Lee Richardson v. Dept Of Labor & Industries ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LEE RICHARDSON,
No. 68825-1-1
Appellant,
DIVISION ONE
v.
STATE OF WASHINGTON, UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES, FILED: September 16, 2013
Respondent.
Becker, J. - Lee Richardson claims that the Department of Labor and
Industries incorrectly calculated the amount of her third-party recovery and
improperly suspended her time loss benefits after she sustained an on-the-job
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injury. Because the trial court properly granted summary judgment dismissal of£ rn '
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her claims based on res judicata, we affirm.
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FACTS VjD
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On August 17, 1995, Lee Richardson was injured while traveling on u
business for her employer when she slipped and fell at a Red Lion Inn. She
applied for and began receiving workers compensation benefits from the
Department of Labor and Industries. Richardson also filed suit against the Red
No. 68825-1-1/2
Lion Inn for the initial injury and against her treating physician for medical
malpractice.
Under RCW 51.24.060, an injured worker's recovery from a third party is
subject to the Department's right to reimbursement for any payments the
Department has already made on the worker's behalf. The statute mandates the
method of calculating the distribution of the third-party recovery as follows: (1)
attorney fees and costs are deducted from the gross recovery, (2) the claimant
receives 25 percent of the balance of the award, (3) the Department and the
employer are reimbursed for benefits paid to the claimant, and (4) the remaining
balance is then disbursed to the claimant. RCW 51.24.060(1 )(a)-(d). This
remaining balance is subject to future offset of payments by the Department.1
RCW 51.24.060(1 )(e).
Richardson settled the malpractice claim for $1,000,000. At a court-
ordered mediation on October 10, 2001, Richardson and the Department
executed a compromise agreement as to how the recovery would be allocated
between them. After doing some handwritten calculations, Richard VIosich, the
Department's representative, explained to Richardson that approximately
$415,000 would be paid to her attorneys, $216,861 would go to the Department,
and she would receive approximately $368,138. VIosich told Richardson that the
1The amount subject to offset is what an injured worker must spend before the
Department will pay any additional benefits.
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No. 68825-1-1/3
Department would pay for all approved medical expenses until her recovery from
Red Lion Inn was resolved, with only time loss compensation being deducted
from her offset. Richardson latter settled the claim against Red Lion Inn for
$373,000.
After the malpractice and Red Lion Inn settlements, the Department
issued two third-party distribution orders applying the distribution formula in RCW
51.24.060 and consistent with the compromise agreement. The orders provided,
in pertinent part:
"Claimant has recovered $1,000,000 and requires distribution of the
settlement proceeds as follows: 1) Net share to attorney for fees
and costs - $421,742.47; 2) Net share to claimant - $364,686.29;
and 3) Net share to Department - $213,571.24. The Department
has paid benefits of $372,037.72 and asserts $369,362.91 against
this recovery. Demand is made upon the claimant to reimburse the
Department in the amount of $213,571.24 The Department has
deducted from its total reimbursement share the money it receives
by this order. It is ordered that no benefits or compensation will be
paid to or on behalf of claimant or beneficiary as defined by RCW
51.08.020 until such time the excess recovery totaling $127,296.39
has been expended by claimant or beneficiary for costs incurred as
a result of the condition(s), injuries, or death covered under this
claim."
"Claimant has recovered $373,000 and requires distribution of the
settlement proceeds as follows: 1) Net share to attorney for fees
and costs - $138,000; 2) Net share to claimant - $234,990.78; and
3) Net share to Department - $0. The Department has paid
benefits of $6,581.14 and asserts $0 against this recovery. ... It is
ordered that no benefits or compensation will be paid to or on
behalf of claimant or beneficiary as defined by RCW 51.08.020 until
such time the excess recovery totaling $104,376.29 has been
expended by claimant or beneficiary for costs incurred as a result of
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No. 68825-1-1/4
the condition(s), injuries, or death covered under this claim. Total
excess amount to date for both recoveries is $231,672."
The computations made in these orders have been neither challenged nor
briefed.
Richardson appealed both orders to the Board of Industrial Insurance
Appeals, challenging the Department's right to offset payment of future benefits
against her recovery. On November 13, 2003, Richardson and the Department
executed a written settlement agreement resolving Richardson's appeals to the
Board. The settlement agreement provided that the Department would reduce
the balance of Richardson's third-party recovery subject to offset from
$159,045.53 to $95,427.32 and that the Department would credit all of
Richardson's outstanding medical bills related to the injury against the remaining
balance. The settlement agreement was signed by Richardson and her attorney.
On December 24, 2003, the Board issued an order pursuant to WAC 263-12-093
memorializing the terms of the settlement agreement and resolving Richardson's
Board appeals.
