Carolyn Giger v. Dept. Of L&i ( 2014 )


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  •                                                                                                     FILED
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    COURT OF APPEALS
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    DIVISION I?
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    STATE OF VIASFUNGTON
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    CAROLYN A. GIGER, Personal                                                                        No. 44508 -5 -II
    Representative of the Estate of ROBERT E.
    GIGER, deceased,
    UNPUBLISHED OPINION
    Appellant,
    v.
    DEPARTMENT OF LABOR &
    INDUSTRIES; STATE OF WASHINGTON,
    Respondents.
    BJORGEN, A. C. J. —              Carolyn Giger appeals from a summary judgment order dismissing
    her workers' compensation claim based on an injury to her deceased husband, Robert Giger.l
    The Board of Industrial Insurance Appeals ( Board) had denied Robert' s claim for temporary and
    permanent total disability benefits, arising out of the aggravation of a prior work -
    related injury,
    on the ground that Robert had voluntarily retired prior to the aggravation. Robert appealed to the
    superior court, and the Department of Labor and Industries ( Department) moved for summary
    judgment, arguing that he had voluntarily retired as a matter of law prior to the aggravation,
    making him ineligible for the benefits                          sought.     The superior court granted the Department' s
    motion.
    1
    to the Gigers              first           for clarity. We intend        disrespect.
    We   refer                   by their           names                            no
    No. 44508 -5 -II
    Robert died while the motion was pending, and Carolyn Giger, as personal representative
    for his   estate, appeals   the   grant of   summary judgment in favor    of   the Department.    She argues
    that material issues of fact remain as to whether Robert' s industrial injury proximately caused his
    retirement and whether his failure to seek further employment was reasonable under the
    circumstances. Because resolution of these factual issues does not affect Robert' s entitlement to
    the benefits he seeks, we affirm the Board' s and the superior court' s denial of Robert' s claim.
    FACTS
    Robert sustained a back injury while employed as superintendent of the Larch
    Corrections Center in December 1985.            Based on that injury, he filed a claim with the
    Department on January 9, 1986, which the Department closed the following April after awarding
    time loss compensation and medical benefits. The Department reopened the claim as of January
    15, 1987. While the claim was still open, Robert retired from his job on April 1, 1988.
    The Department closed Robert' s claim again on November 8, 1990, after his doctor
    released him for full time employment, making a permanent partial disability award in addition
    to time loss compensation. Robert unsuccessfully appealed that decision to the Board, and then
    to the superior court, but did not pursue the matter further after the superior court affirmed the
    Board' s decision and order. Even though Robert' s doctor believed he was physically able to
    work, Robert remained retired. Robert acknowledged that he never sought gainful employment
    after 1988.
    Robert was involved in motor vehicle accidents in 1992 and 1993, which he claimed
    aggravated his prior work related injury. For this reason, the Department reopened Robert' s
    claim as of February 14, 1994, but awarded medical benefits only. In June 2010, the Department
    2
    No. 44508 -5 -II
    denied Robert' s request for total permanent disability benefits and for additional time loss
    compensation for the period from February 1994 to June 2010. After the Department declined to
    reconsider its decision, Robert appealed its order to the Board.
    The Board assigned the case to an industrial appeals judge, who, after taking testimony
    and hearing argument, reversed the Department' s order and remanded with instructions to pay
    Robert time loss compensation benefits from February 14, 1994 through June 25, 2010, and
    permanent total disability benefits thereafter. The Department petitioned the Board for review of
    the industrial appeals judge' s proposed decision and order, and the Board reversed, affirming the
    Department' s June 2010 decision denying Robert' s claim and ordering Robert' s claim to be
    closed.
    Robert appealed the Board' s decision and order to superior court, and the Department
    moved for summary judgment. After hearing argument from the parties, the superior court
    granted summary judgment to the Department, affirming the Board' s decision and order.
    Carolyn appeals.
