Michael Aldridge v. Department Of L&I ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 8, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL W. ALDRIDGE, No. 49725-5-II
Appellant, UNPUBLISHED OPINION
v.
WASHINGTON STATE DEPARTMENT OF
LABOR & INDUSTRIES,
Respondent.
BJORGEN, J. — Michael Aldridge filed appeals with the Board of Industrial Insurance
Appeals (Board) from two administrative actions taken by the Department of Labor and
Industries (Department) arising under his worker’s compensation claim. Aldridge then appealed
the Board’s decisions to superior court, which denied Aldridge’s appeal and granted the
Department’s motion to dismiss under CR 12(b)(6) for failure to state a claim upon which relief
can be granted. Aldridge now appeals the superior court’s decision.
First, Aldridge argues that a claims manager’s response to a request he made on the
Department’s online secure message portal improperly added conditions to his receipt of benefits
and constituted final agency action that was reviewable by the Board. Second, he argues that
racial animus motivated the Board’s decision to have armed security present at his hearings.
Third, he argues that the superior court erred when it denied his motion for a new trial judge
because Judge Wilson could not be fair and impartial in deciding the motion by virtue of her
No. 49725-5-II
prior employment with the Washington State Attorney General’s Office. Finally, he argues the
award of statutory costs was erroneous and that he should be awarded attorney fees and costs on
appeal.
We disagree with Aldridge’s contentions and affirm the superior court.
FACTS
Aldridge filed a worker’s compensation claim with the Department and began receiving
benefits for an injury he suffered. Subsequently, Aldridge filed an appeal to the Board of two
different decisions made by the Department relating to those benefits. The Board assigned each
appeal a separate docket number. This appeal concerns each of those two docket numbers that
were consolidated at the superior court.
A. Board Docket No. 13 22304
In 2011, the Department suspended Aldridge’s benefits for “fail[ing] to submit to and/or
cooperate with a medical examination.” 1 Administrative Record (AR) at 158. The Department
order that suspended his benefits specified that “[t]he suspension will remain in effect until you
submit to and cooperate with the examination, or until the claim is closed, whichever occurs
first.” Id.
On July 25, 2013, Aldridge agreed to comply with an independent medical examination
(IME) ordered by the Department. The Department’s IME panel consisted of an orthopedist, a
neurologist, and a chiropractor. The Department scheduled an appointment with each panelist;
however, the chiropractor’s appointment had to be rescheduled. On September 17, both the
orthopedist and the neurologist examined Aldridge. The physicians concluded that magnetic
resonance imaging (MRI) was necessary to complete the IME.
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On September 18, Aldridge contacted the Department through its online secure
messaging portal, which allows injured parties to communicate with the Department’s claims
managers. Aldridge had previously notified the Department on July 25 that he would comply
with the IME, and requested that his benefits be reinstated effective July 25. On September 25,
the claims manager handling Aldridge’s file responded as follows:
Time loss was suspended on your claim on 8/24/11. Lifting a suspension of time
loss and resuming time loss are two separate issues. Once full cooperation is
demonstrated I can review lifting the suspension. Full cooperation would include
completing the MRI that was recommended by the examiners, and attending the
rescheduled chiropractic exam on 10/2/13. Paying time loss would be based on
current medical opinion on ability to work such as the IME report and/or other
medical received.
1 AR at 154.
Aldridge appealed to the Board the claims manager’s response to his secure message and
once more requested that his benefits be reinstated effective July 25. He also claimed that the
response to his secure message placed additional conditions on reinstating his benefits that did
not conform to the Industrial Insurance Act (IIA), Title 51, RCW. In an order dated March 5,
2014, the Department reinstated Aldridge’s wage replacement benefits (or time-loss
compensation) effective September 17, 2013, which was the date of his initial orthopedic and
neurologic examinations.
