Ronald v. Ma'ae, V State Of Wa Dept Of Labor And Industries , 438 P.3d 148 ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
RONALD V. MA'AE, No. 77737-8-1
Appellant,
V. PUBLISHED OPINION
WASHINGTON DEPARTMENT OF
LABOR AND INDUSTRIES,
Respondent. FILED: April 1,2019
SCHINDLER, J. — We must liberally construe the statutory provisions of the
Industrial Insurance Act (IIA), Title 51 RCW,to provide compensation to workers injured
in the course of employment. RCW 51.32.160 gives a worker the right to file an
application to reopen a claim for aggravation of an industrial injury. Case law requires
the worker to prove aggravation by presenting expert medical evidence of objective
worsening of the injury since closure of the claim. If the Department of Labor and
Industries (Department) denies the claim, the worker has the right to appeal, but review
is limited to the administrative record. In 2011, the legislature amended chapter 51.36
RCW,"Medical Aid," to establish a network of health care providers to treat injured
workers. In addition to adopting rules to establish the health care provider network, the
Department amended the WAC that governs reopening a claim for aggravation of an
No. 77737-8-1/2
industrial injury, WAC 296-14-400. The amendment to WAC 296-14-400 mandates that
only a Department network provider can submit medical documentation in support of an
application to reopen a claim to obtain benefits for aggravation of an industrial injury.
We conclude the amendment to WAC 296-14-400 conflicts with the intent and purpose
of the 11A; the amendment to chapter 51.36 RCW, Medical Aid; RCW 51.32.160; and
long-standing case law and the right of a worker to prove aggravation of an industrial
injury. We conclude the Department exceeded its statutory authority in promulgating
the amendment to WAC 296-14-400 and the amendment is invalid. We reverse the
declaratory judgment order.
Permanent Partial Disability Award
The facts are not in dispute. In 2007, Ronald V. Ma'ae worked as a journeyman
carpenter for Safeway Services LLC. On January 19, Ma'ae suffered a back and
shoulder injury. On February 5, 2007, the Department of Labor and Industries
(Department) allowed the claim for industrial injury benefits under the Industrial
Insurance Act(IA), Title 51 RCW. On July 24, 2009, the Department closed the claim
and awarded Ma'ae permanent partial disability benefits for "right upper extremity
impairment."
2011 Amendment to Chapter 51.36 RCW
In 2011, the legislature amended the IIA, chapter 51.36 RCW,"Medical Aid," to
establish a health care provider network to treat injured workers. LAWS OF 2011, ch. 6, §
1. RCW 51.36.010(1) states, in pertinent part:
The legislature finds that high quality medical treatment and adherence to
occupational health best practices can prevent disability and reduce loss
of family income for workers, and lower labor and insurance costs for
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No. 77737-8-1/3
employers. Injured workers deserve high quality medical care in
accordance with current health care best practices.
The legislature directed the Department to establish "a health care provider
network to treat injured workers" and "minimum standards for [network] providers who
treat workers." RCW 51.36.010(1). The legislature states the Department "may adopt
rules related to this section." RCW 51.36.010(10).
In addition to promulgating and amending chapter 296-20 WAC,"Medical Aid
Rules," and chapter 296-14 WAC,"Industrial Insurance Rules," to establish a health
care provider network to treat injured workers, the Department amended the rule on
"Reopenings for Benefits," WAC 296-14-400. As amended, WAC 296-14-400
mandates that effective January 1, 2013,"where the department has established a
provider network," medical documentation in support of a reopening application shall
only "be completed by network providers." WASH. Si. REG.(WSR)12-06-066.
2014 Denial of Reopening Application
On April 14, 2014, Ma'ae submitted an "Application to Reopen Claim Due to
Worsening of Condition" to the Department with medical documentation from orthopedic
surgeon Dr. H. Richard Johnson.
Dr. Johnson examined Ma'ae on March 14, 2014. Dr. Johnson states Ma'ae is
experiencing "[d]aily headaches. Neck pain radiating into upper extremities. Right
shoulder pain. Left shoulder pain. Right hand numbness. Low back pain. Anxiety and
depression." Dr. Johnson states Ma'ae's industrial injury had objectively worsened and
recommended "curative treatment" that included low back, neck, and shoulder
diagnostic studies and consideration of low back surgery and "additional cervical spine
surgery."
