Robert D. Stelter, Respondent, v. The Department of Labor and Industries, Respondent, Drotzmann, Inc., Petitioner, 147 Wash. 2d 702

Madsen, J. — Following an injury sustained while working for Drotzmann, Inc., Robert Stelter filed a claim for workers’ compensation insurance with the Department of Labor and Industries (Department). The Department denied the claim on the ground that Drotzmann, Inc., was excluded from mandatory coverage and had not elected to provide it. Mr. Stelter appealed to the Board of Industrial Insurance Appeals (Board), which affirmed the Department’s order. He then appealed to the superior court, which also affirmed. In a split decision, the Court of Appeals reversed. Stelter v. Dep’t of Labor & Indus., 107 Wn.

App. 477, 27 P.3d 650 (2001), review granted, 145 Wn.2d 1020 (2002). We reverse the Court of Appeals. FACTS Drotzmann, Inc., is a common carrier operating interstate under authority from the Interstate Commerce Commission. As a part of its business operations, Drotzmann, Inc., leases its trucks and drivers to Drotzmann Intrastate Trucking, which is engaged in intrastate transportation under the authority of the Washington Utilities and Transportation Commission. Until July 1986, Drotzmann, Inc., paid industrial insurance premiums for its employees working interstate.

In July, 1986, Drotzmann, Inc., filed a written request for exempt status as a common carrier engaged in interstate commerce, pursuant to former RCW 51.12.095 (1983). Since then, Drotzmann, Inc., has not paid industrial insurance premiums. In 1996, Mr. Stelter joined Drotzmann, Inc., as an interstate driver. One or two times a month Mr. Stelter drove an intrastate load under the lease agreement between Drotzmann, Inc., and Drotzmann Intrastate Trucking. Mr. Stelter never drove a mixed interstate and intrastate load.

On August 10, 1997, Stelter was injured in New York while on an interstate trip for Drotzmann, Inc. Mr. Stelter filed an application for industrial insurance benefits with the Department. The Department issued an order rejecting the claim because Mr. Stelter “was excluded from mandatory coverage under the provisions of the industrial insurance laws and the employer had not made provisions for coverage by means of elective adoption.” Certified Appeal Bd. R. (CABR) at 39. Mr. Stelter appealed to the Board, which entered the following unchallenged findings of fact. 1. On October 27, 1997, the claimant, Robert D.

Stelter, filed an application for benefits with the Department of Labor and Industries alleging that he sustained an industrial injury on August 10, 1997, while in the course of employment for Drotzmann, Inc. On November 10, 1997, the Department issued an order rejecting the claim on the grounds that the claimant was excluded from mandatory coverage. On November 21, 1997, the claimant protested the November 10, 1997 order. On December 5, 1997, the Department issued an order affirming the order of November 10, 1997.

On December 19, 1997, the claimant protested the December 5, 1997 order to the Department of Labor and Industries. On September 28,1998, the Department forwarded the protest to the Board of Industrial Insurance Appeals as an appeal from the December 5, 1997 order. On October 26, 1998, the Board issued an order granting the appeal subject to timeliness and assigned it Docket No. 98 18480. 2. Mr. Stelter began driving trucks for Drotzmann, Inc., in December of 1996. 3. Drotzmann, Inc., is a common carrier engaged exclusively in interstate commerce.

Drotzmann Intrastate Trucking is a separately owned company engaged in intrastate commerce. Drotzmann, Inc., provides drivers and trucks to Drotzmann Intrastate Trucking for intrastate trips pursuant to a written lease agreement between Drotzmann Intrastate Trucking and Drotzmann, Inc. 4. Between December of 1996 and August of 1997, Mr. Stelter made several intrastate trips as a truck driver, usually during the periods between the longer interstate trips. Mr.

Stelter believed that Drotzmann, Inc., employed him when he made these trips, although he and the truck he drove had been leased from Drotzmann, Inc., to Drotzmann Intrastate Trucking pursuant to the written agreement. CABR at 5-6. The Board concluded that neither the leasing of vehicles to Drotzmann Intrastate Trucking nor Mr. Stelter’s subjective belief about his employer’s business required finding that Drotzmann, Inc., was not engaged exclusively in interstate commerce.

