Oral Argument September 16, 2014
Appeal from Pierce County Superior Court. Docket No: 12-2-06549-2. Judge signing: Honorable Rosanne Nowak Buckner. Judgment or order under review. Date filed: 12/07/2012.
Robert W. Ferguson, Attorney General, and James P. Mills, Assistant, for appellant.
Patrick A. Palace (of Palace Law Offices ); and Kenneth W. Masters (of Masters Law Group PLLC ), for respondent.
Concurring: Michael J. Trickey. Mary Kay Becker.
[185 Wn.App. 157] J. Robert Leach
[¶1] The Department of Labor and Industries (Department) appeals a trial court decision awarding Bart A. Rowley Sr. industrial insurance benefits and presents an issue of first impression. We must decide what burden of proof and standard of proof apply when the Department claims the felony payment bar of RCW 51.32.020 prevents a worker from receiving benefits for an injury sustained in the course of employment.
[¶2] Because courts liberally construe the Industrial Insurance Act, Title 51 RCW, to provide coverage and defer to the Board of Industrial Insurance Appeals (Board) in its area of expertise, we adopt the Board's conclusion that the Department has the burden of proving the felony payment bar by clear, cogent, and convincing evidence. But because the trial court erroneously required a laboratory test to establish a substance as a narcotic, we remand for further proceedings consistent with this opinion.
[¶3] Bart Rowley worked as a truck driver for 33 years and spent 6 years working for Joseph B. Anderson. On August 14, 2008, Rowley signed in to work at 7:30 a.m. Later that clear, dry morning, he inexplicably drove his tractor-trailer truck off an overpass on State Route 599. The truck landed on the road below with the trailer on top of the cab. [185 Wn.App. 158] Paramedics took Rowley to the Harborview Medical Center trauma center.
[¶4] Kent Police Officer Donevan Dexheimer went to the Harborview Medical Center emergency room to investigate. Dexheimer, a certified drug recognition expert, had training to perform a 12-step drug influence evaluation. An emergency staff member told him about a " surprise" found in Rowley's pocket: a small plastic " baggie" with smiley faces on it. By the time Dexheimer arrived, hospital staff had placed Rowley's clothes in the trash. Staff also dumped the white substance in the baggie in the sink and placed the baggie in the trash. At Dexheimer's request, a nurse retrieved the baggie from the trash. The baggie was " in a trash bag, a large trash bag that contained several smaller garbage bags that contained Mr.
Rowley's clothing." In the baggie, Dexheimer saw residue of a crystalline substance that from its packaging and appearance " looked to [him] like methamphetamine."
[¶5] Dexheimer placed the unconscious Rowley under arrest for DUI (driving under the influence of an intoxicant). Dexheimer gave another nurse two vials to hold blood samples, which the nurse took from Rowley in Dexheimer's presence. Dexheimer labeled the samples and gave the vials and the baggie to Trooper Nicholas King. King performed a field test on the substance in the baggie and determined it was likely methamphetamine. Though the blood samples were sent to the state toxicology lab, the baggie was not. Subsequent toxicology testing of the blood samples revealed 0.88 milligrams per liter of methamphetamine.
[¶6] Rowley sustained extensive injuries, including a severed spinal cord. He remained in an induced coma for 40 days following the accident and has no memory of events from several days before the accident until 40 days afterward. He remains partially paralyzed and confined to a wheelchair.
[185 Wn.App. 159] [¶7] In an October 27, 2008, order, the Department rejected Rowley's industrial injury claim and required repayment of time-loss benefits in the amount of $3,542.88. The order cited RCW 51.32.020 as the basis for this rejection. Following Rowley's protest, the Department affirmed its order on January 13, 2009. Rowley appealed to the Board.
[¶8] On July 8, 2011, an industrial appeals judge (IAJ) reversed the Department's order, concluding that Rowley's " injury did not result from the deliberate intention of Mr. Rowley himself while he was engaged in the attempt to commit, or in the commission of, a felony, within the meaning of RCW 51.32.020." The Department appealed the IAJ's order. On January 30, 2012, in a split decision, the Board likewise reversed the Department's January 13, 2009, order, concluding that " Mr. Rowley's industrial injury did not occur while he was engaged in the attempt to commit, or in the commission of, a felony, within the meaning of RCW 51.32.020."
[¶9] The Department appealed to Pierce County Superior Court, which affirmed the Board's decision on December 7, 2012. The superior court adopted the Board's legal conclusion that " [t]he Department bore the burden of proving, by clear, cogent and convincing evidence that Mr. Rowley's injury occurred when he was in the commission of a felony, within the meaning of RCW 51.32.020, which burden the Department did not meet." The court also concluded, " Absent a confirming laboratory test the Department did not prove the ...