Dep't of Labor & Indus. v. Rowley

• Decision Date: 17 March 2016
• Docket Number: No. 91357–9.,91357–9.
• Citation: 378 P.3d 139,185 Wash. 2d 186
• Court: Washington Supreme Court
• Parties: DEPARTMENT OF LABOR AND INDUSTRIES, Petitioner, v. Bart ROWLEY, Sr., Respondent.

185 Wash.2d 186

378 P.3d 139

DEPARTMENT OF LABOR AND INDUSTRIES, Petitioner

v.Bart ROWLEY, Sr., Respondent.

No. 91357–9.

Supreme Court of Washington, En Banc.

Argued Oct. 27, 2015.

Decided March 17, 2016.

James P. Mills, Office of the Attorney General, Office of Attorney General, Attorney at Law, Tacoma, WA, Anastasia R. Sandstrom, Attorney General's Office, Seattle Labor & Industries A.g. Office, Attorney at Law, Seattle, WA, for Petitioner.

Patrick Arthur Palace, Palace Law Offices, Tacoma, WA, Kenneth Wendell Masters, Masters Law Group PLLC, Bainbridge Island, WA, for Respondent.

Bryan Patrick Harnetiaux, Attorney at Law, Michael J. Pontarolo, Delay Curran Thompson Pontarolo & Walker, Spokane, WA, George M. Ahrend, Ahrend Law Firm PLLC, Moses Lake, WA, amicus counsel for Washington State Association for Justice Foundation.

GORDON McCLOUD, J.

¶ 1 Bart Rowley Sr. was injured while driving a truck for his employer, and he subsequently filed a claim for workers' compensation benefits. The Department of Labor and Industries (Department) denied Rowley's claim because it determined that Rowley was injured while committing a felony: possession of a controlled substance. The Industrial Insurance Act (IIA), Title 51 RCW, bars payment of workers' compensation under that circumstance. RCW 51.32.020. Rowley filed a notice of appeal to the Board of Industrial Insurance Appeals (Board). After considering testimony from several witnesses, an industrial appeals judge (IAJ) found that there was insufficient evidence to sustain the Department's decision and ordered the Department to approve Rowley's claim.

¶ 2 The Department has challenged that order four times: in an appeal before a three-member board panel, at the superior court, at the Court of Appeals, and finally in this court. Every lower court affirmed the IAJ's decision that Rowley was entitled to benefits. Although we reverse the Court of Appeals' holding on the applicable evidentiary standard, we too agree that Rowley is entitled to benefits.

FACTS

¶ 3 Bart Rowley worked as a truck driver for 33 years. Rowley was severely injured¹ when his truck-trailer veered off a highway overpass and landed on the roadway below. The accident occurred midday on a clear and dry day. Suspecting that drug use might have been a contributing factor, law enforcement sent Officer Donevan Dexheimer, a trained drug recognition officer, to Harborview hospital, where Rowley was treated after the accident. At Harborview, an emergency room (ER) nurse provided Officer Dexheimer with a “baggie” that she said had come from Rowley's pocket. The baggie contained residue that Officer Dexheimer believed to be methamphetamine. Officer Dexheimer also had Rowley's blood drawn and submitted to the Washington State Toxicology Laboratory (Lab) for testing.

¶ 4 Rowley filed a claim for workers' compensation benefits. The Department rejected Rowley's claim, finding that it was barred by RCW 51.32. 020. The relevant part of that statute provides:

If injury or death results to a worker from the deliberate intention of the worker himself or herself to produce such injury or death, or while the worker is engaged in the attempt to commit, or the commission of, a felony, neither the worker nor the widow, widower, child, or dependent of the worker shall receive any payment under this title.

(Emphasis added.)

¶ 5 As will be discussed in more detail below, this statute contains two bars to payment of a workers' compensation claim: the deliberate self-injury bar (not at issue in this case) and the felony payment bar (at issue in this case). In its order denying benefits, the Department appeared to conflate the two payment bars and thus paraphrased the statute inaccurately:

CLAIM IS REJECTED BASED [ON] RCW 51.32.020 WHICH STATES IF INJURY OR DEATH RESULTS TO A WORKER FROM THE DELIBERATE INTENTION OF THE WORKER HIMSELF ... WHILE THE WORKER IS ENGAGED IN THE ATTEMPT TO COMMIT, OR THE COMMISSION OF, A FELONY.... SHALL NOT RECEIVE ANY PAYMENT UNDER THIS TITLE.

Clerk's Papers (CP) at 275 (alterations in original).

¶ 6 Rowley filed a request for reconsideration, which the Department denied. He then filed a notice of appeal with the Board. The Board granted Rowley a hearing before IAJ Kathleen Stockman.

