Watson v. Department of Labor

• Decision Date: 11 July 2006
• Docket Number: No. 33421-6-II.,33421-6-II.
• Parties: Robert WATSON, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Appellant.
• Court: Washington Court of Appeals

138 P.3d 177

133 Wn. App. 903

Robert WATSON, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Appellant.

No. 33421-6-II.

Court of Appeals of Washington, Division 2.

July 11, 2006.

COPYRIGHT MATERIAL OMITTED

Carol L. Casey, Attorney at Law, Port Orchard, WA, for Appellant.

Pat L. De Marco, Attorney Generals Office, Tacoma, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 The Department of Labor and Industries (Department) appeals a superior court order requiring it to recalculate Robert Watson's monthly wages for time loss compensation under RCW 51.08.178(1). The Department had initially classified Watson as an essentially intermittent employee and calculated his wages according to RCW 51.08.178(2). We hold that there was substantial evidence to support the trial court's findings that, although Watson's work history revealed he had only worked seasonally at the Port Ludlow Golf Course, Watson intended to work full time and therefore could not be classified as an essentially intermittent worker. We affirm the superior court's order and award attorney fees to Watson.

FACTS

¶ 2 From 1999 to 2002, Robert Watson worked at the Port Ludlow Golf Course as a greenskeeper. The golf course had a permanent staff that included one greenskeeper. Each spring, as the golf season began, the course hired additional seasonal greenskeepers¹. Every fall, as the season wound down, the course would "gear-down" and lay off the seasonal greenskeepers, retaining a skeleton crew for the winter. Board Record Transcript (BRT) at 20.

¶ 3 In 1999, 2000, and 2001, Watson began work at the golf course in the spring and left in the fall in late October or early November. He testified that when he was laid off, he collected unemployment benefits. Lorraine Hamada, the human resources assistant for Watson's employer, Port Ludlow Associates, confirmed that Watson collected unemployment in 2002.

¶ 4 On August 16, 2002, Robert Watson injured his back while working and filed a claim for worker's compensation benefits. The Department allowed the claim and, under RCW 51.08.178(2), calculated Watson's wages for lost time compensation by dividing his yearly income by 12 to derive a monthly wage. The Department based its calculation on the $5,801.69 in wages that Watson earned from July 1, 2001 to June 3, 2002. From that, the Department derived a monthly wage of $483.47, or 1/12 of $5,801.69.

¶ 5 Watson appealed the Department's method of calculating his monthly wage, contending that the Department should have applied RCW 51.08.178(1) and determined his monthly wage by multiplying his daily wage by the number of days he worked in a month. Under this method, his monthly wage would be $1,540, for a yearly income of $18,480.²

¶ 6 The industrial insurance appeals judge (IAJ) affirmed the Department's method of calculating Watson's wages. In its conclusions of law, the IAJ determined that Watson was a "seasonal" worker under RCW 51.08.178(2)(a). CABR at 18. In his findings of fact and discussion portions of the opinion, however, the IAJ found that Watson's relationship to his job was "essentially part-time or intermittent" under RCW 51.08.178(2)(b). CABR at 17.

¶ 7 Watson appealed to the Board of Industrial Insurance Appeals (BIAA), which denied his petition and adopted the IAJ's decision as its final order. Watson then appealed to the superior court, which reviewed the Board's decision de novo. The superior court entered several findings of fact, including the following:

4. The nature of employment as a groundskeeper at a golf course is not such that it is "essentially part-time or intermittent."

. . . . 6. Robert Watson's intent was to work full-time year-round.

. . . .

10. Robert Watson always looked for employment when he was not working for the golf course. Mr. Watson's intent was to work fulltime [sic] and he either worked or was looking for work.

11. During all periods involved in the year Robert Watson was either employed full-time or he was looking for work.

Supplemental Clerk's Papers (SCP) at 3-4.

¶ 8 Based on these factual findings, the superior court determined that the BIIA erred in calculating Watson's monthly wage under RCW 51.08.178(2)(b). The superior court therefore ordered the Department to recalculate Watson's monthly wage under RCW 51.08.178(1) as Watson originally requested. The Department appeals.

ANALYSIS

I. Findings of Fact

¶ 9 The Department first argues that the record does not support the trial court's finding that Watson intended to work full time, year round. It asserts that Watson's testimony that he wanted to work full-time and that he collected unemployment benefits is insufficient to establish Watson's intent.