At the hearing on Aldridge’s administrative appeal, it appears the Department requested
that security be present. Aldridge requested a continuance because he wanted to know why a
state trooper was sitting outside the courtroom. The Industrial Appeals Judge (IAJ) stated,
“[S]ecurity was requested for this hearing. As of this morning, I was told that it was not going to
be provided. So I am unaware that there is an officer out there.” 1 AR Transcripts (Oct. 27,
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2015) at 66. Aldridge asked the IAJ why an officer would be requested for this hearing, and the
IAJ responded, “I have no idea.” Id. The IAJ noted that “[t]he trooper has not been present in
the courtroom . . . [s]o I don’t see that it’s influenced me in any way.” Id. at 67. The IAJ denied
Aldridge’s motion for a continuance regarding the issue of security. The IAJ subsequently
issued a proposed decision that affirmed the content of the secure message, and stated, among
other things, as follows: “Procedurally, if Mr. Aldridge wanted to reach the effective date of
reinstatement that appeal would . . . be[] to the orders that reinstated his time-loss compensation .
. . to a certain date.” 1 AR at 24.
Aldridge petitioned for review to the Board. The Board denied Aldridge’s petition and
adopted the proposed decision as its final order.
B. Board Docket No. 14 15505
As part of administering his claims, the Department also requested that Aldridge fill out a
vocational services intake form. Aldridge failed to comply. The Department suspended his time
loss benefits effective September 5, 2014, but reinstated his benefits effective October 3 in an
order dated October 16. Aldridge appealed the October 16 order to the Board.
During a telephone conference before the IAJ regarding Docket No. 14 15505, Aldridge
stated that he thought his name was “flagged,” and he asked the IAJ if there “will . . . be security
provided at the hearings.” 2 AR Transcripts (Jan. 6, 2015) at 21. The IAJ responded, “I do have
a note in my file that in the past, Mr. Aldridge, you’ve been at least perceived as hostile and that
security was necessary.” Id. at 21. Aldridge said, “I am personally offended, and I want to know
why somebody has perceived me as being hostile and why I wasn’t given an opportunity to
address any allegations of being hostile.” Id. at 22. Aldridge requested a judge outside the
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Board be assigned to his appeals and requested an evidentiary hearing on the issue of security.
He claimed, “What it is, essentially, is that because I’m black and, I guess, intimidating looking,
somebody has decided that I’m some sort of a threat and I’m hostile.” Id. at 23.
At a subsequent conference, the issue of security arose again. The Department
maintained its position that “security should be present when Mr. Aldridge has an appeal.” 2 AR
Transcripts (Feb. 6, 2015) at 19. The IAJ requested briefing on the issue and asked for “specifics
as to the reasons why you [the Department] think that security is necessary.” Id. at 21. Aldridge
asked the IAJ to recuse himself because he believed the IAJ had formulated a bias against him.
The IAJ stated he would have Aldridge’s case assigned to another judge.
The Department submitted briefing on the security issue and asked the Board to provide
security during all of Aldridge’s hearings. The Department included a declaration and a letter
from an assistant attorney general, which stated that Aldridge attempted to intimidate her (and
another attorney) during different appeals. The declaration alleged that Aldridge obtained
personal information about an IAJ1 who expressed some concern for her safety. The declaration
1
The declaration stated, in part:
In 2010, Mr. Aldridge represented his wife, Colleen Aldridge, in an appeal
before the Board under Docket No. 10 15903. The hearing judge issued her
decision that was unfavorable to Mr. Aldridge. In the Petition for Review that was
filed to the Proposed Decision and Order issued by the hearing judge, Mr. Aldridge
included a section in the Petition for Review alleging that the hearing judge should
have recused herself for bias and prejudice. Mr. Aldridge alleged that because the
judge had received a traffic infraction issued by a Washington State Patrol trooper
one day before issuing her letter of September 28, 2010, changing a hearing from a
telephonic hearing to a hearing requiring personal appearance, the judge was biased
against him. Mr. Aldridge alleges that the hearing judge was aware that Mr.
Aldridge was a retired Washington State Patrol trooper. Mr. Aldridge included a
copy of the traffic infraction, which was a speeding ticket. The [IAJ] who issued
the Proposed Decision and Order expressed concern that Mr. Aldridge was
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also reiterated what the assistant attorney general2 reported in her letter.
The IAJ granted the Department’s request for security and entered an order that outlined
its reasoning. The IAJ made clear that “this ruling applies only to this appeal.” 2 AR at 262 n.1.
