Vorhies v. Dep't of Ret. Sys. of Wash.

• Citation: 399 P.3d 599,199 Wash.App. 543
• Decision Date: 05 July 2017
• Docket Number: No. 48622-9-II,48622-9-II
• Parties: James VORHIES, Respondent, v. DEPARTMENT OF RETIREMENT SYSTEMS of the State of Washington, Appellant.
• Court: Washington Court of Appeals

199 Wash.App. 543

399 P.3d 599

James VORHIES, Respondent,

v.DEPARTMENT OF RETIREMENT SYSTEMS of the State of Washington, Appellant.

No. 48622-9-II

Court of Appeals of Washington, Division 2.

July 5, 2017

Anne Hall, Troy Daniel Klika, Office of the Attorney General, 7141 Cleanwater Ln. S.W., P.O. Box 40123, Olympia, WA, 98504-0123, for Appellant.

Wayne L. Williams, Williams Wyckoff & Ostrander PLLC, P.O. Box 316, Olympia, WA, 98507-0316, for Respondent.

Melnick, J.¶1 The Department of Retirement Systems (DRS) appeals the superior court's reversal of DRS's final order which denied James Vorhies's claim for catastrophic disability retirement benefits. It also appeals the superior court's award of attorney fees and costs.

¶2 We conclude that DRS did not erroneously decline to apply workers' compensation law in its determination, apply an incorrect standard of proof, decline to consider headaches, and require Vorhies to show that prospective employers would not provide workplace accommodations for his disability. Because Vorhies is not the prevailing party in this appeal, we decline to award attorney fees. We affirm DRS's final order and, therefore, reverse the superior court.

FACTS

¶3 In 2004, the City of Sequim hired Vorhies as a full-time law enforcement officer. Vorhies became a member of the Washington State Law Enforcement Officers' and Firefighters' Retirement System (LEOFF) Plan 2. After suffering injuries during officer training and while on duty, and undergoing two surgeries to relieve pain, Vorhies resigned as a law enforcement officer from the City of Sequim in December 2010.

¶4 Vorhies applied for workers' compensation benefits. The Department of Labor and Industries (L & I) accepted his claim for medical care and time loss for lumbar (back) strain and later closed his claim. In January 2011, Vorhies applied for Social Security Disability (SSD) benefits. The Social Security Administration (SSA) denied his application, denied it on reconsideration, and denied it again after a hearing on appeal.

¶5 In February 2011, Vorhies applied to DRS for disability retirement. DRS accepted Vorhies's cervical spine (neck) injury as the basis for his application and approved his eligibility for line-of-duty or "duty" disability retirement benefits, effective retroactive to January 1, 2011. Administrative Record (AR) at 8. DRS denied his application for the enhanced benefit of total line-of-duty or "catastrophic" disability benefits. AR at 2.

¶6 DRS reconsidered Vorhies's application for catastrophic disability benefits, but denied it. Vorhies petitioned DRS for administrative review of the denial, and in October 2012, his application was again denied. He subsequently filed a notice of appeal to DRS.

¶7 During a three-day hearing, Vorhies; two vocational experts, Karin Larson and Barbara Berndt; and Vorhies's primary care physician, Dr. Michael Crim, testified. In February 2015, DRS entered a final order denying Vorhies catastrophic disability retirement benefits. The findings of fact in the final order are summarized as follows.

¶8 Vorhies earned his GED (General Educational Development) in California and worked for a period of time as a laborer in residential construction. He started his own subcontracting painting business. Upon moving to Washington, he and his father started their own successful painting business. Vorhies learned to use a software program to manage the bookkeeping. Also, he restored cars and motorcycles as a hobby.

¶9 When the painting business was slow, Vorhies drove trucks used for refueling and refilling pesticide tanks for helicopters. Vorhies taught himself how to repair and maintain helicopter engines and rotor blades. He also learned basic flying skills. Vorhies always had an aptitude for "figuring [things] out." AR at 4. In addition to running a painting business, Vorhies and his father became licensed nuisance wildlife control operators and trapped animals as a paid service. Vorhies developed two new types of traps and applied for patents. He sold his rights to one of the traps while the patent was pending. The patent for the second trap was still pending at the time of the DRS hearing.

¶10 In 2004, Crim conducted a medical exam on Vorhies and assessed him as being in "really good shape." AR at 5. Two years later, Vorhies saw Crim for neck and arm pain which Vorhies traced back to an unreported injury during basic law enforcement training. Vorhies developed radiculopathy

and, in 2008, had an anterior cervical discectomy and a spinal fusion.

