Nelson v. Wash. State Dep't of Labor

• Decision Date: 09 August 2013
• Docket Number: No. 42456–8–II.,42456–8–II.
• Citation: 175 Wash.App. 718,308 P.3d 686
• Court: Washington Court of Appeals
• Parties: Lois J. NELSON, deceased, Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

175 Wash.App. 718

308 P.3d 686

Lois J. NELSON, deceased, Appellant,

v.WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 42456–8–II.

Court of Appeals of Washington, Division 2.

June 25, 2013.

Publication Ordered Aug. 9, 2013.

Jennifer Margareta Cross–Euteneier, Vail Cross–Euteneier & Associates, Tacoma, WA, Sidney Charlotte Tribe, Talmadge/Fitzpatrick, Tukwila, WA, for Appellants.

Kay Allison Germiat, Office of the Attorney General, Tacoma, WA, for Respondent.

PANEL: VAN DEREN, J.T.P., WORSWICK, C.J. and PENOYAR, J.

PENOYAR, J.

[175 Wash.App. 720]¶ 1 Lois Nelson was injured on the job in 2003. Between the time of her injury and her unrelated death in 2006, she received medical and vocational services and some time-loss benefits for temporary total disability.After she died, the Washington State Department of Labor and Industries (Department) closed her claim in an order that categorized her as permanently totally disabled. This prevented any award to Nelson's estate (Estate) for her disability.

¶ 2 The Estate argues that Nelson should have been categorized as permanently partially disabled, entitling the Estate to an award. Having been unsuccessful in appeals before the Department, the Board of Industrial Insurance Appeals (Board), and the superior court, the Estate now appeals to this court. The Estate argues that the superior court erred by concluding that (1) Nelson was permanently totally disabled at the time of her death, (2) Nelson was not entitled to any benefits for permanent partial disability, and (3) Nelson was not owed any unpaid benefits for temporary total disability.

¶ 3 The superior court's unchallenged findings support its conclusion that Nelson was permanently totally disabled at the time of her death. Furthermore, Nelson cannot receive a permanent partial disability award for the 2003 injury when the finding of permanent total disability was based in part on this injury. Finally, the Estate has failed to identify which temporary total disability benefits were unpaid and owed to Nelson. As a result, we affirm.

FACTS

I. Factual Background

¶ 4 On June 29, 2003, while on duty as a personal support counselor, Lois Nelson sat down in a patio chair that then collapsed. She fell onto a cement floor, jarring her back and striking her right ear. Her pain from the fall increased, and she took two weeks off work. When she returned to work on July 11, her pain intensified, and so she remained off work.

¶ 5 Nelson returned to work in August, but only briefly before turning to the Department for assistance.¹ On August 19, Nelson filed a claim with the Department for benefits available under the Industrial Insurance Act ² (IIA). On August 27, the Department allowed the claim, paying Nelson time-loss benefits ³ starting August 22.⁴

[175 Wash.App. 722]¶ 6 Nelson visited Community Health Care in July and Fife MultiCare Healthworks in August for treatment. These were the first in a long line of treatments Nelson received over the next few years as a result of her fall from the patio chair. This fall contributed to numerous health problems for Nelson, which compounded the effects of preexisting conditions she had. After her fall, Nelson was diagnosed with several back problems and mental disorders, including degenerative disc diseaseand depressive disorder. Her treatment for these various conditions ranged from prescription medication like morphine and Effexor to physical therapy to placement in an extended-care facility for about a month. In addition to medical care, Nelson also received vocational services during this time, including ability-to-work assessments in March 2005 and July 2006.

¶ 7 On August 3, 2006, only a little over a week after moving to Las Vegas to be closer to family, Nelson—then 57 years old—died of a drug overdose, which included morphine, methadone, and cocaine. At the time of her death, Nelson was still receiving time-loss benefits. After Nelson's death, the Department issued an order dated July 3, 2007, finding Nelson permanently totally disabled as of the day she died as a result of the injuries she sustained from her fall in 2003. Finding no qualified beneficiaries under the IIA, the Department closed Nelson's claim without making any award for her permanent total disability.

II. Procedural Background

¶ 8 In August 2007, the Estate requested that the Department reconsider its order finding Nelson permanently totally disabled at the time of her death. But the Department affirmed the order days later.