After a hearing on the merits of Aldridge’s claim, the IAJ issued a proposed decision
reversing the October 2014 order. The IAJ concluded that the Department had not complied
with WAC 296-14-410(4)(b), which provided Aldridge 30 days to respond in writing to the
Department’s letter purporting to suspend his benefits.
Though the IAJ ruled in his favor, Aldridge filed a petition for review to the Board.
Aldridge cited what he perceived as racial bias in the IAJ’s decision to have security present.
The Board denied the petition and adopted the IAJ’s proposed decision as its final decision.
C. Aldridge’s Appeal of the Board’s Decisions in Both Dockets to the Superior Court
Aldridge appealed the Board’s decisions in both dockets to the superior court. On
August 1, 2016 the Department moved for dismissal of both proceedings under CR 12(b)(6) for
obtaining information about her personal life and expressed some concern for her
safety.
2 AR at 158.
2
The declaration stated, in part:
In a separate matter, I was advised by an Assistant Attorney General who
appears before the Board that in a proceeding Mr. Aldridge had referred to her by
her married name, which is not the name she uses when she practices before the
Board. She believed Mr. Aldridge was using her married name in an attempt to
intimidate her. The Assistant Attorney General also related a conversation where
another woman attorney disclosed that Mr. Aldridge had made a reference to her
that he knew where she lived. This attorney felt that the remark was intended to
show that he had personal information about her so that she would feel intimidated
and vulnerable.
2 AR at 158.
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failure to state a claim upon which relief can be granted. On August 26, the superior court
conducted a hearing on the motion. On October 7, the superior court issued an oral opinion,
which granted the Department’s motion to dismiss. It also entered a written order.
D. Order Granting Department’s CR 12(b)(6) Motion to Dismiss
The superior court order stated, in pertinent part:
1. The Court has jurisdiction over the parties to, and the subject matter of, this
appeal.
2. The undisputed factual record establishes that:
Under Dckt. 13 22304, Mr. Aldridge identified the issue, in both his Board
appeal and opening brief in this court, as what was the effective date of
reinstatement of his time-loss compensation. The relief Mr. Aldridge seeks is
having his time-loss compensation benefits reinstated effective July 25, 2013 in his
appeal of Dckt. 13 22304. The effective date of reinstatement of Mr. Aldridge’s
time-loss compensation benefits, however, was not decided by the Department, was
outside the scope of the Board’s review, and is outside the scope of this Court’s
review.
Under Dckt. 14 15505, Mr. Aldridge identified the issue of whether the
Board exhibited racial bias against him with respect to the following decisions: a)
Industrial Appeals Judge Watkins’ decision not to enforce Industrial Appeals Judge
Jinhong’s request that the Department brief specific reasons why armed security
was necessary during Board proceedings where Mr. Aldridge appeared in person,
b) Industrial Appeals Judge Timmons’ denial of a hearing on the record on the
security issue, c) Judge Timmons’ denial of a 20-day extension for Mr. Aldridge to
submit more information on the security issue, d) Judge Watkins’ grant of the
Department’s request for security at Board proceedings, and e) Judge Watkins’
decision not to recuse himself.
Judge Watkins and the Board found in favor of Mr. Aldridge and ordered
the Department to reverse its suspension order of September 5, 2014.
RCW 51.52.110 allows anyone who is “aggrieved” by the final decision and
order of the Board to appeal such order to superior court. No relief is available to
Mr. Aldridge under Dckt. 14 15505, however, because he prevailed at the Board.
3. Mr. Aldridge has not shown that he is entitled to the relief he seeks in his appeals
from the Department’s secure message in Dckt. 13 22304 and from the
Department’s suspension order in Dckt. 14 15505. The Department therefore is
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entitled to judgment that Plaintiff’s appeals of Dckt. 13 22304 and Dckt. 14 15505
in the present action should be dismissed for failure to state a claim for relief.
Clerk’s Papers (CP) at 224-26.
