Darkenwald v. State

• Decision Date: 24 June 2014
• Docket Number: No. 44376–7–II.,44376–7–II.
• Citation: 182 Wash.App. 157,328 P.3d 977
• Court: Washington Court of Appeals
• Parties: Linda DARKENWALD, Respondent, v. STATE of Washington EMPLOYMENT SECURITY DEPARTMENT, Appellant.

182 Wash.App. 157

328 P.3d 977

Linda DARKENWALD, Respondent,

v.STATE of Washington EMPLOYMENT SECURITY DEPARTMENT, Appellant.

No. 44376–7–II.

Court of Appeals of Washington, Division 2.

June 24, 2014.

Eric A. Sonju, Washington Attorney General's Office, Olympia, WA, for Appellant.

Edward Earl Younglove, III, Younglove & Coker, PLLC, Olympia, WA, for Respondent.

MAXA, J.

¶ 1 The Employment Security Department (the Department) appeals the superior court's reversal of the Department Commissioner's order denying Linda Darkenwald unemployment benefits. Darkenwald left her job as a dental hygienist because she believed that her injured neck and back prevented her from working the increased hours her employer required. Darkenwald argues that she qualifies for unemployment benefits because she either. was discharged or voluntarily left her job for good cause, or because as a part-time employee RCW 50.20.119 allowed her to reject a job requiring more than 17 hours of work per week without disqualifying her from benefits. She also moves this court to dismiss the Department's appeal as moot, arguing that its payment of unemployment benefits to her after the filing of its notice of appeal constituted a final determinationof benefits that cannot be recouped without evidence of fraud, misrepresentation, or nondisclosure.

¶ 2 We hold that (1) because the superior court directed the Department to pay unemployment benefits to Darkenwald and the Department appealed that ruling, that payment did not constitute a final determination of benefits that moots this appeal; (2) Darkenwald was not discharged but instead left work voluntarily, and therefore was required to prove that she had good cause for leaving in order to receive unemployment benefits; (3) Darkenwald did not have good cause to leave work because she failed to prove that (a) her disability was her primary reason for leaving, or (b) her employer caused a 25 percent reduction in her hours; and (4) RCW 50.20.119 does not apply to currently employed workers, and therefore does not allow her to qualify for unemployment benefits. Accordingly, we reverse the superior court, affirm the Department Commissioner's order denying Darkenwald unemployment benefits, reverse the superior court's award of attorney fees to Darkenwald attorney fees, and deny Darkenwald's request for attorney fees on appeal.

FACTS

¶ 3 Darkenwald began working as a dental hygienist in Dr. Gordon Yamaguchi's office in 1985. In 1998, she suffered a neck and back injury and filed a claim for benefits with the Department of Labor and Industries (L & I). L & I provided benefits and stated that Darkenwald had a permanent impairment. For the next eight years, Darkenwald continued to work either three or four days per week. In 2006, Darkenwald reduced her hours from three to two days per week, working approximately 15–16 hours per week on Mondays and Wednesdays. She later asserted that the reduction was because her chronic pain made it impossible for her to work more. Yamaguchi later asserted that the reduction was so that Darkenwald could spend more time with her family.

¶ 4 On July 28, 2010, Yamaguchi told Darkenwald that he needed her to work three days per week because his practice had grown. Yamaguchi suggested that Darkenwald work on Fridays to extend her hours to three days per week, or alternatively to work as an on call hygienist. In response to Yamaguchi's request that she work three days per week, Darkenwald stated, “I hear you saying that I am fired.” Administrative Record (AR) at 22. She later asserted that she believed Yamaguchi's request that she either work three days per week or accept work as a substitute hygienist meant that he was firing her due to her disability because she did not have a meaningful choice that would allow her to maintain her employment.

¶ 5 Yamaguchi's wife, the office manager, told Darkenwald that a replacement hygienist had been hired and asked Darkenwald to continue working until August 23, the replacement's start date. On August 2, Darkenwald returned to work but sent a letter to Yamaguchi stating that she had been fired and declining to work after that date. The letter did not mention any health concerns or request consideration of any other alternatives. Yamaguchi's office records reflect that the reason for Darkenwald's separation was “[d]ischarge” and stated that “[s]he refused to work three days. She could not do three days a week.” AR at 131. Darkenwald later stated that she could not have worked three days per week because of her health and that she did not want to accept the substitute dental hygienist position because it would have amounted to a significant reduction in her hours, no paid holidays, and no reliable shifts.

