RONALD V. MA'AE, Appellant,
WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
liberally construe the statutory provisions of the Industrial
Insurance Act (MA), Title 51 RCW, to provide compensation to
workers injured in the course of employment. RCW 51.32.160
gives a worker the right to file an application to reopen a
claim for aggravation of an industrial injury. Case law
requires the worker to prove aggravation by presenting expert
medical evidence of objective worsening of the injury since
closure of the claim. If the Department of Labor and
Industries (Department) denies the claim, the worker has the
right to appeal, but review is limited to the administrative
record. In 2011, the legislature amended chapter 51.36 RCW,
"Medical Aid," to establish a network of health
care providers to treat injured workers. In addition to
adopting rules to establish the health care provider network,
the Department amended the WAC that governs reopening a claim
for aggravation of an industrial injury, WAC 296-14-400. The
amendment to WAC 296-14-400 mandates that only a Department
network provider can submit medical documentation in support
of an application to reopen a claim to obtain benefits for
aggravation of an industrial injury. We conclude the
amendment to WAC 296-14-400 conflicts with the intent and
purpose of the MA; the amendment to chapter 51.36 RCW,
Medical Aid; RCW 51.32.160; and long-standing case law and
the right of a worker to prove aggravation of an industrial
injury. We conclude the Department exceeded its statutory
authority in promulgating the amendment to WAC 296-14-400 and
the amendment is invalid. We reverse the declaratory judgment
Partial Disability Award
facts are not in dispute. In 2007, Ronald V. Ma'ae worked
as a journeyman carpenter for Safeway Services LLC. On
January 19, Ma'ae suffered a back and shoulder injury. On
February 5, 2007, the Department of Labor and Industries
(Department) allowed the claim for industrial injury benefits
under the Industrial Insurance Act (MA), Title 51 RCW. On
July 24, 2009, the Department closed the claim and awarded
Ma'ae permanent partial disability benefits for
"right upper extremity impairment."
Amendment to Chapter 51.36 RCW
2011, the legislature amended the HA, chapter 51.36 RCW,
"Medical Aid," to establish a health care provider
network to treat injured workers. Laws of 2011, ch. 6, §
1. RCW 51.36.010(1) states, in pertinent part:
The legislature finds that high quality medical treatment and
adherence to occupational health best practices can prevent
disability and reduce loss of family income for workers, and
lower labor and insurance costs for employers. Injured
workers deserve high quality medical care in accordance with
current health care best practices.
legislature directed the Department to establish "a
health care provider network to treat injured workers"
and "minimum standards for [network] providers who treat
workers." RCW 51.36.010(1). The legislature states the
Department "may adopt rules related to this
section." RCW 51.36.010(10).
addition to promulgating and amending chapter 296-20 WAC,
"Medical Aid Rules," and chapter 296-14 WAC,
"Industrial Insurance Rules," to establish a health
care provider network to treat injured workers, the
Department amended the rule on "Reopenings for
Benefits," WAC 296-14-400. As amended, WAC 296-14-400
mandates that effective January 1, 2013, "where the
department has established a provider network," medical
documentation in support of a reopening application shall
only "be completed by network providers." Wash. St.
Reg. (WSR) 12-06-066.
Denial of Reopening Application
April 14, 2014, Ma'ae submitted an "Application to
Reopen Claim Due to Worsening of Condition" to the
Department with medical documentation from orthopedic surgeon
Dr. H. Richard Johnson.
Johnson examined Ma'ae on March 14, 2014. Dr. Johnson
states Ma'ae is experiencing "[d]aily headaches.
Neck pain radiating into upper extremities. Right shoulder
pain. Left shoulder pain. Right hand numbness. Low back pain.
Anxiety and depression." Dr. Johnson states
Ma'ae's industrial injury had objectively worsened
and recommended "curative treatment" that included
low back, neck, and shoulder diagnostic studies and
consideration of low back surgery and "additional
cervical spine surgery."
