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
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.
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.
of Request for Additional In-Home Care Services
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.
to the Board
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.
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
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.
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
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." 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
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."
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.
proposed decision and order states, in pertinent part:
2. Brandon A. Afoa sustained an industrial injury on December
26, 2007 and as a result has paralysis from T-9 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.
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.
Board adopted the proposed decision and order and denied the
petition for review.
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).
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
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. 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.
the trial, attorneys and paralegals read testimony from the
certified Board record. Afoa also played the videotaped