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Village v. Vasquez-Ramirez

Court of Appeals of Washington, Division 1

December 30, 2019


          Leach, J.

         A party appealing a Department of Labor & Industries (Department) decision to the Board of Industrial Insurance Appeals (Board) has the burden of producing sufficient evidence to establish a prima facie case for the relief it requests.[1] And a party waives any argument not raised in its petition for review to the Board. Value Village appealed four Department orders awarding Candida Vasquez-Ramirez time-loss payments and interest. To prevail, Value Village had to present medical evidence that Vasquez-Ramirez could work during the times for which she received time-loss benefits. It did not present any medical evidence, and it did not claim in its petition that Vasquez-Ramirez had voluntarily retired. So we affirm the Board's dismissal of Value Village's appeal.


         Candida Vasquez-Ramirez was injured August 15, 2014, while working for Value Village. Vasquez-Ramirez timely filed a worker's compensation claim that the Department allowed.

         Dr. Vincent Koike treated Vasquez-Ramirez for her injuries from August until November 2014. Koike initially restricted Vasquez-Ramirez from work that required use of her right arm and shoulders to reach overhead. Value Village offered her modified-duty work on August 29, 2014, which she accepted.[2] The parties agree that this job modification was consistent with Koike's restrictions, which included "[n]o lifting greater than ten pounds and no reaching above shoulder level." Because Vasquez-Ramirez continued to work full time at Value Village in this modified position, she did not receive time-loss compensation during her employment.

         Koike later restricted Vasquez-Ramirez's use of her right arm to no more than three hours during the day. Charita Dumas, Value Village's senior claim analyst, testified that although Koike added these restrictions on November 3, 2014, she never offered Vasquez-Ramirez a modified-duty job including these restrictions because Vasquez-Ramirez was "still able to perform the essential functions of her job."

         The Department closed Vasquez-Ramirez's claim on January 8, 2015. On January 27, 2015, Value Village fired Vasquez-Ramirez for alleged unacceptable behavior that included absenteeism, disrespectful communication with supervisors and coworkers, and disregarding supervisor's instructions. Vasquez-Ramirez denied these allegations.

         Vasquez-Ramirez asked to reopen her claim on March 17, 2015, the same month she resumed medical treatment with Koike. The Department reopened her claim effective March 6, 2015. Value Village appealed this decision but later dismissed its appeal.

         After reopening Vasquez-Ramirez's claim, the Department awarded her time-loss compensation for August 22 to October 13, 2015, February 24 to March 7, 2016, and March 8 to July 6, 2016. The Department also ordered payment of interest on time-loss payments under the same claim. Value Village appealed these orders to the Board.

         At a hearing before an industrial appeals judge (IAJ), Value Village presented evidence that it offered and Vasquez-Ramirez accepted modified-duty work approved by her medical provider after she injured herself. It admitted that while her doctor ordered additional modifications, it did not incorporate them into a new job description. Value Village modified her work but did not create a new job offer, and Koike never approved these modifications. Value Village also offered evidence supporting its position that it fired her for cause. Vasquez-Ramirez presented evidence of her injury, the change in her injury over time, and testimony rebutting Value Village's evidence supporting termination for cause.

         In her proposed decision and order, the IAJ dismissed all of Value Village's claims because it had failed to establish a prima facie case that the Department's orders were incorrect. Specifically, Value Village had not presented any medical evidence that Vasquez-Ramirez could perform the modified-duty job during the times for which the Department awarded her time-loss benefits. Value Village petitioned the Board for review. Its petition asked the Board to decide "that the Employer presented a prima facie case that the Claimant was not entitled to time-loss compensation benefits." It made no claim that Vasquez-Ramirez had voluntarily retired. The Board dismissed Value Village's appeals for the reason proposed by the IAJ.

         Value Village appealed to King County Superior Court. It affirmed the Board and awarded Vasquez-Ramirez attorney fees and costs. Value Village has appealed this decision.


