Sims v. Dep't of Labor & Indus. of State

• Citation: 195 Wash.App. 273,381 P.3d 89
• Decision Date: 26 July 2016
• Docket Number: No. 47604–5–II,47604–5–II
• Court: Court of Appeals of Washington
• Parties: Michael L. Sims, Appellant, v. Department of Labor and Industries of the State of Washington, Respondent.

195 Wash.App. 273

381 P.3d 89

Michael L. Sims, Appellant,

v.Department of Labor and Industries of the State of Washington, Respondent.

No. 47604–5–II

Court of Appeals of Washington, Division 2.

July 26, 2016

Richard Isaiah Skeen, AMS Law, P.C., 975 Carpenter Rd. NE, Ste. 201, Lacey, WA, 98516–5560, for Appellant.

Steve Vinyard, Attorney General's Office, P.O. Box 40121, Olympia, WA, 98504–0121, for Respondent.

Maxa

, J.

¶ 1 Michael Sims appeals a superior court order affirming a Board of Industrial Insurance Appeals (Board) ruling denying permanent partial disability benefits. The Board ruled that Sims was unable to receive a permanent partial disability award for his March 2012 industrial injury because that injury occurred after the September 2010 effective date of a permanent total disability determination relating to a 2003 injury. Sims argues that the Board and the superior court erred because the Department of Labor & Industries (DLI) did not enter its decision regarding his permanent total disability until after his March 2012 injury.

¶ 2 A worker who has a permanent partial disability (PPD) because of an industrial injury receives a one-time award of benefits based on his or her loss of function. RCW 51.32.080

. A worker who has a permanent total disability (PTD) receives a certain percentage of his or her wages as a monthly pension. RCW 51.32.060. Under settled Washington law, an injured worker who has been classified as being permanently and totally disabled and subsequently is injured again cannot receive a PPD award for the second injury. E.g. , Harrington v. Dep't of Labor & Indus. , 9 Wash.2d 1, 7–8, 113 P.2d 518 (1941). However, a worker who suffers one injury and later is classified as being permanently and totally disabled because of another injury can receive a PPD award for the first injury. McIndoe v. Dep't of Labor & Indus. , 144 Wash.2d 252, 266, 26 P.3d 903 (2001).

¶ 3 Sims argues that under McIndoe

he is entitled to a PPD award for the March 2012 injury because that injury occurred before DLI entered the decision that he was permanently and totally disabled. DLI argues that Sims is not entitled to a PPD award for the March 2012 injury because that injury occurred after the September 24, 2010 effective date of his permanent and total disability.

¶ 4 We agree with DLI. We hold that Sims is not entitled to a PPD award for the March 2012 injury because that injury occurred after the effective date of his PTD, as determined by the Board and DLI. Accordingly, we affirm the superior court's order.

FACTS

¶ 5 In 2003, Sims injured his left arm at work. He filed a workers' compensation claim, which DLI

allowed. DLI provided Sims with time-loss benefits until October 2009.

¶ 6 In April 2010, DLI closed Sims's claim and determined that Sims was permanently and partially disabled because of the 2003 injury. After Sims protested, DLI affirmed its disability determination in a decision dated September 24, 2010. Sims appealed to the Board, claiming that he was permanently and totally disabled rather than partially disabled because of the 2003 injury.

¶ 7 While this appeal was pending before the Board, Sims was injured at work in March 2012. Sims filed another workers' compensation claim. DLI allowed the claim and determined that Sims was entitled to receive medical treatment and other benefits under this claim.

¶ 8 In August 2012, the Board reversed DLI's decision on Sims's appeal for the 2003 injury. The Board found that Sims was “unable to perform or obtain gainful employment on a reasonably continuous basis ... as of September 24, 2010.” Clerk's Papers (CP) at 76. The Board concluded that Sims “was a permanently totally disabled worker within the meaning of RCW 51.08.160

, as of September 24, 2010.” CP at 76. Finally, the Board remanded the matter to DLI to determine that Sims was totally and permanently disabled.

¶ 9 In September 2012, DLI issued a notice of decision correcting and superseding its September 24, 2010 order. The decision stated, “This worker is totally and permanently disabled and is placed on pension effective 9/24/2010.” CP at 80.

¶ 10 In February 2013, DLI closed Sims's claim for the March 2012 injury without a PPD award. Sims protested the decision. DLI affirmed its decision and issued a letter stating that Sims was not entitled to a PPD award for the March 2012 injury because he was pensioned in 2010.

¶ 11 Sims appealed to the Board. Sims filed a motion for summary judgment and DLI filed a cross motion for summary judgment. An industrial appeals judge (IAJ) issued a proposed decision and order granting summary judgment to DLI. The proposed decision and order ruled that Sims was not entitled to consideration of a PPD award for his March 2012 injury because he was permanently and totally disabled as of September 2010.

¶ 12 Sims filed a petition for review of the proposed decision and order with the Board. The Board considered and denied the petition, adopting the IAJ's proposed decision and order as the Board's decision and order.

