* Cascadian Building Maintenance Ltd, App. vs. Dept. Of Labor & Industries, St Of Wa, Resp.

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2015 FEB-2 	An 10: 00
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
Respondent,
CASCADIAN BUILDING
MAINTENANCE, LTD,
Appellant,
NORMA TELLEZ,
Defendant.
No. 71209-8-1
DIVISION ONE
PUBLISHED OPINION
FILED: 	February 2, 2015
Leach, J. — Cascadian Building Maintenance Ltd. appeals a trial court
decision denying 	Cascadian stay-at-work wage reimbursement for the first 3 of
the 6 days its employee worked light duty following her industrial injury. Because
RCW 51.32.090(4) incentivizes employers to allow workers to "remain at work
following 	their 	injury," 	we 	reject 	the 	trial 	court's 	conclusion 	that 	RCW
51.32.090(7)'s 	3-day 	waiting 	period 	for time 	loss 	payments 	to workers 	for
temporary disabilities lasting 14 days or less applies to wage subsidy payments
made to an employer under RCW 51.32.090(4). 	Because RCW 51.52.130 only
authorizes attorney fee 	awards to injured workers and their beneficiaries, we
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71209-8-1/2
deny Cascadian's request for attorney fees, 	reverse, 	and 	remand for further
proceedings consistent with this opinion.
FACTS
On January 9, 2012, Norma Tellez suffered an injury in the course of her
employment with Cascadian. 	Tellez's attending physician found her temporarily
totally disabled from her job of injury and restricted her activities. 	On January 10,
Cascadian offered her a light duty work position conforming to her physician's
restrictions, 	which 	Tellez 	accepted. 	She 	performed 	the 	light duty work 	on
January 10, 11, 12, 15, 16, and 17 of 2012. 	Her schedule remained the same:
she worked Sunday through Thursday in the evenings. 	On January 22, Tellez
resumed her usual duties with her attending physician's approval.
Cascadian requested wage subsidies from the Department of Labor and
Industries 	(Department) 	under 	RCW 	51.32.090(4), 	a 	stay-at-work 	program
adopted in 2011. 	The Department reimbursed Cascadian for 50 percent of the
wages it paid Tellez for her light duty work on January 15, 16, and 17—$168.12.
But it denied Cascadian's claim for wage subsidies for January 10, 11, and 12.
Citing RCW 51.32.090(7), the Department asserted "the first three days after the
date of injury are not reimbursable because the worker did not remain restricted
from full duties by the 14th day after the date of injury."
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NO. 71209-8-1/3
Cascadian appealed to the Board of Industrial Insurance Appeals (Board).
The Board reversed the Department's order. 	The Department appealed to King
County Superior Court. The trial court reversed the Board's order, reinstated the
Department decision, and awarded the 	Department attorney fees. 	Cascadian
appeals.
JURISDICTION
As a preliminary matter, the amount apparently in issue, $168.12, causes
us to consider our jurisdiction to decide this case. 	RCW 2.06.030 defines this
court's appellate jurisdiction and excludes from it "civil actions at law for the
recovery of money or personal property when the original amount in controversy,
or the value of the property does not exceed the sum of two hundred dollars."
In Bowen v. Department of Social Security,1 the Washington Supreme
Court held that an appeal of an administrative decision is not a "civil action at
law" and therefore its analogous monetary jurisdictional limitation did not apply to
an appeal of a trial court decision reviewing an administrative agency decision.
The court noted that "controversies arising before administrative bodies are in no
sense civil actions as they were understood at common law."2 	It supported this
statement in part with the observation that it "has recognized the principle with
1 Bowen v. Dep't of Soc. Sec. 14 Wn.2d 148, 152, 127 P.2d 682 (1942).
2 Bowen. 14 Wn.2d at 152.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71209-8-1/4
respect to the industrial insurance act—that controversies arising under it are
controlled by 'special statutory proceedings exercised in derogation of. or not
according 	to, the course of the common 	law.'"3 	As in Bowen. the 	monetary
limitation on our jurisdiction does not apply because this case is not a civil action
at law.