E. Motion for a New Trial
Aldridge filed a motion for a new trial under CR 59(a). In his brief in support of his
motion, Aldridge claimed, among other things, that superior court judge Wilson should have
disclosed her prior employment with the Washington State Attorney General’s Office. He
argued the failure to disclose prejudiced him. The Department’s response argued Aldridge was
not prejudiced by Judge Wilson hearing the matter and Aldridge was not prejudiced by the
timing of Judge Wilson’s decision.
At a hearing on the motion, Aldridge maintained Judge Wilson should have disclosed her
prior employment. The State maintained its position that Aldridge did not demonstrate a conflict
of interest.
Judge Wilson concluded that she could not identify “any evidentiary or any legal basis to
grant the new trial, and based upon the evidence in the record and ultimately the court’s decision,
do not find that this is a case where substantial justice has not been done.” Verbatim Report of
Proceedings (VRP) (Oct. 28, 2016) at 21. She advised Aldridge as follows:
The court was sworn in and took the bench approximately two years ago. And for
the first year of being on the bench, the court routinely informed every party to any
State case of the court’s prior employment before taking the bench. After one year,
the court determined that that routine advisement was not necessary. And your
case, I believe, was filed in 2016 – perhaps it was 2015 – after the timeframe when
the court was sending those routine letters. And that was the practice since that
time. Some parties have filed motions or requests, and those have been considered
on a case-by-case basis.
VRP (Oct. 28, 2016) at 22. The court denied Aldridge’s request for a new trial.
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Aldridge appeals.
ANALYSIS
At the outset, we note that the procedural posture of this case prevents us from addressing
many of Aldridge’s arguments on their merits. RAP 10.3(a)(6) requires parties to provide
“argument in support of the issues presented for review, together with citations to legal authority
and references to relevant parts of the record.” See Cowiche Canyon Conservancy v. Bosley, 118
Wn.2d 801, 809, 828 P.2d 549 (1992). The purpose behind RAP 10.3(a)(6) and related rules “is
to enable the court and opposing counsel efficiently and expeditiously to review the accuracy of
the factual statements made in the briefs and efficiently and expeditiously to review the relevant
legal authority.” Hurlbert v. Gordon, 64 Wn. App. 386, 400, 824 P.2d 1238 (1992). Although
Aldridge is acting pro se, we hold him to the same standards for observing the rules as attorneys.
Westberg v. All-Purpose Structures Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997).
Although not explicitly stated in RAP 10.3(a)(6), it is implicit in the rule that the citations
to legal authority should relate to the issues presented for review and should support the
proposition for which such authority is cited. Litho Color, Inc. v. Pac. Emp’rs Ins. Co., 98 Wn.
App. 286, 305, 991 P.2d 638 (1999). Some aspects of Aldridge’s briefing fail RAP 10.3(a)(6).
Accordingly, we only address the arguments under the IIA that do comply with that rule.
I. MOTION TO DISMISS
A. Standard of Review
The superior court reviews the Board’s determination de novo. Rogers v. Dep’t of Labor
& Indus., 151 Wn. App. 174, 179, 210 P.3d 355 (2009). The Board’s decision is prima facie
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correct under RCW 51.52.115, and the party challenging the decision must demonstrate by a
preponderance of the evidence that the decision is incorrect. Rogers, 151 Wn. App. at 180.
Here, however, the superior court did not make a de novo determination of Aldridge’s
appeals to the Board pursuant to RCW 51.52.115. Instead, the superior court dismissed
Aldridge’s appeals of the Board decisions under CR 12(b)(6), which allows dismissal for the
failure to state a claim upon which relief can be granted. An action may be dismissed under CR
12(b)(6) only if “‘it appears beyond doubt that the plaintiff can prove no set of facts, consistent
with the complaint, which would entitle the plaintiff to relief.’” Lawson v. State, 107 Wn.2d
444, 448, 730 P.2d 1308 (1986) (quoting Bowman v. John Doe, 104 Wn.2d 181, 183, 704 P.2d
140 (1985)). For purposes of a CR 12(b)(6) motion, the plaintiff’s factual allegations are
presumed to be true. Lawson, 107 Wn.2d at 448. We review CR 12(b)(6) dismissals de novo.
FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331
P.3d 29 (2014), aff’d, 413 P.3d 1 (2018). Because Aldridge appeals a dismissal under CR
12(b)(6), we apply these standards.
C. Board Docket No. 13 22304
Aldridge argues that the claims manager’s response to a request he made via the
Department’s online secure message portal was a final order or decision that was reviewable by
the Board. He also argues the response added requirements to the reinstatement of his time loss
compensation benefits. We disagree.
Whenever the Department has made any order, decision, or award, it shall promptly serve
it on the worker, beneficiary, employer, or other person. RCW 51.52.050(1). Persons who
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choose to receive correspondence and other legal notices electronically shall be provided
information to assist them in ensuring all electronic documents and communications are
received. Id. A final order, decision, or award must also bear a statement that it will become
final within 60 days from the date the order is communicated to the parties. Id. Whenever the
Department has taken any action or made any decision relating to any phase of the
administration of this title, the worker, beneficiary, employer, or other person aggrieved thereby
may request reconsideration of the decision or action, or may appeal to the Board. RCW
51.52.050(2)(a).
The Department’s response to Aldridge’s online request did not decide the effective date
of reinstatement of Aldridge’s time loss compensation benefits. In fact, it did not decide
anything with regard to Aldridge’s claim—it simply reiterated that Aldridge must comply with
the IME and outlined what compliance entailed.
In Lenk v. Department of Labor & Industries, 3 Wn. App. 977, 982, 478 P.2d 761 (1970),
we noted that:
[T]he board’s and the superior court’s jurisdiction is appellate only, and for the
board and the trial court to consider matters not first determined by the department
would usurp the prerogatives of the department, the agency vested by statute with
original jurisdiction. . . . [I]f a question is not passed upon by the department, it
cannot be reviewed either by the board or the superior court.
Because the Department’s response did not decide the effective date of reinstatement of
Aldridge’s time loss compensation benefits, it cannot provide the basis for an appeal of that
effective date and was not reviewable by the Board or the superior court. As such, Aldridge can
prove no set of facts, consistent with the appeal, which would entitle him to relief on the issue of
the effective date. See Lawson, 107 Wn.2d at 448.
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Aldridge also argues the Department’s response to his online request added requirements
to the reinstatement of his time loss compensation benefits. He argues the response added the
requirement of an MRI and that the IME report substantiate continued entitlement to time loss
compensation benefits.
In this case, the Department apparently needed to evaluate Aldridge’s temporary total
disability and ability to work in order to substantiate his continued entitlement to time loss
compensation benefits. “Temporary total disability ends when the claimant's condition becomes
fixed and stable or he is capable of reasonably continuous employment at any kind of generally
available work.” Butson v. Dep’t of Labor & Indus., 189 Wn. App. 288, 299, 354 P.3d 924(2015). In order to evaluate Aldridge, the Department ordered an IME. An IME could entail a
variety of tests, and the MRI was just one of those tests the two physicians needed to conduct in
order to properly evaluate Aldridge’s entitlement to time loss compensation benefits. The
Department’s response simply reiterated that the Industrial Insurance Act obligated Aldridge to
comply with the requirements of the IME, including the physicians’ request for an MRI.
One important purpose of an IME is to allow the Department to substantiate continued
entitlement to benefits. For example, an IME may be requested if the Department needs to
establish when the accepted industrial injury has reached maximum medical improvement or to
evaluate the worker’s mental and/or physical restrictions as well as the worker’s ability to work.
WAC 296-23-307. The Department does not automatically reinstate benefits without an IME
indicating that a particular claimant is still eligible—the claimant must show temporary total
disability. See Butson, 189 Wn. App. at 299-302 (holding that the superior court did not err in
finding that substantial evidence did not support Butson’s claim of temporary total disability).
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Here, the Department’s response to Aldridge’s request merely informed him that the IME report
must substantiate his claim of continued entitlement to time loss compensation benefits.
For these reasons, the superior court did not err when it granted the Department’s motion
to dismiss Aldridge’s appeal under CR 12(b)(6).
