Zellmer v. Department of Labor & Industries

• Decision Date: 15 September 2020
• Docket Number: 53627-7-II
• Court: Washington Court of Appeals
• Parties: JOEL ZELLMER, Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

JOEL ZELLMER, Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 53627-7-II

Court of Appeals of Washington, Division 2

September 15, 2020

UNPUBLISHED OPINION

MELNICK, J.

Joel Zellmer appeals the summary judgment dismissal of his lawsuit alleging that the Department of Labor and Industries (L&I) violated the Public Records Act (PRA), chapter 42.56 RCW, in regard to three of his records requests. Because his complaint is time barred pertaining to Zellmer's first request and because L&I did not violate the PRA regarding his other two requests, we affirm.

FACTS

Zellmer collected workers' compensation benefits for several years due to work-related injuries. Suspecting fraud, L&I started an investigation into Zellmer's claims.^[1] In 2010, L&I requested that four doctors review Zellmer's medical records; L&I did not request that the doctors perform an Independent Medical Examination (IME) on Zellmer.^[2] Dr. Steven Fey and Dr. Dennis Stumpp performed a records review regarding one claim, Dr. H Berryman Edwards performed a records review regarding another claim, and Dr. Alfred Blue performed a records review regarding a third claim.

I. Zellmer's Records Requests

Zellmer made four records requests to L&I.

A. First Request

On July 3, 2016, Zellmer requested:

1. All order(s) for the authorization of (4) Independent Medical Examinations by: Steven G. Fey, Ph.D., H. Berryman Edwards, M.D., Alfred I. Blue, M.D., Dennis Stumpp, M.D. M.S. These IMEs would of been authorized under one of these claims possible N767257, Y154479, Y480253.

2. All billing(s), [invoice] statements by each of the providers for the IMEs as [described] above in section 1 of this request.

3. All warrants of payments for each of the IMEs as [described] above in section 1 in this request. (Copy of check sent to provider for IMEs).

Clerk's Papers (CP) at 49. L&I sent a letter to Zellmer, seeking clarification whether his request related to "Independent Medical Examinations" performed by the four doctors. CP at 52. Zellmer did not respond when L&I tried to clarify what he was requesting.

Nevertheless L&I began searching for the records. Laurel Chastain, a staff member in the public records unit, searched for responsive records. She sent the records request to the two L&I divisions that she determined would be most likely to have responsive records: The Insurance Services Claims Administration and Training Division and the Insurance Services Medical Information and Payment System Division. Neither division could located the requested documents. The searches showed that none of the four providers conducted IMEs in the three claims Zellmer identified in his request.

L&I notified Zellmer on August 26, 2016, that it could not locate the records and that it closed his request. Zellmer did not respond.

B. Second Request

On October 6, 2016, Zellmer requested copies of "each pdf^[3] file . . . of each of the four forensic investigations under claims of Joel Martin Zellmer." CP at 60. Zellmer listed the names of the four doctors and the PDF files he was requesting. He also requested:

[I]tems beyond this to include authorization orders for each of these IMEs listed above doctors. I would also like a copy of any payments made to each of them.

The IMEs were done as part of a[n] L&I criminal investigation. Some of the claim numbers are the following N767257, Y154479, and Y480253. These payments to each of these doctors are:

1. Fey $35, 700.00

2. Edwards $3, 850.00

3. Blue $5, 400.00

4. Stumpp $4, 200.00

I would like a copy of each payment made and the order authorizing each payment/IME.

CP at 60.

L&I again asked Zellmer to clarify that his request was for documents relating to IMEs performed by the four doctors. Zellmer did not respond.

On December 23, 2016 L&I sent Zellmer another clarification letter, stating:

[Y]our request is being interpreted to be for paper copies of the following:

Item 1: A copy of the following PDF files provided in public record request (PRR) number 76369:

a. fey_20100804153223 .pdf

b. edwards_20100804153654.pdf

c. blue_20100804153836.pdf

d. stumpp_20100804153259.pdf

Item 2: A copy of the following records from each Independent Medical Exam (IME) provider on your claims listed below:

a. Authorization orders

b. A report of any payments made

List of IME providers:

• Steven G. Fey

• Berryman Edwards

• Alfred Blue

• Dennis Stumpp

List of your claim numbers:

• N767257 • P196690 • X225608

• Yl54479 • T108247 • Y110136

• Y480253 • X464295

• P124792 • Y453494

In response to Item 1: PRR 76369 is past retention and has been destroyed per our retention schedule. We only keep these types of records for two years. In order to search for the records with the programs, please identify what kind of records each of these files are and what kind of file they are a part of. For example: a Notice of Assessment in a claim investigation.