    ANALYSIS
    Carolyn argues that because material issues of fact remain, the superior court erred in
    granting summary judgment to the Department. Specifically, Carolyn maintains that if the 1985
    injury was a proximate cause of the decision for Robert to retire in 1988, and if a reasonable
    person in Robert' s position would not have sought to rejoin the work force after the Department
    closed his claim in 1990, then he was not a voluntarily retired worker under the industrial
    insurance statute, Title 61 RCW, when the Department reopened his claim in 1994. Therefore,
    Carolyn argues, material issues of fact remain as to Robert' s eligibility for the requested benefits,
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    No. 44508 -5 - II
    and summary judgment was improperly granted to the Department. Concluding that resolution
    of these factual issues does not affect Robert' s entitlement to time loss compensation or
    permanent total disability benefits, we affirm the superior court' s grant of summary judgment.
    I. STANDARD OF REVIEW
    The Industrial Insurance Act, Title 51 RCW, governs review of workers' compensation
    cases. Under the Act, we review the decision of the superior court in the same way as in other
    civil cases, rather than according to the judicial review provisions of the Administrative
    Procedure Act,      chapter   34. 05 RCW. Mason       v.   Georgia -
    Pac.    Corp., 
    166 Wn. App. 859
    , 863, 
    271 P. 3d 381
    ,   review   denied, 
    174 Wn.2d 1015
     ( 2012) ( citing RCW 51. 52. 140).               On review of a
    summary judgment, we undertake the same inquiry as the superior court. Romo v. Dep' t of
    Labor & Indus., 
    92 Wn. App. 348
    , 353 -54, 
    962 P. 2d 844
     ( 1998).          A trial court should grant
    summary judgment only
    if the pleadings, depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to a judgment as a matter of
    law."
    Romo, 92 Wn.     App.    at   353 -54 ( quoting CR 56( c)).     The party seeking summary judgment bears
    the burden of establishing its right to judgment as a matter of law, and the court must consider
    facts and reasonable inferences from the facts in favor of the nonmoving party. Romo, 92 Wn.
    App. at 354.
    A.       Governing Law
    Time loss" benefits       refer   to " temporary total   disability ...    compensation, a wage
    4
    No. 44508 -5 -II
    replacement        benefit   paid under   RCW 51. 32. 090."          Energy Nw. v. Hartje, 
    148 Wn. App. 454
    ,
    463, 
    199 P. 3d 1043
     ( 2009) ( quoting Jacobsen              v.   Dep' t of Labor   & Indus.,   
    127 Wn. App. 384
    ,
    386   n. 1,    
    110 P. 3d 253
     ( 2005) ( internal     quotation marks omitted)). "         Temporary total disability"
    means " a condition that temporarily incapacitates a worker from performing any work at any
    gainful employment."            Hartje, 148 Wn. App. at 463 ( quoting Hubbard v. Dep' t ofLabor &
    Indus., 
    140 Wn.2d 35
    , 43, 
    992 P. 2d 1002
     ( 2000) ( internal quotation marks omitted)).
    Permanent total disability" compensation, on the other hand, refers to benefits due to a worker
    who, as a result of an injury sustained in the course of his or her employment, suffers from a
    condition permanently incapacitating the worker from performing any work at any gainful
    occupation."        RCW 51. 08. 160; RCW 51. 32. 010; RCW 51. 31. 060.
    We have categorized both temporary and permanent total disability compensation as
    wage replacement" benefits because they serve to compensate injured workers for lost earnings.
    Mason, 
    166 Wn. App. at 867
    . In 1986, the legislature explicitly precluded voluntarily retired
    claimants from receiving such benefits. Hartje, 148 Wn. App. at 467 n.3 ( citing LAWS OF 1986,
    ch.   58, § 5;    ch.   59, §§ 2, 3,   recodified   as RCW 51. 32. 090( 10)).      WAC 296 -14 -100, also adopted
    in 1986, sets out the criteria for voluntary retirement, stating:
    1) What is voluntarily            The worker is considered voluntarily retired if
    retired?
    both of the following conditions are met:
    a) The worker is not receiving income, salary or wages from any gainful
    employment; and
    b) The worker has provided no evidence to show a bonafide attempt to return to
    work after retirement.
