# Azorit-Wortham v. Dep't of Lab. & Indus.

> Washington Supreme Court · November 6, 2025

URL: https://www.frixlaw.com/law-library/cases/11198427

## Case

- **Court:** Washington Supreme Court
- **Decided:** November 6, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
NOVEMBER 6, 2025
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
NOVEMBER 6, 2025 SARAH R. PENDLETON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

LISA M. AZORIT-WORTHAM, )
) No. 103488-1
Petitioner, )
) En Banc
v. )
)
DEPARTMENT OF LABOR AND ) Filed: November 6, 2025
INDUSTRIES OF THE STATE OF )
WASHINGTON and ALASKA AIRLINES, )
INC., )
Respondents. )
)

MUNGIA, J.— Lisa Azorit-Wortham was a flight attendant for Alaska

Airlines. Ms. Azorit-Wortham claimed she contracted COVID-19 in March 2020

because of her employment. She claimed that her illness met the definition of

“occupational disease” under Washington’s Industrial Insurance Act (IIA or Act)

because she likely contracted COVID-19 either while working or while traveling

because of work. The Act, Title 51 RCW, provides coverage to workers who get

injured on the job or who develop an occupational disease arising out of their

employment.
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

The case went before a jury. The trial court ruled that the traveling employee

doctrine, which applies when a worker is injured while traveling for work, also

applies when an employee contracts an occupational disease while traveling for work.

Over Alaska Airlines’s objection, the trial court instructed the jury that coverage

under the Act included the time Ms. Azorit-Wortham spent traveling for work. The

jury found in favor of Ms. Azorit-Wortham.

On appeal, the Court of Appeals held that the trial court erred in giving the

traveling employee instruction, held that the error was prejudicial, and reversed and

remanded the case to the trial court. It did not address Alaska Airlines’s argument

that substantial evidence did not support the jury’s verdict.1

We hold that the traveling employee doctrine applies when an employee

contracts an occupational disease while traveling for work. We further hold that the

trial court here correctly instructed the jury as to the traveling employee doctrine. We

reverse and remand to the Court of Appeals for further proceedings consistent with

this opinion.

1
Because the Court of Appeals did not address this issue, and the parties did not brief or argue
the issue to this court, we decline to consider it here.

2
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

I
LISA AZORIT-WORTHAM WAS A FLIGHT ATTENDANT

Lisa Azorit-Wortham worked for Alaska Airlines as a flight attendant in March

2020. On March 30, 2020, Ms. Azorit-Wortham took a COVID-19 test. On April 1,

2020, she learned that the test result was positive.

The parties agree that Ms. Azorit-Wortham’s window for being exposed to

COVID-19 was between March 16 and March 27, 2020. During that time frame,

Ms. Azorit-Wortham flew on eight flights, four of which were transcontinental. At

that time, passengers and crew were not wearing masks to prevent the transmission of

COVID-19.

Ms. Azorit-Wortham testified that when she was not working, she avoided

contact with people other than her husband and son. She estimated she had come into

close contact with fewer than 10 people during the time she was not working.

II
MS. AZORIT-WORTHAM FILED A CLAIM FOR CONTRACTING AN OCCUPATIONAL
DISEASE

Ms. Azorit-Wortham filed a workers’ compensation claim, seeking

compensation for contracting COVID-19 while working. The Department of Labor

and Industries (Department) granted her claim. Alaska Airlines appealed to the Board

of Industrial Insurance Appeals (BIIA). An administrative law judge heard the

appeal, concluded that Ms. Azorit-Wortham’s COVID-19 illness did not qualify as an

occupational disease, and reversed the Department. Ms. Azorit-Wortham filed a

3
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

petition for review with the BIIA. The BIIA upheld the administrative law judge’s

ruling.

III
MS. AZORIT-WORTHAM APPEALED TO THE PIERCE COUNTY SUPERIOR COURT

Ms. Azorit-Wortham appealed the BIIA’s ruling to the superior court. A jury

decided the appeal. In the appeal, the sole issue for the jury to decide was whether the

BIIA was correct in denying Ms. Azorit-Wortham’s claim that her COVID-19 illness

should be covered as an occupational disease.