¶ 6 In contrast, Yamaguchi claimed that he did not intend to fire Darkenwald and that she quit voluntarily. He stated that he asked her if she could work three days per week, but she said that she could not. He then asked if she could work Fridays, and she said she could not because of her husband's schedule. Darkenwald did not tell Yamaguchi that she could not work three days per week because of her health condition. Yamaguchi stated that after their conversation, he did not believe that Darkenwald's employment had terminated and that he wanted her to work for him as a substitute dental hygienist.

¶ 7 Darkenwald filed a claim for unemployment benefits with the Department. She did not mention her disability in her initial application. The Department denied her claim, stating that she quit for personal reasons and therefore did not have good cause to terminate her employment. Darkenwald appealed to an administrative law judge (ALJ). The ALJ ruled that Darkenwald voluntarily quit employment without good cause under RCW 50.20.050, and therefore she was not entitled to unemployment benefits. Although disqualification from benefits is not required if a claimant quits due to “illness or disability” under RCW 50.20.050(2)(b)(ii), the ALJ ruled that Darkenwald “has not established that her medical condition was the reason she was not able to work on Fridays.” ¹ AR at 92. Darkenwald petitioned for review by the Department's Commissioner. The Commissioner affirmed the ALJ's decision and adopted the ALJ's findings and conclusions.

¶ 8 Darkenwald then petitioned for review by the superior court. The superior court concluded that the Commissioner's findings were not supported by substantial evidence and that Darkenwald quit with good cause, and therefore was entitled to unemployment benefits. The superior court reversed the Commissioner's denial of benefits and directed the Department to grant Darkenwald unemployment benefits. The superior court also awarded Darkenwald attorney fees.

¶ 9 The Department appealed the superior court's order reversing the Commissioner's decision. After the Department filed its notice, of appeal, it made the benefit payments to Darkenwald in compliance with the superior court's ruling.

ANALYSIS

A. Motion to Dismiss Appeal

¶ 10 As a threshold matter, Darkenwald moves to dismiss the Department's appeal under RAP 17.1 and RAP 17.4(d).² She argues that because the Department's payments to her after it filed its notice of appeal constituted a final determination of her benefit eligibility, RCW 50.20.160(3) precludes the Department from recouping those benefits and this appeal is moot. We disagree.

¶ 11 A case is moot if a court “ ‘cannot provide the basic relief originally sought ... or can no longer provide effective relief.’ ” Bavand v. OneWest Bank, F.S.B., 176 Wash.App. 475, 510, 309 P.3d 636 (2013) (alteration in original) (internal quotations marks omitted) (quoting Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wash.2d 345, 350–51, 932 P.2d 158 (1997)). If a case is moot, we generally will dismiss the appeal. Wash. Off Highway Vehicle Alliance v. State, 176 Wash.2d 225, 232, 290 P.3d 954 (2012).

¶ 12 Darkenwald relies on RCW 50.20.160(3), which provides:

A determination of allowance of benefits shall become final, in absence of a timely appeal therefrom: PROVIDED, That the commissioner may redetermine such allowance at any time within two years following the benefit year in which such allowance was made in order to recover any benefits improperly paid and for which recovery is provided under the provisions of RCW 50.20.190: AND PROVIDED FURTHER, That in the absence of fraud, misrepresentation, or nondisclosure, this provision or the provisions of RCW 50.20.190 shall not be construed so as to permit redetermination or recovery of an allowance of benefits which having been made after consideration of the provisions of RCW 50.20.010(1)(c), or the provisions of RCW 50.20.050, 50.20.060, 50.20.080, or 50.20.090 has become final.

(Emphasis added.). Darkenwald argues that the Department's payment of benefits following the superior court's ruling was a final determination under RCW 50.20.160(3), and therefore the Department cannot recover payments it made to her pending this appeal unless it shows evidence of fraud, misrepresentation, or nondisclosure. She relies on four decisions published by the Department's Commissioner in which the Commissioner concluded that under RCW 50.20.160(3) the Department could not initially award benefits to a claimant, then make a redetermination of ineligibility for benefits and recoup the overpayments made absent a finding of fraud, misrepresentation, or nondisclosure. In re Weingard, Emp't Sec. Comm'r Dec.2d 920, 2008 WL 6691601 (2008); In re Young, Emp't Sec. Comm'r Dec.2d 951, 2010 WL 6795717 (2010); In re Hendrickson–Jackson, Emp't Sec. Comm'r Dec.2d 953, 2010 WL 6795719 (2010); In re Hader, Emp't Sec. Comm'r Dec.2d 952, 2010 WL 6795718 (2010).

¶ 13 However, Darkenwald's argument is inconsistent with a plain reading of the statute, which states that “[a] determination of allowance of benefits shall become final, in absence of a timely appeal therefrom.” RCW...