Oral Argument January 14, 2014.
Appeal from Pierce County Superior Court. Docket No: 12-2-13463-0. Date filed: 12/14/2012. Judge signing: Honorable Kitty-ann Van Doorninck.
Robert W. Ferguson, Attorney General, and Steve Vinyard, Assistant, for appellant.
David W. Lauman (of Small Snell Weiss & Comfort PS ), for respondent.
AUTHOR: Thomas R Bjorgen, J. We concur: Lisa Worswick, J., Jill M Johanson, C.J.
[181 Wn.App. 651] ¶ 1 The Department of Labor and Industries (Department) appeals an order of summary judgment directing it to pay Joseph Crabb's workers' compensation benefits for 2011 at the maximum monthly amount for that year. Crabb began receiving these benefits in 2007. The statutory formula for calculating his benefits called for payments in excess of the maximum monthly amount, so the Department paid Crabb at the maximum between 2007 [181 Wn.App. 652] and 2010. In 2011, amendments to the workers' compensation statutes froze the annual cost of living adjustment (COLA) to benefit payments. Based on these amendments, the Department continued to pay Crabb at the 2010 maximum monthly rate when he sought benefits in 2011.
¶ 2 Crabb protested, eventually appealing to the superior court, which reversed an order by the Board of Industrial Insurance Appeals (Board) and directed the Department to pay his benefits at the maximum 2011 monthly amount. Concluding that the 2011 COLA suspension did not prevent payment of Crabb's benefits at the 2011 maximum, we affirm the superior court.
¶ 3 Crabb experienced a work-related injury to his left foot in 2007. He filed a claim for benefits, which the Department allowed. By statute, the Department calculates temporary total disability payments, the type of benefits Crabb received, using three factors measured at the time of the accident: the worker's monthly wages, his or her marital status, and the number of the worker's dependent children. RCW 51.32.090(1), .060. At the time of his injury, Crabb made $8,917.92 per month, was unmarried, and had no children. Based on these factors, the statutory formula for calculating disability payments codified in RCW 51.32.090 and RCW 51.32.060 set Crabb's benefits at 60 percent of his monthly wages, or $5,350.57 per month. However, because RCW 51.32.090(9) capped the payment of temporary total disability payments at 120 percent of the average monthly state wage, Crabb was only entitled to payments of $4,258.40 per month for 2007, the year of his injury.
¶ 4 The effects of Crabb's injury persisted, and his claim remained open. In 2011 he filed claims for temporary total disability for the period of August 27, 2011 through October 21, 2011.
¶ 5 The COLA is given effect by RCW 51.32.075, which requires the Department to adjust temporary total [181 Wn.App. 653] disability payments each July to account for inflation. However, during a special session in 2011, the legislature eliminated the automatic COLA to workers' compensation benefits for that year. Laws of 2011, 1st Spec. Sess., ch. 37, § § 202, 1101. The legislature did not, however, alter the statutory scheme for calculating benefits found in RCW 51.32.090(1) or for calculating the maximum monthly payment allowed by
RCW 51.32.090(9). See Laws of 2011, 1st Spec. Sess., ch. 37, § 101.
¶ 6 Because of the suspension of the 2011 COLA before its effective date, July 1, the Department paid Crabb's 2011 claims at a monthly benefit rate of $ 4,714.30, the maximum monthly payment for 2010. Crabb wrote the Department and claimed that under the benefit schedule for temporary total disability benefits established by RCW 51.32.090(1), adjusted for inflation by RCW 51.32.075 and capped by the maximum monthly payment provision found in RCW 51.32.090(9), he should receive the maximum payment allowed in 2011, $4,816.20 per month. The Department ...