The only evidence that the jury could consider was the evidence presented to

the BIIA, which consisted solely of the transcripts of the testimony. Before the parties

gave their closing arguments, the trial judge instructed the jury on the law.

The trial court gave two instructions to the jury that are the focus of this appeal.

The first instruction provided the jury with a definition of “occupational

disease.” The jury was required to follow instruction 14 in determining whether

Ms. Azorit-Wortham’s COVID-19 illness met the requirements to be considered an

“occupational disease.” Instruction 14 provided:

An occupational disease is a disease or infection that arises
naturally and proximately out of the worker’s employment.

A disease arises naturally out of employment if the disease comes
about as a matter of course as a natural consequence of distinctive
conditions of the worker’s employment. It is not necessary that the
conditions be peculiar to, or unique to, the particular employment. A
disease does not arise naturally out of employment if it is caused by
conditions of everyday life or of all employments in general.

4
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

A disease arises proximately out of employment if the conditions
of the workers’ employment proximately caused or aggravated the
worker’s disease.

Clerk’s Papers (CP) at 517.

All parties agree that instruction 14 was an appropriate instruction.

The trial court also instructed the jury that the Act provided coverage for

Ms. Azorit-Wortham during the time she was traveling for work. In instruction 9, the

trial court instructed the jury on the traveling employee doctrine.

A traveling employee is subject to workers’ compensation
coverage throughout the duration of the business trip, including during
travel, hotel stays and meals at restaurants. Any occupational disease
occurring during such business travel is covered by the Washington State
Industrial Insurance Act.

CP at 512.

Alaska Airlines objected to the court giving instruction 9. Alaska Airlines

argued that instruction 9 conflicted with instruction 14, and the Department defended

the instruction.

[Counsel for Alaska]: The case law addressing traveling
employees is limited to industrial injury cases. We have an occupational
disease case. There has never been any case that has said that this
applies to occupational disease cases, and I believe that it, therefore,
could be considered as trumping the actual occupational disease statute.
The traveling employee doctrine, for example, if the individual fell while
they were in the hotel room, sustained an injury, clearly applicable and
would get them coverage. But with this being expanded to an
occupational disease statute, then when you look at our actual
occupational disease instruction . . .

5
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

[The Court]: It’s No. 14 on the list.

[Counsel for Alaska]: Which is 14, it states a disease does not
arise naturally out of employment if it is caused by conditions of
everyday life and/or all employments in general. We all travel to hotels,
we all travel in airports, on airplanes; so therefore - - as part of our
everyday life. Any traveling - - any person that has gone on a business
trip is exposed to those things, but that doesn’t make it a distinctive
condition of employment. And therefore, we believe that 9 and 14 are
inconsistent with one another. And so we don’t believe that the traveling
employee doctrine applies to occupational diseases. And as for No. 9,
we had proposed, or at least it was essentially a joint proposal this
morning that counsel and I had put together last night, that added the
additional line that said the worker would be subject to workers’
compensation coverage for such activities provided the definition of
occupational disease which is elsewhere given in these instructions is
met. Off the record, we had talked about this, and I understand that
counsel for plaintiff didn’t have any preference as to which of these two
was given, and in light of plaintiff not having a preference, the Court
opted to give the Court’s proposed 9. Thank you, Your Honor.

[The Court]: I’m trying to find that proposal, but it just seemed to
me it was awkwardly worded and amounted to the same thing. I thought
it was a distinction without a difference. [Counsel], do you have any
comment about this?

[Counsel for Ms. Azorit-Wortham]: No, Judge.

[The Court]: Well, if - -

[Counsel for the Department]: Can I make a comment, Your
Honor?

[The Court]: Yes, go right ahead.

[Counsel for the Department]: So the juxtaposition between
Instruction 9 and 14, I do not believe these are inconsistent with each
other. It’s the Department’s position that everyday life is not implicated
by what the worker was doing here. I don’t travel on planes every day of
my life or stay in hotels every day of my life, but for work, this person
has a distinct condition of doing that regularly. And for that, I believe 9
and 14 are consistent, and the Department does not have an objection.