¶ 10 In industrial insurance cases, the superior court conducts a de novo review of the BIIA's decision but relies exclusively on the certified board record. RCW 51.52.115; Gallo v. Dep't of Labor & Indus., 119 Wash. App. 49, 53, 81 P.3d 869 (2003), aff'd, 155 Wash.2d 470, 120 P.3d 564 (2005). The BIIA's findings and decision are prima facie correct and the worker challenging the BIIA's decision has the burden of proof. Gallo, 119 Wash.App. at 53-54, 81 P.3d 869.

¶ 11 We review the superior court's decision under the ordinary standard of review for civil cases. RCW 51.52.140. We review whether substantial evidence supports the trial court's factual findings and then review, de novo, whether the trial court's conclusions of law flow from the findings. Ruse v. Dep't of Labor & Indus., 138 Wash.2d 1, 5, 977 P.2d 570 (1999). Substantial evidence will support a finding when the evidence in the record is sufficient to persuade a rational, fair-minded person that the finding is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). Credibility determinations are solely for the trier of fact and cannot be reviewed on appeal. Morse v. Antonellis, 149 Wash.2d 572, 574, 70 P.3d 125 (2003).

¶ 12 Here, the trial court found that Watson intended to work full time, that he was always looking for work and that he was either working or on unemployment. Watson's testimony in front of the IAJ indicated:

Q. Okay, Was — had it always been your desire just to work part of the year round, or —

A. No. I'm — I'm wanting full-time work ever since I started there. I was always going in for that.

Q. Was there some discussion by management at that meeting that led you to believe in any way that your job was going to be year-round?

A. Sure. They had a — they said that everything was changing. There was new people coming in; new jobs; people were going to full-time more. They was hiring — they were just going to hire new people to do all kinds of things there.

Board Record Transcript (BRT) at 10-11. Watson also testified:

Q. Okay. During this — parts of time when you worked for the golf course out there before your injury, at off season did you get other work to keep yourself busy and make some income? At times.

A. Unemployment, mostly. I didn't . . .

BRT at 38-39. Other than these two exchanges, Watson did not testify about his intent to work full time or what work, if any, he found during the times that he was laid off from the golf course.

¶ 13 In opposition, the Department introduced an employment history from the State's Employment Security Department indicating that, other than the golf course, Watson reported no income from 1999-2002. And Watson's employer and supervisor both testified that they hired Watson as a seasonal worker in 2002 and that they intended to lay him off in October.

¶ 14 But a reasonable trier of fact could interpret Watson's testimony that he was always trying to get full time work to mean he intended to work full time. The Department suggests that we should discount Watson's testimony because it is self-serving. But whether self-serving testimony should be discounted is a credibility issue for the trier of fact, and we will not review it. Morse, 149 Wash.2d at 574, 70 P.3d 125. Watson's testimony, therefore, provides substantial evidence to support the trial court's finding that Watson intended to work full time year-round.

¶ 15 Watson also testified that when he was laid off, he "mostly" collected unemployment. BRT at 39. And his employer confirmed that he received unemployment benefits in 2002. A reasonable trier of fact could infer from these facts that, in at least the year before his injury, Watson consistently collected unemployment and that he was either working or collecting unemployment.

¶ 16 The Department also challenges the trial court's finding that Watson was always looking for work. Watson argues that a reasonable trier of fact could infer from his unemployment benefits that he was looking for a job. The Department points out that the unemployment benefits statute requires the State to terminate benefits if an individual does not apply for suitable work when directed by the employment office. RCW 50.20.080. Moreover, the State has authority to waive the work search requirement under RCW 50.20.010(1)(a). But there is no evidence that the State waived Watson's search requirement. We can infer from the unemployment statutory scheme that there is a general requirement that individuals look for work in order to receive benefits. And because Watson testified that he received unemployment, a reasonable trier of fact could infer that he complied with the general requirement by looking for work. Therefore, substantial evidence supports the trial court's finding of fact that Watson was looking for work when not at the golf course.

II. Intermittent Employment

¶ 17 The Department next argues that even if Watson intended to work full time, he still should be classified as having an essentially part time or intermittent relationship to his employment under RCW 51.08.178(2)(b). Watson responds that, because he intended to work full time, he cannot be classified as having an essentially intermittent relationship to work.

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