Opinion
No. 60559-3-I.
July 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-17848-3, Richard A. Jones, J., entered August 28, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Ellington and Appelwick, JJ.
After the Department of Labor and Industries (Department) ordered Patricia Stresky's self-insured employer, King County (County), to pay her time loss compensation and a delay of benefits penalty, King County appealed to the Board of Industrial Insurance Appeals (Board). The Board affirmed the Department, and Stresky moved for terms, which the Board denied. Stresky appeals that order and a provision in the Board's order awarding interest to her, which stated that the interest payment was not subject to any claim for attorney fees. Because the Board's orders were correct, we affirm.
FACTS
In September 1997, Patricia Stresky, a King County Superior Court court reporter, felt neck pain and dizziness at work and filed a claim for workers' compensation benefits. King County denied Stresky's claim, and the Department agreed. Stresky appealed the Department's determination to the Board, which reversed, holding that her claim should be allowed for the "lighting up" of her "preexisting asymptomatic degenerative disc disease of the neck and an aggravation of her pre-existing symptomatic vertigo." The County was ordered to pay Stresky time-loss compensation for the time periods for which medical certification had been provided. The County was also ordered to pay a penalty for delay in paying time-loss compensation for the periods October 25, 1997, through June 3, 1999; June 4, 1999 through October 16, 1999; and October 17, 1999, through April 20, 2003.
King County appealed both orders, claiming that it had genuine doubt about whether benefits were due. Specifically, the County believed that Stresky was receiving benefits from her private disability insurance policy from Standard Insurance. The County maintained that in order to receive Standard Insurance disability benefits, Stresky would have to certify that she was unable to work due to a non-occupational condition. The County claimed that Stresky's inability to work was due to her non-occupationally related fibromyalgia or an inner ear condition, not the vertigo and cervical disc disease allowed by the Board in the 1997 time loss period. When the County requested Stresky's Standard Insurance records, she refused to cooperate.
King County later received Stresky's Standard Insurance records, which showed that she was receiving Standard Insurance benefits for the vertigo condition that the Board allowed because it was aggravated by the 1997 industrial injury. The County then conceded that Stresky's vertigo was part of her industrial injury and paid the additional time loss she requested. But the County continued to pursue its appeal of the penalty issue. It presented one witness, King County claims officer Karen Bert, to explain the County's basis for doubt from both a legal and medical perspective that Stresky was entitled to time loss benefits, given that she had also received Standard Insurance benefits.
After hearing all the evidence, the Board held that a penalty was warranted for the County's unreasonable delay in paying Stresky's time loss. Stresky then filed a motion for terms, contending that the County's appeal was frivolous. The Board denied Stresky's motion, and she sought de novo review from the Superior Court.
On July 19, 2006, in separate proceedings, the Board issued orders requiring King County to pay Stresky interest in the amount of $2,574.38 on the penalty award and $26,188.64 on the time loss award. Both orders stated that the interest payments were not subject to any claims for attorney fees. Stresky appealed that portion of the interest awards to King County Superior Court, contending that the Board erred in ruling that no part of the fee award could be paid to her attorney.
Stresky's appeal of the denial of her motion for terms was consolidated with her appeal of the interest orders. King County filed briefs only on the sanctions issue, and the Department filed a brief responding to Stresky's argument on the interest issue. The trial court affirmed the Board orders. Stresky's attorney filed a motion for reconsideration, arguing that there had been procedural irregularities because King County provided a duplicate of the certified appeal board record (CABR) as working copies for the judge without copying Stresky. King County responded that it had no objection to the motion so that the court could confirm that the CABR provided by the County was not altered. The trial court reviewed the parties' briefs and the record, then denied Stresky's motion for reconsideration. Stresky appeals.