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Dr. Johnson attached a report of the "current medical findings including history,
examination, and test results that would support a measurable (objective) worsening of
his industrial injury or occupational disease since claim closure or the last reopening
denial."1
[A]ggravation (permanent worsening) of cervical spondylosis; cervical
radiculopathy, left greater than right; status post op three level anterior
discectomies interbody fusions at C3-C4,C4-05, and C5-C6 with anterior
plate fixation; right shoulder strain/sprain; impingement syndrome, right
shoulder; adhesive capsulitis, right[] shoulder (frozen shoulder; status
post op right shoulder manipulation under anesthesia followed by
arthroscopic capsular release, anterior subacromial decompression, and
distal clavicle resection; aggravation of pre-existing left shoulder
dysfunction; adhesive capsulitis of left shoulder; frozen left shoulder; ulnar
entrapment neuropathy at the left elbow; status post op anterior ulnar
nerve transposition at the left elbow; left carpal tunnel syndrome; status
post[ ]op left carpal tunnel release; right carpal tunnel syndrome; thoracic
strain/sprain; aggravation of pre-existing asymptomatic thoracic
spondylosis; small left paracentral disc herniation at T12-L1; lumbosacral
strain/sprain; aggravation (permanent worsening) of pre-existing,
asymptomatic lumbar spondylosis; lumbar radiculopathy, bilateral; tear of
lateral meniscus, right knee; erectile dysfunction; adjustment disorder with
mixed anxiety and depressed mood; pain disorder with anxiety,
depression, irritability, and low back pain; and chronic pain syndrome
related on a more-probable-than not basis to the industrial injury of
January 19, 2007.
The Department extended the time for the reopening application. At the direction
of the Department, Ma'ae participated in independent medical examinations.
On September 5, 2014, the Department denied the reopening application
because Dr. Johnson was not a member of the medical provider network.
After further review, we have learned that Dr. H. Richard Johnson is not a
member of Labor and Industries Medical Provider Network. Only
approved network provider can file reopening applications.[ ]Your request
for reopening has been denied. This claim remains closed.
I Emphasis in original.
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The September 5, 2014 "Notice of Decision" states,"The department denies the
reopening of this claim because no medical documentation has been provided to the
department as required by law."
Appeal of Department Decision to Deny Reopening Claim
On September 30, 2014, Ma'ae filed an appeal of the September 5 order denying
the application to reopen to the Board of Industrial Insurance Appeals (BHA).
The Department filed a motion for summary judgment. The Department argued it
was entitled to judgment as a matter of law because Dr. Johnson was not a member of
the Department's medical provider network. The Department asserted the amendment
to WAC 296-14-400 "mandates that the documentation for reopening application 'must
be completed by network providers.'" In opposition, Ma'ae argued the amendment to
WAC 296-14-400 exceeded the authority of the Department to promulgate rules under
RCW 51.36.010. In reply, the Department argued the legislature gave it the authority to
amend WAC 296-14-400 to require a worker to submit documentation in support of an
application to reopen from only a network provider. The Department asserted the BHA
does not have the authority to review the validity of the rule.
On June 25, 2015, a Board of Industrial Insurance Appeals judge (IAJ) issued a
proposed decision and order affirming the decision of the Department to deny the
application to reopen. On August 11, 2015, Ma'ae appealed the IAJ proposed decision
and order to the BHA.
Declaratory Judqment Action
On August 12, 2016, Ma'ae filed a declaratory judgment action in Thurston
County Superior Court challenging the authority of the Department to amend WAC 296-
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14-400. Ma'ae asserted the amendment exceeded the authority of the Department to
promulgate rules under RCW 51.36.010.