6
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

[The Court]: Well, here’s the deal. When we discussed this
informally and off the record, I opined that I thought, well, an
occupational disease for a traveling employee would be - - it’s a hard to
imagine kind of event, but that doesn’t mean it couldn’t happen. And if
an occupational disease can occur - - one of the reasons is because we
ordinarily don’t think of an occupational disease as necessarily occurring
as a one-off like an injury is, you know, where there’s a - - you can
usually point to a specific incident where if someone got injured that was
associated with their travel.

So there was no, it seemed to me, policy reason not to include an
occupational disease, and there was nothing in the language of the statute
that says that an occupational disease couldn’t qualify in the
circumstances of a traveling employee. And so I - - I didn’t see any
reason to exclude it as a matter of law. As a matter of fact, I’m going to
think - - as I say, I think it’s kind of rare. But the idea that it could
happen? Sure. It could happen, and maybe that’s what happened here.
So as I say, I also don’t think that the proposed instruction you guys
gave me today really was different except that it was cut - - it was
worded in such a way that was so awkward that I thought, well, let’s get
to the point and say what we mean. And I think this says the same thing,
so I’ll adhere to the Court’s Instruction No. 9.

3 Verbatim Rep. of Proc. (VRP) at 108-11.

Alaska Airlines preserved its objection to the trial court giving instruction 9.

IV
ALASKA AIRLINES ARGUED TO THE JURY THAT MS. AZORIT-WORTHAM’S COVID-19
ILLNESS DID NOT MEET THE DEFINITION OF AN “OCCUPATIONAL DISEASE”

During its opening statement, Alaska Airlines foreshadowed the definition of

“occupational disease” by arguing to the jury that Ms. Azorit-Wortham would not be

able to show she developed COVID-19 “naturally and proximately from the

distinctive conditions of employment.” 2 VRP at 95. Alaska Airlines repeated that

phrase during closing arguments. 3 VRP at 142.

7
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

During Alaska Airlines’s closing argument, it argued using both instructions 14

and 9. Alaska Airlines argued to the jury that while instruction 9 provides coverage

under the Act while the employee is traveling, the jury still has to find that COVID-19

met the definition of an occupational disease under instruction 14.

[Counsel for Alaska]: Now, what is an occupational disease?
Jury Instruction No. 14 was brought to your attention, and the assistant
attorney general cited the statement that talked about caused by
conditions of everyday life or all employments in general. . . . But what
this states is that a disease does not arise naturally out of employment if
it is caused by conditions of everyday life or all employments in
general. . . .

So the original contention was, well, it was caused by work. And
counsel had his chart of probabilities where he’s putting particular
stickies up on the Board. He stated, therefore it had to be caused by
work. Well, again, if you look at Instruction No. 14, it doesn’t say that
is the only requirement. If that was the only requirement, Instruction
No. 14 would simply say, an occupational disease is allowed if it comes
from work. It’s got a bunch of other stuff here.

....

Now, when you talk about the last sentence which is proximately
caused - - must be proximately caused, that’s where you jump to
No. 15. That says, the term proximate cause means the cause in which
a direct sequence produces the condition complained of and without
which such condition would not have happened. This is where we say
that if you could get COVID-19 and not be working as a flight
attendant, this is not an allowable occupational disease. . . .

....

Now I’d like to compare and contrast the experts or medical
witnesses. Before I do that, I wanted to address Instruction No. 9. This
is the one that begins traveling employee in terms of coverage. What
this is designed to address is if you were on a work trip and you just

8
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

happen to be in the hotel and you fall down and hurt yourself, you’re
still covered. That injury is still covered. This, however, does not
trump Instruction No. 14, which is the occupational disease
requirement. There still has to be a showing that this condition arose
naturally and proximately from the distinctive conditions of
employment.

3 VRP at 138-42.

V
A TRIAL COURT’S DECISION TO GIVE, OR NOT GIVE, A PROPOSED JURY INSTRUCTION
IS REVIEWED FOR ABUSE OF DISCRETION. HOWEVER, WE REVIEW DE NOVO IF AN
INSTRUCTION INCORRECTLY STATES THE LAW

It is within a trial court’s discretion whether to give a proposed jury instruction.

Fergen v. Sestero, 182 Wn.2d 794, 802, 346 P.3d 708 (2015). Accordingly, we will

only reverse a trial court’s decision to give a proposed instruction if the trial court has

abused its discretion. Id.