DISCUSSION
I. Motion for Terms
Stresky first argues that the trial court erred in finding that King County's appeal of the Board's benefits award was not frivolous under RCW 4.84.185. If any portion of the County's appeal has merit, the whole appeal is not frivolous and does not warrant an award of attorney fees and costs under RCW 4.84.185. Our review is limited to the record before the Board. We view the Board's decision as prima facie correct, and the burden of proof is on the party challenging its decision. Both the superior court and this court review decisions of the Board de novo, but "cannot consider matters outside the record or presented for the first time on appeal." The Board's decision is entitled to deference, but may be reversed for errors of law. Much of Stresky's briefing is devoted to alleged procedural errors by the trial court. But since we stand in the same position as the superior court when reviewing an administrative decision, the alleged trial court irregularities are irrelevant to our examination of whether the Board erred.
In re Cooke, 93 Wn. App. 526, 969 P.2d 127 (1999).
RCW 51.52.115; Cascade Nursing Servs. v. Employment Sec. Dep't, 71 Wn. App. 23, 29, 856 P.2d 421 (1993), review denied, 123 Wn.2d 1013 (1994); see also lnt'l Ass'n of Firefighters, Local No. 469 v. Pub. Employment Relations Comm'n, 38 Wn. App. 572, 575, 686 P.2d 1122, review denied, 102 Wn.2d 1021 (1984).
RCW 51.52.115; Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).
Sepich v. Dep't of Labor Indus., 75 Wn.2d 312, 316, 450 P.2d 940 (1969).
See City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998) (deference accorded to Board's interpretations of law, but they are not binding).
Macey v. Dep't of Employment Sec., 110 Wn.2d 308, 312, 752 P.2d 372 (1988); see also Cascade Nursing Servs., 71 Wn. App. at 29; Morrison v. Dep't of Ret. Sys., 67 Wn. App. 419, 425, 835 P.2d 1044 (1992).
Here, the Board denied Stresky's motion for terms, under the standard set out in Millers Casualty Insurance Co. v. Briggs, which requires the Board to consider the following:
100 Wn.2d 9, 15, 665 P.2d 887 (1983).
"(1) A civil appellant has a right to appeal . . .; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant;
(3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was not reasonable possibility of reversal."
Id. (quoting Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980)).
The fact that Stresky successfully contested the appeal and the County lost on the merits does not mean that the County's appeal warrants sanctions. The Board heard testimony and received documentary evidence from both sides about Stresky's lengthy and contested efforts to receive benefits from the County.
The Board found that the Standard Insurance records were relevant to the history, diagnosis, causation, and extent of Stresky's medical condition and King County's appeal raised debatable issues about the cause of Stresky's medical condition. The Board further held that there was merit to the County's belief that Stresky was receiving disability benefits for a non-work related medical condition and there was a sufficient legal basis for the County to believe there was a reasonable possibility of reversal. The Board properly considered the County's explanation for its doubt about Stresky's claims and, in so doing, examined whether the County's conduct abused the Industrial Insurance system. There was substantial evidence supporting the Board's ruling that the County had a reasonable factual and legal basis for pursuing its appeal.
II. RCW 51.52.135
Stresky also argues that the Board erred when it stated in the orders fixing interest that no portion of the awards could be paid to her attorney. As a preliminary matter, the Department contests Stresky's claim and argues that she does not have standing to bring it, contending that only her attorney's interests are at stake. Likewise, Stresky argues that the Department does not have standing to participate in this appeal, contending that it has no interests at stake. "Only an aggrieved party may seek review by the appellate court." "'An aggrieved party is one whose proprietary, pecuniary, or personal rights are substantially affected.'"
RAP 3.1; Madison v. State, 161 Wn.2d 85, 109, 163 P.3d 757 (2007) (felons found entitled to register to vote are not aggrieved by and lack standing to challenge the order invalidating state's disenfranchisement scheme for felons who are unable to pay their legal obligations).