On October 20, 2016, the superior court entered an order and judgment. The
order states the WAC 296-14-400 amendment is a valid rule.2
Appeal of Declaratory Judgment Order
Ma'ae contends the amendment to WAC 296-14-400 that limits the right of an
injured worker to present expert medical documentation to prove objective worsening of
an industrial injury from only a network provider exceeds the authority of the
Department. Ma'ae asserts the amendment conflicts with the intent and purpose of the
11A; the amendment to chapter 51.36 RCW, Medical Aid; the statute on aggravation,
RCW 51.32.160; long-standing case law; and the right to present evidence of
aggravation on appeal.
The Washington Administrative Procedure Act, chapter 34.05 RCW, governs
judicial review of an administrative rule. RCW 34.05.570 governs the validity of a rule.
We review the validity of an agency rule de novo. Wash. Hosp. Ass'n v. Dep't of Health,
183 Wash. 2d 590, 595, 353 P.3d 1285 (2015); Local 2916, 1AFF v. Pub. Emp't Relations
Comm'n, 128 Wash. 2d 375, 379, 907 P.2d 1204 (1995); Tapper v. Emp't Sec. Dep't, 122
Wash. 2d 397, 402, 858 P.2d 494 (1993). Agency rules are presumed valid. St. Francis
Extended Health Carey. Dep't of Soc. & Health Servs., 115 Wash. 2d 690, 702, 801 P.2d
212 (1990). "The burden of overcoming this presumption rests on the challenger, and
2 On November 23, 2015, the BHA reversed the decision of the Department to deny Ma'ae's
application to reopen. The BHA concluded the statute establishing a health care provider network, RCW
51.36.010, and the statute that allows a worker to reopen a claim for aggravation, RCW 51.32.160, do not
prevent a worker from filing an application to reopen with medical documentation from a doctor who is not
a member of the Department's network. We address the Department's appeal of the BlIA decision in
Department of Labor & Industries v. Ma'ae, No. 78030-1-1 (Wash. Ct. App. Apr, 1, 2019)(unpublished),
http://www.courts.wa.gov/opinions/.
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judicial review will be limited to a determination of whether the regulation in question is
reasonably consistent with the statute being implemented." St. Francis, 115 Wn.2d at
702. "[T]he court shall declare the rule invalid" if "the rule exceeds the statutory
authority of the agency." RCW 34.05.570(2)(c). "'[A]lthough we generally accord
substantial deference to agency decisions, we do not defer to an agency the power to
determine the scope of its own authority.'" Fed'n of State Emps. v. Dep't of Gen.
Admin., 152 Wash. App. 368, 377-78, 216 P.3d 1061 (2009)3(quoting In re Registration of
Elec. Lightwave, Inc., 123 Wash. 2d 530, 540, 869 P.2d 1045 (1994)).
"'Administrative "Mules must be written within the framework and policy of the
applicable statutes."'" Wash. Hosp. Ass'n, 183 Wn.2d at 5954 (quoting Swinomish
Indian Tribal Cmty. v. Dep't of Ecology, 178 Wash. 2d 571, 580, 311 P.3d 6(2013)
(quoting Dep't of Labor & Indus. v. Gongyin, 154 Wash. 2d 38, 50, 109 P.3d 816 (2005))).
"'" IA]dministrative rules or regulations cannot amend or change legislative
enactments.'"'" Wash. Hosp. Ass'n, 183 Wn.2d at 595 (quoting Swinomish Indian
Tribal Cmtv., 178 Wn.2d at 580-81 (quoting Dep't of Ecology v. Campbell & Gwinn,
LLC, 146 Wash. 2d 1, 19, 43 P.3d 4(2002)(quoting Dep't of Ecology v. Tehodoratus, 135
Wash. 2d 582, 600, 957 P.2d 1241 (1998)))). If" 'the rule is "reasonably consistent with
the controlling statute[s]," an agency does not exceed its statutory authority.'" Wash.
Hosp. Ass'n, 183 Wn.2d at 5955 (quoting Swinomish Indian Tribal Cmtv., 178 Wn.2d at
580 (quoting Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wash. 2d 637, 646,62 P.3d
462 (2003))). Rules that are not consistent with or are broader than the statutes they
3 Alteration in original.
4 Alteration in original.
5 Alteration in original.
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implement are invalid. Wash. Hosp. Ass'n, 183 Wn.2d at 595 (quoting Swinomish
Indian Tribal Cmtv., 178 Wn.2d at 581 (citing Bostain v. Food Express, Inc., 159 Wash. 2d
700, 715, 153 P.3d 846 (2007))).
