Opinion
No. 29990-9-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 98-2-07909-1. Judgment or order under review. Date filed: 01/24/2003. Hon. James R Orlando.
Counsel for Appellant(s), Jennifer Marg Cross-Euteneier, Attorney at Law, PO Box 5707, Tacoma, WA 98415-0707.
Philip Albert Talmadge, Talmadge Stockmeyer, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Candiss Anne Watson, Talmadge Stockmeyer PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), Lisa Daeley Kelley, Ofc of Attorney General, 1019 Pacific Ave Fl 3, Tacoma, WA 98402-4488.
Clifford Davis appeals the trial court's denial of (1) his CR 50 motion to grant a judgment as a matter of law and (2) the trial court's ruling denying his motion to supplement the Board of Industrial Insurance's record with Department of Labor and Industries payment orders that were not presented to the Board at the time of its decision. We affirm.
I. History of Injury
Clifford Davis was injured on December 11, 1989, while working for Rainier Steel. Inc. On March 20, 1990, the Department of Labor and Industries (Department) issued an order allowing Davis's claim for benefits. The Department subsequently issued another order on June 5, 1991, closing the claim with time-loss compensation and awarding him a Category 2 of dorsolumbar and lumbosacral permanent partial disability. WAC 296-20-280 . After Davis protested and requested reconsideration, the Department affirmed its closing order on October 5, 1995.
Davis appealed the Department's decision to the Board of Industrial Insurance Appeals (Board) on November 28, 1995. In its March 31, 1998 proposed decision and order, the Board reversed the Department's October 5, 1995 order and remanded the claim to the Department. The Board instructed the Department to issue a further order: (1) paying loss of earning power benefits to Davis for the period of April 30, 1991 through October 5, 1995; (2) paying an award of permanent partial disability equal to Category 3 lumbosacral impairment, less prior awards, WAC 296-20-280 ; and (3) closing the claim. The Board also affirmed the Department's decision as to the total disability question. It included a finding that as of October 5, 1995, Davis was not totally and permanently disabled within the meaning of RCW 51.08.160. The Department did not seek review of the proposed decision and order.
RCW 51.08.160 states: "[p]ermanent total disability" means loss of both legs, or arms, or one leg and one arm, total loss of eyesight, paralysis or other condition permanently incapacitating the worker from performing any work at any gainful occupation.
Davis petitioned for review on May 21, 1998, but the Board denied his request on June 9, 1998. He appealed the Board's decision to the Pierce County Superior Court by notice filed June 19, 1998.
On July 21, 1998, the Department issued four payment orders in accordance with the Board's March 31 decision. One of the orders awarded Davis a Category 3 of permanent dorso-lumbar and/or lumbosacral impairment. Another award ordered time-loss compensation to be paid for the period of May 1, 1991 to December 31, 1993. The last two orders awarded Davis loss of earning power payments for the period January 1, 1994 through October 5, 1995. CP 130-31. The payment order at issue here recited that it was 'In Accordance with the decision of the appeal . . . dated 3/31/98'; but it also stated it was for 'Time Loss Compensation . . . from 5/01/91 through 12/31/93.' Clerk's Papers (CP) at 129 (capitalization omitted). This order is inconsistent with the Board's order as it should have concerned 'loss of earning power.' Davis did not appeal the awards or request a stay pending the outcome of his appeal to the superior court.
II. The Trial
Davis's appeal came before the superior court December 16 through 18, 2002. At trial, both Davis and the Department presented to the jury the testimony and depositions from witnesses entered as evidence at the earlier Board hearing.
In the deposition of Evelyn Takei, a vocational rehabilitation counselor who worked with Davis, she testified about her involvement with Davis's retraining. Davis wanted to become a shoe repairer after it was found he would not be able to return to his job as an iron worker. Takei helped make the arrangements through the Department for Davis to complete a shoe repair training program. She also stated that Davis was employable as a shoe repairer.
Davis chose a shoe repair retraining program in order to help his wife with her shoe repair and leather business.
Dr. J. Gregory Zoltani saw Davis in September 1991. Dr. Zoltani testified that Davis was capable of light to sedentary job activity. He further testified that a job as a cobbler fit into the category of light to sedentary job activity. Another physician, Dr. James Green examined Davis on February 16, 1995. During his deposition, Dr. Green stated that he believed that Davis was capable of reasonable continuous employment. Dr. Green also found Davis to be capable of working as a cobbler. A third doctor, Dr. Lynn Staker, examined Davis on June 7, 1996. Dr. Staker also found that Davis had the ability to perform at least light sedentary work.