If a party alleges the trial court gave an instruction that incorrectly states the

law, then we review that instruction de novo. Anfinson v. FedEx Ground Package

Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012). An erroneous instruction is

reversible error only if it prejudices a party. Id. If the instruction contains a clear

misstatement of the law, prejudice is presumed. Id. If the instruction is merely

misleading, then the party challenging the instruction must demonstrate prejudice. Id.

VI
THE TRAVELING EMPLOYEE DOCTRINE APPLIES TO OCCUPATIONAL DISEASES

RCW 51.32.010 (governing industrial injuries) and .180 (governing

occupational diseases) provide that an employee “injured in the course of [their]

9
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

employment” or “who suffers disability from an occupational disease in the course of

employment” is entitled to workers’ compensation. An “occupational disease” is a

“disease or infection as arises naturally and proximately out of employment.” RCW

51.08.140.

The issue presented in this appeal is whether the traveling employee instruction

given by the trial court alters the statutory definition of “occupational disease.”

Alaska Airlines and the Court of Appeals each addressed this question differently.

We accordingly address both of their analyses.

A. Alaska Airlines Argued That the Traveling Employee Instruction Changed the
Definition of “Occupational Disease” Found in Instruction 14

Alaska Airlines agrees that “[i]f the worker can show that they sustained an

occupational disease that arose naturally and proximately out of distinctive conditions

of employment while traveling, they are covered for an occupational disease.” Alaska

Airlines Answer to Petr’s Pet. for Rev. at 25. However, Alaska Airlines argues that

“[t]he Traveling Employee Doctrine changes the well-established definition of

occupational disease and makes coverage automatic without requiring the worker to

establish the elements of the definition.” Id. at 27.

We disagree.

Here, the trial court instructed the jury on the definition of an occupational

disease in instruction 14.

10
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

An occupational disease is a disease or infection that arises
naturally and proximately out of the worker’s employment.

A disease arises naturally out of employment if the disease comes
about as a matter of course as a natural consequence of distinctive
conditions of the worker’s employment. It is not necessary that the
conditions be peculiar to, or unique to, the particular employment. A
disease does not arise naturally out of employment if it is caused by
conditions of everyday life or of all employments in general.

A disease arises proximately out of employment if the conditions
of the workers’ employment proximately caused or aggravated the
worker’s disease.

CP at 517.

Alaska Airlines, using the trial court’s instructions, was able to argue to the

jury that even if the traveling employee instruction applies, the jury still had to find

that Ms. Azorit-Wortham’s COVID-19 illness met the definition of occupational

disease as required in instruction 14:

That injury is still covered. This, however, does not trump Instruction
No. 14, which is the occupational disease requirement. There still has to
be a showing that this condition arose naturally and proximately from
the distinctive conditions of employment.

3 VRP at 142.

Alaska Airlines argues, “Application of the Traveling Employee Doctrine to

the definition of occupational disease means a disease contracted while traveling is

automatically compensable and there is no analysis about whether it was caused by

conditions of everyday life or all employments in general.” Alaska Airlines Answer

to Petr’s Pet. for Rev. at 24. However, instruction 9, the traveling employee

11
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

instruction, does not change the definitional terms found in instruction 14. Instead, it

simply recognizes that if a worker contracts a disease that meets the definitional

requirements in instruction 14 while traveling for work, then the Act provides

coverage. Instruction 9 does not state that any disease that a worker contracts while

on a business trip is compensable; instead, only “occupational diseases” are covered.

Instruction 14 required the jury to find that Ms. Azorit-Wortham’s COVID-19 illness

met the definition of “occupational disease.”

In short, instruction 9 simply provides the temporal term for IIA coverage—

i.e., during the time the employee is traveling for work they will be covered—while

instruction 14 sets forth the definitional terms that need to be met to obtain coverage.

B. The Court of Appeals Held That the Traveling Employee Doctrine Does Not
Apply to Occupational Diseases

The Court of Appeals analyzed this issue differently than Alaska Airlines.

Although Alaska Airlines acknowledged that the traveling employee doctrine could

apply to occupational diseases, the Court of Appeals held that the traveling employee

doctrine can never apply to occupational diseases.

