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Apelaafoa v. Washington Department of Labor and Industries

Court of Appeals of Washington, Division 1

May 29, 2018

BRANDON APELAAFOA, Appellant,
v.
WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

          Schindler, J.

         As the result of a compromise between employers and workers, in 1911, the legislature enacted the Industrial Insurance Act (IIA), Title 51 RCW. Employers agreed to pay personal injury claims that were not compensable under common law. In exchange, workers agreed to forfeit common law tort remedies. The IIA gives the worker the right to appeal the decision of the Department of Labor and Industries to the Board of Industrial Insurance Appeals. Either party may appeal the decision of the Board to superior court. In 2013, Brandon Afoa filed a claim for 24-hour-a-day in-home attendant care services. Based on an independent assessment, the Department agreed to 16 hours a day for in-home attendant care services. The Board affirmed the decision. Afoa appealed to superior court and filed a jury demand. The jury found the Board correctly decided that Afoa needed only 16 hours a day for attendant care services. Afoa seeks reversal of the jury verdict. Afoa claims limiting the record in an HA appeal to the evidence presented at the Board violates his right to a jury trial under article I, section 21 of the Washington Constitution and the separation of powers doctrine. We reject the argument that the HA violates the right to a jury trial under article I, section 21 or separation of powers. The legislature had the authority to abolish the common law cause of action for negligence for workers and in its place enact workers' compensation under the IIA. The IIA limits the appeal to superior court to the certified record of the evidence presented to the Board, and under the civil rules the superior court IIA appeal is a special proceeding. We affirm.

         Industrial Injury

         Brandon Afoa worked at Seattle-Tacoma International Airport for Evergreen Aviation Ground Logistics Enterprises Incorporated. On December 26, 2007, Afoa was severely injured at work. Afoa is a paraplegic with nerve damage to his right arm and hand.

         After release from the hospital, the Department of Labor and Industries (Department) paid for 24-hour-a-day in-home attendant care services. When Afoa was stable, the Department reduced in-home attendant care services to 16 hours a day. Afoa's father Mataala Te'o and Afoa's sister Hannah Mulifai provided in-home care services through Maxim Healthcare Services. Te'o provided care for Afoa during the day and Mulifai was available to provide care later in the day and at night.

         Denial of Request for Additional In-Home Care Services

         In 2013, Afoa filed a claim to increase the amount the Department paid for in-home attendant care services from 16 to 24 hours a day. At the request of the Department, registered nurse consultant Elaine Baker conducted an assessment to determine necessary in-home attendant care services for Afoa. Baker recommended 16 hours a day for in-home attendant care services. The Department issued a notice of decision on January 30, 2014. The Department denied the request to increase in-home attendant care services to 24 hours a day.

         Appeal to the Board

         Afoa appealed the decision to the Board of Industrial Insurance Appeals (Board). An industrial appeals judge (IAJ) conducted a hearing on the appeal. A number of witnesses testified, including Afoa, Te'o, Mulifai, occupational therapist Christiane Buhl, occupational nurse consultant Kimberly Skoropinski, and registered nurse Baker. The IAJ admitted into evidence the videotaped deposition testimony of Afoa's expert Dr. Paul Nutter.

         Occupational therapist Buhl worked with Afoa before his discharge from the hospital to skilled nursing care. Buhl focused on "strengthening his upper extremities, using his right arm, and increasing his time out of bed." Buhl testified that with assistance, Afoa could dress, groom, and feed himself. According to Buhl, Afoa "needed maximum assistance" for 50 to 75 percent of the tasks needed to bathe.

         Afoa testified about his injuries and the in-home care services Te'o and Mulifai provide for him. Te'o and Mulifai testified about caring for Afoa.