STANDARD OF REVIEW
On appeal, this court reviews trial court judgments under the Industrial
Insurance Act, Title 51 RCW, "as in other civil cases."4 	This court first looks to
see if substantial evidence supports the trial court's factual findings and then
reviews de novo whether the trial court's conclusions of law flow from these
findings.5 	This court reviews the trial court's statutory construction de novo.6
Courts construe the Industrial Insurance Act liberally in favor of the worker.7
ANALYSIS
Cascadian argues that the stay-at-work program requires the Department
to reimburse it for all days Tellez performed light duty work. 	The Department
3 Bowen. 14 Wn.2d at 153 (internal quotation 	marks 	omitted) (quoting
Nafus v. Dep't of Labor & Indus.. 142 Wash. 48, 52, 251 P. 877 (1927)).
4 RCW 51.52.140.
5 Dep't of Labor & Indus, v. Shirley. 171 Wn. App. 870, 878, 288 P.3d 390
(2012) (quoting Rogers v. Dep't of Labor & Indus.. 151 Wn. App. 174, 180, 210
P.3d 355 (2009)).
6 Dep't of Labor & Indus, v. Fankhauser. 121 Wn.2d 304, 308, 849 P.2d
1209 (1993); Lowv v. PeaceHealth. 174 Wn.2d 769, 778, 280 P.3d 1078 (2012).
7 RCW 51.12.010; Dennis v. Dep't of Labor & Indus.. 109 Wn.2d 467, 470,
745P.2d 1295(1987).
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NO. 71209-8-1/5
argues that the statute only requires it to 	reimburse an employer for days a
worker would have otherwise received temporary total disability benefits. 	RCW
51.32.090(7) 	provides 	that 	a 	worker 	temporarily 	disabled 	cannot 	receive
compensation for the 	day 	of injury or the following 	3 	days 	if the 	disability
continues for less than 14 days. 	Thus, the Department claims that it properly
denied Cascadian reimbursement for the first 3 days after Tellez's injury. 	We
disagree.
The legislature created the stay-at-work program to "encourage employers
at the time of injury to provide light duty or transitional work for their workers" and
made available "wage subsidies and other incentives" to those employers.8 	It
found that "long-term disability and the cost of injuries [are] significantly reduced
when injured workers remain at work following their injury."9 	When a worker's
physician releases a worker and the worker begins light duty work for his or her
employer, 	the 	worker 	receives 	wages for that work but 	not temporary total
disability payments. 	Temporary total disability payments resume if the worker
stops the light duty work.10
RCW 51.32.090(4) comprehensively describes the parameters of the stay-
at-work program. 	It states when the Department must pay an eligible employer
8RCW51.32.090(4)(a).
9RCW51.32.090(4)(a).
10RCW51.32.090(4)(b).
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NO. 71209-8-1/6
wage 	subsidies, 	establishes the 	amount of the 	subsidy at 50 	percent of a
worker's wages, and limits the amount paid on an individual claim to $10,000.11
An employer may not collect any subsidy for nonwage compensation or for any
day a worker does not actually work.12 	An employer may not receive a subsidy
for more than 66 days of work in a consecutive 24-month period under one
claim.13 	The statute also 	provides for subsidies for training 	and 	necessary
clothing and tools or equipment if an employer does not normally provide them to
its workers.14
RCW 51.32.090(7) states in relevant part,
(7) No worker shall receive compensation for or during the
day on which injury was received or the three days following the
same, 	unless his or her disability shall continue for a 	period of
fourteen consecutive calendar days from date of injury.
The 	Department 	argues 	that 	because 	this 	provision 	prohibits 	payment 	of
compensation to Tellez for the three days following her industrial injury, it also
prohibits payment of a wage subsidy to Cascadian for that same period.
We interpret a statute to accomplish the legislature's intent.15 	Because
the legislature memorializes its intent in a statute's language, we look for the
11 RCW51.32.090(4)(c).
12RCW51.32.090(4)(c).
13RCW51.32.090(4)(c), (g).
14RCW51.32.090(4)(d)-(f).
15 State v. Colev. 180 Wn.2d 543, 553, 326 P.3d 702 (2014), petition for
cert, filed. No. 14-7721 (U.S. Aug. 27, 2014).
