Value Village v. Vasquez-Ramirez

• Decision Date: 30 December 2019
• Docket Number: NO. 78629-6-I,C/w No. 78785-3-I,78629-6-I
• Citation: 11 Wash.App.2d 590,455 P.3d 216
• Court: Washington Court of Appeals
• Parties: VALUE VILLAGE, Appellant, v. Candida VASQUEZ-RAMIREZ and the Department of Labor & Industries of the State of Washington, Respondent.

11 Wash.App.2d 590

455 P.3d 216

VALUE VILLAGE, Appellant,

v.Candida VASQUEZ-RAMIREZ and the Department of Labor & Industries of the State of Washington, Respondent.

NO. 78629-6-I

C/w No. 78785-3-I

Court of Appeals of Washington, Division 1.

FILED: December 30, 2019

Thomas Gerard Hall, Attorney at Law, Ryan Steven Miller, William Jeffrey Pratt, Hall & Miller, P.S., P.o. Box 33990, Seattle, WA, 98133-0990, for Appellant(s).

Thomas F. Feller, Lawrence Joel Sr. Van Daley, The Law Office of Thomas F. Feller PLLC, 1308 Alexander Ave. E., Fife, WA, 98424, Steve Vinyard, Attorney General's Office, P.o. Box 40121, Olympia, WA, 98504-0121, for Respondent(s).

PUBLISHED OPINION

Leach, J. ¶1 A party appealing a Department of Labor & Industries (Department) decision to the Board of Industrial Insurance Appeals (Board) has the burden of producing sufficient evidence to establish a prima facie case for the relief it requests.¹ And a party waives any argument not raised in its petition for review to the Board. Value Village appealed four Department orders awarding Candida Vasquez-Ramirez time-loss payments and interest. To prevail, Value Village had to present medical evidence that Vasquez-Ramirez could work during the times for which she received time-loss benefits. It did not present any medical evidence, and it did not claim in its petition that Vasquez-Ramirez had voluntarily retired. So we affirm the Board’s dismissal of Value Village’s appeal.

FACTS

¶2 Candida Vasquez-Ramirez was injured August 15, 2014, while working for Value Village. Vasquez-Ramirez timely filed a worker’s compensation claim that the Department allowed.

¶3 Dr. Vincent Koike treated Vasquez-Ramirez for her injuries from August until November 2014. Koike initially restricted Vasquez-Ramirez from work that required use of her right arm and shoulders to reach overhead. Value Village offered her modified-duty work on August 29, 2014, which she accepted.² The parties agree that this job modification was consistent with Koike’s restrictions, which included "[n]o lifting greater than ten pounds and no reaching above shoulder level." Because Vasquez-Ramirez continued to work full time at Value Village in this modified position, she did not receive time-loss compensation during her employment.

¶4 Koike later restricted Vasquez-Ramirez’s use of her right arm to no more than three hours during the day. Charita Dumas, Value Village’s senior claim analyst, testified that although Koike added these restrictions on November 3, 2014, she never offered Vasquez-Ramirez a modified-duty job including these restrictions because Vasquez-Ramirez was "still able to perform the essential functions of her job."

¶5 The Department closed Vasquez-Ramirez’s claim on January 8, 2015. On January 27, 2015, Value Village fired Vasquez-Ramirez for alleged unacceptable behavior that included absenteeism, disrespectful communication with supervisors and coworkers, and disregarding supervisor’s instructions. Vasquez-Ramirez denied these allegations.

¶6 Vasquez-Ramirez asked to reopen her claim on March 17, 2015, the same month she resumed medical treatment with Koike. The Department reopened her claim effective March 6, 2015. Value Village appealed this decision but later dismissed its appeal.

¶7 After reopening Vasquez-Ramirez’s claim, the Department awarded her time-loss compensation for August 22 to October 13, 2015, February 24 to March 7, 2016, and March 8 to July 6, 2016. The Department also ordered payment of interest on time-loss payments under the same claim. Value Village appealed these orders to the Board.

¶8 At a hearing before an industrial appeals judge (IAJ), Value Village presented evidence that it offered and Vasquez-Ramirez accepted modified-duty work approved by her medical provider after she injured herself. It admitted that while her doctor ordered additional modifications, it did not incorporate them into a new job description. Value Village modified her work but did not create a new job offer, and Koike never approved these modifications. Value Village also offered evidence supporting its position that it fired her for cause. Vasquez-Ramirez presented evidence of her injury, the change in her injury over time, and testimony rebutting Value Village’s evidence supporting termination for cause.

