Stone v. State

• Decision Date: 10 December 2012
• Docket Number: No. 67209–6–I.,67209–6–I.
• Citation: 289 P.3d 720
• Court: Washington Court of Appeals
• Parties: Steven J. STONE, Appellant, v. STATE of Washington, DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

289 P.3d 720

Steven J. STONE, Appellant,

v.STATE of Washington, DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 67209–6–I.

Court of Appeals of Washington, Division 1.

Dec. 10, 2012.

Robert Aaron Silber, Foster Law Office, Seattle, WA, for Appellants.

Steve Vinyard, Attorney at Law, Olympia, WA, for Respondents.

COX, J.

[1] ¶ 1 Under chapter 51.32 RCW, a worker's compensation claimant is precluded from receiving both a pension and a permanent partial disability award if the pension is based on the combined effects of two or more related injuries.^FN1 Here, Steven Stone received a pension based on the combined effects of two separate industrial injuries. There is no evidence in the record that his two injuries are severable for purposes of the pension. The superior court correctly determined that he is not entitled to a permanent partial disability award for his first industrial injury. We affirm.

¶ 2 Stone filed a worker's compensation claim with the Department of Labor and Industries (DLI) after he suffered an injury to his right knee in 1997. DLI allowed the claim and paid benefits. It closed the claim in 2000. Later, DLI reopened the claim, and Stone had two surgeries on his knee.

¶ 3 In 2001, Stone filed another worker's compensation claim with DLI after he suffered an injury to his lower back. DLI allowed the claim, and Stone received treatment for his lower back and mental health conditions. In 2008, Stone requested a permanent partial disability award for at least 45 percent impairment to his knee. DLI never made such an award.

¶ 4 In April 2009, DLI issued two orders finding Stone to be permanently and totally disabled as a result of the combined effects of both the knee injury and the back injury in addition to his mental health conditions. Due to a typographical error, DLI then issued corrected orders for both claims in June 2009. DLI placed Stone on a pension, effective May 2009.

¶ 5 Stone appealed these orders. An industrial appeals judge issued a proposed decision and order after hearing testimony from Stone, two doctors, and a pension adjudicator. In July 2010, the Board of Industrial Insurance Appeals (BIIA) issued its decision and order, affirming both DLI orders. On appeal, the superior court affirmed the Board's decision and order, adopting the Board's factual findings as its own.^FN2

¶ 6 Stone appeals.

PERMANENT PARTIAL DISABILITY AWARD

¶ 7 Stone argues that DLI should have awarded him permanent partial disability benefits for his knee injury regardless of whether this prior injury was considered as one of the combined effects underlying the permanent total disability pension. We disagree.

¶ 8 Judicial review in this court is governed by RCW 51.52.140, which provides that an “[a]ppeal shall lie from the judgment of the superior court as in other civil cases.” ^FN3 This statutory scheme results in a different role for this court than is typical for appeals from administrative decisions. ^FN4 Rather than sitting in the same position as the superior court, this court, under the Industrial Insurance Act (IIA), reviews only “whether substantial evidence supports the trial court's factual findings and then review[s], de novo, whether the trial court's conclusions of law flow from the findings.” ^FN5

¶ 9 In carrying out this review, we take the record in the light most favorable to the party who prevailed in superior court and do not reweigh or rebalance the competing testimony and inferences, or apply anew the burden of persuasion.^FN6 Substantial evidence is evidence “sufficient to persuade a fair-minded, rational person of the truth of the matter” asserted.^FN7

¶ 10 A failure to assign error to the trial court's findings of fact makes them verities on appeal.^FN8 Questions of law, including the construction of a statute such as the IIA, are reviewed de novo.^FN9

¶ 11 Here, Stone does not assign error to any of the superior court's factual findings. Thus, they are verities on appeal.

¶ 12 The superior court adopted the BIIA's 10 factual findings as its own. ^FN10 The findings that are relevant to our discussion are these:

1. Claim No. P–559303 [knee injury]: ... On May 22, 2009, the claimant filed an appeal with the Board of Industrial Insurance Appeals of the April 1, 2009 order. On June 2, 2009, the Department corrected and superseded the April 1, 2009 order, terminated time-loss compensation benefits as paid through August 20, 2007, found the claimant totally and permanently disabled as a result of the conditions covered under Claim Nos. X–097249 and P–559303, and placed the claimant on a pension effective May 16, 2009, with the pension to be administered under Claim No. X–097249, and with no medical treatment covered after the effective date of the pension.