Statutory interpretation is also a question of law that we review de novo. W.
Telepaqe, Inc. v. City of Tacoma Dep't of Fin., 140 Wash. 2d 599, 607, 998 P.2d 884(2000); Cockle v. Dep't of Labor & Indus., 142 Wash. 2d 801, 807, 16 P.3d 583(2001)
(statutory construction is a question of law we review de novo). Our fundamental
objective is to ascertain and give effect to legislative intent. Darkenwald v. Emp't Sec.
Dep't, 183 Wash. 2d 237, 244-45, 350 P.3d 647(2015). The "plain meaning" of a statute is
discerned from the ordinary meaning of the language at issue as well as the context of
the statute in which that provision is found, related provisions, and the statutory scheme
as a whole. Lake v. Woodcreek Homeowners Ass'n, 169 Wash. 2d 516, 526, 243 P.3d
1283(2010). "While we look to the broader statutory context for guidance, we 'must not
add words where the legislature has chosen not to include them,' and we must
'construe statutes such that all of the language is given effect.' " Lake, 169 Wn.2d at
526 (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150 Wash. 2d 674, 682, 80 P.3d 598(2003)). Where the language of a statute is clear on its face, we give effect to the plain
meaning as an expression of legislative intent. Campbell & Gwinn, 146 Wn.2d at 9-10.
A statute is ambiguous if it has two or more reasonable interpretations, but not"'merely
because different interpretations are conceivable.'" Cerrillo v. Esparza, 158 Wash. 2d
194, 201, 142 P.3d 155(2006)6 (quoting Agrilink Foods, Inc. v. Dep't of Revenue, 153
Wash. 2d 392, 396, 103 P.3d 1226 (2005)).
6 Internal quotation marks omitted.
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Whenever possible, statutes are to be read together to achieve a"'harmonious
total statutory scheme . . . which maintains the integrity of the respective statutes.'"
Dep't of Revenue v. Fed. Deposit Ins. Corp., 190 Wash. App. 150, 157-58, 359 P.3d 913(2015)7 (quoting Employco Pers. Servs., Inc. v. City of Seattle, 117 Wash. 2d 606, 614,
817 P.2d 1373(1991). An interpretation that reads language in isolation is too limited
and fails to apply this rule. Jongeward v. BNSF Ry. Co., 174 Wash. 2d 586, 595, 278 P.3d
157(2012); see Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809, 109 S. Ct. 1500,
103 L. Ed. 2d 891 (1989)("It is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to their place in the
overall statutory scheme."). The construction of two statutes shall be made with the
assumption that the legislature does not intend to create an inconsistency. State v.
Bash, 130 Wash. 2d 594, 602, 925 P.2d 978 (1996).
IIA
The legislature enacted the IIA in 1911 as "the product of a grand compromise"
between employers and workers. LAWS OF 1911, ch. 74; Birklid v. Boeing Co., 127
Wash. 2d 853, 859, 904 P.2d 278 (1995); Cowlitz Stud Co. v. Clevenger, 157 Wash. 2d 569,
572, 141 P.3d 1 (2006).
The IIA is a compensation system designed to give "sure and certain relief' to an
injured worker "regardless of questions of fault and to the exclusion of every other
remedy." RCW 51.04.010. The IIA is remedial in nature and the right of an injured
worker to obtain benefits is statutory. Cockle, 142 Wn.2d at 811; Murray v. Dep't of
Labor & Indus., 192 Wash. 2d 488, 501, 430 P.3d 645 (2018).
7 Alteration in original; internal quotation marks omitted.
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The overarching and guiding principle in construing provisions of the IIA is that
the IIA "'is to be liberally construed in order to achieve its purpose of providing
compensation to all covered employees injured in their employment, with doubts
resolved in favor of the worker.'" Cockle, 142 Wn.2d at 8118 (quoting Dennis v. Dep't
of Labor & Indus., 109 Wash. 2d 467, 470, 745 P.2d 1295 (1987)).