¶ 13 Sims appealed the Board's order to the superior court. The superior court affirmed the Board's order adopting the IAJ's proposed decision and order.

¶ 14 Sims appeals.

ANALYSIS

A. STANDARD OF REVIEW

¶ 15 Under the Industrial Insurance Act (IIA), the superior court's review of a Board order is de novo and based solely on the evidence and testimony presented to the Board. Butson v. Dep't of Labor & Indus. , 189 Wash.App. 288, 295, 354 P.3d 924 (2015)

; RCW 51.52.115. In the superior court, the Board's decision is prima facie correct and the party challenging the Board's decision must support its challenge by a preponderance of the evidence. Butson , 189 Wash.App. at 296, 354 P.3d 924 ; RCW 51.52.115.

¶ 16 In an industrial insurance case, we review the superior court's decision, not the Board's decision. Butson , 189 Wash.App. at 296, 354 P.3d 924

; RCW 51.52.140. DLI is charged with administering the IIA, so we afford substantial weight to its interpretation of the act when the subject area falls within the agency's area of expertise. Birrueta v. Dep't of Labor & Indus. , 188 Wash.App. 831, 844, 355 P.3d 320 (2015), review granted , 184 Wash.2d 1033 (2016). However, we are not bound by DLI's interpretation. Id.

¶ 17 The superior court held that the Board correctly granted summary judgment to DLI. We review summary judgment orders de novo. Rickman v. Premera Blue Cross , 184 Wash.2d 300, 311, 358 P.3d 1153 (2015)

. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Lakey v. Puget Sound Energy, Inc. , 176 Wash.2d 909, 922, 296 P.3d 860 (2013) ; CR 56(c).

B. PERMANENT DISABILITY UNDER THE IIA

¶ 18 The right to workers' compensation benefits is statutory, and we look to the provisions of the IIA to determine whether a particular worker is entitled to compensation. Clauson v. Dep't of Labor & Indus. , 130 Wash.2d 580, 584, 925 P.2d 624 (1996)

. When construing the IIA, we must liberally construe the act “for the purpose of reducing to a minimum the suffering and economic loss arising from injuries ... occurring in the course of employment.” RCW 51.12.010 ; see also

Harry v. Buse Timber & Sales, Inc. , 166 Wash.2d 1, 8, 201 P.3d 1011 (2009). Therefore, doubts as to the meaning of the IIA are resolved in favor of the injured worker. McIndoe , 144 Wash.2d at 257, 26 P.3d 903.

¶ 19 The IIA provides two types of classifications for a permanent disability: permanent partial disability and permanent total disability. Permanent partial disability involves a permanent injury or disease that does not prevent the worker from working. See id.

Once DLI determines that the worker is permanently partially disabled, he or she is entitled to receive a specific amount as compensation, calculated under guidelines stated in RCW 51.32.080 and related administrative regulations. Id. PPD benefits are often referred to as “lump-sum” benefits because the benefit is a one-time award. Stone v. Dep't of Labor & Indus. , 172 Wash.App. 256, 262, 289 P.3d 720 (2012).

¶ 20 Permanent total disability involves certain specific injuries and an injury or disease that “permanently incapacita[tes] the worker from performing any work at any gainful occupation.” RCW 51.08.160

; see also

McIndoe , 144 Wash.2d at 257, 26 P.3d 903. Once DLI determines that the worker is permanently and totally disabled, the worker is entitled to receive a monthly payment in an amount based on a percentage of his or her wages. RCW 51.32.060 ; Boeing Co. v. Doss , 183 Wash.2d 54, 58, 347 P.3d 1083 (2015). PTD benefits are often referred to as “pension” benefits because the benefit represents a monthly wage replacement. Stone , 172 Wash.App. at 262, 289 P.3d 720.

¶ 21 A worker who receives a PPD award before being classified as permanently and totally disabled based on an unrelated injury is entitled to a full pension for the subsequent PTD, “notwithstanding the payment of a lump sum for his or her prior injury.” RCW 51.32.060(4)

; see also

McIndoe , 144 Wash.2d at 257–58, 26 P.3d 903. However, if the worker receives a PPD award for an injury and then is classified as permanently and totally disabled for the same injury, the amount of the PPD award is deducted from the PTD benefits. RCW 51.32.080(4).

C. RECOVERY OF BOTH PPD AND PTD BENEFITS

¶ 22 In Harrington

, the Supreme Court held that a worker who has been classified as permanently and totally disabled for an industrial injury and has been awarded a PTD pension cannot recover disability benefits for a second injury that occurred after being classified as permanently and totally disabled. 9 Wash.2d at 7–8, 113 P.2d 518. The court stated, “[h]aving been classified as permanently and totally disabled, [the worker] could not, in law, be further disabled.” Id. at 7, 113 P.2d 518. The court further stated,

[The worker] has already received all the benefits that may be allowed for permanent and total

...