Anthony Choppa, a certified rehabilitation counselor, was a witness for Davis. He testified that Davis was not working in a reasonably continuous gainful employment situation. The Board found Choppa's testimony contrary to other testimony because Mrs. Davis's business was improving. Tax returns from the years 1989 through 1995 were also admitted as evidence. The business Davis's wife owned showed increasing income for the year 1995. This evidence tended to suggest Davis was employed in a reasonably continuous gainful employment situation.
After hearing all of the evidence, the jury found that the Board correctly categorized Davis's industrial injury. The jury answered two questions: (1) Davis's injury did not cause him to be totally and temporarily disabled between April 30, 1991 and October 5, 1995 and (2) Davis was not permanently and totally disabled as of October 5, 1995.
After the court dismissed the jury, Davis moved for judgment as a matter of law under CR 50 or in the alternative, for a new trial. The basis for Davis's motion was that there was no evidence presented showing that he earned income on a reasonably continuous basis. Davis also attempted to supplement the Board record with the Department's four July 21, 1998 orders. The court denied his motions and he appeals to this court.
III. Standard of Review
This case involves review of a jury verdict in a workers' compensation case. In an appeal of a Board decision, the superior court holds a de novo hearing but does not hear any evidence or testimony other than that included in the Board record. Grimes v. Lakeside Indus., 78 Wn. App. 554, 560, 897 P.2d 431 (1995). RCW 51.52.115. This court's review 'is limited to examination of the record to see whether substantial evidence supports the findings made after the superior court's de novo review, and whether the court's conclusions of law flow from the findings.' Young v. Dep't of Labor Indus., 81 Wn. App. 123, 128, 913 P.2d 402, review denied, 130 Wn.2d 1009 (1996). Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth of the declared premise. Panorama Village Homeowners Ass'n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000), review denied, 142 Wn.2d 1018 (2001).
IV. No Abuse of Discretion
Davis argues the trial court abused its discretion by failing to reopen the record to allow him to enter the Department's four 1998 orders. The Department responds that the superior court lacked jurisdiction to supplement the record. We agree.
Under the Industrial Insurance Act, the Department has original and exclusive jurisdiction to make threshold decisions on all claims for industrial insurance benefits. Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 169, 937 P.2d 565 (1997). An aggrieved party can only review the Department's findings by appealing to the Board. Kingery, 132 Wn.2d at 169. A party appealing to the Board must present it with all evidence for de novo review of the Department's decision. RCW 51.52.115. The Board reviews the final decision of the Department. RCW 51.52.050, .060. The Board's jurisdiction is only appellate review of the Department's administrative orders. Hanquet v. Dep't of Labor Indus., 75 Wn. App. 657, 661-62, 879 P.2d 326 (1994), review denied, 125 Wn.2d 1019 (1995).
Any party that disagrees with a Board decision has to file an appeal within 30 days of receiving the Board's final decision. RCW 51.52.110. The superior court only has the authority to review those matters presented first to the Board and preserved in the Board's record for review. Lenk v. Dep't of Labor Indus., 3 Wn. App. 977, 982, 478 P.2d 761 (1970). The superior court is unable to consider evidence outside of the record and presented for the first time on appeal unless the party seeking to introduce the evidence can show 'irregularities' in the procedure before the Board. RCW 51.52.115. Davis fails to show any irregularities in the procedure before the Board.
Davis asserts that RCW 51.52.115 gave the superior court jurisdiction to enter the four orders from July 1998 into evidence. He argues that because he appealed the underlying June 5, 1991 Department order that closed his claim, the orders were evidence of the Department paying time-loss compensation at a time it argued Davis was temporarily totally disabled. He contends that because time-loss compensation is only payable for a worker's total temporary disability, RCW 51.32.090(1), this evidence of the payment order, which recited it was for 'time-loss', would have been important for the jury to know that the Department admitted its error by this payment and in disregard of the Board's order. Davis's interpretation of the statute is incorrect.
