Harder Mechanical, Inc. v. Patrick Tierney

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2016 SEP 13 AM 8=29
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HARDER MECHANICAL, INC.,
No. 74845-9-1
Appellant,
DIVISION ONE
v.
PATRICK A. TIERNEY, PUBLISHED OPINION
Respondent, FILED: September 19, 2016
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
Defendants.
Becker, J. — In this worker's compensation case, the Board of Industrial
Insurance Appeals properly classified the claimant as a full-time worker for the
purpose of calculating time loss compensation wages. Although the worker had
experienced long periods of unemployment and had only a temporary
relationship with his current employer, evidence that he occasionally did not work
jobs after accepting them does not compel reversal of the Board's finding that his
intention was to obtain full-time work.
No. 74845-9-1/2
Respondent Patrick Tierney's union is the United Association of Plumbers
and Pipefitters Local 26 in Tacoma, Washington. Tierney became a journeyman
in 1980 and worked out of the Local 26 union hall. The union uses a rotating
dispatch system to fill the demands of contractors in a way intended to give every
member on the list a fair opportunity to work. In this type of work, it is rare for
union members to work 40-hour weeks consistently throughout an entire year.
Local 26 had high unemployment rates during the economic downturn that began
in 2008.
Tierney's union referred him to work for a temporary full-time job
beginning on April 6, 2012, with appellant Harder Mechanical Inc. The job was
expected to last less than a week. While on the job, Tierney injured his left
shoulder. He filed a claim for worker's compensation with the Department of
Labor and Industries.
By statute, the amount of time loss compensation for an injury claim must
be calculated on the basis of "the monthly wages the worker was receiving from
all employment at the time of injury." RCW 51.08.178(1).1 For workers like
1 The formula for calculating an injured worker's monthly wage is provided
by RCW 51.08.178:
(1) For the purposes of this title, the monthly wages the worker was
receiving from all employment at the time of injury shall be the
basis upon which compensation is computed unless otherwise
provided specifically in the statute concerned. In cases where the
worker's wages are not fixed by the month, they shall be
determined by multiplying the daily wage the worker was receiving
at the time of the injury:
(a) By five, if the worker was normally employed one day a
week;
(b) By nine, if the worker was normally employed two days a
week;
No. 74845-9-1/3
Tierney whose wages are "not fixed by the month," the monthly wage is
calculated by one of two methods. One method calculates the monthly wage as
a multiple of "the daily wage the worker was receiving at the time of the injury,"
depending on how many days a week the worker was normally employed. RCW
51.08.178(1). This is the default method used in most cases. Dep't of Labor &
Indus, v. Avundes, 140 Wash. 2d 282, 290, 996 P.2d 593 (2000). The second
method is used in cases where the worker's employment is exclusively seasonal
in nature or where "the worker's current employment or his or her relation to his
or her employment is essentially part-time or intermittent." RCW 51.08.178(2).
When the second method is used, the total wages earned over a 12-month
period are divided by 12 to determine the monthly wage. RCW 51.08.178(2).
Tierney was earning a good daily wage during his temporary job with
Harder. But he had many stretches of unemployment in the preceding years.
(c) By thirteen, if the worker was normally employed three
days a week;
(d) By eighteen, if the worker was normally employed four
days a week;
(e) By twenty-two, if the worker was normally employed five
days a week;
(f) By twenty-six, if the worker was normally employed six
days a week;
(g) By thirty, if the worker was normally employed seven
days a week.
(2) In cases where (a) the worker's employment is
exclusively seasonal in nature or (b) the worker's current
employment or his or her relation to his or her employment is
essentially part-time or intermittent, the monthly wage shall be
determined by dividing by twelve the total wages earned, including
overtime, from all employment in any twelve successive calendar
months preceding the injury which fairly represent the claimant's
employment pattern.
No. 74845-9-1/4
Consequently, his monthly wage is considerably higher if calculated by the first
method rather than by the second.