Richardson did not petition for review of the order. However, on May 4,
2004, she wrote a letter to the Board objecting to the Board's order. The Board
treated Richardson's letter as a CR 60(b) motion to vacate and denied the
motion. Richardson appealed the Board's decision to the superior court, which
affirmed the Board. Richardson appealed the superior court's decision and a
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No. 68825-1-1/5
commissioner of this court granted a motion on the merits to affirm. The
Washington Supreme Court denied Richardson's petition for review.
Throughout 2004, the Department periodically sent letters to Richardson
informing her of the remaining offset balance. Richardson appealed these letters
to the Board. The Board consolidated the appeals and dismissed them for either
lack of subject matter jurisdiction or lack of sufficient evidence. Richardson
appealed to the superior court, which affirmed the Board, and then to this court,
which granted a motion on the merits to affirm.
On June 8, 2006, the Department issued an order suspending
Richardson's time loss compensation until Richardson agreed to participate in an
independent medical examination. Richardson appealed this order to the Board,
which affirmed the Department's decision. Richardson did not appeal the
Board's decision and has not, to date, participated in the required examination.
On December 27, 2010, Richardson filed suit against the Department for
breach of contract, claiming that the Department had violated both the October
10, 2001, compromise agreement and the November 13, 2003, settlement
agreement by failing to correctly calculate the amount of her third-party recovery
or properly apply her medical bills against the offset amount.2 Richardson also
2 Richardson claims that she is being "denied ongoing payment of benefits and
medical treatment" because the Department is not applying the proper formula to
determine her offset amount. But the record shows that Richardson has no remaining
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No. 68825-1-1/6
sought a writ of mandamus to compel the Department to comply with the
agreements and reinstate her appeals to the Board, as well as a declaratory
judgment that the Department "will provide medical coverage, benefits and wage
benefits as mandated under the law, and to communicate with plaintiff and/or her
representatives regarding her treatment."3
On March 30, 2012, the Department moved for summary judgment
dismissal. The Department argued that (1) the breach of contract claim and the
writ of mandamus were barred by res judicata, (2) the breach of contract claim
was barred by the statute of limitations, (3) the complaint did not establish the
necessary elements for either the breach of contact or mandamus claims, and (4)
declaratory relief was barred because Richardson had other adequate remedies
at law. The trial court granted the Department's motion. Richardson appeals.
DECISION
Summary judgment is appropriate ifthere is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
Our review is de novo. Stalter v. State, 151 Wn.2d 148, 155, 86 P.3d 1159(2004). In reviewing an order of summary judgment, this court may affirm the
offset, and the reason that Richardson is not currently receiving time loss compensation
or other benefits is her continued refusal to participate in the independent medical
examination.
3 Richardson claimed that her claims manager, the Department's medical
director, and the Office of the Attorney General were refusing to speak with her about
her case.
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No. 68825-1-1/7
order on any theory within the pleadings and the proof. LaMon v. Butler, 112
Wn.2d 193, 200-01, 770 P.2d 1027. cert, denied. 493 U.S. 814 (1989).
Res judicata bars the relitigation of claims and issues that were litigated or
might have been litigated in a prior action. Loveridqe v. Fred Meyer. Inc., 125
Wn.2d 759, 763, 887 P.2d 898 (1995). For res judicata to apply, a prior final
judgment must have "a concurrence of identity with a subsequent action" in (1)
subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of
the persons for or against whom the claim is made. Loveridge, 125 Wn.2d at
763. Whether res judicata bars a party from pursuing an action is also a matter
of law reviewed de novo. Kuhlman v. Thomas. 78 Wn. App. 115, 119-20, 897
P.2d 365 (1995).
The trial court properly dismissed Richardson's breach of contract and
mandamus claims as barred by res judicata. Both the subject matter and the
cause of action are identical to Richardson's previous suits: a challenge to the
Department's calculation of her offset amount and the Department's decision to
suspend her time loss benefits in 2006. The fact that Richardson is now
attempting to proceed under a different legal theory does not rob the prior
adjudications of their preclusive effect. See, e.g., Marshall v. Thurston County,
165 Wn. App. 346, 267 P.3d 491 (2011). Similarly, the prior and current
proceedings involve an identity of persons and parties: the Department has been
a party to all of Richardson's prior suits. Richardson argues that "she was not
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No. 68825-1-1/8
attempting to revisit past, litigated issues but rather the claims were addressed to
her ongoing predicament," but we must disagree.
Richardson's only claim that has not been previously litigated is her
request for declaratory or injunctive relief requiring the Department and its
representatives to communicate with her about her case. But Richardson's
opening brief contains no argument or authority as to why she would be entitled
to equitable relief. This court will not consider arguments that an appellant has
not developed in its opening brief and for which the appellant has cited no
authority. RAP 10.3(a)(6); State v. Bello, 142 Wn. App. 930, 932 n.3, 176 P.3d
554. review denied, 164Wn.2d 1015(2008).
Affirmed.
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WE CONCUR:
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