Chapter 51.36 RCW, Medical Aid, governs medical aid for injured workers. A
worker injured in the course of employment is entitled to compensation under the IIA.
RCW 51.32.010; Tobin v. Dep't of Labor & Indus., 145 Wash. App. 607, 613, 187 P.3d
780 (2008). RCW 51.36.010(2)(a) states that "[u]pon the occurrence of any injury to a
worker entitled to compensation under the provisions of this title, he or she shall receive
proper and necessary medical and surgical services." When a condition is "fixed," the
Department makes a permanent partial disability award and closes the claim. Dep't of
Labor & Indus. v. Slauqh, 177 Wash. App. 439, 446, 312 P.3d 676 (2013); see also Pvbus
Steel Co. v. Dep't of Labor & Indus., 12 Wash. App. 436, 436-37, 530 P.2d 350 (1975);
Robbins v. Dep't of Labor & Indus., 187 Wash. App. 238, 244, 349 P.3d 59(2015).
RCW 51.32.160
The IIA allows an injured worker to reopen a claim for aggravation of the
disability and additional medical benefits within seven years of the final award. RCW
51.32.160; Hendrickson v. Dep't of Labor & Indus., 2 Wash. App. 2d 343, 352, 409 P.3d
1162 (citing Tollvcroft Yachts Corp. v. McCoy, 122 Wash. 2d 426, 432, 858 P.2d 503(1993)), review denied, 190 Wash. 2d 1030, 421 P.3d 450 (2018). A worker may seek to
8 Alteration in original.
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reopen a claim for "aggravation" of the disability only after the award is final. RCW
51.32.160(1)(a). RCW 51.32.160(1)(a) provides, in pertinent part:
If aggravation, diminution, or termination of disability takes place, the
director [of the Department] may, upon the application of the beneficiary,
made within seven years from the date the first closing order becomes
final, or at any time upon his or her own motion, readjust the rate of
compensation in accordance with the rules in this section provided for the
same, or in a proper case terminate the payment: PROVIDED, That the
director may, upon application of the worker made at any time, provide
proper and necessary medical and surgical services as authorized under
RCW 51.36.010.
Objective Worsening
Long-standing case law requires the worker to prove aggravation by presenting
medical testimony that establishes a causal connection "'between the injury and the
subsequent disability' "based on "some objective medical evidence" that the injury "has
worsened since the initial closure of the claim." Eastwood v. Dep't of Labor & Indus.,
152 Wn. App. 652,656-57, 219 P.3d 711 (2009)(quoting Phillips v. Dep't of Labor &
Indus., 49 Wash. 2d 195, 197, 298 P.2d 1117 (1956)); Tollvcroft Yachts, 122 Wn.2d at
432;9 see Hendrickson, 2 Wash. App. 2d at 352; see also Lewis v. ITT Cont'l Baking Co.,
93 Wash. 2d 1, 3, 603 P.2d 1262(1979)("Medical evidence—based at least in part on
objective symptoms—must show that an aggravation of the industrial injury resulted in
increased disability."); Dinnis v. Dep't of Labor & Indus., 67 Wash. 2d 654, 656, 409 P.2d
477(1965)("In an aggravation case, the burden of proving a claimed disability to be
greater on the last terminal date than on the first terminal date is upon the claimant; and
9(Emphasis omitted.) The requirement that the worker provide objective medical evidence does
not apply "if the symptoms of a condition are exclusively subjective in nature." Felipe v. Dep't of Labor &
Indus., 195 Wash. App. 908, 918, 381 P.3d 205 (2016); Price v. Dep't of Labor & Indus., 101 Wash. 2d 520,
528, 682 P.2d 307(1984)(objective medical evidence is not required in worker compensation cases
involving psychiatric disability because symptoms of psychiatric injury are necessarily subjective in
nature). On appeal, Ma'ae does not argue that this exception applies.
