’t of Lab. & Indus., 77 Wn.2d 355, 360, 462 P.2d 917 (1969).

10 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

Hamilton v. Department of Labor & Industries, 77 Wn.2d 355, 462 P.2d 917

(1969), and found that an employee who slipped on an ice-filled pothole in her

employer’s parking area was nonetheless acting in the course of employment because she

was using “the only practical, proximate and customarily used route,” which contained

hazards “not shared by members of the general public” that caused the worker’s injury.

Here, there were multiple routes into the long-term care building from multiple employer-

owned parking areas as well as street parking. Also, the hazard that caused Ms.

Simonson’s injury was shared by the general public because it occurred in the public,

visitor parking area. For these reasons, the hazardous route rule does not apply.

In conclusion, aside from the Board’s decision in Carey, which we decline

to follow, Ms. Simonson’s cited authorities do not support her argument. We

conclude the parking area exception in RCW 51.08.013(1) precludes her request

for industrial insurance benefits.

11 No. 38737-2-III Simonson v. Dep’t of Labor & Indus.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Lawrence-Berrey, J.

WE CONCUR:

______________________________ _________________________________ Siddoway, C.J. Pennell, J.