         In a worker's compensation case, an appellate court generally limits its review of a superior court decision to whether substantial evidence supports the superior court's findings made after its de novo review of the Board record and whether the court's findings support its conclusions of law.[3] Substantial evidence is evidence sufficient to "persuade a rational fair-minded person the premise is true."[4] This court accepts as true findings supported by substantial evidence.[5] If substantial evidence supports the trial court findings, it reviews de novo whether those findings support the superior court's conclusions of law.[6] It views the record in the light most favorable to the party prevailing in superior court, and it does not reweigh evidence.[7]

         Our Supreme Court instructs us that the Industrial Insurance Act[8] (Act) is liberally construed to achieve the legislature's intent to provide compensation to all covered employees injured in their employment, [9] with all doubts resolved in the worker's favor.[10] This court applies the liberal rule of construction to its interpretation of the Act but does not apply it to questions of fact.[11] Although the Board's interpretation of the Act does not bind an appellate court, in most circumstances "it is entitled to great deference."[12]


         Value Village claims that the Department should not have awarded Vasquez-Ramirez time-loss benefits. It makes four supporting arguments. First, it claims that the Board and trial court incorrectly required it to present evidence that Vasquez-Ramirez could work. Value Village contends that the Board and trial court should have required Vasquez-Ramirez to produce medical evidence of her inability to work.

         Second, Value Village claims that it produced sufficient evidence to show that the Department did not have enough evidence to award time-loss benefits to Vasquez-Ramirez. Third, Value Village asserts that Vasquez-Ramirez's employment with it did not "come to an end" as required by statute because it fired her for cause unrelated to her injuries before the time for which the Department awarded time-loss benefits. Finally, Value Village claims that it presented evidence that Vasquez-Ramirez removed herself from the workforce by retiring.

         Time- Loss Benefits and Appeal Process

         The Act entitles a worker to compensation if she is injured in the course of her employment.[13] If she cannot work as a result of her industrial injury and is totally but only temporally disabled, she has a right to time-loss compensation "so long as the total disability continues."[14] The payments stop when she recovers to a point that her "present earning power... is restored to that existing at the time of the occurrence of the injury."[15] If her earning power is partially restored, she may receive a diminished payment described by a statutory formula.[16]

         The legislature recognizes the value of having injured workers remain at work after their injuries.[17] So the Act provides a way for "employers at the time of injury to provide light duty or transitional work for their workers" who are injured on the job.[18] An employer may ask that an injured worker "be certified by a physician or licensed advanced registered nurse practitioner as able to perform available work other than ... her usual work."[19] The employer must provide the medical professional with a description of available modified-duty work so that the medical professional can evaluate how the physical activities of the work relate to the worker's disability.[20] Once the medical professional releases the employee for the work, the time-loss benefits stop.[21]

         Time-loss benefits resume in two circumstances.[22] First, the benefits resume if the modified work ends and the worker's medical provider concludes she has not recovered sufficiently to return to her usual job or perform the other work the employer offers her.[23] Second, the benefits resume if the worker engages in the modified work but it "impede[s]... her recovery to the extent" that her medical provider concludes she should not continue that work.[24] Once she

returns to work under the terms of this subsection (4), . . . she shall not be assigned by the employer to work other than the available work described without the worker's written consent, or without prior review and approval by the worker's physician or licensed advanced registered nurse practitioner.[25]

         The Act controls appeals of Department decisions.[26] A person aggrieved by a Department decision may appeal to the Board.[27] The appealing party presents the evidence supporting its appeal at a hearing conducted by an IAJ.[28]After the hearing, the IAJ files a proposed decision.[29] Any party may have the Board review that decision by filing a petition asking for this relief.[30] The petition must state in detail the grounds for review, and all objections or irregularities not specifically set forth in the petition are deemed waived.[31] The Board's decision must include findings and conclusions for each contested issue of fact and law.[32]

         In an appeal from the Board to the superior court, that court considers the Board's findings and decisions prima facie correct and the party attacking them has the burden of proof.[33] This means that the party attacking a Board decision must establish a prima facie case of its right to relief by a preponderance of evidence.[34] At the superior court, a party may raise only those issues that it included in its petition to the Board or that are contained in the "complete record of the proceedings before the board."[35] If the court concludes "that the board . . . acted within its power and . . . correctly construed the law and found the facts," it will affirm.[36] If not, it will reverse or modify the Board's decision.[37]