Using the first method, the Department determined Tierney's time loss
compensation under RCW 51.08.178(1). His monthly wage was calculated to be
approximately $8,000 per month. It would have been less than half that amount
if the Department had classified Tierney as an intermittent worker.
Harder appealed, arguing that the second method should have been used
because Tierney's relationship to his work was intermittent. After a hearing, an
industrial appeals judge affirmed the Department's order in a written proposed
decision and order. Harder petitioned the Board for review. The Board denied
Harder's petition for review, and the judge's proposed decision and order thereby
became the decision and order of the Board. RCW 51.52.106.
Harder appealed the Board's decision to superior court. The superior
court conducted a bench trial on the evidence of the certified board record. The
superior court confirmed the decision of the Board. The superior court's decision
is before this court on appeal.
The work of a pipefitter dispatched from a union hall is by nature often
accompanied by periods of unemployment and typically involves temporary
relationships with a number of employers as the worker moves from one project
to the next. But when work is available, it is typically full-time and well-paid. The
parties agree that Tierney's "current employment" as a pipefitter was not
essentially intermittent. The question here is whether Tierney's relation to his
No. 74845-9-1/5
employment was intermittent, RCW 51.08.178(2)(b), requiring use of the second
method of calculation.
In determining whether a worker's relation to his employment is
intermittent, all relevant factors must be considered, including the worker's intent,
the nature of the work, relation with the current employer, and the worker's work
history. Avundes. 140 Wash. 2d at 290.
The Board's analysis of Tierney's relationship to his work was influenced
by its previous opinion, In re Pino. Nos. 91 5072 & 92 5878, 1994 WL 144956
(Wash. Bd. of Indus. Ins. Appeals Feb. 2, 1994), cited favorably in Avundes, 140
Wash. 2d at 287. In Pino, the Board concluded the work of a pipefitter should be
viewed as full-time work even though it generally involves moving from job to job
with periods of nonwork in between.
Pino, like Tierney, was a union member pipefitter who would be
dispatched to a particular job by his union hall and would work an indefinite
period ranging from a day to several months. He would then return to the union
hall, place his name on the dispatch list, and wait for his next assignment. Pino
was injured on the job after a two-and-a-half year period of unemployment due to
a previous injury. In the six years before the injury, Pino had worked an average
of seven and a half months per year. Despite Pino's temporary relationship with
his employers and significant gaps in work history, the Board held that Pino's
relation to employment was not part-time or intermittent and his wages were
properly calculated pursuant to RCW 51.08.178(1). The Board concluded that
Tierney's situation was similar.
No. 74845-9-1/6
The Board noted [in Pinol that the worker's intent to work full-time
should be considered but that was not the only thing to be
considered when determining the workers' relationship to the work,
and in Mr. Pino's case, even though there were long prior periods
of unemployment, the Board determined that the Department could
not speculate that a worker will not have work available
continuously in the future. Mr. Pino was out of work for a while due
to a prior industrial injury, and although Mr. Tierney's name was
continuously on the union job list for dispatch, he too was
unavailable for a while when he was in jail. He testified he intended
to work when local work was available although there were a few
other times when he was unable to do jobs that were available due
to illness or transportation problems. He also offered a reasonable
explanation for not always taking jobs that required traveling.
Therefore, just like Mr. Pino, Mr. Tierney's relationship to his
pipefitter work was not essentially intermittent or part-time.
Thus subsection (1) above must be used in this case too.
The Board's decision presents a comprehensive summary and analysis of
the evidence presented at the hearing, followed by specific findings covering the
Avundes factors. The Board concluded, "Mr. Tierney was a full-time worker and
his wages were correctly set by the Department using RCW 51.08.178(1)."
The superior court reached the same conclusion. At Harder's insistence,
the superior court entered its own findings of fact. The court's findings were
similar to the Board's findings although somewhat abbreviated.
Harder contends the superior court's legal analysis was necessarily flawed
because the court failed to make sufficient findings of fact concerning the
Avundes factors. This argument misunderstands the respective roles of the
Board and the superior court.
