Edmund Okolie v. Wa State Dept Of Labor & Industries, Resp ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
EDMUND OKOLIE,
No. 76665-1-I
Appellant,
DIVISION ONE
V.
WASHINGTON STATE DEPARTMENT UNPUBLISHED OPINION
OF LABOR AND INDUSTRIES,
FILED: March 11,2019
Respondent.
SMITH, J. — Edmund Okolie appeals a superior court’s order affirming the
Department of Labor and Industries’ calculation of his monthly wage for the
purposes of workers’ compensation. Because Okolie raises no meritorious
issues, we affirm the decision of the superior court.
FACTS
In November 2006, Edmund Okolie was injured while working as a
handyman for Blessed Trinity Home, an assisted living facility. Okolie filed a
workers’ compensation claim with the Department in which he listed his monthly
wage at the time of injury as $1 ,014.32.1
In January 2007, Blessed Trinity Home submitted an Employer Report of
Industrial Injury or Occupational Disease form to the Department. The form listed
1Former RCW 51 .08.178 (1988) governs the determination of
compensation for time loss and loss of earning power, which is based on monthly
wages the employee was receiving at the time of the injury.
No. 76665-1-112
Okolie’s rate of pay as “deserves at least $15.00 ph.” It also stated that Okolie
would receive “[p]rofit sharing when profitable” and listed Okolie as a “partner” of
the company. The form did not list Okolie’s actual monthly wage.
In March 2008, Blessed Trinity Home’s certified public accountant
completed the Department’s Worker Wage and Employment Information form.
The form specified, consistent with Okolie’s self-report, that Okolie’s monthly
wage at the time of injury was $1,014.32. The form also noted that Okolie had
received a $1,000 bonus in the prior 12-month period, but did not receive any
health care or housing benefit as part of his compensation.
In August 2008, the Department issued an order setting Okolie’s gross
monthly wage at the time of injury as $1,097.65. The Department reached this
figure by prorating Okolie’s bonus over 12 months and adding it to the monthly
wage of $1,014.32.2
Okolie filed a protest of the Department’s order. In response, the
Department requested 2006 payroll information from Okolie and Blessed Trinity
Home. Okolie provided a copy of his 2006 W-2 form, which showed that his
wage income was $12,648, consistent with the Department’s wage calculation.
In February 2014, the Department affirmed its August 2008 wage
calculation.3 Okolie appealed to the Board of Industrial Insurance Appeals
2 Former RCW 51.08.178(3) requires the Department to average bonuses
received from the employer within 12 months of an injury and include that
amount in calculating the employee’s wages.
~ The delay resulted from the fact that the Board initially determined that
Okolie did not timely protest the Department’s August 2008 order. Okolie
appealed the Board’s decision to the superior court, which reversed the decision
and directed the Department to consider the protest timely.
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No. 76665-1-113
(Board), contending that the Department’s calculation was incorrect. He argued
that his monthly wage was actually $2,100 per month and that his employer also
paid for his housing and a cell phone, which he asserted should be included in
the wage calculation.4 In January 2015, an industrial appeals judge affirmed the
Department’s order, finding that Okolie ‘provided no evidence, other than
assertions, that support his contention his monthly wage calculation is incorrect.”
A three-member panel of the Board affirmed the Department’s February
2014 order.5 The panel noted discrepancies in Okolie’s various accounts of his
monthly wage and found Okolie’s representations to be not credible.
The superior court affirmed the Board’s decision and adopted its findings
of fact. The superior court additionally found that
[alt the time of his industrial injury, Mr. Okolie’s monthly wage was
$1,014.32, and his employer did not provide a housing allowance
as part of his wage. In the year prior to his industrial injury, Mr.
Okolie’s employer gave him a one-time $1,000 bonus.
Okolie appeals.
DISCUSSION
Washington’s Industrial Insurance Act, Title 51 RCW, governs judicial
review of workers’ compensation cases. Rogers v. Dept of Labor & Indus., 151
~ Former RCW 51 .08.178(1) provides that the term “wages” must “include
the reasonable value of board, housing, fuel, or other consideration of like nature
received from the employer as part of the contract of hire.”
