Opinion
No. 36996-6-II.
March 3, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-2-02461-2, Anne Hirsch, J., entered October 30, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Hunt, J.
Roger Ewart appeals the trial court's reversal of a Board of Industrial Insurance Appeals (BIIA) decision that he suffered from a temporary total disability following an industrial injury. He argues that the trial court erred when it (1) decided the case based on an issue not properly before it, (2) applied an improper standard of review, (3) failed to articulate the basis of its decision, and (4) improperly considered his failure to complete a retraining program. We affirm.
FACTS
We derive the facts from the certified board record.
On January 11, 1996, Ewart sustained an on the job injury to his left knee. At the time, he was working as a carpenter for the self-insured Tumwater School District. He underwent surgery on October 15, 1996, and again on January 19, 1998. After his first surgery, the School District placed him on three months of light duty. When he was unable to return to his position, he entered a retraining program. He has not worked since the light duty period.
In 1992, he had an operation on the same knee.
Jeanne West, a vocational rehabilitation counselor hired by the School District, met with Ewart eight times. On September 21, 1998, she finished development of a retraining program for him in computer assisted drafting (CAD). He did not complete the CAD program because he failed to turn in the final assignment. He testified that "[the program] was overwhelming. I couldn't keep up. I had terrible pain in my leg, lacked sleep at night. I didn't do very well on the math." Administrative Transcript (TR) at 132. West testified that Ewart could have held light jobs appropriate for someone of his background and physical ability, such as security guard, small item assembly worker, or courtesy van driver.
Bates Technical College Instructor Chuck Graydon taught Ewart in a boat building course after he failed to complete the CAD training program. Graydon testified that Ewart exhibited signs of extreme physical pain when he stood up, moved around, or bent his knees. In Graydon's opinion, Ewart worked half as fast as others in the boat shop and he would not be able to stand on concrete floors the 8 to 10 hours a day that the job requires.
John Berg, a vocational rehabilitation counselor, met with Ewart on December 28, 2004, and January 6, 2005. Berg examined Ewart's high school transcripts and met with Graydon. Berg testified that the CAD program was poorly designed and unsuitable for Ewart due to his low math skills. Berg explained that in order for Ewart to be competitive in CAD, he would need a two year degree and a work portfolio. Ultimately, Berg testified he was unable to identify any full time employment Ewart could have performed between September 30, 2002, and June 24, 2004.
Orthopedic surgeon William Peterson saw Ewart on seven occasions, between August 27, 1997, and May 10, 2004. Peterson was his attending physician from September 30, 2002, through June 24, 2004. Peterson noted that the industrial injury indirectly caused a two centimeter atrophy of Ewart's left thigh and that such a result is common after surgery. Peterson stated that between September 30, 2002, and June 24, 2004, Ewart's ability to work was limited to a light or sedentary level.
Dr. Patrick Bays performed an independent medical examination on Ewart on October 30, 2002. He reviewed Ewart's medical records from previous doctor visits. After examining Ewart, Bays concluded that there was "absolutely no justification for inability to work." TR (Jan. 3, 2005) at 30. But on cross-examination, Bays testified that Ewart's four surgeries caused atrophy of his thigh, that his present condition was wholly due to the January 11, 1996 injury, and that there was no evidence he had untruthfully magnified his problems in any way.
Psychiatrist James Bremner met with Ewart on March 29, 2000, and December 9, 2004. He diagnosed major depression resulting from Ewart's injury. Bremner testified that although Ewart initially did not want to participate in the examination, he cooperated during their meetings.
On October 24, 1996, Ewart applied for Department of Labor and Industries (LI) benefits. LI allowed the claim. In 2000, after he failed to complete the retraining program, LI closed but later reopened his claim after various protests from both the School District and Ewart. Ultimately, on February 6, 2001, LI granted Ewart a permanent partial disability award with a 12 percent amputation value (14 percent less 2 percent for his preexisting injury).
On March 28, 2001, Ewart appealed LI's industrial appeals judge's ruling, who reviewed the record and denied Ewart's claim. Ewart appealed to the BIIA and it accepted the appeal. On June 25, 2004, after three years of various administrative and superior court appeals, LI ordered the School District to pay time-loss compensation for the period of September 30, 2002, through June 24, 2004. On July 2, 2004, the School District appealed this order, and on November 28, 2005, the BIIA affirmed LI's order in a split decision. The School District then appealed to the superior court.
During argument before it, the trial court expressed concern about Ewart's failure to complete the retraining program and explained, "When you come right down to it, the issue in my mind again is not the disability, but the issue is the choice that was made not to complete the training and the retraining that was offered." Report of Proceedings (Oct. 30, 2007). Agreeing with the IAJ and reversing the BIIA, the trial court ruled, "I am convinced on a more-probable-than-not basis that the decision should be reversed, and I am going to reverse it and adopt the proposed findings of the school district." RP at 38. Ewart then moved for reconsideration.
In a letter opinion, the trial court denied Ewart's motion for reconsideration. It acknowledged that its comments about his failure to complete the course were "less than clear"; however, the record before it supported the same result. Clerk's Papers at 86. Also in its letter opinion, the trial court focused on the special consideration it had given to Peterson's testimony that Ewart would have been able to perform light work and West's testimony that such work was available between September 30, 2002, and June 24, 2004. This appeal followed.
