Joseph E. Criss, V Wa State Department Of L & I ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
November 30, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JOSEPH E. CRISS, No. 55059-8-II
Appellant,
v.
THE DEPARTMENT OF LABOR AND UNPUBLISHED OPINION
INDUSTRIES OF THE STATE OF
WASHINGTON,
Respondent.
WORSWICK, J. — Injured worker Joseph Criss appeals a superior court order reversing
the Board of Industrial Insurance Appeals’ decision and remanding with further instructions.
After the Department of Labor and Industries (Department) closed his claim with a 25 percent
permanent partial disability award, Criss appealed to the Industrial Insurance Appeals Board (IIA
Board). An Industrial Appeals Judge (IAJ) entered a proposed order reversing the Department
award and stating that Criss was totally disabled. The Department appealed to a three-member
review board (Board), which entered a final order stating that the Department decision must
stand because the members could not agree.
Criss argues that: (1) the Board erred by not including findings of fact and conclusions of
law in its final order, (2) the superior court erred in remanding the case to the IIA Board with
instructions to issue findings and conclusions, and (3) a divided Board must affirm the IAJ’s
decision, not the Department’s decision. We affirm the superior court’s decision.
No. 55059-8-II
FACTS
Joseph Criss injured his shoulder on July 1, 2004 while working as a tile-setter. The
Department provided Criss with vocational assistance and trained him for a small-engine repair
job, which was approved by his physician. Criss completed the training plan and found
employment performing small-engine repairs. However, Criss was fired after two weeks
because his employer required him to pull-start engines and move tractors and other heavy
items—tasks that were beyond his capabilities. Criss did not find another job that did not require
him to lift heavy items with an appropriate wage.
The Department closed Criss’s claim on February 5, 2018, with a permanent partial
disability award of 25 percent. Criss appealed the Department’s award to the IIA Board.
The IIA Board assigned an IAJ to review the Department’s disability award. The IAJ
held an evidentiary hearing and issued a proposed decision and order reversing the Department’s
order, ruling that Criss had a permanent total disability. The Department petitioned for review
with the Board. The Board granted review, but one of the three board members recused herself
from the case due to a conflict. The remaining two board members could not agree on the
outcome of the case, so they issued a decision and order upholding the Department’s decision:
that Criss had a permanent partial disability. The Board’s decision did not include findings of
fact or conclusions of law but rather stated that “[t]he Department order must stand because a
majority of the Board members have not agreed on the final disposition of the Department order
on appeal.” Clerk’s Papers (CP) at 14.
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No. 55059-8-II
Criss appealed the Board’s decision to the superior court. Although the parties agreed
that the Board erred in not entering findings of fact and conclusions of law, they disagreed about
the proper decision where the Board could not agree. The Department asked the superior court
to remand the case to the Board to enter findings and conclusions. On the other hand, Criss
asked the superior court to remand to the Board with instructions to adopt the IAJ’s decision
along with the IAJ’s findings and conclusions. The superior court reversed the decision of the
Board and remanded the case with the following instructions:
1. Make findings of fact and conclusions of law consistent with the
[Department’s order]; and
2. Enter a Decision and Order consistent with those findings of fact and
conclusions of law.
3 Alternatively, to issue a new order with findings of fact and conclusions of
law if the two Board members are able to agree on a decision.
CP at 825.
Criss appeals the superior court’s decision.
ANALYSIS
I. STANDARD OF REVIEW
The Industrial Insurance Act (IIA) governs claims arising from injuries sustained during
work. RCW 51.04.010. Under the IIA, the ordinary civil standard of review governs workers’
compensation appeals, so we review the superior court’s decision rather than the decision of the
Board. Birgen v. Dep’t of Lab. & Indus., 186 Wn. App. 851, 855-56, 347 P.3d 503 (2015). We
review whether the superior court’s findings are supported by substantial evidence and whether
those findings support the conclusions of law. Birgen, 186 Wn. App. at 856. Conclusions of law
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No. 55059-8-II
are reviewed de novo. Birgen, 186 Wn. App. at 856. Because this appeal involves only
questions of law, we review the superior court’s decision de novo. Birgen, 186 Wn. App. at 857.
II. APPEALS TO THE BOARD
A worker may appeal the Department’s decision or award to the IIA Board. RCW
51.52.060 (1)(a). The IIA Board assigns an IAJ to conduct an evidentiary hearing and issue a
proposed order and decision with findings of fact and conclusions of law. RCW 51.52.104.
Either party may petition the Board to review the IAJ’s decision, and the Board may grant or
deny the petition. RCW 51.52.106. If the Board grants review, the order “shall contain findings
and conclusions as to each contested issue of fact and law.” RCW 51.52.106. On appeal to the
IAJ and the Board, the burden of proof is on the party asserting that the decision was in error.
RCW 51.52.050(2)(a). Either party may appeal the Board’s decision to the superior court. RCW
51.52.110, .115.
III. THE BOARD WAS REQUIRED TO ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW
Criss argues that the Board erred by not entering findings of facts and conclusions of law.
We agree.
