Opinion
No. 60576-3-I.
July 14, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-2-11422-3, Ronald L. Castleberry, J., entered August 14, 2007.
Affirmed by unpublished opinion per Leach, J., concurred in by Grosse and Ellington, JJ.
Mellissa Broderick suffered an industrial injury in 1993. She did not appeal a 1995 Department of Labor and Industries final order setting her time-loss compensation rate and stating the basis for its calculation. Nearly nine years later, Broderick sought a recalculation of her wages at the time of injury, claiming that Cockle v. Department of Labor and Industries constituted a change of circumstances under RCW 51.28.040 justifying this request. We disagree and affirm summary judgment for the Department.
142 Wn.2d 801, 16 P.3d 583 (2001).
Background
Mellissa Broderick suffered an industrial injury in 1993. She filed an application for benefits with the Department of Labor and Industries (Department). At the time she was injured, her employer was providing Broderick with health care benefits totaling $305.54 a month. The company stopped paying her health care benefits in April 1994. One year later, on April 19, 1995, the Department issued an order setting Broderick's compensation rate at $1,078.05 per month, based on her wages of $1,668.08 per month, being single, and having no dependents. Broderick did not appeal or protest the order, and it became final and binding.
In 2001, the Washington Supreme Court, in Cockle v. Department of Labor and Industries, held that the Department must include an injured worker's health care benefits when calculating the worker's compensation. Before that decision, the Department did not consider employer-paid health benefit premiums to be wages and did not include the value of the premiums in the worker's compensation rate.
Cockle, 142 Wn.2d at 823.
Lynn v. Dep't of Labor Indus., 130 Wn. App. 829, 125 P.3d 202 (2005).
In February 2003, Broderick requested an adjustment of her time-loss compensation. After initially granting Ms. Broderick's request, the Department reversed itself within the statutory time allowed for correction of its orders and ordered a small repayment. Broderick appealed to the Board of Industrial Insurance Appeals (BIIA), which affirmed the Department orders, concluding that the original 1995 order establishing Broderick's compensation rate was binding and final and that she had not experienced a "change in circumstances" as contemplated by RCW 51.28.040.
See RCW 51.52.060(4)(a) authorizing the Department to modify, reverse or change any order within the time limited for appeal or 30 days after receiving a notice of appeal.
Broderick appealed to the Snohomish County Superior Court, which granted summary judgment to the Department, ruling that Broderick did not timely appeal the Department's final and binding April 19, 1995, order setting her compensation rate and that the decision in Cockle did not constitute a "change of circumstances" within the meaning of RCW 51.28.040. The court also awarded the Department $200 in statutory attorney fees.
Standard of Review
The BIIA's decision is prima facie correct under RCW 51.52.115, and a party challenging the decision must support its challenge by a preponderance of the evidence. On review, the superior court may substitute its own findings and decision for the board's only if it finds from a fair preponderance of credible evidence that the board's findings and decision are incorrect. We review orders granting summary judgment de novo, engaging in the same inquiry as the trial court. We view the facts and all reasonable inferences in the light most favorable to the nonmoving party. We review purely legal issues de novo.
Ravsten v. Dep't of Labor Indus., 108 Wn.2d 143, 146, 736 P.2d 265 (1987).
McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 390, 828 P.2d 1138 (1992).
Wm. Dickson Co. v. Pierce County, 128 Wn. App. 488, 492, 116 P.3d 409 (2005).
Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
Island County v. State, 135 Wn.2d 141, 160, 955 P.2d 377 (1998).