ANALYSIS
Ewart assigns error to the superior court's reversal of the BIIA's order. Like the trial court, we consider the issues de novo, relying on the certified board record. Malang v. Dep't of Labor Indus., 139 Wn. App. 677, 683, 162 P.3d 450 (2007). Under RCW 51.52.140, we review the superior court's ruling subject to the ordinary rules governing civil appeals. Malang, 139 Wn. App. at 683.
We review whether substantial evidence supports the trial court's findings and whether they, in turn, support its conclusions of law. Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). Substantial evidence supports a trial court finding when the evidence in the administrative record sufficiently persuades a reasonable person of the finding's truth. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).
Ewart first contends that the trial court decided his case on an issue not properly before it on appeal. Under RCW 51.52.115, "only such issues of law or fact may be raised as were properly included in the notice of appeal to the board, or in the complete record of the proceedings before the board."
In issuing its oral ruling, the trial court expressed concern over Ewart's failure to complete the retraining program and appeared to base its decision on that failure. But in the letter opinion denying Ewart's motion for reconsideration, the trial court articulated the basis for its decision, citing the administrative record. In the letter opinion, the trial court noted that it relied on the testimony of several witnesses:
[N]otwithstanding the comments made in court regarding Mr. Ewart's decision not to complete the training offered him by the school district, the record before the court supported the rulings made by the court. Specifically, Mr. Ewart's treating physician, to whom the court gave special consideration, stated that Mr. Ewart was able to perform certain types of employment during the time period at issue. The vocational counselor testified that such work was available to Mr. Ewart. The evidence also showed that Mr. Ewart could have been retrained through the CAD program and made a decision not to complete the offered training. Although Mr. Ewart submitted contrary evidence, the record supports a finding that he was employable during the relevant period and that such employment was obtainable.
CP at 86.
Rather than ruling that Ewart's failure to complete the retraining invalidated his claim, the trial court determined that his injuries did not prevent him from obtaining employment during the period of September 30, 2002, to June 24, 2004. The trial court therefore did not base its decision on his failure to complete a retraining course alone, although his failure to do so entered into the court's consideration. His argument fails.
Ewart next contends that the trial court applied an improper preponderance of the evidence standard of review. He argues that a standard as slight as preponderance of the evidence denied him a fair trial.
Statutory and case law support the trial court's application of the preponderance of the evidence standard. Cochran Elec. Co. v. Mahoney, 129 Wn. App. 687, 692, 121 P.3d 747 (2005). Ewart's argument fails.
Ewart further contends that the trial court failed to articulate a basis for its decision, thereby denying him a meaningful opportunity for appellate review. As we discussed above, the trial court clearly articulated the basis for its decision in its letter opinion as well as its order. Furthermore, substantial evidence in the administrative record supported its decision.
First, the trial court cited Ewart's treating physician, who after meeting with Ewart at least seven times, determined that, although his leg had atrophied, he could perform light or sedentary work. Second, the trial court cited West, who after meeting with Ewart eight times, determined that he would be able to perform light duty work such as security guard, van driver, or small item assembly manufacturer. Third, the trial court also cited Bays, who concluded that although Ewart had been truthful about his symptoms, there was "absolutely no justification for inability to work." TR (Jan. 3, 2005) at 30. The trial court therefore articulated the basis for its decision and cited the administrative record to do so. Substantial evidence in the administrative record supported the trial court's decision.
Ewart next contends that the trial court violated the Double Jeopardy Clause by considering his failure to complete the retraining program. The Double Jeopardy Clause of the United States and Washington Constitutions applies only to criminal proceedings. U.S. Const. amend. V.; Const. art. I, § 9. As this is an administrative matter and Ewart's liberty interests are not in jeopardy, his argument fails.
Ewart also contends that res judicata, collateral estoppel, and the doctrine of laches bar the trial court from considering his failure to complete his retraining program. He argues that in previous litigation regarding the reopening of his LI claim, the School District could have argued an issue regarding his failure to complete his retraining program and it did not do so. This argument is essentially one of collateral estoppel.
Collateral estoppel or issue preclusion acts to prevent relitigation of an issue fully presented. Paradise Orchards Gen. Partnership v. Fearing, 122 Wn. App. 507, 514, 94 P.3d 372 (2004). Here, the issue whether Ewart's LI claim should have been reopened was concluded on June 16, 2004, when the School District withdrew its notice of appeal. Both parties agree that the issue before us is whether he was able to obtain reasonably continual gainful employment from September 30, 2002, to June 24, 2004. Collateral estoppel does not apply here.
In his reply brief, Ewart takes issue with the School District's corrections to its brief. In its brief, the School District cited matters outside the record. It then submitted a document correcting its brief based on the certified record.
Ewart contends that the School District acted intentionally in submitting an improper brief. He cites instances where he claims the School District distorted the record in order to "portray [him] as a freeloader skilled at manipulating the system and feigning pain." Appellant's Reply Br. at 6. The School District submitted a corrected brief; that is the brief we review. Ewart's argument fails.
Ewart also requests attorney fees. He acknowledges that RAP 18.1 precludes his doing so. Nothing provides a basis for awarding him fees, and we decline to do.
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.
HUNT, J. and VAN DEREN, C.J., concur: