We know that work comp generally is liberally construed in favor of the claimant. The barriers to proving industrial causation and thus liability are very low.
But in the least the claimant needs to remember some details that would implicate work as the origin of claimed injuries.
That's hard to do when one has a black out, and unfortunately in this Washington case the injuries were significant.
Rudolph Knight admitted he had been drinking heavily in the hours before paramedics pulled him from the water, and he said he had no recollection of what had happened to him.
Knight worked as a catastrophic claims adjuster for State Farm, based in Seattle. State Farm sent him to Galveston, Texas, in 2008 after Hurricane Ike destroyed the area.
Knight spent two months in Texas, staying in a hotel outside of Houston and using a company van to get around. He was able to see his family for the Thanksgiving weekend, and then returned to Texas on Monday, Dec. 1, 2008.
The next day, Dec. 2, Knight was not scheduled to work, but he decided to drive 30 miles from his hotel to Galveston Island to survey Ike's devastation.
He later explained that he had wanted to take another look at the damage from the storm to get "back into the frame of mind of dealing with that specific situation."
While Knight was driving back to his hotel, he noticed some men riding dune buggies. He pulled onto the beach to watch and spoke to his wife on his cell phone at around 1 p.m.
At 5:30 p.m., paramedics responded to a 911 call and found Knight lying on his back along the shore, mumbling "help me."
The lead paramedic, Craig Wunstel, reported that Knight had some small lacerations and bruising. Wunstel said he asked Knight if he had been drinking or using drugs, and Knight admitted he "had a lot of alcohol" earlier.
Knight also allegedly told Wunstel that the last thing he remembered was getting tired and passing out on the beach.
Police Officer Ernesto Garcia also responded to the scene. He reported having noticed that Knight smelled of alcohol.
Dr. Blake Chamberlain treated Knight at the local hospital emergency room. Chamberlain testified that Knight smelled of alcohol and that Knight admitted having drunk "a lot" of alcohol.
Knight also said he remembered "riding in (the) dunes," but he did not remember what type of vehicle he had been riding on, according to the doctor's testimony.
Based upon Knight's actions, slurred speech, sleepiness and the smell of his breath, Chamberlain's initial diagnosis was alcohol intoxication.
Chamberlain did not report noticing any large bruises or signs of apparent trauma, but he ordered two computed tomography scans of Knight's brain.
The scans showed a subarachnoid hemorrhage.
Knight was then transferred to Methodist Hospital because it was better equipped to handle his brain injury.
Testing at Methodist Hospital indicated that Knight's subarachnoid hemorrhage was likely caused by a brain injury and not an aneurysm. Bruising on Knight's face further indicated that he suffered a "contrecoup injury," meaning there was some kind of blunt trauma to his head that caused his brain to knock against the other side of his skull, causing the hemorrhage.
Chamberlain testified this type of injury could be sustained by falling on sand and was not consistent with an injury caused by a blow to the head with a fist, but the doctor said he had no way of knowing for sure how Knight was hurt.
While Knight was at Methodist Hospital, his cognitive condition worsened. He had lost the ability to express himself clearly and he developed a wandering eye.
Knight filed an application for workers' compensation benefits, but the Department of Labor & Industry denied his claim. He then unsuccessfully sought review by the Board of Industrial Insurance Appeals and the King County Superior Court.
Knight was deemed a traveling employee by the court under Washington law, which would make him in the course of employment continuously during his entire trip, unless he makes a "distinct departure on a personal errand."
L&I argued that Knight had clearly abandoned his employment when he drank to the point of intoxication. The court agreed and granted summary judgment in favor of L&I.
This was held up on appeal.
Assuming that Knight was within the course of his employment when he stopped to watch the dune buggy riders at around 1 p.m. on Dec. 2, 2008, the appellate court said that there was substantial evidence that at sometime between 1 p.m. and 5:30 p.m., Knight drank to the point of intoxication and suffered his head injury.
The court noted there was "no direct or circumstantial evidence as to which event occurred first," and based on this lack of evidence, it was impossible to discern whether Knight was injured before or after he became intoxicated. "Therefore, the outcome of this case depends upon who had the burden of proving whether or not Knight was on a distinct departure from his employment due to his intoxication at the time of his injury."
L&I made the motion for summary judgment and raised sufficient evidence to demonstrate no triable issue of fact that would implicate industrial causation. The burden then would shift to Knight to refute that conclusion by presenting some triable issues.
But Knight couldn't do that because he blacked out - he could not raise any argument that would refute L&I's interpretation of the facts.
Some states have a presumption of injury in favor of traveling employees, but Washington doesn't.
The arguments from observers interviewed by WorkCompCentral on this story lamented the lack of a presumption, and some argued that intoxication to the point of blacking out is clearly a deviation from employment.
But the fact is that it is unknown if the brain injury happened before or after (or during) extreme intoxication. If Knight can't remember and there are no other witnesses, then the order of events can't be established. In Washington this is fatal.
The case is Knight v. Department of Labor & Industries, No. 69514-2-1.