As an initial matter, it is critical that courts resolve any doubt as to the Act’s

meaning in favor of the injured worker when analyzing an issue involving the IIA.

Clauson v. Dep’t of Lab. & Indus., 130 Wn.2d 580, 584, 925 P.2d 624 (1996). This

same standard is imposed in construing insurance agreements in general: “Insurance

policies are liberally construed to provide coverage wherever possible.”

12
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

Medico Ins. Co., 159 Wn. App. 874, 881-82, 246 P.3d 856 (2011). Instead of

following that precept of construing the language of the Act to find coverage, the

Court of Appeals construed the language to deny coverage. Indeed, when construing

the statutory language, the Court of Appeals majority did not even acknowledge this

precept.

The Court of Appeals began its analysis by discussing Ball-Foster Glass

Container Co. v. Giovanelli, in which this court first held that the traveling employee

doctrine applies to industrial injuries. 163 Wn.2d 133, 177 P.3d 692 (2008). In

Giovanelli, the employee, Alfred Giovanelli, traveled from his home in Pennsylvania

to work at a jobsite in Seattle. Id. at 137-38. On a Sunday, his day off,

Mr. Giovanelli was walking to a park and was injured when hit by a car. Id. at 139.

Mr. Giovanelli applied for workers’ compensation benefits. Id. The Department

ordered the employer to allow the claim. Id. After administrative appeals, the

employer appealed the decision to the trial court. Id. The trial court granted the

Department’s motion for summary judgment affirming the award because it found

that Mr. Giovanelli was in the course of his employment when he was injured. Id.

The Court of Appeals affirmed. Id. at 140. Our court affirmed as well. Id. at 153-54.

The Court of Appeals in this case relied on a footnote in Giovanelli, which

noted that industrial injuries need only occur within “the course of employment”

while occupational disease cases have an additional requirement: they must also

13
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

“ʻaris[e] out ofʼ” employment. Id. at 141 n.2. The Court of Appeals here cited this

language to support its conclusion that the traveling employee doctrine applies only to

industrial injury, not occupational disease. Azorit-Wortham v. Dep’t of Lab. & Indus.,

32 Wn. App. 2d 84, 95, 554 P.3d 1235 (2024).

The Court of Appeals’ rationale was the following:

This distinction highlights the critical difference between what a
claimant must show for an industrial injury versus an occupational
disease. While the traveling employee doctrine extends coverage for a
worker injured during such activities as “eating, sleeping, and
ministering to personal needs away from home,” such an expansion is
allowable because industrial injuries need not “arise out of
employment,” as is required for occupational diseases. [Giovanelli, 163
Wn.2d] at 142; Dennis [v. Dep’t of Lab. & Indus.], 109 Wn.2d [467,]
480-81[, 745 P.2d 1295 (1987)]. Eating, sleeping, and ministering to
personal needs away from home, rather than being distinctive conditions
of one's employment, are instead conditions of everyday life. Conditions
of everyday life are specifically excluded as conditions from which an
occupational disease can “arise out of.” See Street [v. Weyerhaeuser
Co.], 189 Wn.2d [187,] 199[, 399 P.3d 1156 (2017)] (“‘Arises naturally’
means that the conditions of a worker's particular employment are
distinctive, i.e., different from, employments in general or activities of
daily living.”). As such, the traveling employee doctrine has not been
applied to occupational diseases.

Id. at 95.

The Court of Appeals construed the phrase “arises naturally out of

employment” too narrowly. We set forth the requirements for an occupational disease

to “arise naturally out of employment” in Dennis, 109 Wn.2d 467.

In Dennis, the worker did not contract the disease, osteoarthritis, because of his

employment. Id. at 468-69. Instead, his employment aggravated the disease. Id. The

14
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

Department took the position that Dennis could not receive benefits because he did

not contract the disease as a result of his employment. Id. at 470-71. We rejected that

argument. Id. at 471.

In Dennis, we began our analysis by applying the precept that we are to analyze

the Act in favor of the employee.

To this end, the guiding principle in construing provisions of the
Industrial Insurance Act is that the Act is remedial in nature and is to be
liberally construed in order to achieve its purpose of providing
compensation to all covered employees injured in their employment,
with doubts resolved in favor of the worker.