When reviewing a decision of the Board, the superior court presumes the
correctness of the Board's decision. RCW 51.52.115; Dep't of Labor & Indus, v.
Rowley, 185Wn.2d 186, Tf 31, P.3d (2016). If the superior court
No. 74845-9-1/7
decides that the Board "has acted within its power and has correctly construed
the law and found the facts," the superior court confirms the Board's decision in
its entirety.
In all court proceedings under or pursuant to this title the findings
and decision of the board shall be prima facie correct and the
burden of proof shall be upon the party attacking the same. Ifthe
court shall determine that the board has acted within its power and
has correctly construed the law and found the facts, the decision of
the board shall be confirmed; otherwise, it shall be reversed or
modified.
RCW 51.52.115. When the Board's decision is confirmed, it is unnecessary for
the superior court to make its own findings. The superior court can make its own
findings or reach a different result only if the judge finds by a preponderance of
the evidence that the Board's findings and decision are erroneous. Gorre v. City
of Tacoma, 184 Wash. 2d 30, 36, 357 P.3d 625 (2015).
In Tierney's case, the superior court did not find that the Board's findings
and decision were erroneous. At the conclusion of a bench trial, the superior
court judge said, "I affirm the decision of the Administrative Law Judge and the
Board. . . . The decision is affirmed." Harder's attorney pressed for clarification,
and the judge reiterated that there was no basis to change the Board's decision.
[HARDER'S ATTORNEY]: Is the court specifically saying
that Mr. Tierney made himself available at all times?
THE COURT: His relation to his employment was full-time
employment. I think that's what the evidence showed to the Board.
I believe that the record supports the finding of the Board. All I'm
finding is, this supports their position legally and factually. I have
no basis to change it.
The court's conclusion of law 7 states, "The Decision and Order of the Board of
Industrial Insurance Appeals dated March 31, 2014, is correct and is affirmed."
No. 74845-9-1/8
Thus, it is clear that the superior court confirmed the Board's decision both
legally and factually.
Because the court did not find the Board's decision to be erroneous in any
respect or in need of modification, it was unnecessary for the superior court to
enter its own findings of fact. Those it did enter were superfluous. It would have
sufficed for the court simply to enter an order stating that the decision of the
Board was confirmed. Therefore, we reject Harder's position that our review of
the superior court's decision is focused upon and constrained by the superior
court's findings.
In a case of this type, the appellate court examines the record "'to see
whether substantial evidence supports the findings made after the superior
court's de novo review, and whether the court's conclusions of law flow from the
findings.'" Ruse v. Dep't of Labor & Indus., 138 Wash. 2d 1, 5-6, 977 P.2d 570
(1999) (quoting Young v. Dep't of Labor & Indus., 81 Wash. App. 123, 128, 913
P.2d 402 (1996)), quoted in Gorre, 184 Wash. 2d at 36. When the superior court
concludes the Board's findings and decision are erroneous, the findings we
review for substantial evidence are those made by the court. Watson v. Dep't of
Labor& Indus.. 133 Wash. App. 903, 909, 138 P.3d 177 (2006). But when the
superior court confirms the Board's findings and decision, the Board's findings
survive and provide the basis for substantial evidence review by the appellate
court. Here, because the superior court confirmed the decision of the Board, our
review—like the superior court's—examines the legal and factual sufficiency of
the Board's decision.
No. 74845-9-1/9
The Board found that Tierney's intent was to obtain full-time work from his
union, while recognizing there were long intervals between assignments when he
did not work at all.
Although he intended to obtain work full-time from the labor union,
Mr. Tierney's work history, beginning in 2007 up until his April 11,
2012 industrial injury, consisted of alternating periods of
employment and unemployment, and in the year prior to the injury
his periods of employment included April 13, 2011 through May 12,
2011; June 1, 2011; March 14, 2012 through March 27, 2012; and
April 6, 2012 through the date of injury. He was incarcerated from
September 2011 to January 2012.