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NO. 71209-8-1/7
plain meaning of that language.16 	To do this, we examine the "'context of the
statute in which that provision is found, 	related 	provisions, 	and the statutory
scheme as a whole.'"17 	We first look to the language of the statute to determine
if the statute is clear on its face or ambiguous.18 	"If the meaning of the statute is
plain, 	the 	court discerns 	legislative 	intent from 	the 	ordinary meaning 	of the
words."19 	Only 	if a 	statute 	is 	ambiguous 	may 	a 	court 	employ 	statutory
interpretation methods to analyze it.20 	Language is ambiguous if it is subject to
two or more reasonable interpretations.21 	But "a statute is not ambiguous merely
because more than one interpretation is conceivable."22
The parties dispute the meaning of the phrase "entitled to temporary total
disability under this chapter" found in RCW 51.32.090(4)(b). 	Cascadian argues
that the plain language of RCW 51.32.090(4) defines when an employer "shall
not" receive wage subsidies. 	It contends that the trial court improperly added a
further 	limitation 	not contained 	in 	the 	statute 	when 	it 	borrowed from 	RCW
16 Colev. 180Wn.2dat553.
17 Colev. 180 Wn.2d at 553 (quoting State v. Jacobs. 154 Wn.2d 596, 600,
115 P.3d 281 (2005)); Tesoro Ref. & Mktg. Co. v. Dep't of Revenue. 164 Wn.2d
310, 317-18, 190 P.3d 28 (2008).
18 Cerrillo v. Esparza. 158Wn.2d 194,201, 142 P.3d 155 (2006).
19 Tesoro. 164 Wn.2d at 317.
20 Cerrillo. 158 Wn.2d at 201.
21 	Cerrillo. 158 Wn.2d at 201 	(quoting Agrilink Foods. 	Inc. v. Dep't of
Revenue. 153 Wn.2d 392, 396, 103 P.3d 1226 (2005)).
22 City of Seattle v. Winebrenner. 	167 Wn.2d 451, 456, 219 P.3d 686
(2009).
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NO. 71209-8-1/8
51.32.090(7) the additional words "benefits" or "compensation" and inserted them
into the phrase "entitled to temporary total disability." We agree with Cascadian.
The 	Department 	argues 	that 	courts 	use 	the 	phrase 	"temporary total
disability" to describe "benefits." 	Thus, the State must pay an employer wage
subsidies only if an employee is entitled to temporary total disability benefits for
the 	days 	in 	issue. 	The 	Department 	asserts 	that 	the 	language 	in 	RCW
51.32.090(4), making the wage subsidy "pursuant to" the requirements of that
subsection, along with the language in the same subsection which makes the
wage subsidy available only to those "entitled to temporary total disability under
this chapter," requires the conclusion that RCW 51.32.090(7) applies to wage
subsidies.
But the legislature did not include the words "benefits" or "compensation"
in the phrase "temporary total disability," used 	by it in RCW 51.32.090(4) to
define the availability of the stay-at-work program. 	When the legislature defined
the limitations on an employer's entitlement to wage subsidy recovery, it did not
include the 3-day waiting period 	it mandated for payment of compensation to
workers 	suffering 	short-term 	total 	temporary disabilities 	lasting 	less than 	14
days.23 	We 	have 	difficulty 	accepting 	the 	Department's 	position 	that 	this
difference has no significance.
23RCW51.32.090(4)(c), (g).
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NO. 71209-8-1/9
The Department offers no persuasive reason why this court should write
into the statute a 	requirement not included 	by the 	legislature. 	Instead, the
statute's language indicates the legislature's intent to encourage uninterrupted
employment. 	The 	statute includes the 	legislature's finding that "the cost of
injuries is significantly reduced when injured workers remain at work following
their injury."24 	It provides for incentives to employers so that workers with an
industrial injury "remain" at work.25 	The subsidies "encourage employers at the
time of injury" to provide light duty or transitional work for their injured workers.26
The program supports employers who "maintain the employment" of their injured
employees.27
The 	legislature's 	plain 	language 	thus 	incentivizes 	an 	employer's
continuous employment of an injured employee, not a return to light duty after
three days. 	As the Board wrote in its opinion, "To interpret the statute otherwise
is contrary to the stated legislative intent because it would discourage employers
from offering light-duty work 'at the time of injury' in order for workers to 'remain'
at work." 	The Department's proposed interpretation would encourage employers
to wait three days before offering light duty employment to temporarily injured
workers. 	The 	name 	of 	the 	program, 	"stay-at-work," 	conflicts 	with 	the
24RCW51.32.090(4)(a).