Discussion
Broderick argues that she is entitled to a recalculation of her compensation because of a "change of circumstances" resulting from her employer's termination of her health care benefits before the Department determined her compensation and our Supreme Court's decision in Cockle. These are precisely the arguments this court dismissed in Lynn v. Department of Labor and Industries. Lynn resolves Broderick's appeal on every issue save that of attorney fees. Like Broderick, Lynn was injured at work. As was the case with Broderick, his employer stopped paying his health care benefits before the Department issued a final order setting his benefits. Like Broderick, he did not appeal the Department's order. One year after the Cockle court held that the Department must take into account the value of health insurance a worker was receiving when injured, Lynn requested that the Department adjust his benefits in light of the decision. The Department denied the request, and BIIA affirmed. Lynn appealed to the superior court which granted the Department summary judgment on three grounds: (1) the change in circumstances statute, RCW 51.28.040, did not apply; (2) res judicata barred Lynn's claim; and (3) equitable estoppel did not overcome res judicata. This court affirmed.
130 Wn. App. 829, 125 P.3d 202 (2005).
While Broderick filed a notice of appeal of the order granting summary judgment entered in August 2007, she did not file a notice of appeal of the order granting the Department statutory attorney fees. As both parties have briefed and argued the issue of fees, this court may address the issue.
Lynn, 130 Wn. App. at 832. Both Lynn and Broderick were injured and had their compensation set in the 1990s, before the Cockle decision.
Lynn, 130 Wn. App. at 832.
Lynn, 130 Wn. App. at 833. A Department decision becomes binding when it is not appealed. RCW 51.52.060(1)(a).
Lynn, 130 Wn. App. at 833.
Lynn, 130 Wn. App. at 833.
Lynn, 130 Wn. App. at 833-34.
Change in Circumstances
Broderick repeats Lynn's argument that, under RCW 51.28.040, she is entitled to a recalculation due to a "change in circumstances." RCW 51.28.040 provides that
[i]f change of circumstances warrants an increase or rearrangement of compensation, like application shall be made therefor. Where the application has been granted, compensation and other benefits if in order shall be allowed for periods of time up to sixty days prior to the receipt of such application.
RCW 51.28.040 is applied only where the claimant's situation is altered by events unique to the claimant. The Lynn court distinguished his case from those where a claimant's personal circumstances were changed due to an event that occurred after the benefits claim was closed. The court held that because Lynn lost his health benefits before the Department issued a final order, the termination of his benefits was not a "change of circumstance" within the meaning of RCW 51.28.040. Broderick likewise lost her benefits before the Department issued its order. Thus her loss of benefits is also not a "change of circumstance" within the meaning of RCW 51.28.040.
Lynn, 130 Wn. App. at 834.
Lynn, 130 Wn. App. at 835.
Lynn, 130 Wn. App. at 835.
Just as RCW 51.28.040 is not implicated where a claimant's circumstances changed before the Department's final order was entered, neither is the statute triggered by the Cockle decision. A change in circumstances under RCW 51.28.040 encompasses a change of facts personal to the claimant, not a change in the judicial interpretation of the law. The res judicata effect of final decisions already rendered is not affected by subsequent judicial decisions giving new interpretations to existing law. As our Supreme Court has observed, "If prior judgments could be modified to conform with subsequent changes in judicial interpretations, we might never see the end of litigation." Broderick's argument that the Cockle decision constitutes a change in conditions fails. Res Judicata Res judicata, or claim preclusion, applies where a prior final judgment is identical to the challenged 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. The doctrine applies to final Department orders. Here, the requirements for res judicata are met. Broderick's appeal involves the same parties, subject matter (re-calculating benefits), and cause of action (the benefits claim) as the 1995 order. Res judicata bars Broderick's challenge to her 1995 order. Sufficiency of Notice Broderick relies on Somsak v. Criton Technologies/Heath Tecna, Inc., to argue that the Department's order did not give sufficient notice that health care benefits were not included in her wage calculation. Somsak received four orders regarding her benefits. She did not appeal the first three, and the Department closed her claim. After the claim was closed, a fourth order issued, which for the first time explained the basis of Somsak's rate calculation. Somsak appealed the fourth order, and this court held her claim was not barred by res judicata because the first three orders "failed to clearly advise her of time-loss compensation's underlying factual basis."
Lynn, 130 Wn. App. at 835.
Lynn, 130 Wn. App. at 835.