D. Board Docket No. 14 15505
In this docket proceeding, Aldridge appeals the Department’s suspension of his time loss
benefits for failure to file a vocational services form. He argues that the superior court erred
when it granted the Department’s motion to dismiss his appeal under CR 12(b)(6). We disagree.
RCW 51.52.110 provides in relevant part:
Within thirty days after a decision of the board to deny the petition or petitions for
review upon such appeal has been communicated . . . such worker, beneficiary,
employer or other person aggrieved by the decision and order of the board may
appeal to the superior court.
(Emphasis added.) A party cannot appeal the Board’s decision unless that party is aggrieved by
the Board’s decision and order. Peterson v. Dep’t of Labor & Indus., 22 Wn.2d 647, 651, 157
P.2d 298 (1945). Although the statute does not define the term “aggrieved,” the term has been
defined to mean “‘a denial of some personal or property right, legal or equitable, or the
imposition upon a party of a burden or obligation.’” Mestrovac v. Dep’t of Labor & Indus., 142
Wn. App. 693, 704, 176 P.3d 536 (2008) (quoting State v. A.M.R., 147 Wn.2d 91, 95, 51 P.3d
790 (2002)).
The Department argues that because the Board agreed with Aldridge on the merits of his
claim, he cannot be deemed an aggrieved party. The Department is correct. WAC 296-14-
410(4)(b) required the Department to provide Aldridge 30 days to respond in writing to the
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Department’s letter purporting to suspend his benefits. The IAJ concluded the Department did
not provide the appropriate amount of time. The Board agreed and adopted the IAJ’s proposed
decision and order. Because Aldridge prevailed at the Board, there was no denial of a personal
or property right; nor did the Board impose upon him any burden or obligation.
We recognize, though, that Aldridge’s appeal does not appear to concern the merits of the
Board’s final decision and order; rather, he argues that racial animus motivated the IAJ’s
discretionary decision to have armed security present at his hearings. Aldridge claims that the
IAJ purposely ruled in his favor to preclude further consideration of his argument regarding the
Department’s alleged racial animus. He reasoned, “[H]ad the [IAJ] ruled for the Department, the
likelihood of a higher court considering the matter of armed security increased. [The IAJ] knew
what to do to make the system work for the [Board] and the Department, and against Mr.
Aldridge.” Br. of Appellant at 11.
Yet, the record contains no support for Aldridge’s speculation about why the IAJ ruled in
his favor. The IAJ issued a separate order that addressed the Department’s request for security.
The IAJ’s proposed decision and order on the merits, though, did not discuss the issue of
security, and the Board’s order denying Aldridge’s petition for review likewise did not discuss
the issue of security.
As noted, in Lenk, 3 Wn. App. at 982, we held that “if a question is not passed upon by
the department, it cannot be reviewed either by the board or the superior court.” Accordingly,
the superior court was without jurisdiction to review the IAJ’s discretionary decision to have
armed security present—the superior court could only review whether the Board properly denied
Aldridge’s petition and whether the Board properly adopted the IAJ’s proposed decision and
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order as its final decision. The superior court determined no relief was available to Aldridge
because he prevailed at the Board. We likewise have no jurisdiction to review the IAJ’s
discretionary decision to have armed security present under the IIA. We conclude that Aldridge
was not an aggrieved party within the meaning of RCW 51.52.110 because he prevailed in the
proceedings before the Board. Therefore, the superior court did not err when it granted the
Department’s motion to dismiss, as Aldridge failed to state a claim upon which relief could be
granted.
We recognize the vital need to afford effective and robust legal remedies for claims of
racial discrimination. Not every remedy, though, is designed to address every ill that could be
within its reach. As described above, our authority in workers’ compensation appeals is limited
to issues decided in the administrative decisions under appeal. Thus, Aldridge’s claim of racial
discrimination is not within the scope of the appeal before us. Whether state or federal civil
rights law would apply is similarly not before us.
III. RECUSAL AND APPEARANCE OF FAIRNESS
Aldridge argues that the superior court erred when it denied his motion for a new trial.
He contends that Judge Wilson could not be fair and impartial in deciding the motion by virtue
of her prior employment with the Washington State Attorney General’s Office. We disagree.