Id. at 470.

As in this case, the Act could have been construed narrowly to preclude the

worker from obtaining benefits. However, we interpreted the Act in favor of the

injured worker, as we must, and held that liberally construed, Dennis was entitled to

coverage. We stated:

Focus upon these statutes alone, narrowly construed, would seem
to result in exclusion from coverage of the condition here involved
because the underlying disease did not arise from employment. The
Department urges this construction, and argues that, as a threshold
determination, the claimant’s underlying disease must have been
contracted as a result of employment conditions.

Such a construction would, however, be contrary to the purpose of
the Act. By expressly providing that workers suffering disability from
occupational disease be accorded equal treatment with workers suffering
a traumatic injury during the course of employment, RCW 51.32.180
effectuates the Act’s purpose of providing sure and certain relief to all
workers injured in their employment.

15
Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

Id. at 470-71. We noted that both aggravated injuries and aggravated occupational

diseases arise out of employment conditions and accordingly both are covered under

the Act. Id. at 471.

We also found a worker must establish that their occupational disease came

about as a matter of course as a natural consequence or incident of the distinctive

conditions of their employment. Id. at 481.

We then set out what a claimant must show, and what they do not need to

show, to meet this requirement.

1. “The conditions need not be peculiar to, nor unique to, the worker’s

particular employment.” Id.

2. “[T]he focus is upon conditions giving rise to the occupational disease, or

the disease-based disability resulting from work-related aggravation of a

nonwork-related disease, and not upon whether the disease itself is common

to that particular employment.” Id.

3. “The worker, in attempting to satisfy the ‘naturally’ requirement, must show

that [their] particular work conditions more probably caused [their] disease

or disease-based disability than conditions in everyday life or all

employments in general.” Id.

4. “[T]he disease or disease-based disability must be a natural incident of

conditions of that worker’s particular employment.” Id.

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Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

5. “Finally, the conditions causing the disease or disease-based disability must

be conditions of employment, that is, conditions of the worker’s particular

occupation as opposed to conditions coincidentally occurring in [their]

workplace.” Id.

Here, instruction 14 ensured that the jury had to find that Ms. Azorit-Wortham

made these showings before it could find in her favor. As noted earlier, the traveling

employee doctrine merely provides the time period for which there is insurance

coverage for the employee—it does not change the requirements for how an

occupational disease is defined. The traveling employee doctrine does not conflict

with, nor alter, the statutory definition of “occupational disease.”

VII
CONCLUSION

RCW 51.32.180 provides that an employee who contracts an occupational

disease in the course of their employment is entitled to workers’ compensation. An

“occupational disease” is a disease that arises naturally and proximately out of

employment. We construe the term “arises naturally” liberally in favor of finding

coverage if it is reasonably possible to do so. This construction follows the

legislature’s purpose of providing sure and certain relief to all workers who are either

injured or who contract an occupational disease while in the course of their

employment.

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Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

The trial court informed the jury of the definition of “occupational disease” in

instruction 14. The traveling employee instruction, instruction 9, did not change or

alter that definition. Instead, it provided the time period during which the employee,

Ms. Azorit-Wortham, would have insurance coverage under the Act. The jury found

that Ms. Azorit-Wortham likely contracted COVID-19 either while working or while

traveling for work. We reverse and remand to the Court of Appeals to consider the

remaining issue in this case—whether substantial evidence supported the jury’s

verdict. 2

2
Ms. Azorit-Wortham requests attorney fees under RCW 51.52.130(1), which provides that a
court shall award reasonable fees when a decision of the BIIA is reversed or modified to grant a
worker additional relief. Because an open issue remains in this case, no decision has been made
as to whether Ms. Azorit-Wortham will ultimately be granted additional relief. Therefore, we
decline to award attorney fees at this stage.

