They are injured in Washington but are they a worker?
The Washington Industrial Insurance Act provides sure and certain relief for Washington workers injured in the course of their employment. The current no-fault system was created as part of the grand bargain between employers and workers, in which workers receive medical care and indemnity benefits in exchange for giving up their right to bring a civil claim against their employer for personal injuries.
The threshold question of whether the Industrial Insurance Act applies is whether the injured person is a “worker.” At its simplest — with some exceptions, of course — RCW 51.08.180 defines a worker as “every person in [Washington] who is engaged in the employment of an employer…” Determining whether a person is a worker becomes murky when they are required to complete pre-employment physical tests or training in order to obtain the position.
On April 15, 2025, the Board issued a tentatively significant decision, In re Sabine Miranda, Dkt. No. 23 18926 (April 15, 2025), in which it explored when a person qualifies as a worker under the Industrial Insurance Act. Ms. Miranda was in the process of applying for a position with the Shoreline School District. As part of the pre-employment process, she was required to take and pass a physical agility test. Shoreline contracted with PINN to conduct these tests, but the tests were scheduled by the prospective employee and independently administered by PINN. Under a collective bargaining agreement, Shoreline could not proceed with the hiring process if a candidate did not pass the physical agility test.
While lifting a 50-pound bag of rice as part of the physical agility test, Ms. Miranda injured her knee and was unable to complete the test. She sought treatment and filed a claim. Ms. Miranda was not paid for her time while taking the physical agility test.
The Department allowed the claim, but the Board reversed. In reaching its decision, the Board stated that, for the purposes of the Industrial Insurance Act, there is a two-part factual test to determine whether an employment relationship exists: (1) the employer has the right to control the employee’s physical conduct in the performance of their duties, and (2) there is mutual consent to an employment relationship.
In this case, the Board held that no employment relationship existed because Shoreline did not have control—or the right to control—Ms. Miranda during the application process. Additionally, there was no mutual consent to an employment relationship. In reaching this decision, the Board cited the following facts: at the time of the injury, Ms. Miranda was seeking employment; Shoreline could not direct her to take the test; she was not paid for her time; and Shoreline had no ability to impose disciplinary consequences if Ms. Miranda chose not to take the physical agility test.
The Board spent significant time distinguishing Miranda from a prior significant decision, In re Kimberly Bemis, BIIA Dec., 90 5522 (1992). In Bemis, the claimant was injured during a pre-employment five-week employee training program. The Board distinguished the two cases based on the facts that Ms. Bemis was engaged in job-specific training, received compensation from the employer, and the employer directly provided the training using its own programming, staff, and facilities.
The takeaway from these cases is that it is important to look at all of the facts surrounding an injury that occurs during the pre-employment process to determine whether the injured person qualifies as a worker under the Industrial Insurance Act. The key facts to consider are:
- How much control was the employer able to assert over the injured person, and was the injured person free to leave at any time?
- Was the injured person being compensated for their time?
- What connection did the location of the injury have to the employer?
Ultimately, these decisions require investigation and a thorough understanding of the particular employer’s pre-employment process.
If you have a questionable situation involving a potentially injured worker, please do not hesitate to contact Joe at 971-867-2724 or to discuss how this recent Board decision may impact your specific situation.
Posted by Joe Urbanski.
