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AGO 1951 No. 199 - December 27, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

IS AN INDIVIDUAL WHO BECOMES A "WORKMAN" AS DEFINED BY THE WORKMEN'S COMPENSATION ACT AND WHO WORKS UNDER A CONTRACT EXPRESS OR IMPLIED ENTITLED TO THE BENEFITS OF THE ACT.

Any workman who is engaged in the employment of any employer, as that term is defined under the Workmen's Compensation Act or who is working under an independent contract, the essence of which is his personal labor for the employer, is within the provisions of the Act and for all such purposes would be designated an employee of such employer.

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

                                                               December 27, 1951

Honorable A. M. Johnson,Director
Department of Labor and Industries
Olympia, Washington                                                                                           Cite as:  AGO 51-53 No. 199

Dear Mr. Johnson:

            We are in receipt of your letter of October 29, 1951, wherein you requested an opinion of this office upon the following question:

            "The question is whether or not the Miller Company is an employer and whether or not Harold Thomas was an employee at the time of his death?"

            Your letter also discloses the following information:

            "Harold Thomas was a contract log hauler and was paid on the 1000-foot basis.  The alleged employer is the Miller Logging Company, 772 S. 112th Street, Tacoma, Washington, who say that they had a verbal agreement with Mr. Thomas to haul logs from the log dump at the operations to the log dump at the water for an agreed sum per thousand feet.  The Miller Company contends that inasmuch as  [[Orig. Op. Page 2]] Mr. Thomas owned and operated his own truck and hauled logs at times when it suited him and that the Miller Company had no control, or right to control, or to direct the activities of Mr. Thomas, that they never paid any contributions for him.

            "The file will show that Harold Thomas, on June 25, 1951, made application for a permit as common carrier to the Washington Public Service Commission, which however, was never issued."

            The foregoing raises the additional question of whether an "independent contractor" is under the protection of the Workmen's Compensation Act.

            Our conclusions may be summarized as follows:

            Any workman who is engaged in the employment of any employer, as that term is defined under the Act, or who is working under an independent contract, the essence of which is his personal labor for the employer, is within the provisions of the Act and for all such purposes would be designated an employee of such employer.

                                                                     ANALYSIS

            Prior to 1937, an Independent Contractor was not within the provisions of the Workmen's Compensation Act.  The legislature in 1937, enacted chapter 211 which is an amendment of Rem. Rev. Stat. section 7674, and deals with employments which are extrahazardous.  To that chapter was added section 2 which provided:

            "The term workman within the contemplation of this Act means 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 any employer coming under this Act whether by way of manual labor or otherwise in the course of his employment."

            The above section was amended by Revised Code of Washington RCW 51.08.180, and is cited below.

             [[Orig. Op. Page 3]]

            The Revised Code of Washington RCW 51.08.070 defines "Employer" as follows:

            "Employer means any person, body of persons, corporate or otherwise and the legal representatives of a deceased employer, all while engaged in this state in any extrahazardous work, by way of trade or business, or contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extrahazardous work."

            The Revised Code of Washington RCW 51.08.180 defines "Workman" as follows:

            "Workman means every person in this state who is engaged in the employment of any employer coming under this act 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 the personal labor for the employer under this title whether by way of manual labor or otherwise in the course of his employment."

            Chapter 5 of the Laws of 1951, by virtue of an emergency clause became effective January 22, 1951, so that the two sections first above quoted are controlling of the questions involved herein.

            Another provision in the Act which lends force to the conclusion we have reached is RCW 51.12.070, which provides in part as follows:

            "The provisions of this act shall apply to all extrahazardous work done by contract; the person, firm or corporation who lets a contract for such extrahazardous workshall be responsible primarily and directly for all payments due to the accident fund and medical aid fund upon the work.  * * *" (Emphasis ours)

             [[Orig. Op. Page 4]]

            While this provision is made applicable to public work, we think the facts are so analogous that no reason exists for establishing a different rule for private contractors and private work.