Johnson attached a report of the "current medical
findings including history, examination, and test results
that would support a measurable (objective)
worsening of his industrial injury or occupational
disease since claim closure or the last reopening
[A]ggravation (permanent worsening) of cervical spondylosis;
cervical radiculopathy, left greater than right; status post
op three level anterior discectomies interbody fusions at
C3-C4, C4-C5, and C5-C6 with anterior plate fixation; right
shoulder strain/sprain; impingement syndrome, right shoulder;
adhesive capsulitis, right[ ] shoulder (frozen shoulder;
status post op right shoulder manipulation under anesthesia
followed by arthroscopic capsular release, anterior
subacromial decompression, and distal clavicle resection;
aggravation of pre-existing left shoulder dysfunction;
adhesive capsulitis of left shoulder; frozen left shoulder;
ulnar entrapment neuropathy at the left elbow; status post op
anterior ulnar nerve transposition at the left elbow; left
carpal tunnel syndrome; status post[ ]op left carpal tunnel
release; right carpal tunnel syndrome; thoracic
strain/sprain; aggravation of pre-existing asymptomatic
thoracic spondylosis; small left paracentral disc herniation
at T12-L1; lumbosacral strain/sprain; aggravation (permanent
worsening) of pre-existing, asymptomatic lumbar spondylosis;
lumbar radiculopathy, bilateral; tear of lateral meniscus,
right knee; erectile dysfunction; adjustment disorder with
mixed anxiety and depressed mood; pain disorder with anxiety,
depression, irritability, and low back pain; and chronic pain
syndrome related on a more-probable-than not basis to the
industrial injury of January 19, 2007.
Department extended the time for the reopening application.
At the direction of the Department, Ma'ae participated in
independent medical examinations.
September 5, 2014, the Department denied the reopening
application because Dr. Johnson was not a member of the
medical provider network.
After further review, we have learned that Dr. H. Richard
Johnson is not a member of Labor and Industries Medical
Provider Network. Only approved network provider can file
reopening applications.[ ]Your request for reopening has been
denied. This claim remains closed.
September 5, 2014 "Notice of Decision" states,
"The department denies the reopening of this claim
because no medical documentation has been provided to the
department as required by law."
of Department Decision to Deny Reopening Claim
September 30, 2014, Ma'ae filed an appeal of the
September 5 order denying the application to reopen to the
Board of Industrial Insurance Appeals (BIIA).
Department filed a motion for summary judgment. The
Department argued it was entitled to judgment as a matter of
law because Dr. Johnson was not a member of the
Department's medical provider network. The Department
asserted the amendment to WAC 296-14-400 "mandates that
the documentation for reopening application 'must be
completed by network providers.'" In opposition,
Ma'ae argued the amendment to WAC 296-14-400 exceeded the
authority of the Department to promulgate rules under RCW
51.36.010. In reply, the Department argued the legislature
gave it the authority to amend WAC 296-14-400 to require a
worker to submit documentation in support of an application
to reopen from only a network provider. The Department
asserted the BIIA does not have the authority to review the
validity of the rule.
25, 2015, a Board of Industrial Insurance Appeals judge (IAJ)
issued a proposed decision and order affirming the decision
of the Department to deny the application to reopen. On
August 11, 2015, Ma'ae appealed the IAJ proposed decision
and order to the BIIA.
August 12, 2016, Ma'ae filed a declaratory judgment
action in Thurston County Superior Court challenging the
authority of the Department to amend WAC 296-14-400.
Ma'ae asserted the amendment exceeded the authority of
the Department to promulgate rules under RCW 51.36.010.
October 20, 2016, the superior court entered an order and
judgment. The order states the WAC 296-14-400 amendment is a
of Declaratory Judgment Order
contends the amendment to WAC 296-14-400 that limits the
right of an injured worker to present expert medical
documentation to prove objective worsening of an industrial
injury from only a network provider exceeds the authority of
the Department. Ma'ae asserts the amendment conflicts
with the intent and purpose of the IIA; the amendment to
chapter 51.36 RCW, Medical Aid; the statute on aggravation,
RCW 51.32.160; long-standing case law; and the right to
present evidence of aggravation on appeal.
Washington Administrative Procedure Act, chapter 34.05 RCW,
governs judicial review of an administrative rule. RCW
34.05.570 governs the validity of a rule. We review the
validity of an agency rule de novo. Wash. Hosp. Ass'n
v. Dep't of Health, 183 Wn.2d 590, 595, 353 P.3d
1285 (2015); Local 2916, IAFF v. Pub. Emp't Relations
Comm'n,128 Wn.2d 375, 379, 907 P.2d 1204 (1995);
Tapper v. Emp't Sec. Dep't., 122 Wn.2d 397,
402, 858 P.2d 494 (1993). Agency rules are presumed valid.
St. Francis Extended Health Care v. Dep't of Soc.
& Health Servs.,115 Wn.2d 690, 702, 801 P.2d 212
(1990). "The burden of overcoming this presumption rests
on the challenger, and judicial review will be limited to a
determination of whether the regulation in question is
reasonably consistent with the statute being
implemented." St. Francis. 115 Wn.2d at 702.
"[T]he court shall declare the rule invalid" if
"the rule exceeds the statutory authority of the
agency." RCW 34.O5.57O(2)(c)." '[A]lthough we
generally accord substantial deference to agency decisions,
we do not defer to an agency the power to ...