WA Legal Roundup - WA Supreme Court: No contact means no contact; current effects needed from first injury to trigger second injury status; civil materials did not amount to Brady violation
May committed DV, and a no contact order was given. He was put on notice that it was it would be a violation of the RCW to violate it. Guess what? He violated it. He tried to challenge the validity of the initial no contact order, which is barred from collateral attack. As to the conviction for violating the SMC:
May's argument is premised on the proposition that chapter 26.50 RCW does not criminalize violation of a no-contact provision of an order of protection. This premise is incorrect in light of Bunker. In Bunker, this court held that former RCW 26.50.110 (2000), which was in effect at the time May violated the order of protection, criminalized all violations of no-contact and protection orders. 169 Wn.2d at 574, 577 n.2. The Seattle ordinance under which May was convicted, Seattle Municipal Code 12A.06.180 (2000), is no broader, but is instead simply the type of "equivalent municipal ordinance" expressly contemplated by chapter 26.50 RCW. RCW 26.50.020(5). Thus, because May had notice that violation of the order of protection was a crime under chapter 26.50 RCW, May had "fair warning of the type of conduct" that was criminal. State v. Wilson, 117 Wn. App. 1, 11, 75 P.3d 573 (2003). Consequently his prosecution did not violate due process.
Crown, Cork & Seal v. Smith is a big one for the disability crowd. Smith got carpal tunnel back in the day. She was given splints and was essentially fine, with everything returning to normal. She then got ran over several years later, busting her leg (both on the job injuries, in case you didn't catch that by my disability crowd intro). Crown tried to say they were entitled to second injury insurance. The court disagreed, finding that the first injury (carpal tunnel) was over and done with and not at all part of her current disability:
The question before us is, under the statute, what constitutes a "previous bodily disability" for second injury fund coverage. We review questions of law de novo. Cockle v. Dep't of Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001) (citing Stuckey v. Dep't of Labor & Indus., 129 Wn.2d 289, 295, 916 P.2d 399 (1996)).
. . .
RCW 51.16.120(1) provides three prerequisites that an employer must meet to merit second injury fund coverage. The employer must show that its employee had a "previous bodily disability from any previous injury or disease, whether known or unknown to the employer." RCW 51.16.120(1). The employee must then sustain an industrial injury. Last, the employee must "'become totally and permanently disabled'" as a proximate result of the "'combined effects"' of the two. Seattle Sch. Dist. No. 1 v. Dep't of Labor & Indus., 116 Wn.2d 352, 357, 804 P.2d 621 (1991) (quoting RCW 51.16.120(1)).
(emphasis added by your strikingly handsome professor)
The only question remaining is whether Crown has satisfied its burden and is entitled to second injury fund coverage for Smith's injuries. We find that the evidence in this case is insufficient to merit second injury fund relief. As mentioned, Crown has the burden to show that, at the time of her 1997 industrial injury, Smith's preexisting wrist issues either effectively impacted workplace performance or materially diminished her ability to perform the activities of daily living. Crown fails to carry its burden.
In this case, the evidence shows that Smith fully performed her workplace functions as a bagger, except for a brief period in 1994 when she experienced wrist pain and sought medical treatment. But this brief period alone is insufficient to show a "previous bodily disability" because Crown does not establish that Smith's wrist complaints were caused by something more than the normal wear and tear of performing a physically demanding job. To the contrary, Smith's carpal tunnel condition was evidently work-related and caused by the strenuous, repetitious work that Smith performed for Crown.
Crown is also unable to show that Smith's condition materially detracted from her daily life. Smith testified that, after working her weekly shift, she experienced some difficulty in the ordinary pursuits of life, namely performing household chores. However, this testimony does not show that Smith was unable to substantially perform these tasks or that Smith was unable to procure other employment at the time of her industrial injury because of her wrist pain. A previously injured employee who retains the ability to perform all ordinary life activities -- including but not limited to work activities -- does not have a "previous bodily disability." Crown has not established that Smith suffered from a "previous bodily disability" at the time of the industrial injury to her leg.
Lastly, in State v. Mullen, a witness was involved in a civil suit where he gave non-material inadmissible testimony which wasn't really impeachment or exculpatory. The documents they defense didn't get weren't suppressed by the state. Defense was also on notice the entire time of the ongoing civil suit, and were given a chance to interview the witness as well. No Brady violation.