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No. 77737-8-1/12
to prevail he must produce medical evidence to that effect based, at least in part, upon
objective findings of a physician."); Page v. Dep't of Labor & Indus., 52 Wash. 2d 706, 709,
328 P.2d 663(1958)(the extent of the disability at any relevant date must be
determined by medical testimony and some objective evidence); Moses v. Dep't of
Labor & Indus., 44 Wash. 2d 511, 517, 268 P.2d 665(1954)(To "establish a claim for an
increase in an award as a result of the aggravation of a prior industrial injury, the burden
is on the claimant to produce medical evidence, some of it based on objective findings,
to prove that there has been an aggravation of the injury which resulted in increased
disability."); Kresoya v. Dep't of Labor & Indus., 40 Wash. 2d 40, 44, 240 P.2d 257(1952)1°
("[W]hether the condition of an injured workman had become aggravated since his claim
had been closed . . .[can] be established only by medical testimony, and . . . a claim for
aggravation is not sustained by such testimony if it is based upon subjective symptoms
alone."); Felipe, 195 Wn. App. at 914 ("case law requires the worker to support a
request to reopen with some objective medical evidence").
The Supreme Court defines "objective symptoms" as "those within the
independent knowledge of the doctor, because they are perceptible to persons other
than a patient." Hinds v. Johnson, 55 Wash. 2d 325, 327, 347 P.2d 828 (1959)); see also
Felipe, 195 Wn. App. at 915.
Right to Appeal Denial of Reopening Application
If the Department denies the application to reopen, the injured worker may
appeal to the BHA. RCW 51.52.050(2)(a). Following a hearing on the appeal before an
IAJ, the worker may file a petition to review the proposed decision and order to the BIIA.
RCW 51.52.104, .106; WAC 263-12-145.
10 Emphasis in original.
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The worker has the right to appeal the decision of the BHA to superior court.
RCW 51.52.110. However, review of the final decision of the BIIA is de novo, based
only on the administrative record and evidence presented to the BIIA. RCW 51.52.115.
In an appeal to superior court, "either party shall be entitled to a trial by jury upon
demand." RCW 51.52.115. 6A Washington Practice: Washington Pattern Jury
Instructions: Civil 155.09 (6th ed. 2012)(WPI),"Extent of Disability or Aggravation—
Basis of Medical Opinion," sets forth the burden of proof to establish aggravation of an
industrial injury. WPI 155.09 states that "aggravation" of an "industrially related
condition and the extent of" the increased disability "must be supported by medical
testimony based at least in part upon one or more objective findings."11
The worker has the right to appeal the superior court decision to the Court of
Appeals and the Supreme Court under the Rules of Appellate Procedure. RCW
51.52.110,.140 (appeal "shall lie from the judgment of the superior court as in other civil
cases").
Amendment to Chapter 51.36 RCW, Medical Aid
In 2011, the legislature amended chapter 51.36 RCW, Medical Aid, to establish a
health care provider network and minimum standards for providers who treat workers in
order to provide high quality treatment to injured workers and lower labor and insurance
11 WPI 155.09 states, in pertinent part:
Statements of complaints by the worker made to a physician are called
subjective complaints. Findings of disability that can be seen, felt, or measured by an
examining physician are called objective findings.
In determining [whether aggravation has occurred and]the extent of[any
resulting increased] disability, a physician cannot rely solely upon complaints, but must
have some objective basis for his or her opinion. On the other hand, a physician need
not rely solely upon objective findings. If there are objective findings, then the physician
may also consider subjective complaints.
(Alterations in original.)
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costs for employers. LAWS OF 2011, ch. 6,§ 1.12 The legislature directs the Department
to establish a medical provider network to treat injured workers and adopt minimum
standards for health care providers. RCW 51.36.010. The legislature requires injured
workers to obtain treatment from a network provider except for "an initial office or
emergency room visit." RCW 51.36.010(2)(b). RCW 51.36.010 states, in pertinent part:
(1) The legislature finds that high quality medical treatment and
adherence to occupational health best practices can prevent disability and
reduce loss of family income for workers, and lower labor and insurance
costs for employers. Injured workers deserve high quality medical care in
accordance with current health care best practices. To this end, the
department shall establish minimum standards for providers who treat
workers from both state fund and self-insured employers. The department
shall establish a health care provider network to treat injured workers, and
shall accept providers into the network who meet those minimum
standards. The department shall convene an advisory group made up of
representatives from or designees of the workers' compensation advisory
committee and the industrial insurance medical and chiropractic advisory
committees to consider and advise the department related to
implementation of this section, including development of best practices
treatment guidelines for providers in the network. The department shall
also seek the input of various health care provider groups and
associations concerning the network's implementation. Network providers
must be required to follow the department's evidence-based coverage
decisions and treatment guidelines, policies, and must be expected to
follow other national treatment guidelines appropriate for their patient.
