Higgins v. Dep't of Labor & Indus.

• Docket Number: 85045-8-I
• Decision Date: 07 August 2023
• Parties: GEORGE HIGGINS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
• Court: Washington Court of Appeals

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GEORGE HIGGINS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 85045-8-I

Court of Appeals of Washington, Division 1

August 7, 2023

UNPUBLISHED OPINION

Díaz, J.

George Higgins appeals a trial court's decision affirming the Board of Industrial Insurance Appeals' (board) denial of time loss benefits for the aggravation of Higgins' 1989 workplace injury. The director^[1] of the Department of Labor and Industries (L&I or the department) had denied time loss benefits because it found Higgins voluntarily exited the workforce between 2003 and 2005, noting he did not provide contemporaneous medical records to support his claim that he was unable to work during that time due to his industrial injury. Finding no error, we affirm.

I. BACKGROUND

A. Higgins' injury and aggravation

In 1989, Higgins suffered an industrial injury to his back while at work. Dep't of Labor & Indus. v. Higgins, 21 Wn.App. 2d 268, 271, 505 P.3d 579 (2022). While working as an electrician's helper, he lifted two five-gallon paint cans, causing or aggravating a left disc herniation at L4-5. Id.

In 1992, the department closed Higgins' claim with a category 2 permanent partial disability award. Higgins, 21 Wn.App.2d at 271. Higgins unsuccessfully tried to reopen the claim in 1993 and 1994. Id.

In 2001, Higgins opened an auto repair shop, but closed it in 2003, claiming he was unable to work due to his back injury. Id. In 2005, more than seven years after the department closed his claim, Higgins sought to reopen it, requesting time loss benefits or a pension.^[2] Id. After several subsequent appeals and denials, in January 2017, the director reconsidered and increased his partial permanent disability benefit rating to a category 4. Id. However, the director declined to award time loss compensation, stating:

I am not exercising my discretionary authority to find you eligible for time-loss compensation because you stopped working in 2003 and there is no contemporaneous medical [sic] to support that you stopped working due to your industrial injury.

However, I am exercising my discretionary authority to find you eligible for permanent partial disability benefits in the interest of equity and good conscience, because you had a significant increase in permanent impairment of your lumbar condition.

Id. at 271-272.

Following this order, the director again closed Higgins's claim. Id. at 272.

B. Higgins' first appeal

Higgins protested the order of the director to the board, which denied the protest and affirmed the director's decision. Id. As part of its affirmance, the board held that it reviewed the director's order under the preponderance of the evidence standard, pursuant to Cascade Valley Hospital v. Stach, 152 Wn.App. 502, 508, 215 P.3d 1043 (2009). Id. Under that standard, the board reversed the director's decision and ordered the department to pay time loss benefits. Id. The department appealed the board's decision to the superior court and argued the proper standard of review was abuse of discretion. Id. The superior court agreed and remanded the case to the board to apply that standard. Id. Higgins then appealed the superior court's decision, and this court affirmed the superior court, finding that the proper standard of review is abuse of discretion. Id. at 278.

C. Subsequent superior court proceeding

On August 9, 2021, while the appeal was pending in this court, the board went forward and reviewed Higgins' claim under the abuse of discretion standard, and found the director did not abuse its discretion. The board affirmed the director's January 2017 order, again, granting Higgins' increased permanent partial disability benefits and denying Higgins time loss. Higgins appealed that decision to the superior court.

The superior court affirmed the board. In its findings of fact, the court found:

1.2.5 Prior to issuing orders exercising discretionary authority regarding additional benefits, the Director considered a 17-page memorandum reviewing the claim file and medical record, including the facts that claimant stopped working in 2003 and there was no contemporaneous medical record attributing his ceasing work to conditions caused by the industrial injury.

1.2.6 The Director also considered a second 18-page memorandum addressing Mr. Higgins' protest and additional information provided by Mr. Higgins in response to the Director's initial determination . . . [i]nformation provided by Mr. Higgins included his declaration regarding his withdrawal from the workforce in 2003 and why there are no contemporaneous medical records relating the withdrawal from the workforce to his industrial injury . . .

1.2.7 The decision reached by the Director was based on information contained in the Department's claim file as it existed on June 1, 2017 and June 20, 2020.