Please note that depending on the record type, these records may also be past retention with the business programs and may no longer be available.

Please provide the requested clarification by January 10, 2017, if I have not received a response regarding this item by this date, I will assume you want to cancel your request for this item.

In response to Item 2: We require time to locate, assemble, and scan any identified records. We will also be checking these materials, pursuant to the Revised Code of Washington (RCW) 42.56, to determine whether any of the information requested is statutorily exempt from disclosure and therefore unavailable for public inspection under Washington Law.

We expect to mail the records to you by January 27 2017.

CP at 66-67.

Zellmer responded that he was seeking "records that demonstrate authorization (by L&I) and payment of monies to the four Independent Medical Examiners listed in my request for public records." CP at 69.

Public records unit staff member Mara Osborn reviewed the request and clarifications, and routed the request to the two divisions within L&I that she determined would be most likely to have responsive records: The Insurance Services Claims Administration and Training Division and the Insurance Services Health Services Analysis Division. She chose these divisions based on her knowledge and experience in searching for records in response to requests. She also wanted

to be sure there wasn't a document that maybe didn't live in MIPS^[4] or within that MIPS program. We have-the agency has a program titled MIPS as well as a system and they live within the health services analysis group. And so I had routed to them specifically so that if-because I had seen they'd pulled bills before. So I wanted to be very thorough and those were stretching out beyond just a copy of the claim file or what was in an automated system.

CP at 267.

A staff member from Insurance Services Claims Administration informed Osborn that employees in the program had checked multiple areas for records and stated that they had no responsive records. A Heath Services Analysis employee stated that there did not seem to be any bills for any IMEs for the doctors or claims listed in Zellmer's request. Both divisions responded that they could not locate any responsive records.

On January 26, 2017, L&I mailed Zellmer a closing letter informing him that it had conducted a search but could not find responsive records because no IMEs existed and all but one of the claim investigations for his claims had been destroyed per L&I's retention schedule. Zellmer did not respond.

C. Third Request

On February 4, 2017, Zellmer requested records on "[a]ny IMEs done between November 1, 2009 thru April 30, 2010." CP at 41. L&I assigned Forms and Records Analyst, Donna Desch, to Zellmer's request. Through prior searches for the same records by L&I, Desch was aware that there were no records relating to IMEs performed from November 1, 2009 through April 30, 2010. Nonetheless, Desch searched L&I's database and found no IMEs for this period.

L&I notified Zellmer on February 10, 2017 that it had searched L&I's records and found no responsive records. Zellmer did not respond.

D. Fourth Request On February 5, 2017, Zellmer sent a fourth records request, asking for the following records:

1) Annual Claimant History Profile. I would like it for the years of 2007 thru 2011.

2) Firm Statement of Awards. I would like it for the years of 2007 thru 2011.

3) Remittance Advices. I would like it for the years of 2007 thru 2011.

I would like these records from any claim number that is assigned to Joel M. Zellmer. These reports are maintained in your electronic system called Enterprise Output Solution (EOS). The claim numbers are N767257, Y154479, and Y480253.

CP at 110. In this request, Zellmer removed any reference to IMEs. L&I provided Zellmer with 158 pages of records, including records relating to Drs. Fey, Berryman, Stumpp, and Blue.

II. Trial Court Proceedings

On January 12, 2018, Zellmer filed a complaint against L&I, alleging L&I violated the PRA in how it responded to his first three records requests. L&I moved for summary judgment, arguing it timely responded to Zellmer's requests, conducted thorough and adequate searches, and found no responsive records to Zellmer's requests. L&I further argued that Zellmer's complaint relating to his first request was barred by the statute of limitations. Zellmer responded that the statute of limitations should be tolled based on the equitable tolling doctrine.

The trial court granted L&I's motion for summary judgment, dismissing all of Zellmer's claims. The court also denied Zellmer's subsequent motion for reconsideration. He appeals.

ANALYSIS

Zellmer contends the trial court erred in granting L&I's motion for summary judgment because L&I violated the PRA by...