    Time -loss compensation is not paid to workers who voluntarily retired from the
    work force.
    2) When is     a worker     determined      not       to be voluntarily   retired?   A worker is
    not voluntarily retired when the industrial injury or occupational disease is a
    proximate cause for the retirement.
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    No. 44508 -5 -II
    The parties disagree as to whether these provisions apply in this case. Carolyn asserts
    they apply because Robert filed to reopen his claim in 1994, after the measures were enacted.
    The Department, on the other hand, contends that the provisions " are not directly applicable"
    because Robert' s initial claim arose prior to enactment in 1986. Br. of Resp' t at 12.
    This disagreement, however, has no bearing on the proper resolution of this appeal.
    Because voluntarily retired persons do not qualify as " workers" under the Act and have no
    legitimate expectation of receiving wage income, we have held that, even for claims arising prior
    to the 1986 amendments, a claimant who voluntarily retired prior to the injury or aggravation at
    issue is   not entitled   to   wage replacement   benefits.      Weyerhaeuser Co. v. Farr, 
    70 Wn. App. 759
    ,
    764 -67, 
    855 P. 2d 711
     ( 1993); Kaiser Aluminum &                Chem. Corp. v. Overdorff, 
    57 Wn. App. 291
    ,
    294 -96, 
    788 P. 2d 8
     ( 1990).       Prior to the adoption of the regulation defining voluntary retirement,
    we   had similarly held that       a person who, "   despite having the physical capacity to engage in
    gainful employment,"           comes forward with " no evidence to indicate he intended or tried to work
    following his retirement" has voluntarily retired as a matter of law and become ineligible for
    wage replacement      benefits. Farr, 70 Wn.         App.   at   765 -66 ( emphasis   omitted).   Thus, the
    application of the 1986 enactments does not affect the analysis.
    B.         Robert Voluntarily Retired, Making Him Ineligible for the Requested Benefits
    A finding that a claimant is permanently partially disabled necessarily establishes that the
    person can engage in some form of gainful employment: otherwise, the claimant would be
    permanently totally disabled. Farr, 70 Wn. App. at 766. Because the superior court affirmed the
    6
    No. 44508 -5 -II
    November 8, 1990 decision and order finding Robert permanently partially disabled, and Robert
    did not appeal that decision, it is now res judicata that Robert had the ability to perform gainful
    employment as of November 1990. Hartje, 148 Wn. App. at 469; Farr, 70 Wn. App. at 766.
    Thus, Robert had " the        physical   capacity to      engage     in   gainful employment,"       Farr, 70 Wn. App. at
    765 -66, but was " not receiving income, salary or wages from any gainful employment" and
    admitted that he made no " bonafide attempt to return to work" thereafter. WAC 296 -14 -100;
    Board Record ( BR) (Nov. 5, 2010) ( Robert                Giger) at 59. Thus, under the authority discussed
    above, Robert' s status from November 8, 1990 forward was one of voluntary retirement.
    Carolyn disputes whether this status was properly determined on summary judgment,
    2
    noting that WAC 296 -14- 100( 2)              specifies   that "[   a] worker is not voluntarily retired when the
    industrial   injury   or occupational        disease is   a proximate cause         for the   retirement."   Br. of
    Appellant at 12. From this, Carolyn argues that, because Robert presented evidence that the
    1985 accident led to his retirement in 1988, whether he qualified as voluntarily retired presented
    a genuine factual issue. The analyses in Farr and Hartje, however, foreclose this argument.
    The facts in Farr closely resemble those presented here: In 1979, Farr filed to reopen a
    worker' s compensation claim arising from a prior work related injury, and he retired the next
    year.   Farr, 70 Wn.      App.   at   761.    The Department allowed Farr' s claim, closing it with a
    permanent partial      disability     award.    Farr, 70 Wn.        App.    at   761.   Five years after retiring, Farr
    again filed to reopen the claim after the injury became aggravated, and the Board ultimately
    found him permanently totally disabled and ordered the Department to award Farr a pension.