         Value Village Had the Burden of Producing Sufficient Evidence To Show That Vasguez-Ramirez Was Not Entitled To Time-Loss Benefits

         The legislature has allocated the initial burden of evidence production in an appeal of a Department decision. RCW 51.52.050(2) states, "In an appeal before the board, the appellant shall have the burden of proceeding with the evidence to establish a prima facie case for the relief sought in such appeal." For appeals to superior court, RCW 51.52.115 states, "In all court proceedings under or pursuant to this title the findings and decision of the board shall be prima facie correct and the burden of proof shall be upon the party attacking the same." Value Village does not cite, let alone discuss, these unambiguous statutes in its briefing. Instead, it claims that case law allows it to meet its burden by asserting that the Department and Vasquez-Ramirez did not present sufficient evidence to support the time-loss awards. We disagree.

         In Department of Labor & Industry v. Rowley, [38] our Supreme Court, as a matter of first impression, interpreted RCW 51.52.050(2)(a), "the statute requiring the appellant in 'an appeal before the [B]oard . . . [to] proceed[ ] with the evidence to establish a prima facie case for the relief sought in such appeal.'" Rowley appealed the Department's denial of his claim based on its determination that he was injured during the commission of a felony.[39] The court agreed with the Department's position that to establish a "prima facie" case, "a party must show that a department decision is incorrect."[40] But, in the context of the case before it, the court explained that Rowley could do this "by showing (1) an injury in the course of employment and (2) that the Department's order is unsupported by sufficient evidence."[41]

         The court noted that a contrary holding would shift from the Department to the worker the burden of proof on the felony payment bar and require the worker to prove the noncommission of a felony before any formal hearing had occurred.[42] The court considered this to "be inconsistent with basic principles of fairness."[43] The court also noted that requiring an appellant to produce new affirmative evidence about the incorrectness of the Department's order would be inconsistent with its cases interpreting RCW 51.52.115.[44] Finally, the court stated that RCW 51.52.115 places a greater burden on an appellant than RCW 51.52.050(2)(a) does because RCW 51.52.115 requires that the superior court presume that the Board's decision is correct.[45]

         So Rowley requires the appellant, here, Value Village, to show that the Department's order is incorrect and does not permit it to shift to Vasquez-Ramirez the burden of proof. But Value Village could rely on evidence from the Department's record to prove its case and does not have to produce new affirmative evidence before the Board. As explained below, that evidence does not show that the Department's order was incorrect.

         The Board and the trial court correctly allocated the burden of proof. Value Village did not contest that Vasquez-Ramirez suffered a work injury and withdrew its appeal of the order reopening her claim. So it accepted that her work injury prevented her from doing her job of injury and that her medical condition was worse than when her doctor approved the modified-duty job from which Value Village fired her. To make a prima facie showing that the Department's award of time-loss benefits was incorrect required some evidence that Vasquez-Ramirez was capable of performing reasonably continuous, gainful employment for the periods for which she received time loss.

         Value Village Failed To Provide Evidence That Vasquez-Ramirez Was Capable of Performing Gainful Employment During the Time in Question

         Value Village challenges the trial court's finding adopting findings of facts the Board made. These Board findings state that Value Village "failed to provide medical or other evidence that the claimant was capable of performing reasonably continuous gainful employment for the periods from August 22, 201.5, through October 13, 2015, and from February 24, 2016, through July 6, 2016," and "failed to provide evidence that the Department improperly paid interest on benefits previously paid for the period from August 22, 2015, through October 13, 2015."

         At the hearing before the IAJ, Value Village presented evidence that it fired Vasquez-Ramirez for cause. It also presented evidence that it offered, and Vasquez-Ramirez accepted, modified-duty work approved by her medical provider after her injury. But Value Village did not present any evidence, medical or otherwise, to establish that Vasquez-Ramirez could continue to do the work described in the original modified-duty job after her condition worsened and her medicalprovider imposed more restrictions on her activities. And it presented no evidence that she could do any other available work during the time for which the Department awarded time-loss benefits. ...

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