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Ma'ae v. Washington Department of Labor and Industries

Court of Appeals of Washington, Division 1

April 1, 2019

RONALD V. MA'AE, Appellant,
v.
WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

          SCHINDLER, J.

         We must 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 order.

         Permanent Partial Disability Award

         The 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."

         2011 Amendment to Chapter 51.36 RCW

         In 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.

         The 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).

         In 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.

         2014 Denial of Reopening Application

         On 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.

         Dr. 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."

         Dr. 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 denial."[1]

[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.

         The Department extended the time for the reopening application. At the direction of the Department, Ma'ae participated in independent medical examinations.

         On 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.

         The 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."

         Appeal of Department Decision to Deny Reopening Claim

         On 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).

         The 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.

         On June 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.

         Declaratory Judgment Action

         On 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.

         On October 20, 2016, the superior court entered an order and judgment. The order states the WAC 296-14-400 amendment is a valid rule.[2]

         Appeal of Declaratory Judgment Order

         Ma'ae 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.

         The 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 ...


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