    Farr, 70 Wn.     App.   at   761.    The employer, Weyerhaeuser, appealed to the superior court and
    2 Although Carolyn cites in her brief to section ( 3) of WAC 296 -14 -100, the correct section is ( 2).
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    No. 44508 -5 -II
    moved for summary judgment, making essentially the same argument the Department makes
    here, which motion that court granted. Farr, 70 Wn. App. at 762.
    On appeal to our court, Farr argued that he did not voluntarily retire because the " injury
    played a significant part          in his decision to leave" Weyerhaueser. Farr, 70 Wn.             App.     at   765. We
    rejected   that    argument and affirmed        the   grant of   summary judgment, pointing     out      that "[ t] he fact
    that his partial injury may have played an indirect role in his decision to retire from
    Weyerhaeuser is irrelevant to the legal question at issue: whether Farr' s retirement constituted
    voluntary    withdrawal          from the   general work   force."   Farr, 70 Wn. App. at 766. We concluded
    that, because the Board made its finding that the aggravation of Farr' s injury rendered him totally
    disabled sometime after he stopped working, and after the Department had found Farr only
    partially disabled, Farr, having presented no evidence that he had sought to reenter the
    workforce, was as a matter of law not entitled to total permanent disability benefits. Farr, 70
    Wn. App. at 766 -67.
    Similarly, Hartje filed a workers' compensation claim after sustaining a work related
    injury in 1994, and the Department closed her claim with a partial permanent disability award.
    Hartje, 148 Wn. App. at 459. Hartje' s employer, Energy Northwest, fired her in July 1997 after
    she    failed to   return   to   work,   allegedly due to the    injury.   Hartje, 148 Wn.   App.   at   460 -61.   In
    1999, Hartje filed to reopen her claim based on an aggravation of the injury. Hartje, 148 Wn.
    App. at 460. The Department reopened the claim, and the Board ultimately awarded Hartje
    temporary total disability benefits from Feb. 1, 1999 to Oct 6, 2004, even though she admitted
    she had not sought employment since leaving Energy Northwest. Hartje, 148 Wn. App. at 461-
    62.
    No. 44508 -5 -II
    Energy Northwest appealed, and we reversed. Hartje, 148 Wn. App. at 470. Hartje
    argued that she had not voluntarily retired " because she was not able to return,to the work force
    due to her industrial       injury." Hartje, 148 Wn. App. at 468. Following Farr, we rejected that
    argument, holding that because the Department had determined that Ms. Hartje was " capable of
    obtaining      gainful employment as of          October 2, 1996,"           after Energy Northwest had fired her, and
    Hartje admitted that she did not seek further employment, her injury was not, as a matter of law,
    a proximate cause          for her failure to      return   to the   work   force."   Hartje, 148 Wn. App. at 469.
    Hartje'   s   intent to   return   to the   work   force    after   her voluntary departure ...   does not constitute a
    bona fide      attempt,"    and thus " the Board erred as a matter of law in awarding her additional time
    loss   compensation."        Hartje, 148 Wn. App. at 468 -69.
    Therefore, the question is not whether Robert' s injury proximately caused him to retire
    from the Larch Corrections Center in 1988: the question is whether the injury proximately
    caused him to subsequently withdraw entirely from the workforce. Because the 1990 order
    finding that Robert was partially disabled establishes that, subsequent to his retirement from the
    Larch Corrections Center, Robert had the ability to engage in some gainful employment, and he
    admitted that he did not thereafter seek to reenter the work force, he voluntarily retired as a
    matter of law under the precedents discussed above. He was thus ineligible for wage
    replacement benefits, and the superior court did not err in granting summary judgment to the
    Department.