A. Standard of Review
Washington cases have long recognized that judges must recuse themselves when the
facts suggest that they are actually or potentially biased or prejudiced. Tatham v. Rogers, 170
Wn. App. 76, 93, 283 P.3d 583 (2012). We review a superior court judge’s decision whether to
recuse himself or herself for an abuse of discretion. Kok v. Tacoma Sch. Dist. No. 10, 179 Wn.
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App. 10, 23-24, 317 P.3d 481 (2013). A superior court’s decision will not be disturbed on appeal
unless its decision was manifestly unreasonable or based on untenable grounds or reasons.
Tatham, 170 Wn. App. at 87.
A court’s decision is manifestly unreasonable if it is outside the range of acceptable
choices, given the facts and the applicable legal standard; it is based on untenable
grounds if the factual findings are unsupported by the record; it is based on
untenable reasons if it is based on an incorrect standard or the facts do not meet the
requirements of the correct standard.
In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
B. Legal Principles
Subject to limitations, any party appearing in any action or proceeding in a superior court
may disqualify a judge from hearing the matter. Former RCW 4.12.050(1) (2009). Notice of
disqualification must be filed and called to the attention of the judge before the judge has made
any discretionary ruling in the case. Former RCW 4.12.050(1)(a). No judge of a superior court
of the state of Washington shall sit to hear or try any action or proceeding if that judge has been
disqualified. Former RCW 4.12.040(1) (2009). Still,
[i]t is unusual to require a judge to recuse himself or herself from ruling on a motion
for a new trial even where the motion is based on grounds that are critical of the
trial judge. The trial judge is fully informed and is presumed to perform his or her
functions regularly and properly without bias or prejudice.
Tatham, 170 Wn. App. at 87.
If notice of disqualification is not filed and called to the attention of the judge before the
judge has made any discretionary ruling in the case, a party must demonstrate prejudice on the
part of the judge. State v. Cameron, 47 Wn. App. 878, 884, 737 P.2d 688 (1987). An
affirmative showing of prejudice is required because we will not presume prejudice on the part
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No. 49725-5-II
of an elected judicial officer. Williams & Mauseth Ins. Brokers, Inc. v. Chapple, 11 Wn. App.
623, 628, 524 P.2d 431 (1974). “‘Casual and unspecific allegations of judicial bias provide no
basis for appellate review, even when asserted by a pro se litigant.’” Cameron, 47 Wn. App. at
884 (quoting Rich v. Starczewski, 29 Wn. App. 244, 246, 628 P.2d 831 (1981)).
C. Aldridge Failed to Demonstrate Prejudice
First, we note that Aldridge failed to file a notice of disqualification under former RCW
4.12.050. Therefore, Aldridge must demonstrate prejudice on the part of Judge Wilson.
Aldridge argues that Judge Wilson failed to disclose her employment history with the
Washington State Attorney General’s Office, which presented a reasonable question regarding
her impartiality. Nevertheless, Aldridge concedes that Judge Wilson’s biography was available
on the Thurston County Superior Court website. Aldridge does not put forth any evidence on the
record that Judge Wilson formerly was an employee of the department. He does not put forth
evidence on the record that Judge Wilson had a personal or familial relationship with the
attorneys representing the State. He has not cited any evidence in the record that Judge Wilson
made comments that indicated she was prejudiced against him because of her prior employment.
He has not put forth evidence on the record that Judge Wilson has an interest in the outcome of
his worker’s compensation claim. Quite simply, Judge Wilson’s failure to disclose her prior
employment with the attorney general’s office before the pertinent hearing does not show that
she was prejudiced against him. It merely shows she has a history of public service that she did
not consider relevant to the issue of recusal. On the record, the connection between the attorney
general’s office and Judge Wilson is too attenuated to demonstrate prejudice.
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Aldridge next argues that because Judge Wilson postponed a decision in his case, she was
prejudiced against him. The complexities of litigation, however, can present myriad legitimate
reasons to adjust the timing of a decision. Without more, postponing a decision does not
demonstrate prejudice.
Because Aldridge has failed to demonstrate prejudice, we hold that Judge Wilson did not
err when she denied Aldridge’s motion for a new trial.