The department, in collaboration with the advisory group, shall also
establish additional best practice standards for providers to qualify for a
second tier within the network, based on demonstrated use of
occupational health best practices. This second tier is separate from and
in addition to the centers for occupational health and education
established under subsection (5) of this section.
(2)(a) Upon the occurrence of any injury to a worker entitled to
compensation under the provisions of this title, he or she shall receive
proper and necessary medical and surgical services at the hands of a
physician or licensed advanced registered nurse practitioner of his or her
own choice, if conveniently located, except as provided in (b) of this
subsection and proper and necessary hospital care and services during
the period of his or her disability from such injury.
12 We note the legislature amended RCW 51.36.010 again in 2013 to change the language in
subsection (4)from "state board of pharmacy" to "pharmacy quality assurance commission." Lianis OF
2013, ch. 19,§ 48.
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(b) Once the provider network is established in the worker's
geographic area, an injured worker may receive care from a nonnetwork
provider only for an initial office or emergency room visit. However, the
department or self-insurer may limit reimbursement to the department's
standard fee for the services. The provider must comply with all
applicable billing policies and must accept the department's fee schedule
as payment in full.
(c) The department, in collaboration with the advisory group, shall
adopt policies for the development, credentialing, accreditation, and
continued oversight of a network of health care providers approved to treat
injured workers. . . .
(10) The department may adopt rules related to this section.[13]
Amendment of WAC 296-14-400, Reopening for Benefits
The legislature did not amend the statute that governs reopening a claim to
obtain additional benefits under the IIA for aggravation of an industrial injury, RCW
51.32.160. However, in addition to promulgating Medical Aid Rules, chapter 296-20
WAC, and Industrial Insurance Rules, chapter 296-14 WAC,the Department amended
the WAC on Reopening for Benefits, WAC 296-14-400. WSR 12-03-091 ("Proposed
Rules Department of Labor and Industries"), 12-06-066.
Former WAC 296-14-400 (2004), Reopening for Benefits, provides, in pertinent
part:
The director [of the Department] at any time may, upon the workers'
application to reopen for aggravation or worsening of condition, provide
proper and necessary medical and surgical services. . . .
The seven-year reopening time limitation shall run from the date the
first claim closure becomes final and shall apply to all claims regardless of
the date of injury. . . .
A formal application occurs when the worker and doctor complete
and file the application for reopening provided by the department. Upon
receipt of an informal request without accompanying medical
substantiation of worsening of the worker's condition, the department or
13 Added emphasis shows the 2011 amendments to RCW 51.36.010. See LAWS OF 2011, ch. 6,
§1.
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self-insurer shall promptly provide the necessary application to the worker
for completion.
If, within seven years from the date the first closing order became
final, a formal application to reopen is filed which shows by "sufficient
medical verification of such disability related to the accepted condition(s)"
that benefits are payable, the department, or the self-insurer, pursuant to
RCW 51.32.210 and 51.32.190, respectively shall mail the first payment
within fourteen days of receiving the formal application to reopen. If the
application does not contain sufficient medical verification of disability, the
fourteen-day period will begin upon receipt of such verification. If the
application to reopen is granted, compensation will be paid pursuant to
RCW 51.28.040. If the application to reopen is denied, the worker shall
repay such compensation pursuant to RCW 51.32.240.