    Carolyn attempts to distinguish Farr on the ground that it was decided under the law
    prior to the statutory amendments discussed above. As discussed, the statutory changes in no
    way affect the analysis: Farr interpreted the pre- amendment statute to bar award of wage
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    No. 44508 -5 -I1
    replacement benefits to voluntarily retired workers, and Hartje interpreted the statute as amended
    to do the same.
    Carolyn seeks to distinguish Hartje on the ground that, until September 4, 1992, Robert
    was attempting to appeal the Department' s order finding him only partially disabled, and then
    suffered aggravating injuries in car accidents on November 12, 1992 and February 9, 1993.
    Citing Hartje, 148 Wn. App. at 469, Carolyn argues that if Robert reasonably refrained from
    seeking employment prior to the 1994 aggravation, he remained eligible for the requested
    benefits.3 The cited authority does not support Carolyn' s argument. To the contrary, Hartje' s
    appeal of the Department' s order finding her partially permanently disabled was pending at the
    time she filed to reopen her claim based on the aggravation of her injury. Hartje, .148 Wn. App.
    at 459 -60. Further, the central criteria under Farr, 70 Wn. App. at 765 -66, in determining
    whether one is voluntarily retired is whether one has the physical capacity to engage in gainful
    employment, yet failed to attempt to find work. To relieve Robert of this requirement in this
    proceeding because it might be inconvenient in another proceeding does not serve the
    determination of truth in either.
    Carolyn also seeks to distinguish Hartje on the ground that the aggravation here resulted
    in part from treatment provided Robert for the 1985 injury. In doing so, Carolyn relies on the
    consequential condition doctrine, which allows an injured worker to recover for harms
    proximately caused by the work related injury, even where the harm also has other proximate
    causes, including the worker' s subsequent negligence. Reply Br. of Appellant at 5 ( citing Dep' t
    of Labor & Indus.     v.   Shirley,   
    171 Wn. App. 870
    , 886, 
    288 P. 3d 390
     ( 2012), review denied, 177
    3 Robert contended that his failure to seek employment was reasonable while his appeal was pending because doing
    so would have jeopardized his claim to temporary total disability benefits, and that he was subsequently prevented
    from seeking further employment by the aggravations of his injury resulting from the car accidents.
    10
    No. 44508 -5 -II
    Wn.2d 1006 ( 2013)).   The authority cited is inapposite. That the consequential condition
    doctrine entitled Robert to compensation for harms proximately caused by his injury, even if
    those harms also had other proximate causes, does not establish his entitlement to the requested
    benefits. Shirley involved survivor' s death benefits, 171 Wn. App. at 880, which courts do not
    consider wage replacement benefits. Mason, 
    166 Wn. App. at 867
    . Thus, whether Shirley had
    voluntarily retired at the time of his death had no bearing on his spouse' s entitlement to
    survivor' s benefits. See Mason, 
    166 Wn. App. at
    866 -67 ( holding that survivor' s death benefits
    do not have the same purpose as wage replacement benefits and are thus not subject to the
    voluntary retirement limitation).
    The question presented here is not whether Robert was entitled to nonwage replacement
    benefits, such as costs of medical treatment for harm proximately caused by his injury. Instead,
    the issue is whether Robert may receive benefits intended to " replace" wages that he did not earn
    because he voluntarily chose not to seek further employment. Farr, Overdorff, and Hartje
    clearly answer this question in the negative: Robert may not receive wage replacement benefits
    based on an aggravation that occurred after he voluntarily retired.
    II. ATTORNEY FEES
    Carolyn points out that if she were to prevail on this appeal, she would be entitled to
    attorney fees under RCW 51. 52, 130. However, she has not prevailed and accordingly is not
    entitled to fees under this provision.
    11
    No. 44508 -5 -II
    CONCLUSION
    The superior court did not err in granting summary judgment to the Department. Robert
    voluntarily retired as a matter of law prior to the aggravation of his injury and was thus not
    entitled to .
    wage replacement benefits. We affirm.
    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.
    We concur:
    MAxA,
    LEE, J.
    12