            InThompson v. Department of Labor & Industries, 194 Wash. 396, the principle is stated on page 402 as follows:

            "* * * The primary test is whether or not the employer comes within the provisions of the act, that is to say, whether he is engaged in the extrahazardous business or industry * * *.  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.  (Citing cases)."  (Emphasis ours)

            InClausen v. Department of Labor and Industries, 15 Wn. (2d) 62, at page 71, the Court cites the definition of "independent contractor" as stated in 27 Am.Jur. 481, § 2,

            "* * * that an independent contractor is one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of the employer, except as to the product or result of his work."

            On page 73 it is said:

            "We have, then in this state the general rule as to the circumstances which generally go to show one to be an independent contractor, limited by the rule announced in theNorman and Haller cases, that only one working under an independent contract, the essence of which is the personal labor of the one so working, comes within the act.

            "No one of the factors hereinabove mentioned is conclusive in determining the nature of the relationship.  * * *"

             [[Orig. Op. Page 5]]

            InCraine v. Dept. of Labor & Industries, 19 Wn. (2d) 75, the Court held that a carpenter injured while engaged in constructing a building for one whose trade or business was not building or construction did not come within the Act.

            In that case the Court in discussing Norman v. Dept. of Labor & Industries, 10 Wn. (2d) 180, said on page 79:

            "The question at issue in that case (Norman) was whether an independent contractor came within the purview of the decision.  The gist of the decision is contained in the following paragraph of the opinion, page 184:

            "'We hold that it was the intention of the legislature to broaden the industrial insurance act, and bring under its protection independent contractors whose personal efforts constitute the main essential in accomplishing the objects of the employment, and this, regardless of who employed or contracted for the work.'

            "And at another point in the opinion, page 183, it was said:

            "'Prior to the effective date of the 1937 amendment, an independent contractor could not receive aid from the industrial insurance fund.  Since that time, however, such person is entitled to receive compensation if the essence of the work he is performing is his personal labor.'

            "However, after quoting the two amendments‑-1937, defining 'workman,' and 1939, defining 'employer'‑- we said, p. 184:

            "'By the two amendments, it is clear that anyone, without regard for whom he is working, may come within the protection of the act if he is engaged in an extrahazardous occupation and if his personal labor is the essence of the work being performed.'"  (Emphasis ours)

             [[Orig. Op. Page 6]]

            InPitts v. Department of Labor & Industries, 30 Wn. (2d) 129, the court at page 140 said:

            "Having in mind the plain and unambiguous language of Rem. Rev. Stat. (Sup.) section 7675, above quoted, and the decisions hereinbefore discussed, it is our opinion that all that is necessary to be shown, to bring an employer under the act, is that such employer be engaged, as a regular business or trade, in the type of extrahazardous work involved."  (Emphasis by the court)

            The above case clearly sets forth the test of one coming under the Act as the employer and not the workman.

            Under the Statutory definition of "Employer" and "Workman" and the cases cited herein there can be no question that the Miller Logging Company was an employer and that Harold Thomas as a workman was an employee, the essence of the work being his personal labor under a verbal agreement.

            There is one other question involved herein and that is whether the application by Harold Thomas on June 25, 1951, for a Common Carrier permit, which was never issued, would constitute him as an "Employer" engaged in a regular trade or business which is extrahazardous?

            The answer to that question must be in the negative.

            The filing of an application for a common carrier permit is far from conclusive and has little probative force.  It is not determinative of the issue involved and would not alter the conclusion we have reached.

            It is accordingly our opinion that the Miller Logging Company was an "Employer" and Harold Thomas was a "Workman" under a verbal agreement and entitled to the benefits of the Workmen's Compensation Act.

Very truly yours,

SMITH TROY
Attorney General

BERNARD A. JOHNSON
Assistant Attorney General

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