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AGO 1958 No. 233 - December 19, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

PILOTS ‑- INDUSTRIAL INSURANCE COVERAGE WHILE MAKING EMERGENCY FLIGHTS FOR DEPARTMENT OF NATURAL RESOURCES.

Air reserve pilots making emergency flights for the department of natural resources scouting forest fires or on fire patrol are within the coverage of the industrial insurance act.  National guard pilots on duty at the time of flight are not within the coverage afforded by the industrial insurance act.

                                                                  - - - - - - - - - - - - -

                                                               December 19, 1958

Honorable Jerry Hagan, Director
Department of Labor & Industries
General Administration Building
Olympia, Washington                                                                                              Cite as:  AGO 57-58 No. 233

Dear Sir:

            By letter, previously acknowledged, you have requested our opinion on a question paraphrased as follows:

            Are National Guard or Air Reserve pilots, while making emergency flights for the department of natural resources scouting forest fires or on fire patrol looking for fires, within the coverage of the Industrial Insurance Act?

            We answer your question in the affirmative, with the exception noted.

                                                                     ANALYSIS

            The facts, as we understand them, are as follows:

            The pilots in question may be either salaried members of the National Guard or members of the Air Reserve.  Air Reserve pilots are individuals who are required to log a certain amount of flight time in a given period and planes are made available for this purpose.  Military planes are utilized and it is the pilot's responsibility to procure the same, though, at times, the department may request that a plane be made available to the pilot.  The department  [[Orig. Op. Page 2]] does not rent the planes but only pays for the gasoline used.  Arrangements for the flights are made directly with the individual pilots.  A National Guard pilot on duty at the time of flight receives no pay.  At other times, and with regard to Air Reserve pilots, payment is made at a set rate per hour based upon the type of aircraft flown.  The frequency of the flights is determined by the fire conditions.  In other words, the pilots' services are required during a forest fire.  Their services are also required in scouting the forest after lightening strikes in timbered areas.  In addition, the pilots may be called upon to transport department personnel and equipment.  As a general rule, during all flights, the pilot is accompanied by a member of the department and acts under the specific instructions and the control of such person.  The department exercises as complete control as the circumstances permit.  Of course, the pilot is allowed to use his discretion in the actual flying of the aircraft.

            In the case of Thompson v. Department of Labor and Industries, 194 Wash. 396, 398, 78 P. (2d) 170 (1938), our supreme court ruled that members of the National Guard, performing their required duties could not be classified as workmen entitled to coverage under the Industrial Insurance Act.  In support of this conclusion, the court stated:

            "We find nowhere in the workmen's compensation act any specific reference to the national guard of its personnel.  On the contrary, since the first legislative session after statehood, the state's military code has contained an express provision for relief of the officers and enlisted men of the guard wounded or disabled while in the service of the state.  The existing provision is embodied in Rem. Rev. Stat., § 8507 . . ."

            Provision for compensation for death or disability of a member of the National Guard is presently found in RCW 38.40.030, which provides, in part:

            ". . . The amount of compensation or benefits payable shall conform as nearly as possible to the general schedule of payments and awards provided under the workmen's compensation law in effect in the state of Washington at the time the disability or death occurred. . . ."

            In accordance with the rule announced in the Thompson case, supra, National Guard pilots, flying while on duty, are not entitled to compensation under the act.  In reaching this conclusion, we have not overlooked the case of Rector v. Cherry Valley Timber Company, 115 Wash. 31, 196 Pac. 653  [[Orig. Op. Page 3]] (1921).  TheRector case, supra, is clearly distinguishable upon its facts from the instant situation.

            On June 27, 1955, the Governor issued an executive bulletin directing the administrators of all code departments, boards and commissions

            ". . . to provide industrial insurance coverage to all employees within the respective departments, boards and commissions in two industrial classifications provided exclusively for state employees according to the classification schedule prepared by the Department of Labor and Industries. . . ."

            In compliance with this bulletin, the department of labor and industries established two industrial classifications exclusively for employees of state code departments, etc., namely, class 49-2 and class 60-1.

            Class 49-2 includes:

            "State employees of code departments, boards and commissions whose occupational duties are not enumerated as extrahazardous and regularly assigned inside occupations."

            Class 60-1 includes:

            "State employees of code departments, boards and commissions, whose duties have been enumerated as extrahazardous or regularly assigned outside occupations."

            All employees of a state code department, board or commission, regardless of their individual activities, are entitled to coverage under the act.  This conclusion is based upon the well established rule recently announced in the case of Bridges v. Department of Labor and Industries, 46 Wn. (2d) 398, 400, 281 P. (2d) 992 (1955):

            ". . . it is the business or industry of the employer, rather than the activities of the employee, that determines whether or not the employee is within the provisions of the act."  (Citations omitted.)

            The remaining question to be answered is whether the pilots in question are employees within the definition of that term as contained in the act.  RCW 51.08.180 defines the term as follows:

             [[Orig. Op. Page 4]]

            "'Workman' means every person in this state who is engaged in the employment of an employer under this title, whether by way of manual labor or otherwise in the course of his employment; also every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his personal labor for an employer under this title, whether by way of manual labor or otherwise, in the course of his employment."

            The test to be used in determining whether an individual is an employee or an independent contractor is clearly stated in the case of Hubbard v. Department of Labor and Industries, 198 Wash. 354, 358, 88 P. (2d) 423 (1939):

            "An independent contractor is one who, while rendering service in the course of an independent occupation, represents the will of his employer only as to the result of the work, and not as to the manner or means by which it is accomplished.  (Citations omitted.)

            "The ultimate test by which it is determined whether the relation is that of employer and employee or that of principal and independent contractor is to inquire whether or not the employer retained the right, or had the right under the contract, to control the manner of doing the work and the means by which the result was to be accomplished.  (Citations omitted.)  These cases all hold that the chief, and most decisive, factor in determining whether the relationship is that of employer and employee or that or principal and independent contractor is the right of control over the work or thing to be done."

            The rule is explicit and well established; the difficulty arises in applying it to a factual situation.  It is apparent, under the facts of this case, that the department of natural resources exercises almost complete control of the manner and means of accomplishing the result desired.  Consequently, the pilots in question are employees of the department and not independent contractors.  The cases ofBurchette v. Department of Labor and Industries, 146 Wash. 85, 261 Pac. 802 (1927), and McGrail v. Department of Labor and Industries, 190 Wash. 272, 67 P. (2d) 851, (1937), containing factual situations somewhat analogous to the instant case, support this conclusion.

             [[Orig. Op. Page 5]]

            The case ofState ex rel. Northwest Airlines v. Hoover, 200 Wash. 277, 93 P. (2d) 346 (1939), has no application to the instant case because we are concerned with employees of a state code department, all of whom are entitled to coverage under the act regardless of their individual activities.

            It is our opinion that, with the exception noted as to National Guard members on duty, the pilots are employees of the department of natural resources and, as such, are entitled to coverage under the Industrial Insurance Act.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MARCHUS M. KELLY
Assistant Attorney General

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