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Azorit-Wortham v. Dep’t of Lab. & Indus., No. 103488-1

_______________________________

WE CONCUR:

19
No. 103488-1

GONZÁLEZ, J. (concurring in part, dissenting in part)—I concur with the

substantive legal analysis in the majority opinion. But in my view, substantial

evidence supports the jury’s verdict and no remand to the Court of Appeals is

necessary. 1

Substantial evidence is evidence “‘sufficient to persuade a fair-minded,

rational person of the truth of the matter.’” Potter v. Dep’t of Lab. & Indus., 172

Wn. App. 301, 310, 289 P.3d 727 (2012) (quoting R&G Probst v. Dep’t of Lab. &

Indus., 121 Wn. App. 288, 293, 88 P.3d 413 (2004)). We review the record in the

light most favorable to Azorit-Wortham because she prevailed in superior court.

Robinson v. Dep’t of Lab. & Indus., 181 Wn. App. 415, 425, 326 P.3d 744 (2014).

1
While it did not explicitly address whether substantial evidence supports the jury’s verdict, the
Court of Appeals implicitly held that substantial evidence supports the verdict by remanding for
a new trial. Azorit-Wortham v. Dep’t of Lab. & Indus., 32 Wn. App. 2d 84, 98-99, 554 P.3d
1235 (2024); see also Alaska Airlines Answer to Pet’r’s Pet. for Rev. at 27 (opposing review
because the Court of Appeals was given the “opportunity to order denial of the claim” but “did
not”).
1
Azorit-Worthham v. Dep’t of Lab. & Indus. and Alaska Airlines, No. 103488-1
(González, J., concurring in part, dissenting in part)

We do not reweigh the evidence. Value Vill. v. Vasquez-Ramirez, 11 Wn. App. 2d

590, 596, 455 P.3d 216 (2019).

A worker claiming entitlement to benefits for an occupational disease carries

the burden of proving the disabling condition arose naturally and proximately out

of employment, which includes travel for work. Dennis v. Dep’t of Lab. & Indus.,

109 Wn.2d 467, 481, 745 P.2d 1295 (1987); see Ball-Foster Glass Container Co.

v. Giovanelli, 163 Wn.2d 133, 142, 177 P.3d 692 (2008). Alaska Airlines does not

dispute that COVID-19 is a contagious disease and Azorit-Wortham contracted it.

Alaska Airlines argues that because the “virus was ubiquitous and present in

everyday life,” it was “not a natural consequence of being a flight attendant.” Br.

of Appellant Alaska Airlines at 30 (Wash. Ct. App. No. 58389-5-II (2023)). It

points to the fact that Azorit-Wortham could not identify who exposed her to

COVID-19 and that no “medical witness testified that, but for some distinctive

condition of employment,” she would not have contracted it. Id.

Azorit-Wortham’s work as an essential employee required prolonged

exposure to COVID-19 when others were to “Stay Home – Stay Healthy.” 2 In the

2
Proclamation by Governor Jay Inslee, No. 20-05 (Wash. Mar. 23, 2020),
https://governor.wa.gov/sites/default/files/proclamations/20-
25%20Coronovirus%20Stay%20Safe-Stay%20Healthy%20%28tmp%29%20%28002%29.pdf
[https://perma.cc/PJ48-WAEY].

2
Azorit-Worthham v. Dep’t of Lab. & Indus. and Alaska Airlines, No. 103488-1
(González, J., concurring in part, dissenting in part)

period she likely contracted the virus, Azorit-Wortham’s work required her to take

eight flights from March 16 to March 27, 2020. Clerk’s Papers at 295-99. She

worked in a confined space less than six feet away from people without masks for

extended periods of time. Id. at 308-09. As part of her work, Azorit-Wortham also

used ground transportation, hotels, and airport shuttles. Id. at 295-99, 308-9.

Finally, a medical witness testified Azorit-Wortham likely contracted the virus in a

work setting and described her work conditions as a “perfect storm” for contracting

it. Id. at 387, 429-31, 448.

The evidence was sufficient for the jury to determine the distinctive

conditions of Azorit-Wortham’s employment caused her to be more exposed to

COVID-19 than she otherwise would be. Accordingly, I respectfully concur in

part and dissent in part. 3

__________________________

__________________________

3
While Azorit-Wortham did not request fees in her briefing to the Court of Appeals, I would
grant her request for fees and costs because the jury verdict was reinstated because of her efforts.
RAP 18.1(b); RCW 51.52.130.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11198427. Public record. Not legal advice.