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Garcia v. Department of Labor & Industries

May 1, 1997

ESTEVAN GARCIA, APPELLANT,
v.
DEPARTMENT OF LABOR & INDUSTRIES OF THE STATE OF WASHINGTON, RESPONDENT.



Appeal from Superior Court of Chelan County. Docket No: 95-2-00096-1. Date filed: 10/04/95. Judge signing: Hon. Carol J. Wardell.

Order Granting Motion to Publish July 1, 1997. Petition for Review Denied October 7, 1997,

Authored by Dennis J. Sweeney. Concurring: Frank L. Kurtz, Stephen M. Brown.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. In March 1984, Estevan Garcia injured his back while working in an orchard in Wenatchee, Washington. The Department of Labor and Industries paid for treatment and time loss. In 1992, the Department scheduled Mr. Garcia to begin vocational rehabilitation. But the services were terminated because Mr. Garcia had returned to Mexico and was not available for rehabilitation. At the request of Mr. Garcia's attorney, the Department again scheduled vocational rehabilitation to begin in the fall of 1993. But in October 1993, Mr. Garcia again left the United States and returned to Mexico. Mr. Garcia and the Department have stipulated that he would testify that he is in Mexico caring for his niece and nephew because his sister and brother-in-law were killed in an automobile accident. He intends to remain in Mexico and never return to the United States. In November 1993, the Department suspended Mr. Garcia's benefits because he failed to cooperate with rehabilitation. He unsuccessfully appealed that ruling to the superior court and now appeals to this court.

Discussion

Good Cause. Mr. Garcia makes a number of assignments of error. But his primary contention is that the trial court erroneously concluded that he did not have good cause for refusing to participate in the Department's vocational rehabilitation program.

The operative rule is set out in RCW 51.32.110(2):

If any injured worker shall . . . refuse or obstruct evaluation or examination for the purpose of vocational rehabilitation or does not cooperate in reasonable efforts at such rehabilitation, the department . . . may . . . reduce, suspend, or deny any compensation for such period:

PROVIDED, That the department . . . shall not suspend any further action on any claim of a worker or reduce, suspend, or deny any compensation if a worker has good cause for refusing to submit to . . . any examination, evaluation, treatment or practice requested by the department or required under this section. (Emphasis added.) The purpose of this legislative scheme is set out in RCW 51.32.095(1): "One of the primary purposes of this title is to enable the injured worker to become employable at gainful employment."

The question of whether Mr. Garcia had good cause to refuse cooperation with the Department's request for rehabilitation is a mixed question of fact and law. See Leschi Improvement Council v. State Highway Comm'n, 84 Wash. 2d 271, 283, 525 P.2d 774, 804 P.2d 1 (1974). We first decide whether the trial court's findings are supported by substantial evidence. Oien v. Department of Labor & Indus., 74 Wash. App. 566, 568, 874 P.2d 876 (1994), review denied, 125 Wash. 2d 1021 (1995). The material findings are unchallenged. They are that

7. Estevan Garcia's intention since May, 1994 is to remain in Mexico and not ever return to the United States.

8. The reason Estevan Garcia does not intend to ever return to the United States is because he feels he is responsible for taking care of his sister's children, and because he is frustrated by the length of time required to administer his claim since the first closure of his claim in 1986.

We then decide whether those findings support the trial court's legal Conclusion that Mr. Garcia's reasons do not constitute good cause. *fn1 Grier v. Department of Employment Sec., 43 Wash. App. 92, 95, 715 P.2d 534, review denied, 106 Wash. 2d 1003 (1986).

The trial court's Conclusion that Mr. Garcia failed to show good cause is supported by its findings of fact. There is no finding that Mr. Garcia is obligated to care for his sister's children. The finding is that he feels he is responsible, not that he cannot return to the United States because of his responsibility. Neither this finding nor ...


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