1.2.8 The Director's discretion was not unreasonable and did not reflect an abuse of discretion.

The court further ordered Higgins to pay a statutory fee of $200, and awarded the department interest from the date of entry of the judgment under RCW 4.56.110. Higgins timely appealed to Division II of this court, which transferred the matter to this division.

II. ANALYSIS

A. Background on the applicable substantive law

When a worker is injured on the job, the department gives them "proper and necessary" medical treatment until the condition(s) caused by the injury have reached "maximum medical improvement." RCW 51.36.010(2)(a); WAC 296-20-01002. While the worker's claim is open, they are eligible for a number of benefits, including time loss compensation. RCW 51.32.090. Time loss is meant to replace lost wages while the worker is temporarily unable to work. Id. Once the worker's injury reaches a "fixed" condition (where no further improvement is expected), the department closes the claim. Franks v. Dep't of Labor & Indus., 35 Wn.2d 763, 766-67, 215 P.2d 416 (1950).

Upon closing the claim, the department determines if the worker has a permanent disability from their workplace injury, and whether such injury is total or partial. See, e.g., RCW 51.32.060(1), (3), & (6); and see RCW 51.32.080. The department requires medical evidence to show the industrial injury proximately caused the disability. Loushin v. ITT Rayonier, 84 Wn.App. 113, 122-23, 924 P.2d 953 (1996).

The department approves a permanent partial disability award when the worker is capable of employment after the injury but loses a permanent bodily function, RCW 51.08.150; RCW 51.32.080. The department awards total permanent disability benefits when the worker's industrial injury proximately renders them permanently incapable of employment. RCW 51.08.160; RCW 51.32.060.

Following these determinations, "[t]he director may readjust a beneficiary's disability benefits under two circumstances (1) by the beneficiary's application if submitted within seven years of their claim closing or (2) at any time upon the director's own motion." Higgins, 21 Wn.App.2d at 274-75. As to the latter, i.e., "over-seven" claims, the director's decision whether to reopen such a claim at all, and whether to consider benefit eligibility in aggravation cases is discretionary. Stach, 152 Wn.App. at 512. Further, a director may reopen an over-seven claim sua sponte "at any time." Id. at 509.

Moreover, we have held that the director has significant discretion regarding the information it considers when considering whether to open an over-seven claim, stating that "[t]he statute makes no distinction, for purposes of the director's discretion, between aggravation and diminution or termination of injury. Nor does the statute specify or limit the sources of the director's information." Id. at 510-511. In other words, the director has broad authority to reopen a claim for various reasons because "[i]t is unlikely the legislature expected the director to learn of aggravated injuries by way of personal investigation or serendipitous encounters." Id. at 511.

B. Standard of Review

The director's decision whether to reopen a claim is reviewed for an abuse of discretion. Higgins, 21 Wn.App. 2d at 270. When evaluating whether the director abused its discretion, "[t]he key is not the source of the director's information [informing their decision to reopen an over-seven claim]." Stach, 152 Wn.App. at 510. "Rather, the key is the director's discretion," to reopen or decline to reopen an over-seven claim. Id.

An agency abuses its discretion if its decision is arbitrary and capricious. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A decision is arbitrary and capricious where it is "willful and unreasoning and taken without regard to the attending facts or circumstances." Whidbey Envt'l Action Network v. Growth Mgmt. Hr'gs Bd., 14 Wn.App. 2d 514, 526, 471 P.3d 960 (2020) (quoting PacifiCorp v. Wash. Utils. & Transp. Comm'n, 194 Wn.App. 571, 587, 376 P.3d 389 (2016)). "[W]here there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous." ITT Rayonier, Inc. v. Dalman, 122 Wn.2d 801, 809, 863 P.2d 64 (1993) (quoting Kendall v. Douglas, Grant, Lincoln, & Okanogan Cys. Pub. Hosp. Dist. 6, 118 Wn.2d 1, 14, 820 P.2d 497 (1991)).

"Once the director reopens a claim on grounds of aggravation, he or she may grant additional benefits only 'in accordance with the rules in this section provided for the same.'" Stach, 152 Wn.App. at 512 (quoting RCW 51.32.160). And this court has held "that the director's grant or denial of specific benefits is to be reviewed under the preponderance standard." Id. (emphasis added).

In such findings and decisions, the "Board's decision is prima facie correct under RCW 51.52.115." Ruse v Dep't...