¶9 In her proposed decision and order, the IAJ dismissed all of Value Village’s claims because it had failed to establish a prima facie case that the Department’s orders were incorrect. Specifically, Value Village had not presented any medical evidence that Vasquez-Ramirez could perform the modified-duty job during the times for which the Department awarded her time-loss benefits. Value Village petitioned the Board for review. Its petition asked the Board to decide "that the Employer presented a prima facie case that the Claimant was not entitled to time-loss compensation benefits." It made no claim that Vasquez-Ramirez had voluntarily retired. The Board dismissed Value Village’s appeals for the reason proposed by the IAJ.

¶10 Value Village appealed to King County Superior Court. It affirmed the Board and awarded Vasquez-Ramirez attorney fees and costs. Value Village has appealed this decision.

STANDARD OF REVIEW

¶11 In a worker’s compensation case, an appellate court generally limits its review of a superior court decision to whether substantial evidence supports the superior court’s findings made after its de novo review of the Board record and whether the court’s findings support its conclusions of law.³ Substantial evidence is evidence sufficient to "persuade a rational fair-minded person the premise is true."⁴ This court accepts as true findings supported by substantial evidence.⁵ If substantial evidence supports the trial court findings, it reviews de novo whether those findings support the superior court’s conclusions of law.⁶ It views the record in the light most favorable to the party prevailing in superior court, and it does not reweigh evidence.⁷

¶12 Our Supreme Court instructs us that the Industrial Insurance Act⁸ (Act) is liberally construed to achieve the legislature’s intent to provide compensation to all covered employees injured in their employment,⁹ with all doubts resolved in the worker’s favor.¹⁰ This court applies the liberal rule of construction to its interpretation of the Act but does not apply it to questions of fact.¹¹ Although the Board’s interpretation of the Act does not bind an appellate court, in most circumstances "it is entitled to great deference."¹²

ANALYSIS

¶13 Value Village claims that the Department should not have awarded Vasquez-Ramirez time-loss benefits. It makes four supporting arguments. First, it claims that the Board and trial court incorrectly required it to present evidence that Vasquez-Ramirez could work. Value Village contends that the Board and trial court should have required Vasquez-Ramirez to produce medical evidence of her inability to work.

¶14 Second, Value Village claims that it produced sufficient evidence to show that the Department did not have enough evidence to award time-loss benefits to Vasquez-Ramirez. Third, Value Village asserts that Vasquez-Ramirez’s employment with it did not "come to an end" as required by statute because it fired her for cause unrelated to her injuries before the time for which the Department awarded time-loss benefits. Finally, Value Village claims that it presented evidence that Vasquez-Ramirez removed herself from the workforce by retiring.

Time-Loss Benefits and Appeal Process

¶15 The Act entitles a worker to compensation if she is injured in the course of her employment.¹³ If she cannot work as a result of her industrial injury and is totally but only temporally disabled, she has a right to time-loss compensation "so long as the total disability continues."¹⁴ The payments stop when she recovers to a point that her "present earning power ... is restored to that existing at the time of the occurrence of the injury."¹⁵ If her earning power is partially restored, she may receive a diminished payment described by a statutory formula.¹⁶

¶16 The legislature recognizes the value of having injured workers remain at work after their injuries.¹⁷ So the Act provides a way for "employers at the time of injury to provide light duty or transitional work for their workers" who are injured on the job.¹⁸ An employer may ask that an injured worker "be certified by a physician or licensed advanced registered nurse practitioner as able to perform available work other than ... her usual work."¹⁹ The employer must provide the medical professional with a description of available modified-duty work so that the medical professional can evaluate how the physical activities of the work relate to the worker’s disability.²⁰ Once the medical professional releases the employee for the work, the time-loss benefits stop.²¹

¶17 Time-loss benefits resume in two circumstances.²² First, the benefits resume if the modified work ends and the worker’s medical provider concludes she has not recovered sufficiently to return to her usual job or perform the other work the employer offers her.²³ Second, the benefits resume if the worker engages in the modified work but it "impede[s] ... her recovery to the extent" that her medical provider concludes she should not continue that work.²⁴ Once she

returns to work under the terms of this subsection (4), ... she shall not be assigned by the employer to work other than the available work described without the worker’s written consent, or without prior review and approval by the worker’s physician or licensed advanced registered nurse practitioner.^{[25 ]}

¶18 The Act controls appeals of Department decisions.²⁶ A person aggrieved by a Department decision may appeal to the Board.²⁷ The appealing party presents the evidence supporting its appeal at a hearing conducted by an IAJ.²⁸ After the hearing, the IAJ files a proposed decision.²⁹ Any party may have the Board review that decision by filing a ...