Because Stelter’s injury occurred while he was working interstate for a common carrier engaged exclusively in interstate commerce that elected not to provide coverage, the Board affirmed the Department’s order. Mr. Stelter appealed the Board’s decision to the superior court. Drotzmann, Inc., moved for and was granted

summary judgment. In affirming the Board’s order denying Stelter’s claim, the trial court ruled as a matter of law that Drotzmann, Inc.’s second business of leasing vehicles and drivers to another company did not support a finding that Drotzmann, Inc., engaged in intrastate commerce. Mr. Stelter appealed to the Court of Appeals, which reversed. ANALYSIS RCW 51.52.110 and RCW 51.52.115 govern judicial review of matters arising under the Industrial Insurance Act. When a party appeals from a board decision, and the superior court grants

summary judgment affirming that decision, the appellate court’s inquiry is the same as that of the superior court. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d 439, 451, 842 P.2d 956 (1993). Appellate review is based solely on the evidence and testimony presented to the Board. RCW 51.52.115; Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 800 n.4, 953 P.2d 800 (1998).

Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). The question presented in this case is whether an employer’s exemption from mandatory industrial insurance coverage as a common carrier engaged in interstate commerce can be overcome by an employee’s subjective belief that he worked for the interstate carrier on intrastate deliveries.

RCW 51.12.095(1) of the Industrial Insurance Act provides: Common or contract carriers doing business in this state that are engaged exclusively in interstate or foreign commerce, or any combination thereof, shall provide coverage under this title for their Washington employees, unless the employer has furnished workers’ compensation insurance coverage under the laws of another state for the coverage of employees in this state: PROVIDED, That any common or contract carrier or its successor that formerly had coverage under this title and by virtue of being exclusively engaged in interstate or foreign commerce, or any combination thereof, withdrew its acceptance of liability under this title by filing written notice with the director of the withdrawal of its acceptance prior to January 2, 1987, shall be governed by the provisions of this

section that were in effect as of that date. The parties do not dispute that Drotzmann, Inc., satisfied the withdrawal requirements of RCW 51.12.095(1). Thus, the company’s obligation to provide coverage is governed by former RCW 51.12.095(1), in effect prior to 1987, which provided: Common or contract carriers domiciled in this state that are engaged exclusively in interstate or foreign commerce, or any combination thereof, may elect coverage under this title in the manner provided by RCW 51.12.110 for their employees. Former RCW 51.12.095(1), Laws of 1983, ch. 170, § 2.

RCW 51.12.110 permits withdrawal from coverage by eligible employers who so elect. Drotzmann, Inc., contends that Mr. Stelter’s subjective understanding as to which carrier employed him when he made intrastate deliveries is not relevant to whether a carrier is engaged exclusively in interstate commerce for purposes of its exemption from industrial insurance requirements. Rather, it argues, the critical inquiry is the origin and destination of the carrier’s trucks.

Since there is no evidence that Drotzmann, Inc., engaged in intrastate activities, Drotzmann, Inc., urges this court to reverse the Court of Appeals and reinstate the superior court’s grant of

summary judgment. Mr. Stelter urges us to affirm the Court of Appeals, which held that a material question remains as to whether Mr. Stelter consented to his employment with Drotzmann Intrastate Trucking. He argues that because he was not aware of Drotzmann Intrastate Trucking he could not have been its employee during his intrastate activities. Therefore, he argues, he must have been employed by Drotzmann, Inc., for both interstate and intrastate activities.

Based on this, Stelter urges that Drotzmann, Inc., is not engaged exclusively in interstate commerce and, therefore, is not entitled to the exemption under former RCW 51.12.095(1). He argues that his belief that he was carrying out intrastate trucking activities for Drotzmann, Inc., creates a question of fact as to whether the company was engaged exclusively in interstate commerce. Mr. Stelter is correct that a worker’s reasonable belief is critical in determining whether the worker consented to employment with a specific employer. Fisher v. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963); Novenson v.

Spokane Culvert & Fabricating Co., 91 Wn.2d 550, 588 P.2d 1174 (1979). And, if there were a material question, the test set forth in Novenson and Fisher would be useful in deciding whether Mr. Stelter had an employment relationship with Drotzmann Intrastate Trucking. However, it is undisputed that Stelter was an employee of Drotzmann, Inc., at the time of his injury and that he was injured in the course of employment with that company. Accordingly, there is no need to conduct an employment relationship analysis in this case. See Ackley-Bell v. Seattle Sch. Dist. No. 1, 87 Wn.