RCW 51.52.106 requires that “[e]very final decision and order rendered by the [B]oard
shall be in writing and shall contain findings and conclusions as to each contested issue of fact and
law, as well as the [B]oard’s order based thereon.” The Board’s final decision must be supported
by the evidence on the record. RCW 51.52.115; WAC 263-12-145(5)(ii); Harder Mechanical,
Inc. v. Tierney, 196 Wn. App. 384, 392-93, 384 P.3d 241 (2016); Chalmers v. Dep’t of Lab. &
Indus., 72 Wn.2d 595, 602-03, 434 P.2d 720 (1967). On appeal, the superior court may only
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consider the record developed by the IIA Board. RCW 51.52.115. The decision of the Board is
presumed prima facie correct, and the burden is on the party asserting error. RCW 51.52.115. The
superior court may only reverse a decision if it finds that, by a preponderance of the evidence, the
Board’s “‘findings and decision are erroneous.’” Dep’t of Lab. & Indus. v. Rowley, 185 Wn.2d
186, 200, 378 P.3d 139 (2016) (quoting Gorre v. City of Tacoma, 184 Wn.2d 30, 36, 357 P.3d 625(2015)).
Criss correctly asserts that without findings, it is impossible for him to know what decided
issues are prima facie correct or how limited the scope of the superior court inquiry is. Not only
are findings and conclusions necessary under RCW 51.52.106, but it would be impossible for the
superior court or this court to apply the proper standard of review without the findings and
conclusions. Without them, there is nothing to review.
Because the statute expressly requires findings and conclusions to be included in the
Board’s order, and because the lack of findings and conclusions leaves us with no mechanism for
review, we hold that the Board erred in not including findings and conclusions.
IV. THE SUPERIOR COURT CORRECTLY REMANDED THE CASE TO THE BOARD
Criss argues that the superior court erred when it remanded the case back to the Board to
issue findings of fact and conclusions of law consistent with its decision. We disagree that the
trial court’s remand instructions were erroneous.
In workers’ compensations appeals, the superior court’s inquiry is limited to issues
actually decided by the Board. Lunz v. Dep’t of Lab. & Indus., 50 Wn.2d 273, 275, 310 P.2d 8805
No. 55059-8-II
(1957). The superior court is also limited to the findings and decision of the Board. RCW
51.52.115.
Both Criss and the Department incorrectly characterize the superior court’s instructions
on remand. The superior court provided the Board with an option to either issue findings and
conclusions consistent with its decision or issue a new decision with findings and conclusions if
the remaining two Board members can agree.
The superior court’s decision is consistent with the overall statutory scheme of the IIA.
RCW 51.52.106 requires a Board to issue findings and conclusions in its final decision. Then,
that decision is appealable to the superior court. RCW 51.52.110. On appeal, courts presume
that the findings and decision of the Board are prima facie correct and if the court determines
that “the [B]oard acted within its power and has correctly construed the law and found the facts,
the decision of the [B]oard shall be confirmed;” otherwise, the court must modify or reverse the
order. RCW 51.52.115. Therefore, the statutory scheme creates an avenue for judicial appeal
that presumes the existence of findings and conclusions to be reviewed by the superior court.
See RCW 52.51.110, .115. Without those findings and conclusions, the court has no starting
point, and the party bearing the burden of proof is disadvantaged because the court has no
roadmap on what presumption the appellant must rebut. Therefore, the superior court correctly
remanded the case back to the Board because the instructions complied with the overall statutory
scheme of the IIA.
We affirm the trial court’s order remanding the case back to the Board with instructions
to issue a new decision with findings of fact and conclusions of law based on the evidence on the
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record, or in the alternative, to issue findings of fact and conclusions of law consistent with its
decision.
ATTORNEY FEES
Criss requests attorney fees and expenses pursuant to RAP 18.1, RCW 51.52.130, and
RCW 4.84.030, should he prevail. Under RCW 51.52.130, attorney fees are awarded to “the
worker or beneficiary where his or her appeal to the superior or appellate court results in a
reversal or modification of the [Board’s] decision.” Doan v. Dep’t of Lab. & Indus., 143 Wn.
App. 596, 607-08, 178 P.3d 1074 (2008). When an appellate court remands a case, it cannot
award fees because the prevailing party has not yet been determined. Felipe v. Dep’t of Lab. &
Indus., 195 Wn. App. 908, 920, 381 P.3d 205 (2016).
Here, we affirm the trial court’s decision remanding the case to the Board. Therefore, a
fee award would be premature. See Felipe, 195 Wn. App. at 920. Thus, Criss is not entitled to
attorney fees and expenses.
CONCLUSION
The Board erred when it failed to issue findings and conclusions in its decision.
Therefore, it is impossible for the superior court or this court to conduct a proper analysis under
the applicable standard of review, which restricts the court’s scope of review to the findings and
conclusions of the Board. The superior court did not err in remanding the case with instructions
to issue findings and conclusions, or alternatively, issue a new decision supported by findings
and conclusions if the Board members can agree.
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Therefore, we affirm the superior court’s decision to remand the case back to the Board
with instructions to issue findings and conclusions based on the evidence on the record, or
alternatively, issue an entirely new decision with findings and conclusions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Worswick, J.
We concur:
Veljacic, J.
Price, J.
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