¶ 9 The Estate appealed the Department's order to the Board in October 2007, claiming that Nelson was entitled to an award for permanent partial disability for her low back and mental health conditions. The Board granted the appeal. After a hearing, an industrial appeals judge issued a proposed decision and order in October 2008, affirming the Department's order. The Estate petitioned the Board for review. The Board granted the petition. The Board issued its final decision and order in January 2009, likewise affirming the Department's order.

¶ 10 The Estate appealed the Board's final order to Pierce County Superior Court in February 2009. After a bench trial, the court affirmed the Board's final order in July 2011. The Estate timely appeals.

ANALYSIS

I. The Trial Court's Conclusion That Nelson Was Permanently Totally Disabled Flows From Its Unchallenged Findings

¶ 11 Normally, our review in a workers' compensation case is limited to examining the record to see whether substantial evidence supports the findings of fact the superior court made after its de novo review of the case, and whether the superior court's conclusions of law flow from these findings. Ruse v. Dep't of Labor & Indus., 138 Wash.2d 1, 5, 977 P.2d 570 (1999) (quoting Young v. Dep't of Labor & Indus., 81 Wash.App. 123, 128, 913 P.2d 402 (1996)). But the Estate has not assigned any error to the trial court's findings of fact, making them verities on appeal. Stone v. Dep't of Labor & Indus., 172 Wash.App. 256, 260, 289 P.3d 720 (2012). Thus, our review here is limited to a de novo review of whether the superior court's conclusions flow from its findings. Rogers v. Dep't of Labor & Indus., 151 Wash.App. 174, 180, 210 P.3d 355 (2009).

¶ 12 The Estate and the Department dispute whether substantial evidence supports the superior court's conclusion that Nelson was permanently totally disabled at the time of her death. We decline the parties' invitation to reconsider the evidence because the superior court's conclusion that Nelson was permanently totally disabled flows directly and necessarily from unchallenged finding of fact 1.8, which states that, at the time of her death, “Nelson was permanently precluded from obtaining or performing reasonably continuous gainful employment in the competitive labor market, as a proximate result [of] the June 29, 2003 industrial injury, when considered in conjunction with her ... preexisting disabling medical conditions.” ⁵ Clerk's Papers (CP) at 131. Therefore, we affirm the trial court's conclusion that Nelson was permanently totally disabled.

II. The Department's Finding That Nelson Was Permanently Partially Disabled Does Not Result In An Award

¶ 13 Both sides agree that the Estate is not directly entitled to any benefits that flow from the conclusion that Nelson was permanently totally disabled. But the Estate argues that other circumstances in this case support an award: (1) The Department also found Nelson to be permanently partially disabled, (2) no double recovery would occur if the Department were to pay the Estate for Nelson's permanent partial disability, and (3) the timing of the Department's findings denied Nelson—and consequently her Estate—benefits, contrary to the IIA's purpose. Even assuming the finding of permanent partial disability applied to Nelson as a worker under the IIA, the Estate's claims fail because a worker who is permanently totally disabled has no right to receive a permanent partial disability award for an injury factored into the finding of that worker's permanent total disability. See Stone, 172 Wash.App. at 258, 289 P.3d 720. Furthermore, the timing of the Department's decisions here did not affect Nelson's or the Estate's eligibility for benefits.

A. A Finding of Permanent Total Disability Based in Part on a Particular Injury Precludes an Award for a Permanent Partial Disability Based on That Same Injury

¶ 14 The superior court adopted as its own the Board's finding of fact 1, which acknowledged that after Nelson's death the Department also found Nelson permanently partially disabled ⁶ as a result of her 2003 industrial injury.⁷ The Department, however, emphasizes that it issued this finding only for calculating Nelson's employer's insurance costs. ⁸ The Department did not send the order detailing this finding to Nelson or her Estate; thus, the finding was not final with respect to Nelson or her Estate.⁹ Even assuming, however, that this finding of permanent partial disability applied to Nelson under the IIA for purposes of compensation, the finding that Nelson was permanently totally disabled as a result of her 2003 industrial injury forecloses any award for the permanent partial disability.

¶ 15 Division One recently considered whether a worker may receive an award for a permanent partial disability where the injury giving rise to such a disability is factored into the finding that the worker is permanently totally disabled. In Stone v. Department of Labor and Industries, the Department found the worker permanently totally disabled because of the combined effects of a knee injury, a separate back injury, and mental health conditions. 172 Wash.App. at 259, 289 P.3d 720. The worker argued that he should have received a permanent partial disability award for the knee injury despite this injury being a contributor to the permanent total disability finding. Stone, 172 Wash.App. at 259–60, 289 P.3d 720. The court disagreed, holding...