Breda v. BPO Elks Lake City 1800 So-620, 120 Wn. App. 351, 353, 90 P.3d 1079 (2004) (attorney sanctioned by a court may appeal the sanctions on his own behalf, but his clients are not aggrieved by the sanctions and may not appeal them) (citation omitted) (quoting Cooper v. City of Tacoma, 47 Wn. App. 315, 316, 734 P.2d 541 (1987)).
We reject both parties' standing arguments. Stresky's claimed interest in paying a portion of her interest awards to her attorney as a fee clearly involves a pecuniary right to distribute her award in a particular way. Thus, the Department's claim that she is not aggrieved by the orders fails. Similarly, Stresky's argument that the Department has no interest or standing to participate in this dispute fails. The Department has a right to take part in any workers' compensation proceedings. Indeed, the Legislature has entrusted the Department to administer the Industrial Insurance Act. As such, when an Industrial Insurance appeal involving a self-insured employer is appealed to the superior court, the Department's participation in such a superior court appeal is discretionary and the Department "may appear and take part in any proceedings." The Department's standing and interest in this matter are well established.
RCW 51.52.100, 110.
See, e.g., RCW 43.22.030(1) (the Department shall exercise "all the powers and perform all the duties prescribed by law with respect to the administration of workers' compensation and medical aid in this state.").
We also reject Stresky's argument that the Department waived its right to participate in her superior court appeal from the supplemental order fixing interest. As stated above, the Department has an independent right to appeal any Board decision that raises questions of law. RCW 51.52.110.
We now turn to the merits of Stresky's challenge to the Board's interest award orders under RCW 51.52.135, which reads as follows:
When a worker or beneficiary prevails in an appeal by the employer to the board or in an appeal by the employer to the court from the decision and order of the board, the worker or beneficiary shall be entitled to interest at the rate of twelve percent per annum on the unpaid amount of the award after deducting the amount of attorney fees.
RCW 51.52.135(1) (emphasis added).
The parties dispute whether the statute prohibits any portion of such an interest award to be paid to the worker's attorney. The Board's interpretation of an Industrial Insurance Act provision such as RCW 51.52.135, while not binding, "is entitled to great deference." In reading a statute, this court's "primary goal is to carry out legislative intent, and give meaningful effect to the language our legislature enacted." When the meaning of the statutory language is "'plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.'" The court may ascertain the plain meaning of a statutory provision by examining "'the statute in which the provision at issue is found, as well as related statutes or other provisions of the same act in which the provision is found.'" If, after the plain meaning inquiry, "the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history." Also, the court must read an Industrial Insurance Act provision such as RCW 51.52.135 "liberally [. . .] for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment."
Weyerhaeuser Co. v. Tri, 117 Wn.2d 128, 138, 814 P.2d 629 (1991) (citations omitted).
Doty v. Town of S. Prairie, 155 Wn.2d 527, 533, 120 P.3d 941 (2005) (citation omitted).
City of Olympia v. Drebick, 156 Wn.2d 289, 295, 126 P.3d 802 (citation omitted) (quoting Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)), cert. denied, 127 S. Ct. 436 (2006).
Drebick, 156 Wn.2d at 295 (citation omitted) (quoting Dep't of Ecology, 146 Wn.2d at 10.)
Dep't of Ecology, 146 Wn.2d at 12.
RCW 51.12.010; Dep't of Labor Indus. v. Granger, 159 Wn.2d 752, 757, 153 P.3d 839 (2007).
We agree with the Department that the language "after deducting the amount of attorney fees" contemplates a single amount of attorney fees in any given case, which is to be deducted from the award to determine the amount of the interest a worker is entitled to. The language manifests legislative intent that attorney fees be collected only once from the award, not from the interest. This reading is consistent with the Board regulation contained in WAC 263-12-160(5), which clearly provides that the interest granted to a prevailing worker under RCW 51.52.135 "shall be paid in full to the worker or beneficiary and is not subject to any claim for attorney fees." Stresky fails to demonstrate that this presumptively valid regulation is not reasonably consistent with RCW 51.52.135.
WAC 263-12-160(5).