The 2012 amendment to WAC 296-14-400 mandates that where the Department
has established a medical provider network, the worker can submit documentation only
from a network provider as part of the application to reopen. WSR 12-06-066. WAC
296-14-400 states, in pertinent part:
A formal application occurs when the worker and doctor complete
and file the application for reopening provided by the department. Upon
receipt of an informal request without accompanying medical
substantiation of worsening of the worker's condition, the department or
self-insurer shall promptly provide the necessary application to the worker
for completion. For services or provider types where the department has
established a provider network, beginning January 1, 2013, medical
treatment and documentation for reopening applications must be
completed by network providers.(141
The Department asserts RCW 51.36.010 gives it the authority to adopt the
amendment to WAC 296-14-400 that only allows a worker to file an application to
reopen a claim with medical documentation from only a Department network provider.
Neither the plain and unambiguous language of the IIA, chapter 51.36 RCW,and RCW
51.32.160 nor long-standing case law and the right to appeal supports the Department's
assertion.
14 Added emphasis shows the 2012 amendment to WAC 296-14-400. See WSR 12-06-066.
16
No. 77737-8-1/17
The 2011 amendment to the Medical Aid statute, chapter 51.36 RCW,does not
address either the statute that governs reopening a claim for aggravation of an industrial
injury or case law that requires the worker to present medical testimony to establish a
causal relationship between the injury and subsequent disability based on some
objective findings.
A worker has the right to submit an application to reopen a claim to obtain
benefits for aggravation of an injury. Case law establishes the worker has the burden of
proving aggravation of an injury under RCW 51.32.160 by presenting objective medical
findings. The amendment to the WAC rule on reopening impermissibly restricts the
right of an injured worker to meet this burden of proof. The WAC amendment limits
medical evidence of aggravation to documentation from only doctors who are members
of the Department's approved health care provider network.
Contrary to the Department's argument, a medical examination and report
submitted in support of reopening a claim is not "treatment" under RCW 51.36.010. The
plain and unambiguous language of RCW 51.36.010(1) and (2)(a) address the intent to
establish a network of health care providers in order to provide "high quality" medical
treatment, providers who "treat injured workers," and "proper and necessary medical
and surgical services" in accord "with current health care best practices." The
Department defines "proper and necessary" medical services as follows:
[(2)](a) Reflective of accepted standards of good practice, within
the scope of practice of the provider's license or certification;
(b) Curative or rehabilitative. Care must be of a type to cure the
effects of a work-related injury or illness, or it must be rehabilitative.
Curative treatment produces permanent changes, which eliminate or
lessen the clinical effects of an accepted condition. Rehabilitative
treatment allows an injured or ill worker to regain functional activity in the
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No. 77737-8-1/18
presence of an interfering accepted condition. Curative and rehabilitative
care produce long-term changes;
(c) Not delivered primarily for the convenience of the claimant, the
claimant's attending doctor, or any other provider; and
(d) Provided at the least cost and in the least intensive setting of
care consistent with the other provisions of this definition.
WAC 296-20-01002.15
The unambiguous purpose of RCW 51.36.010 is to establish a network to
provide "high quality medical treatment" of injured workers. The amendment to WAC
296-14-400 conflicts with the right of a worker to submit an application to reopen for
aggravation and meet the burden to present medical testimony to prove some objective
worsening. The amendment impermissibly limits the right of an injured worker to submit
an application to reopen for aggravation with medical documentation only from a
Department network provider.
We conclude the Department exceeded its authority by amending WAC 296-14-
400 to limit a worker to submit medical documentation from only a network doctor in
15 We note the rule also states, "A formal application occurs when the worker and doctor
complete and file the application for reopening provided by the department." WAC 296-14-400. The
Department defines "doctor" as follows:
For these rules, means a person licensed to independently practice one or more of the
following professions: Medicine and surgery; osteopathic medicine and surgery;
chiropractic; naturopathic physician; podiatry; dentistry; optometry. An attending doctor is
a treating doctor.
WAC 296-20-01002. In accord with case law, the Department's application to reopen requires the doctor
to provide objective findings of worsening. See WAC 296-14-400.
18
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support of an application to reopen a claim for aggravation under the 11A. We hold the
amendment to WAC 296-14-400 is invalid and reverse the declaratory judgment order.16
WE CONCUR:
16Ma'ae requests statutory attorney fees and costs under RCW 4.84.010 and .030. Upon
compliance with RAP 18.1, we award Ma'ae statutory attorney fees and costs as the prevailing party.
19