This court will not construe an unambiguous statute. Davis v. Dep't of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999). Here, RCW 51.52.115 is clear. According to the statute, Davis can raise issues of law or fact included in the notice of appeal. Davis's notice of appeal argued that he was entitled to time-loss compensation, loss of earning power, increased permanent partial disability, or permanent total disability. But, the statute explicitly does not allow the entrance of additional evidence that was not before the Board. Although the July 1998 orders have a connection to Davis's appeal, they were not part of the record before the Board, and the superior court had no authority to include them in the record.
Moreover, Davis neither appealed the orders to the Department nor requested a stay of payment pending the outcome of his appeal. Davis had avenues to take to get the orders properly before the superior court, and he chose not to take them. We will not reward Davis's inaction by allowing the orders to come in as evidence after the fact. Leschner v. Dep't of Labor Indus., 27 Wn.2d 911, 927, 185 P.2d 113 (1947) ('The principle applicable to the situation is tersely expressed in an ancient maxim: Equity aids the vigilant, not those who slumber on their rights.')
V. The July 1998 Orders
Davis contends that the Department is estopped from denying he was disabled through October 5, 1995, because of its July 1998 orders. The Department asserts that its 1998 orders were merely ministerial, issued only to carry out the Board's earlier decision. As such, whether Davis was disabled through October 1995, was irrelevant. Accordingly, the only issue before the superior court was whether the Board's June 1998 decision was correct.
The Department issued the July 1998 orders with the stated intent of taking action as the Board directed. In re Steven W. Carrell, Claim No. T-295538, 1999 WL 1102793 at *3 (Indus. Ins. Appeals Bd. Oct. 7, 1999). The Department had a legal obligation to issue the orders while Davis's appeal was pending. Lee v. Jacobs, 81 Wn.2d 937, 938, 506 P.2d 308 (1973) (An appeal from a board order is not a stay, except in limited instances where the employer posts bond and appeals from the imposed penalty).
Although decisions of the Board are not precedential, an appellate court may consider them for their persuasive value. Walmer v. Dep't of Labor Indus., 78 Wn. App. 162, 167, 896 P.2d 95, review denied, 128 Wn.2d 1003 (1995).
Moreover, the Board never had an opportunity to consider the Department's July 1998 orders. The only relief available to Davis was an appeal to the Board. RCW 51.52.060(1)(a). Davis did not do so and thus failed to meet the jurisdictional requirements, and the superior court could not review the orders. RCW 51.52.110.
VI. Denial of Motion for Judgment as a Matter of Law
Davis contends that the trial court erred when it denied his motion for judgment as a matter of law as to his disability. The Department responds that substantial evidence existed to support the jury's determination. The Department is correct.
An appellate court reviews a ruling on a CR 50 motion for judgment as a matter of law de novo. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 187, 23 P.3d 440 (2001). 'Granting a motion for judgment as a matter of law is appropriate when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.' Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997). Substantial evidence exists where there is sufficient evidence to persuade a fair-minded, rational person of the truth of the declared premise. Brown v. Superior Underwriters, 30 Wn. App. 303, 306, 632 P.2d 887 (1980). In considering a motion for judgment as a matter of law, this court must treat the nonmoving party's evidence as true and draw all reasonable inferences from that evidence. Hill, 144 Wn.2d at 187-88.
Both doctors Zoltani and Green found that Davis was able to be continuously gainfully employed as a shoe repairer. Dr. Staker stated that Davis could accomplish light sedentary work. The job of a shoe repairer, he testified, fell into this category. Evelyn Takei also testified that Davis could work in continuous gainful employment as a shoe repairer. As support, Davis relies on Choppa's testimony that he was not continuously gainfully employed. The Board did not accept that testimony based on the increasing revenues of the shoe repair business Davis's wife owned. Further, the definition of '[p]ermanent total disability' is based on a worker's capacity to work. RCW 51.08.160. Davis did not qualify as permanently totally disabled under the definition because he was able to work. Sufficient evidence existed to show Davis was in a work situation of reasonable continuous gainful employment. Thus, the trial court did not err by denying his CR 50 motion.
VII. Attorney Fees
Davis requests attorney fees for this appeal under RAP 18.1 and RCW 51.52.130. But Davis does not prevail on his appeal, and thus an award of attorney fees is inappropriate.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J., and QUINN-BRINTNALL, A.C.J., concur.