2. Claim No. X–097249 [back injury and mental health conditions]: ... On May 22, 2009, the claimant filed an appeal of the April 1, 2009 order with the Board of Industrial Insurance Appeals and on June 2, 2009, the Department corrected and superseded the April 1, 2009 order, terminated time-loss compensation benefits as paid through May 15, 2009, found the claimant totally and permanently disabled as a result of the conditions covered under Claim Nos. X–097249 and P–559303, and placed the claimant on a pension effective May 16, 2009, with the pension to be administered under Claim No. X–097249.

....

9. As of May 16, 2009, Mr. Stone was permanently unable to engage in reasonably continuous gainful employment as a proximate result of the March 31, 1997 and April 6, 2001 industrial injuries.

10. There was no proof that Mr. Stone was permanently unable to engage in reasonably continuous gainful employment as a proximate result of the April 6, 2001 industrial injury alone, without taking into consideration the effects of the March 1, 1997 industrial injury.^FN11[]

¶ 13 These unchallenged findings show that Stone received a pension based on the combined effects of two separate industrial industries. This fact is crucial to a proper application of the relevant statutes.

¶ 14 Under the IIA, an injured worker may receive two types of benefits for permanent disabilities: (1) permanent partial disability, and (2) permanent total disability. A “permanent partial disability” (PPD) includes loss of some bodily function and “any other injury known in surgery to be permanent partial disability.” ^FN12 PPD benefits are often referred to as a “lump-sum” award because it is a one-time award of a statutorily defined value.^FN13

¶ 15 A “[p]ermanent total disability” (PTD) means “loss of both legs, or arms, or one leg and one arm, total loss of eyesight, paralysis or other condition permanently incapacitating the worker from performing any work at any gainful occupation.” ^FN14 PTD benefits are often referred to as “pension” benefits because they constitute a monthly wage-replacement. ^FN15

[2] [3] ¶ 16 These two types of benefits are “separate concepts.” ^FN16 Whether DLI awards a PTD pension depends on whether the worker is able to return to “gainful employment.” ^FN17 While a PPD award is given “on the basis of loss of bodily function.” ^FN18 Two workers who have the same “loss of bodily function” are entitled to the same PPD award but may be entitled to different PTD pensions depending on the type of work. ^FN19

¶ 17 Stone primarily argues that he is entitled to a PPD award for his first industrial injury, notwithstanding his pension award for his second injury. In doing so, he relies primarily on RCW 51.32.060(4). That statute provides:

Should any further accident result in the permanent total disability of an injured worker, he or she shall receive the pension to which he or she would be entitled, notwithstanding the payment of a lump sum for his or her prior injury.^FN20[]

In this case of first impression, Stone's reliance on this statute, without considering another other relevant authority, is misplaced.

¶ 18 In McIndoe v. Department of Labor & Industries, the supreme court interpreted the meaning of “prior injury” within this statutory framework of the IIA.^FN21 The court held that a worker who received a PTD pension could also receive a PPD award for a “prior injury” that “preexisted” and was “ unrelated to the worker's permanent total disability condition....” ^FN22 Thus, both a “prior injury” and one that is “unrelated” to the permanent disability are required.

¶ 19 It is not clear from the court's holding in McIndoe, whether a worker can receive a PPD award for a “prior injury” that is related to the award of PTD pension. We could find no published case that addresses this issue of first impression.

¶ 20 Turning to the BIIA's decision and order, we note that it relied on former RCW 51.32.080(4) (2007) for its legal conclusion that Stone was not entitled to a PPD award in addition to the pension he received for his PTD. Its reasoning appears to be based on the rationale that permitting this would allow a double recovery for the same injury. That is because his PTD pension was based, in part, on his preexisting knee injury.

¶ 21 We agree that RCW 51.32.060(4) must be considered with former RCW 51.32.080(4) (2007).^FN23 As we previously explained, RCW 51.32.060 addresses PTD pensions and RCW 51.32.080 addresses PPD awards. For PPD awards, former RCW 51.32.080(4) (2007) provided:

If permanent partial disability compensation is followed by permanent total disability compensation, any portion of the permanent partial disability compensation which exceeds the amount that would have been paid the injured worker if permanent total disability compensation had been paid in the first instance shall be, at the choosing of the injured worker, either: (a) Deducted from the worker's monthly pension benefits in an amount not to exceed twenty-five percent of the monthly amount due from the department or self-insurer or one-sixth of the total overpayment, whichever is less; or (b) deducted from the pension reserve of such injured worker and his or her monthly compensation payments shall be reduced accordingly.^FN24...