App. 158, 166, 940 P.2d 685 (1997) (no need to conduct Novenson two-prong inquiry where employer’s identity at the time of the injury is undisputed). The critical question here is whether Drotzmann, Inc., engaged exclusively in interstate activities. The origin and destination of the goods transported determines whether a trucking company is involved in interstate or intrastate commerce.

Interstate trucking is defined as “the hauling of goods that either originate out of state or have an out-of-state destination.” WAC 296-17-537 (1102-02). “Intrastate trucking is the hauling of goods only within the boundaries of a state.” WAC 296-17-537 (1102-03). Mr. Stelter does not claim that he made any trip on behalf of Drotzmann, Inc., that mixed interstate and intrastate activities. His sole claim is that he did not know that he was driving for Drotzmann Intrastate Trucking when he made intrastate trips.

It is undisputed that Drotzmann, Inc., leases its trucks and drivers to Drotzmann’s Intrastate Trucking, which is authorized to operate intrastate. Mr. Stelter has pointed to no authority suggesting that by leasing drivers and trucks to a separate intrastate carrier Drotzmann, Inc., is engaging in intrastate commerce. And, although Mr. Stelter implies that Drotzmann, Inc., and Drotzmann Intrastate Trucking are the same company, he does not support this contention with legal authority.

His only legal argument is that because he was unaware of Drotzmann Intrastate Trucking and did not consent to engage in intrastate activities on its behalf, he must have been engaged in intrastate hauling for Drotzmann, Inc. Whether Mr. Stelter understood the leasing arrangement between Drotzmann, Inc., and Drotzmann Intrastate Trucking is not relevant, however, because (1) his understanding does not determine whether Drotzmann, Inc., was engaged exclusively in interstate commerce and (2) he was injured while employed by Drotzmann, Inc., and performing interstate activities.

CONCLUSION An employee’s subjective belief about the nature of his employer’s business is not a factor in determining whether the employer is engaged exclusively in interstate commerce for purposes of former RCW 51.12.095(1). We hold that Drotzmann, Inc.’s motion for

summary judgment was properly granted. The Court of Appeals is reversed. Alexander, C.J., and Smith, Johnson, Ireland, Bridge, and Owens, JJ., concur. In 1991 the Department audited Drotzmann, Inc., and affirmed that it met the conditions for the common carrier exemption from mandatory coverage. This conclusion was denominated a finding of fact. The Department promulgated a three-part test to determine when employers are exempted from mandatory coverage under RCW 51.12.095(1). WAC 296-17--35203(3)(

c) provides in part: (

c) Exclusions. Trucking industry employers meeting all of the following conditions are exempted from mandatory coverage. (

i) Must be engaged exclusively in interstate or foreign commerce. (ii) Must have elected to cover their Washington workers on a voluntary basis under the Washington state fund and must have elected such coverage in writing on forms provided by the department. (iii) After having elected coverage, withdrew such coverage in writing to the department on or before January 2, 1987. The test set forth in those cases is (1) does the employer have the right to control the person’s physical conduct in the performance of his duties? and (2) has the person consented to the relationship? See also Jackson v. Harvey, 72 Wn.

App. 507, 514-15, 864 P.2d 975 (1994); Smick v. Burnup & Sims, 35 Wn. App. 276, 277-78, 666 P.2d 926 (1983). In supplemental briefing the Department raises a new issue regarding whether Drotzmann, Inc., was required to and did provide notice to Mr. Stelter that the company was excluded from mandatory coverage.

RCW 51.52.104 provides that a petition for review of an industrial insurance appeals judge’s ruling “shall set forth in detail the grounds” for review and waives “all objections or irregularities not specifically set forth therein.” The issue of notice was not raised or briefed to the Board or in judicial proceedings below. Additionally, assuming that Drotzmann, Inc., has an ongoing statutory obligation to notify its employees of its exemption from coverage, Mr. Stelter offered no evidence that he was not informed. We decline to reach the issue.