Washington Supreme Court rules out-of-state worker can get in-state comp

An out-of-state worker injured while off-duty from an in-state project is entitled to workers' compensation benefits under the "traveling employee" doctrine, the Washington Supreme Court has ruled.

The worker was a journeyman bricklayer from Pennsylvania in Washington for a furnace rebuilding project at a glass factory. His employer paid for all his travel and a per diem amount each day, whether he worked that day or not. His paychecks reflected deductions for in-state employees.

He was injured when he was struck by a vehicle while crossing the street on a Sunday.

The employer argued the bricklayer should be treated as a "local hire" who couldn't collect for an off-duty injury because he wasn't required to accept the our-of-state work assignment.

The court disagreed.

"The [traveling employee doctrine] recognizes that a traveling employee is subjected to 'hazards he or she would otherwise have the option of avoiding,' and that the hazards of travel become the hazards of the employment," the court said.

"No distinction may be drawn between an employee who volunteers for a job that entails travel and one who is 'required' by the employer to do so. The question is whether the job assignment entails travel such that the risks of travel become part of the risks of employment. ...

"Although new to this court, the traveling employee doctrine represents the prevailing view throughout the United States, [and] is consistent with our [state law]. ... [W]e hold that a traveling employee remains in the course of employment except during a distinct departure on a personal errand."

The court cited similar cases from Illinois and Pennsylvania.

Washington Supreme Court. Ball-Foster Glass Container Co. v. Giovanelli, No. 77655-5. Feb. 21, 2008. Lawyers USA No. 9939337 (majority) and 9939338 (dissent).

Credit: Lawyers USA Staff