         Occupational nurse consultant Skoropinski testified that initially, Afoa received 24-hour attendant care, but when he "became more stable, care hours were reduced to 16." Skoropinski testified the Department pays "for actual care provided and not for hours that the caregiver is sleeping." Skoropinski described the tasks necessary for the care of Afoa and testified Afoa "needed only 6 hours of attendant care per day, but the Department continues to pay for 16." Skoropinski testified that "care services are not paid for on a per shift basis and the 16 hours per day payment is intended to be spread throughout a 24-hour day."

         Registered nurse consultant Baker testified about her assessment of the number of hours Afoa needed for in-home attendant care services. Baker testified the Washington Administrative Code "allow[s] for attendant care to take care of the worker['Js activities of daily living and not chore services."[1] After reviewing the caregiver records, Baker recommended the Department provide 16 hours of attendant care each day. Baker testified that "even ... if each task were accounted for it would not add up to that amount."

         Afoa's expert Dr. Nutter testified that in his opinion, "optimal care would be for [Afoa] to have 24-hour aide services." However, Dr. Nutter admitted he told the Department that "continuously after January 1, 2013 ... 16 hours of care would be appropriate."

         The IAJ affirmed the decision of the Department to deny the request for 24-hour-a-day in-home attendant care services. The IAJ found, "The time necessary to perform these tasks, along with other daily needs, do not come close to a need for the caregivers to be compensated for 24 hours." The IAJ concluded that while Te'o and Mulifal are available throughout a 24-hour period, "their services are not needed constantly through the day." Based on "the present tasks of daily living" and other necessary attendant care, the IAJ concluded the Department "is adequately compensating Mr. Afoa's caregivers with its determination of 16 hours per day" and affirmed the January 30, 2014 Department decision to deny the claim for 24-hour care services.

         The proposed decision and order states, in pertinent part:

         FINDINGS OF FACT

2. Brandon A. Afoa sustained an industrial injury on December 26, 2007 and as a result has paralysis from T-9[2] down, internal injuries, and right arm nerve damage.
3. The December 26, 2007 industrial injury proximately caused Mr. Afoa to need assistance in activities of daily living along with frequent changing of bags and frequent changes of position in bed.
4. Through January 30, 2014, the assistance Mr. Afoa needed on a daily basis is best quantified as the 16 hours per day for which the Department of Labor and Industries is paying.

         CONCLUSIONS OF LAW

1. The Board of Industrial Insurance Appeals has jurisdiction over the parties and subject matter of this appeal.
2. Brandon A. Afoa's daily level of assistance through January 30, 2014 is at the 16-hour home health aide level pursuant to WAC 296-23-246.
3. The January 30, 2014 order of the Department of Labor and Industries is correct and is affirmed.[3]

         The Board adopted the proposed decision and order and denied the petition for review.

         Superior Court Appeal

         Afoa filed an appeal of the decision and a jury demand in superior court. The Industrial Insurance Act (IIA), Title 51 RCW, governs the appeal of a Board decision to superior court. Because review is de novo, the jury considers only the certified Board record and does not hear new evidence. RCW 51.52.115; Hill v. Dep't of Labor & Indus., 161 Wn.App. 286, 291, 253 P.3d 430 (2011).

         The court instructs the jury on the findings of the Board on each material issue. RCW 51.52.115. The findings and decision of the Board are "prima facie correct" and the burden is on the party challenging the decision to support the claim by a preponderance of the evidence. RCW 51.52.115; Rogers v. Dep't of Labor & Indus., 151 Wn.App. 174, 179-80, 210 P.3d 355 (2009); Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).[4]

         In his trial brief, Afoa stated Mutifai would "read her own testimony transcript to the jury." Afoa argued that under CR 43(k), the court should also allow Mulifai to answer questions posed by the jury.[5] The Department filed a motion in limine to preclude Afoa from catling Mulifai to read her testimony to the jury or answering questions posed by the jury. The Department argued that under the HA, the record on review is limited to the certified Board transcript. The court granted the motion in limine.

         During the trial, attorneys and paralegals read testimony from the certified Board record. Afoa also played the videotaped ...


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