Columbia Rentals, Inc. v. State, 89 Wn.2d 819, 823, 576 P.2d 62 (1978).
Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995).
Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 537, 886 P.2d 189 (1994).
Lynn, 130 Wn. App. at 837.
113 Wn. App. 84, 52 P.3d 43 (2002).
Somsak, 113 Wn. App. at 92-93.
The Lynn court noted that Lynn was advised from the beginning that his benefits were based on his status on the date of his injury as "married with 2 dependent(s), wages of $ 2,878.52 per month." Broderick likewise was advised that her benefits were based on her status on the date of her injuries as "single with 0 dependent(s) and wages of $1668.08 per month."
Lynn, 130 Wn. App. at 838.
Although the April 1995 order did not explicitly state that the calculation did not include employer-paid health insurance, that fact was readily discernable from the statement of what was included. Like Lynn, and unlike Somsak, Broderick was not left to guess how the benefit rate had been calculated. The 1999 order did not fail to advise Lynn of the factual basis for the award.
Lynn, 130 Wn. App. at 838.
Lynn, 130 Wn. App. at 838.
Equitable Estoppel
Broderick asserts that the Department should be precluded from refusing to recalculate her benefits under the principle of equitable estoppel.
The Washington Constitution grants courts a very narrow equitable power to set aside actions of the Department. However, this power is only rarely exercised. Courts have granted this extraordinary relief in only two cases, Ames v. Department of Labor Industries and Rodriguez v. Department of Labor Industries. In each case, two elements were present: (1) the claimant was unable to understand the order and the appellate process, and (2) the Department committed some misconduct in communicating the order.
Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 173, 937 P.2d 565 (1997).
Kingery, 132 Wn.2d at 173.
176 Wash. 509, 30 P.2d 239 (1934).
85 Wn.2d 949, 540 P.2d 1359 (1975).
In Lynn, we declined to grant equitable relief, even where Lynn claimed illiteracy and asserted that his wife assisted him in completing his benefits application form. Lynn did not contend, however, that the Department was aware of his illiteracy or that he did not understand his benefit award, its basis, or the deadlines for appeals. There is no evidence in the record, and Broderick has not asserted, that she did not understand the process for application and appeal or that she did not understand the order entered by the Department. As discussed above, the Department properly notified her of her compensation in the order. Broderick is not entitled to equitable relief.
Lynn, 130 Wn. App. at 839.
Lynn, 130 Wn. App. at 839.
Attorney Fees
Generally, Washington courts will not award attorney fees as part of litigation costs absent a contractual, statutory, or equitable ground. Broderick appeals the trial court's award of $200 of statutory attorney fees to the Department. She argues that the award is improper under RCW 51.52.130. The established interpretation of RCW 51.52.130 limits the recovery of attorney fees to injured workers and beneficiaries who successfully obtain reversal or modification of Board decisions and denies any such recovery for attorney fees to employers. The award of statutory fees, however, stands in contrast to the award of actual attorney fees. RCW 4.84.030 allows the superior court to award costs to the prevailing party and, under RCW 4.84.080, those costs include a nominal statutory attorney fee award of $200. RCW 51.52.140 states that the rules of civil procedure apply in all industrial insurance appeals to the superior court, and the Washington Supreme Court has held that this provision allows the court to impose statutory attorney fees under RCW 4.84.030. The court below awarded statutory, not actual attorney fees. The superior court's award of statutory attorney fees to the Department was correct.
Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053 (1993).
Seattle Sch. Dist. No. 1 v. Dep't of Labor Indus., 116 Wn.2d 352, 361-62, 804 P.2d 621 (1991).
Ferenc'ak v. Dep't of Labor Indus., 142 Wn. App. 713, 729-30, 175 P.3d 1109 (2008).
Black v. Dep't of Labor Indus., 131 Wn.2d 547, 557-58, 933 P.2d 1025 (1997).
Conclusion
The trial court is affirmed, and the Department is awarded its costs on appeal upon compliance with RAP 14.4.