¶ 7 Consistent with Washington Administrative Code (WAC) 263–12–115(2)(a), which provides that “[i]n any appeal under ... the [IIA] ..., the appealing party shall initially introduce all evidence in his or her case in-chief,”² Rowley presented his evidence first. He called only two witnesses: himself and the office manager for his employer. Consistent with WAC 263–12–115(2)(c), the Department then presented its case in chief. It called six witnesses: Officer Dexheimer; Brian Capron, a forensic specialist from the Lab; Washington State Trooper David Roberts, the first responder to Rowley's accident; Washington State Trooper Nicholas King; Mary Comstock, a nurse who treated Rowley in the ER; and Jennifer Compton, another ER nurse who treated Rowley.

¶ 8 The office manager for Rowley's employer testified that Rowley was working when the accident occurred. She thus provided evidence of injury during the course of employment. Rowley testified that he was in a coma for 40 days after the accident and could not remember anything about the events leading up to it. But he also testified that he had taken random drug tests many times over the course of his employment and was not aware of ever testing positive. He thus presented some evidence from which an inference could be drawn that he did not possess drugs at the time of his accident.

¶ 9 The Department then called Officer Dexheimer; he testified that he was trained to identify both signs of impairment and types of drugs. He also testified about his interactions with nurses treating Rowley. He stated that a nurse (either Nurse Comstock or Nurse Compton) told him that Rowley “had a quote/unquote ‘surprise’ in his pocket when he arrived.” CP at 737. Officer Dexheimer explained that he could not perform a field sobriety test on Rowley because Rowley was unconscious, but that he measured Rowley's pulse, listened to the conversations occurring between the treating nurses, and got Nurse Comstock to help him find Rowley's clothes and a baggie with some suspected methamphetamine residue in it. Rowley's pulse was normal, but Officer Dexheimer testified that he believed this was unusual because hospital staff had given Rowley morphine and Valium. Under those circumstances, Officer Dexheimer considered Rowley's pulse high, possibly indicating use of a central nervous system stimulant prior to the accident. On one hand, Officer Dexheimer testified that he could not form an opinion about whether Rowley was impaired by drug use because he could not perform a proper field sobriety test. On the other hand, he testified that “coming down” from stimulants could cause a person to fall asleep at the wheel and that this might explain Rowley's accident. CP at 751. He also stated that he arrested Rowley for driving under the influence of an intoxicant (DUI) (while Rowley was unconscious in the hospital) and he opined that the accident “more likely than not” occurred because Rowley was affected by methamphetamine. CP at 754.

¶ 10 Officer Dexheimer also testified that he asked Nurse Comstock where the baggie was and that she told him Rowley's clothes and the baggie were both in the trash. He related the following exchange with Nurse Comstock:

So she pointed out—We looked through the garbage bag that was actually still in the room, and it was nearly empty. She says, “No, this isn't the right bag.” We went outside, we opened up the garbage bag, and she started opening the bags that were inside, and she says, “oh, here it is,” hands it to me, or points it out to me. I can't remember whether she actually physically handed it to me or just said, “That's the one. That's it.”....

CP at 746. When Officer Dexheimer saw the baggie, he determined that the residue in it looked like methamphetamine. He explained that this was because of its color, texture, and packaging.

¶ 11 Finally, Officer Dexheimer testified that he provided Nurse Comstock with two vials so she could draw Rowley's blood. Officer Dexheimer labeled these vials with Rowley's name, but could not remember whether he also labeled them with the date or the case number. After Nurse Comstock took Rowley's blood, Officer Dexheimer gave the vials to Trooper King.

¶ 12 On cross-examination, Officer Dexheimer explained that, according to his police report, hospital staff had washed the contents of the baggie down the sink before he arrived at Harborview. He stated that although Nurse Comstock found the baggie in the trash for him, he believed that a different staff member originally discovered the baggie. He also testified that he might have written the wrong date in his accident report and the wrong name on the blood vials (“Rawley” instead of Rowley), CP at 765, that he did not test the baggie or take a sample from the hospital sink, and that coffee can raise a person's heart rate. CP at 766–67.

¶ 13 Capron, the forensic specialist from the Lab, testified that the Lab received two vials of blood marked “R-a-w-l-e-y,” along with a “request for analysis” marked “R-o-w-l-e-y.” CP at 784. He explained that the Lab's analysts noted that discrepancy and then tested the blood. Capron testified that the blood tested positive for high levels of methamphetamine. He also testified that he believed it was more probable than not that Rowley was impaired by methamphetamine when his truck went off the road.

¶ 14 Compton, one of the ER nurses, testified that she did not specifically remember Rowley but that her records showed that Officer Dexheimer gave her vials so she could draw Rowley's blood.

¶ 15 Comstock, the other ER nurse, testified that she remembered Rowley, but not well. She explained that when a trauma patient like Rowley comes into the ER, his or her clothing is cut off either...