~ After the Board affirmed, Okolie appealed to the superior court a second
time. The superior court remanded to the Board with directions to consider
additional portions of the record. The Board did so and again affirmed the
Department’s February 2014 order.
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No. 76665-1-114
Wn. App. 174, 179, 210 P.3d 355 (2009). The superior court conducts a de novo
review of the Board’s decision, relying exclusively on the certified board record.
RCW51.52.115; McCaulleyv. Dep’tof Labor& lndus., 5Wn.App. 2d 304, 312,
424 P.3d 221 (2018). The Board’s findings and decision are prima facie correct,
and the individual challenging the decision has the burden of proof. Spivey v.
City of Bellevue, 187 Wash. 2d 716, 727, 389 P.3d 504 (2017).
This court reviews the superior court’s decision, not the Board’s order.
RCW 51.52.140. Specifically, we review whether substantial evidence supports
the superior court’s factual findings and whether the superior court’s conclusions
of law flow from those findings. Rogers, 151 Wash. App. at 180. Like the superior
court, our review is based solely on the evidence and testimony presented to the
Board. RCW 51 .52.115; Bennerstrom v. Dep’t of Labor & Indus., 120 Wash. App.
853, 858, 86 P.3d 826 (2004). We view the record in the light most favorable to
the party who prevailed in superior court. Rogers, 151 Wash. App. at 180.
We hold pro se litigants to the same standard as attorneys, and they must
comply with all procedural rules on appeal. In re Marriage of Olson, 69 Wash. App.
621, 626, 850 P.2d 527 (1993). An appellant must provide “argument in support
of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record.” RAP 10.3(a)(6). “Passing treatment
of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.” Holland v. City of Tacoma, 90 Wash. App. 533, 538, 954 P.2d 290
(1 998). Okolie’s claims are conclusory in nature and unsupported by citation to
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No. 76665-1-1/5
the record or authority. We are mindful of the difficulties inherent in self-
representation and address his claims to the extent possible.
Okolie appears primarily to challenge the Department’s wage calculation.
But Okolie has not assigned error to any of the superior court’s findings regarding
his wage calculation, making them verities on appeal. See Nelson v. Dep’t of
Labor & Indus., 175 Wash. App. 718, 723, 308 P.3d 686 (2013). Nor has Okolie
offered any argument or analysis challenging the manner in which the
Department calculated his monthly wage. Both the employer’s Worker Wage
and Employment Information form and Okolie’s 2006 W-2 form support the
Department’s calculation. Okolie provided no evidence to contradict the
Department’s calculation except for his own unsupported assertions, which the
Board found to be not credible. Credibility determinations are for the trier of fact
and are not subject to appellate review. Yow v. Dep’t of Health Unlicensed
Practice Program, 147 Wash. App. 807, 820, 199 P.3d 417 (2008).
Oko lie also raises several claims that appear to relate to due process or
the appearance of fairness. He contends that the Department concealed the
January 2007 Employer Report of Industrial Injury or Occupational Disease form
from him. But the record shows that the Department sent the form to Okolie well
in advance of the hearing before of the industrial appeals judge. And because
the form does not state Okolie’s monthly wage nor support any of Okolie’s claims
regarding his compensation, Okolie does not demonstrate how he was
prejudiced in any way. Okolie raises a variety of other claims, including that the
superior court (1) was biased against him, (2) improperly allowed the Department
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No. 76665-1 -116
to be the moving party, and (3) failed to determine if he received a copy of the
Department’s proposed order prior to the hearing. Okolie identifies no specific
instances of bias, and this court has discerned none. See State v. Post, 118
Wash. 2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992) (without evidence of actual
or potential bias, a claim of judicial bias is without merit). And Okolie does not
explain how he was prejudiced by the case designation or his alleged lack of
notice of the proposed order. See Burton v. Ascol, 105 Wash. 2d 344, 352-53, 715
P.2d 110 (1986) (party asserting lack of notice of presentation of a proposed
order must demonstrate prejudice; prejudice is not shown if the party was
“allowed to appeal the judgment and to argue the issues it wished to raise”).
Finally, Okolie contends that he was denied equal protection. Because
Okolie’s claim is too conclusory to permit review, we do not address it.
Affirmed.
WE CONCUR:
~A a
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