See Campbell v. Dep't of Soc. Health Servs., 150 Wn.2d 881, 892, 83 P.3d 999 (2004) (administrative rules "'adopted pursuant to a legislative grant of authority are presumed to be valid and should be upheld on judicial review if they are reasonably consistent with the statute being implemented'") (quoting Fahn v. Cowlitz County, 93 Wn.2d 368, 374, 610 P.2d 857, 621 P.2d 1293 (1980)).
This legislative limitation on the award of attorney fees for representing injured workers reflects the Legislature's concern that worker's award not be diminished by attorney fee payments. If we read RCW 51.52.135 to allow Stresky's attorney to collect fees out of both her award and the interest (calculated after deducting attorney fees), it "would result in fees being twice charged from the same recovery." The Legislature's intent to prohibit such a result is evinced by the legislative history, as shown in the floor debate. Initially, section 1 of the Engrossed House Bill 683, which became the Laws of 1983, chapter 301 (codified as RCW 51.52.135), did not include the language "after deducting the amount of attorney fees." This language was inserted by an amendment proposed by Senator Larry Vognild, which was passed by the Senate and later by the House. The floor debate on Senator Vognild's amendment demonstrates that the language "after deducting the amount of attorney fees" in RCW 51.52.135 means that a worker's attorney is to collect fees out of the worker's award of benefits, but not out of any interest. During the floor debate, Senator Irving Newhouse asked whether a worker's attorney would share in the interest, to which Senator Vognild answered in the negative:
See Harbor Plywood Corp. v. Dep't of Labor Indus., 48 Wn.2d 553, 559, 295 P.2d 310 (1956) ("'The very purpose of allowing an attorney's fee in industrial accident cases primarily was designed to guarantee the injured workman adequate legal representation in presenting his claim on appeal without the incurring of legal expense or the diminution of his award, if ultimately granted, for the purpose of paying his counsel.'") (quoting Rehberger v. Dep't of Labor Indus., 154 Wash. 659, 662, 283 P. 185 (1929)).
See, e.g., In re Floyd Allen, No. 69 533, 1988 WL 1026594, at *2 (Wash. Bd. of Indus. Ins. Appeals Feb. 2, 1988) (significant decision); O'Keefe v. Dep't of Labor Indus., 126 Wn. App. 760, 766, 109 P.3d 484 (2005) (Board significant decisions are "persuasive authority"), review denied, 156 Wn.2d 1003 (2006). The Board designates and publishes certain decisions as "significant decisions." RCW 51.52.160.
See Tingey v. Haisch, 159 Wn.2d 652, 661-62, 152 P.3d 1020 (2007) (examining floor debate stated in Senate Journal as part of a statute's legislative history).
See 1 House Journal, 48th Leg., Reg. Sess., at 368, 704, 809-11, 1308, 2478-79 (Wash. 1983); 1 Senate Journal, 48th Leg., Reg. Sess., at 820, 935, 987-88, 2550-255 (Wash. 1983).
1 Senate Journal, 48th Leg., Reg. Sess., at 987-88 (Wash. 1983); 1 House Journal, 48th Leg., Reg. Sess., at 1308 (Wash. 1983).
Senator Newhouse: "For the record, Senator Vognild, does the attorney share in the interest amount that is provided on awards in either the interest itself or in the award?"
Senator Vognild: "No, Senator Newhouse, the attorney fees are deducted before the interest is computed and the interest goes to the beneficiary or the employee."
1 Senate Journal, 48th Leg., Reg. Sess., at 987 (Wash. 1983).
As the superior court stated, this legislative history "makes it abundantly clear that the original drafters of the legislation did not contemplate attorney fees being withdrawn from the interest awards." The plain language of RCW 51.52.135 and its legislative history therefore support the superior court's conclusion that Stresky's attorney may not collect fees out of the interest granted to Stresky. Accordingly, we affirm the Board's order denying Stresky's motion for terms and the Board's orders fixing interest.