At the hearing before the industrial appeals judge, Tierney testified that in
the five years before his injury, he always had his name on the union dispatch list
waiting for work whenever he was not actually working. Tierney increased his
ability to get jobs by signing the dispatch list to work as either a pipefitter or
plumber in all geographical zones covered by Local 26. He testified that he
always kept his cell phone with him during the hours the union dispatcher might
call with a job. He said he rarely missed a call from the union dispatcher, and if
he did, he would call right back.
The record indicates that Tierney was unemployed about 31 of the 42
months before his injury. Dispatch records showed that in the 5 years before his
injury, Tierney accepted around 19 jobs from the dispatcher. Tierney did not
actually work six of these jobs. Once, it turned out that having valid car
insurance was one of the requirements for getting onto the job site, and Tierney
had not paid his car insurance. Once, he was rejected by the employer. On two
occasions, he did not report to the job on the date and time specified. Tierney
did not specifically remember why he did not report but said he probably got sick
No. 74845-9-1/10
or his car would not start. And on two other occasions, he turned the job back in,
that is, he notified the dispatcher at least 12 hours before the start time that he
could not work the job. Tierney recalled that in August 2011, he turned a job
back in because he had a knee injury. Tierney also missed some dispatch calls
when he was in jail for several months at the end of 2011.
Having considered the gaps in Tierney's work history and the evidence
that he did not always accept work when it was available, the Board nevertheless
found that Tierney intended to work full time. Harder contends the law and the
facts "dictate a different outcome, as Mr. Tierney's actions speak louder than his
words." In Harder's view, Tierney showed a lack of intent to work full time by
passing up many opportunities for work. Harder cites the Board's remark in Pino:
"In some cases a worker's stated intent may be completely undercut by a
historical pattern or other actions that discredit the stated intent." Pino, 1994 WL
144956, at *5.
The Board looked at the evidence that Harder relies on and saw it in a
different light. The Board accepted as reasonable Tierney's explanations that
illness or transportation problems made him unable to work some of the jobs he
had accepted. While the inference that Tierney intended to work only
occasionally may have been available, the Board did not draw that inference.
The Board's view of the evidence was not irrational. Car trouble, health
problems, incarceration, and lack of car insurance do not necessarily signify a
lack of intent to work. Tierney put himself on the dispatch list for plumbing as
well as pipefitting and checked in as available in seven geographic zones,
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No. 74845-9-1/11
actions that manifest an intent to work as much as possible. During recent years,
the availability of work in construction had been curtailed by the severe economic
downturn; Tierney was not the only union member for whom job assignments
were scarce during that time. On this record, we cannot say the Board's finding
that Tierney intended to work full time was unsupported by substantial evidence.
See Watson, 133 Wash. App. at 909 (substantial evidence will support a finding
when the evidence in the record is sufficient to persuade a rational, fair-minded
person that the finding is true).
Our Supreme Court has explained that "the proper analytical focus is on
lost earning capacity. Avundes, 140 Wash. 2d at 289-90. See also Watson, 133
Wash. App. at 915-16 (legislature's intent was to reflect a worker's earning capacity
rather than his yearly salary). Despite Tierney's periods of unemployment, he
had the capacity to find full-time work, and substantial evidence supports the
Board's finding that he intended to do so. It was not inconsistent with the law
and the facts for the Board to conclude that Tierney's lost earning capacity is
best reflected by full-time wages.
The Board's decision that Tierney's wage is to be calculated under the
default provision, RCW 51.08.171(1), was prima facie correct. The burden of
proof was on Harder as the party challenging the Board's findings and decision.
See RCW 51.52.115. Harder did not meet that burden. The Board considered
the Avundes factors, made findings supported by the evidence, and concluded
Tierney's relationship to his employment was not intermittent. The superior court
did not err by confirming the Board's decision.
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No. 74845-9-1/12
Affirmed.
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WE CONCUR:
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