25RCW51.32.090(4)(a).
26RCW51.32.090(4)(a).
27RCW51.32.090(4)(c).
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71209-8-1/10
Department's 	interpretation. 	Finally, 	the 	Department 	has 	not 	proposed 	an
interpretation that liberally construes this statute in favor of injured workers.
The 	Department pays a 	covered worker or an employer from 	distinct
funding 	sources, 	such 	as the 	medical 	aid 	fund, 	the 	accident fund, 	and 	the
supplemental pension fund.28 	The 	legislature also created a distinct funding
source for wage subsidies to employers, requiring the Department to create a
separate "Washington stay-at-work account" funded by assessments of insured
employers.29 	Thus, the Department collects and 	pays wage subsidies from a
different account than it does workers' compensation payments. 	The medical aid
fund, accident fund, and stay-at-work account each have a separate base rate.30
Employers must pay the department premiums for the accident fund, the medical
aid fund, 	the 	stay-at-work 	program, and 	the 	supplemental 	pension fund.31
Because employers pay separate premiums for the stay-at-work program, the
cost savings and purposes supporting the three-day waiting period for temporary
28 RCW 51.44.020; RCW 51.44.010; RCW 51.44.033.
29 RCW 51.32.090(6). 	A 1954 opinion from the Attorney General's office
analyzed RCW 51.32.090. 	That early statute provided that an 	injured worker
may not be compensated from the accident fund if his employer continues to pay
his wages. 	The Attorney General's opinion finds that a county may pay its
employees for the first three days following industrial injury because "[t]he three-
day period immediately following the injury is significant only in connection with
the statutory limitation upon payments from the accident fund. 	The act imposes
no limitations upon salary payments during this period." 	1954 Op. Att'y Gen. No.
287, at 2.
30 WAC 296-17-895.
31 WAC 296-17-31024.
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NO. 71209-8-1/11
total disability payments under the accident fund are not served by applying the
same limitations in the stay-at-work program.
We 	conclude 	that the 	plain 	language 	of 	RCW 	51.32.090(4) 	and 	the
statutory scheme as a whole support the Board's conclusion. 	We reverse the
trial court and hold that the Department must pay Cascadian a wage subsidy for
all six days Tellez worked light duty.
Finally, 	Cascadian 	claims 	that 	because 	Tellez 	has 	been 	"aligned 	in
interest with the [sic] Cascadian throughout the litigation of this matter," it should
be awarded attorney fees under RCW 51.52.130. 	RCW 51.52.130 provides for
an award of attorney fees when a worker obtains reversal or modification of the
Board's decision and additional relief on appeal. 	This ensures representation for
injured 	workers 	and 	accords with 	the 	Industrial 	Insurance Act's 	purpose to
ensure compensation for employees who suffer industrial injuries.
The plain language of the statute does not authorize an award of attorney
fees to an employer. 	While Cascadian's appeal may have benefited Tellez or
promoted a worker's interest in having light duty work provided by the employer,
Cascadian's attorneys did not represent Tellez in this action. 	Cascadian may not
recover attorney fees under RCW 51.52.130.
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NO. 71209-8-1/12
CONCLUSION
Because the plain language of RCW 51.32.090(4) does not include the
term "benefits" or otherwise indicate the legislature's intent that the limitations on
temporary total disability compensation payments to a worker apply to wage
subsidy payments under the stay-at-work program, we conclude that the three-
day limitation for temporary total disability payments does not apply to those
wage subsidy payments. 	Because RCW 51.52.130 does not authorize a fee
award to an employer, we deny Cascadian's request for attorney fees on appeal
but award it statutory costs as the prevailing party upon its compliance with the
controlling 	court 	rules. 	We 	reverse 	and 	remand 	for further 	proceedings
consistent with this opinion.
{Lcsu*sn f
WE CONCUR:
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