¶11 Later in 2008, Vorhies had a car accident while on duty. He reported to Crim that he continued to have moderate to severe neck pain that interfered with his sleep. However, a post-operative exam showed progress with the cervical fusion and showed no signs of damage to the fusion site. Vorhies took pain medication as needed, received massage therapy, and anticipated starting physical therapy.

¶12 Vorhies continued to experience neck pain. In 2009, he received steroid injections, and ultimately underwent a second neck surgery. Vorhies returned to work, but on light duty. In September 2010, Vorhies's neck pain worsened and he took extended medical leave. Crim would not approve Vorhies's return to law enforcement duty and another physician from whom Vorhies sought a second opinion agreed. Crim notified the City of Sequim that Vorhies's condition appeared to be a permanent disability, and Vorhies could not be released back to work without extreme restrictions due to the condition of his spine. Vorhies resigned from the police force approximately one month later.

¶13 As part of Vorhies's application for LEOFF disability retirement, Crim submitted a medical report to DRS, and in a progress note, opined that Vorhies was "100% disabled from his current job" and that changing jobs due to his neck injury and ongoing pain issues was the best alternative. AR at 8. While DRS approved Vorhies's application for LEOFF line-of-duty disability, it stated that Vorhies was "not disabled for all employment, but only for continued employment as a police officer." AR at 8. DRS denied catastrophic disability benefits.

¶14 In 2011, Crim opined in another progress note that a formal psychological evaluation conducted on Vorhies confirmed the "absence of any untoward psychopathology." AR at 9. Vorhies received a physical capacities evaluation (PCE)¹ in 2011 and again in 2013. The two evaluations did not differ greatly. The 2011 report noted that sometime after the evaluation, Vorhies described having a severe migraine headache which increased his neck pain and affected his sleep. Crim provided no testimony regarding headaches.

¶15 According to the PCEs, Vorhies was able to alternately sit, stand, and walk 6.5-7.5 hours for 3 hours at a time; alternately stand and walk 30 minutes at a time for up to 2.5 hours; walk 20 minutes at a time for up to 1.3 hours intermittently; stand 15 minutes at a time for up to 1.5 hours intermittently; and sit 1.5 hours at a time for up to 5 hours intermittently. He could kneel occasionally, crouch frequently, bend or stoop, climb stairs and turn his back, but he could seldom turn his neck. Based on the results of the PCEs, Vorhies could not perform a full range of light duties, but was expected to perform light duties at somewhat reduced levels. Crim also believed Vorhies could perform some type of "very limited" work. AR at 12.

¶16 At the time of the hearing, Vorhies could do light housekeeping and take care of himself without assistance.

He watched television most of his waking hours, and walked once or twice a short distance to his parents' house. He could drive and mow the lawn, though he could only drive the lawnmower one hour per day. Vorhies could type slowly, send e-mails, search the Internet, and use Microsoft Word and Excel. Vorhies had confidence he could learn to use computer programs if he had time to study the instructions. Vorhies had no trouble following instruction, but doubted his ability to multitask.

¶17 Also at the time of the hearing, Vorhies had not looked for any paid employment since his retirement. He believed he could not be employed because his work experience involved jobs requiring physical labor and no workplace would accept the pace at which he worked. Vorhies took five prescribed medications for nerve pain, blood pressure, and sleep. His neck and shoulder pain interfered with his sleep, and when the pain radiated into his neck after extended activity, he had headaches. He perceived his pain symptoms to be worsening.

¶18 Neither Larson nor Berndt had previously worked with LEOFF disability retirement benefits. Larson opined that Vorhies would not be able to obtain competitive gainful employment in the Sequim-Port Angeles area because of his physical restrictions and limited transferable skills obtained from his work experience. She did not identify jobs in the labor market that Vorhies could obtain; instead, she testified to a number of jobs he could not obtain. Larson testified that Vorhies could not compete in the labor market and could not obtain and maintain either full- or part-time employment. She also opined that Vorhies could not earn pay of $1,040 per month or more—the minimum monthly earnings to disqualify him from receiving LEOFF catastrophic disability benefits.²

¶19 Berndt opined that Vorhies had transferrable skills and abilities that could be applied to a list of occupations she researched using the Department of Employment Security's database. She did not independently consider the effects of Vorhies's reported pain, but stated that she would take into account a medical judgment that pain interfered with Vorhies's ability to work. She explained that pain was not quantifiable and that an assessment of the pain would determine whether a person could work. The assessment would also determine whether treatment could assist the person.

¶20 Berndt further opined that Vorhies's varied work history and skills demonstrated that...