D. Appearance of Fairness Doctrine
The appearance of fairness doctrine requires recusal where the facts suggest a judge is
actually or potentially biased. Tatham, 170 Wn. App. at 93. The doctrine’s basic standard is that
a “reasonably prudent and disinterested person would conclude that all parties obtained a fair,
impartial, and neutral hearing.” Tatham, 170 Wn. App. at 96. The test for whether a judge’s
impartiality might reasonably be questioned is objective and assumes that a reasonable person
knows and understands all relevant facts. Tatham, 170 Wn. App. at 96. We presume that the
superior court performs its functions regularly and properly without bias or prejudice. Tatham,
170 Wn. App. at 96.
Aldridge argues Judge Wilson failed to disclose her employment history with the
Washington State Attorney General’s Office, which presented a reasonable question regarding
her impartiality. Aldridge cites the Washington Code of Judicial Conduct (CJC) Rule 2.11 to
support his argument that Judge Wilson should have been disqualified. CJC 2.11, comment 1
states, in part, “[A] judge is disqualified whenever the judge’s impartiality might reasonably be
questioned.” Comment 5 states,
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A judge should disclose on the record information that the judge believes the parties
or their lawyers might reasonably consider relevant to a possible motion for
disqualification, even if the judge believes there is no basis for disqualification.
Aldridge claims, under the appearance of fairness doctrine, that Judge Wilson should have
disclosed that she previously worked as an assistant attorney general, so he could have
considered a possible motion for disqualification.
For the same reasons addressed above, a reasonable person with knowledge of all
relevant facts would not reasonably question Judge Wilson’s impartiality because she did not
disclose her prior employment with the Washington State Attorney General’s Office. See
Tatham, 170 Wn. App. at 96. We presume that Judge Wilson performed her functions regularly
and properly without bias or prejudice. The fact she worked for the Washington State Attorney
General’s Office, without more, does not demonstrate bias or prejudice.
Accordingly, we hold that Judge Wilson did not err when she denied Aldridge’s motion
for a new trial, because a reasonably prudent and disinterested person would conclude that all
parties obtained a fair, impartial, and neutral hearing. Tatham, 170 Wn. App. at 96.
IV. ATTORNEY FEES
A. Statutory Attorney Fees
Aldridge challenges the superior court’s award of $200 to the Department for statutory
attorney fees. We hold that this award was proper.
Chapter 4.84 RCW applies to appeals in the superior court from the Board. Black v.
Dep’t of Labor & Indus., 131 Wn.2d 547, 557, 933 P.2d 1025 (1997). RCW 4.84.030 states, “In
any action in the superior court of Washington the prevailing party shall be entitled to his or her
costs and disbursements.” Of these, RCW 4.84.080(1) sets the statutory attorney fees at $200.
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Thus, the superior court did not err when it awarded the Department statutory attorney fees as the
prevailing party.
B. Aldridge’s Request for Attorney Fees on Appeal
Aldridge requests attorney fees and costs on appeal. Under governing law, he is not
entitled to them.
We note first that pro se litigants are generally not entitled to attorney fees for their work
representing themselves. Mitchell v. Dep’t of Corr., 164 Wn. App. 597, 608, 277 P.3d 670(2011); cf. Stiles v. Kearney, 168 Wn. App. 250, 277 P.3d 9 (2012) (A pro se defendant who is
an attorney can receive attorney fees for his efforts in defending against a complaint).
More to the point, the award of attorney fees in Board appeals is controlled by RCW
51.52.130, which “encompasses fees in both the superior and appellate courts when both courts
review the matter.” Hi-Way Fuel Co. v. Estate of Allyn, 128 Wn. App. 351, 363-64, 115 P.3d
1031 (2005). This statute allows the court to fix attorney fees if it reverses the Board’s order and
grants an award to the disabled worker. RCW 51.52.130. Because we do not reverse the
Board’s orders, Aldridge’s claim for attorney fees and costs fails.
CONCLUSION
We affirm the superior court.
A majority of the panel having determined that this opinion will not be printed in the
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Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Bjorgen, J.
We concur:
Johanson, P.J.
Sutton, J.
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