In re Sperling, (2011)

• Decision Date: 21 November 2011
• Docket Number: SAM-APP-2010-01
• Parties: IN RE THOMAS SPERLING
• Court: Samish Court of Appeals

IN RE THOMAS SPERLING

No. SAM-APP-2010-01

Samish Court of Appeals Samish Indian Nation Anacortes, Washington

November 21, 2011

OPINION OF THE COURT

The Samish Tribal Court of Appeals, having reviewed the record provided to the court, the briefs and argument of the parties on October 21, 2011, hereby rules as follows:

BACKGROUND

The claimant, Thomas Sperling, sustained an industrial injury on May 16, 2004 while working for the Tribe.He filed a workers' compensation claim with Tribal First on December 1, 2004.The Tribe has a contractual relationship with the Hudson Insurance Corporation to insure workers' compensation claims filed by tis employees.Tribal First is the claims administrator for these claims.

On May 15, 2006, Sperling's claim was allowed for a chest contusion, a right shoulder contusion and clavicular fracture.A second order was issued by Tribal First on November 2, 2006 amending the allowance to include an abdominal hematoma with complications.^[1] On January 10, 2008 Tribal First issued an order closing the claim without permanent impairment and denying further time loss.Mr Sperling challenged the order closing the claim; however on July 15, 2008 Tribal First affirmed the closure.Mr. Sperling made a second appeal to Tribal First, but the decision was affirmed on January 7, 2009 and again on August 24, 2009.On August 28, 2009, Mr. Sperling filed a Notice of Appeal with the Samish Tribal Court.

PROCEDURAL HISTOY IN THE TRIAL COURT

The trial court heard Mr. Sperling's appeal on August 11 2010.The trial court heard live testimony, reviewed the medical records and deposition testimony.The trial court issued a "Proposed Decision and Order"(hereinafter, the "Order") on November 4, 2010.In its findings, the trial court noted that "The only issue on appeal is whether the Tribe erred in closing the claim".The trial court concluded that Mr. Sperling is permanently partially disabled due to the recurring incisional hernias and held that Tribal First erred in closing the claim before his disability was rated and compensated pursuant R.C.W.51.32.080.

The trial court also found Tribal First erred by closing the claim before Mr. Sperling could be vocationally assessed and retrained into a new occupation.The court ordered the Tribe to continue paying Mr. Sperling time-loss until he is retrained in a new occupation that does not require lifting over 5 pounds and his disability is rated and compensated.

The Tribe appealed on November 29, 2010.On December 10, 2010the trial court changed the "Proposed Decision and Order" to a Final Order.The Tribe filed a Supplemental Notice of Appeal January 4, 2011 asking that the Final Order be reversed in part.

QUESTION PRESENTED

Did the trial court err when it directed the Tribe to conduct a vocational assessment and pay time-loss until such time as the claimant can be retrained into a new occupation?

This Court has determined that the trial court erred in part and modifies the order of the trial court.

DISCUSSION

The issue before this Court is one of first impression.The subject matter, workers' compensation claims, is a complex field of law that is commonly litigated state courts.However, the Samish Tribe is only just entering this field of law through litigation in the Samish Tribal Court.Currently there is no established tribal case law or statutory guidance in the Samish Tribe's code of laws.As a result fundamental questions usually answered by statutes must be determined by this Court, such as the scope of review of this appeal.To determine the proper scope of review this Court has considered whether the Samish Tribal Court proceeding is similar to an appeal from the Department of Labor and Industries to the Board of Industrial Insurance Appeals, or an Appeal from the Board to the Washington State Superior Court.^[2]This Court finds it appropriate to consider analogous and well established rules and procedures developed in state industrial insurance law.

Another complicating factor in deciding this appeal was the lack of a complete record of the proceedings below.The Samish Tribal Court is new and developing and does not have proper court recording equipment, which resulted in the recording of the trial court proceedings to be incomplete and inaudible.Although this is an appeal of the orders of Tribal First, not all of the orders were made part of the trial court record for review by this Court.Documents filed with the court were not date stamped which made it difficult to determine issues of timeliness.^[3] These procedural issues have not prevented this Court from rendering a decision, but they should serve as an advisory note for administration of the Court and development of codes and procedures.The Samish Tribal Court and the Samish Indian Nation are encouraged to continue to develop the Court's capacity to serve the community with the highest possible professionalism.At the beginning of these proceedings, the parties stipulated to use of the Washington State laws for industrial insurance claims, RCW 51.52, and the Washington Rules of Civil Procedure.Orderat 3-4.Although no expressly stated, it appears that the trial court treated the proceedings as if it were deciding an appeal from the Department of Labor and Industries to the Board of Industrial Insurance appeals, in which case, the matter before this court would be in the nature of an Appeal from the Board to a Washington State Superior Court.Determining the authority being exercised by the various reviewing bodies is required to define the scope of review and the deference, if any, that should be shown to findings of fact.

It is clear in the State industrial insurance structure that the law favors decisions on claims to be made at the administrative level.Reviewing bodies are limited to the issues that may be reviewed, and the relief that may be granted.It is well established that the Board's scope of review is limited to those issues which the Department has already decided.Hanquet v. Dept. of Labor & Industries,75 Wash.App. 657,661 (Div. 1, 1994;citingLenk v. Dept. of Labor & Industries,3 Wash.App. 977(1970).While the Board's review of the claims and issues is de novo, the Board's review of the claims and issues is de novo; the Board is restrained from enlarging the scope of the proceedings before it.Id. 662.Likewise, while a superior court reviewing a decision of the Board may engage in de novo review, the Supreme Court has consistently held that the superior court may not consider a question that was not properly before the Board.Id. at 663.If there is no Department decision regarding a specific issue of fact, the Board and the reviewing court may not consider these matters, even if argument and evidence regarding the issues are presented.See, Mestravac v. Dept. of Labor & Industries, Wash.App. 693, 705(Div 1, 2008).

Regardless of whether we consider the Samish Tribal Court to be analogous to the reviewing body of the Board of Industrial Insurance Appeals, or the superior court reviewing Board decisions, the Samish Tribal Court exceeded its authority by broadening the scope of its review beyond decisions made by Tribal First.It appears that the parties and the trial court adhered to this position at least in part on the issue of the syrinx injury.In his brief before the trial court, Mr. Sperling stated "the allowance of the syrinx was never denied so there was never an order relating to the syrinx from which to appeal".Brief of ClaimantSeptember 22, 2010.The trial court found Mr. Sperling's syrinx "may or may not have been caused by the industrial accident.This issue is not before this Court since the Tribe has taken no official action on the issue".Finding #7, Orderat 7.This finding is not challenged and the parties appear to accept this argument and conclusion.The trial court did not, however, limit its scope of review in all such matters.

On January 7, 2009, reaffirmed August 24, 2009^[4], Tribal First issued its final decision affirming the Orders of July 15 2008 and January 1, 2008, finding Mr. Sperling's condition was fixed and stable, that he was not entitled to a permanent partial disability award, and closing the claim.Mr. Sperling appealed to the Samish Tribal Court, citing three issues for appeal: 1) the claim should be allowed for injury to the neck and right shoulder, 2) he is in need of further treatment related to the abdominal injury and the consequences of subsequent surgery and, 3) he remains totally disabled and is entitled to time-loss compensation from when time-loss compensation was ended.Claimant's Notice of Appeal, August 28, 2009.^[5] In his trial court brief, Mr. Sterling contented that his claim was erroneously closed because his condition was not fixed and stable, requiring further treatment...