FILED COURT APPEALS DIVISIO9p La
201113M —5 AM 8: 59 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON\ q WNW 0 N DIVISION II
JOSEPH CRABB, No. 44343- 1- II
Respondent, PUBLISHED OPINION
v.
DEPARTMENT OF LABOR & INDUSTRIES,
Appellant.
BJORGEN, J - The Department of Labor and Industries ( Department) appeals an order of
summary judgment directing it to pay Joseph Crabb' s workers' compensation benefits for 2011
at the maximum monthly amount for that year. Crabb began receiving these benefits in 2007.
The statutory formula for calculating his benefits called for payments in excess of the maximum
monthly amount, so the Department paid Crabb at the maximum between 2007 and 2010. In
2011, amendments to the workers' compensation statutes froze the annual cost of living
adjustment ( COLA) to benefit payments. Based on these amendments, the Department
continued to pay Crabb at the 2010 maximum monthly rate when he sought benefits in 2011.
Crabb protested, eventually appealing to the superior court, which reversed an order by
the Board of Industrial Insurance Appeals ( Board) and directed the Department to pay his
benefits at the maximum 2011 monthly amount. Concluding that the 2011 COLA suspension
did not prevent payment of Crabb' s benefits at the 2011 maximum, we affirm the superior court.
FACTS
Crabb experienced a work - related injury to his left foot in 2007. He filed a claim for
benefits, which the Department allowed. By statute, the Department calculates temporary total
disability payments, the type of benefits Crabb received, using three factors measured at the time No. 44343 -1 - II
of the accident: the worker' s monthly wages, his or her marital status, and the number of the
worker' s dependent children. RCW 51. 32. 090( 1), . 060. At the time of his injury, Crabb made
8, 917. 92 per month, was unmarried, and had no children. Based on these factors, the statutory
formula for calculating disability payments codified in RCW 51. 32. 090 and RCW 51. 32. 060 set
Crabb' s benefits at 60 percent of his monthly wages, or $5, 350. 57 per month. However, because
RCW 51. 32. 090( 9) capped the payment of temporary total disability payments at 120 percent of
the average monthly state wage, Crabb was only entitled to payments of $4,258. 40 per month for
2007, the year of his injury.
The effects of Crabb' s injury persisted, and his claim remained open. In 2011 he filed
claims for temporary total disability for the period of August 27, 2011 through October 21, 2011.
The COLA is given effect by RCW 51. 32. 075, which requires the Department to adjust
temporary total disability payments each July to account for inflation. However, during a special
session in 2011, the legislature eliminated the automatic COLA to workers' compensation .
benefits for that year. LAWS OF 2011, 1st Spec. Sess., ch. 37, §§ 202, 1101. The legislature did
not, however, alter the statutory scheme for calculating benefits found in RCW 51. 32. 090( 1) or
for calculating the maximum monthly payment allowed by RCW 51. 32. 090( 9). See LAWS OF
2011, 1st Spec. Sess., ch. 37, § 101.
Because of the suspension of the 2011 COLA before its effective date, July 1, the
Department paid Crabb' s 2011 claims at a monthly benefit rate of $ 4, 714. 30, the maximum
monthly payment for 2010. Crabb wrote the Department and claimed that, under the benefit
schedule for temporary total disability benefits established by RCW 51. 32. 090( 1), adjusted for
inflation by RCW 51. 32. 075, and capped by the maximum monthly payment provision found in
2 No. 44343 -1 - II
RCW 51. 32. 090( 9), he should receive the maximum payment allowed in 2011, $ 4, 816. 20 per
month. The Department rejected Crabb' s claim, contending that the legislature' s suspension of
2011' s COLA prevented it from adjusting his payments upward.
Crabb appealed, and the parties contested the issue on stipulated facts before an industrial
appeals judge ( IAJ) of the Board. The IAJ accepted the Department' s argument that, absent an
automatic COLA, it had no mechanism to adjust Crabb' s benefits and denied his appeal with a
proposed decision and order. The Board denied Crabb' s petition for review, adopting the IAJ' s
proposed decision and order as its own.
Crabb then appealed to the superior court contending that the provisions of RCW
51. 32. 090 entitled him to the maximum allowable monthly payment and that the COLA issue
was irrelevant to that calculation. The Department again claimed that, absent some mechanism
for adjusting Crabb' s benefits, it could not do so, and it therefore could only pay at the 2010 cap
level. Accepting Crabb' s interpretation, the superior court granted summary judgment in his
favor and ordered the Department to recalculate and pay Crabb benefits for the period at issue at
the 2011 maximum monthly amount, interest on the deficiency, and costs and fees related to his
appeal.
The Department appeals and seeks reversal of the summary judgment order in Crabb' s
favor and reinstatement of the Board' s decision.
ANALYSIS
The Department contends that the superior court erred because ( 1) the legislature
precluded any kind of increase in benefit payments for Crabb when it suspended the 2011 COLA
and ( 2) even if Crabb could receive higher benefit payments, it lacked any mechanism to
3 No. 44343- 1- 11
implement an increase in payments. The Department' s claims present questions of statutory
interpretation that ultimately turn on whether the superior court correctly interpreted RCW
51. 32. 090 and RCW 51. 32. 075, the provisions establishing Crabb' s benefit schedule, the
maximum monthly payment allowed, and annual adjustments for inflation.
When we interpret a statute, we attempt to " ascertain and carry out the Legislature' s
intent." Dep' t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9 - 10, 43 P. 3d 4 ( 2002). We
determine the legislature' s intent through the plain meaning imparted by the text of the statutory
provision at issue, as well as any related provisions that " disclose legislative intent about the
provision in question." Campbell & Gwinn, 146 Wn.2d at 11 - 12. Unless " the statute remains
susceptible to more than one reasonable meaning" after this textual inquiry, the statute is
unambiguous, our inquiry is over, and we must give effect to the legislature' s intent. Campbell
Gwinn, 146 Wn.2d at 12. If, however, the statute is susceptible to more than one reasonable
interpretation after the plain meaning analysis, " the statute is ambiguous and it is appropriate to
resort to aids to construction, including legislative history." Campbell & Gwinn, 146 Wn.2d at
12 ( citing, among other cases, Cockle v. DeptofLabor and Industries, 142 Wn. 2d 801; 808, 16
P. 3d 583 ( 2001)).
We review de novo an order for summary judgment, " engaging in the same inquiry as the
trial court." Afoa v. Port of Seattle, 176 Wn.2d 460, 466, 296 P. 3d 800 ( 2013). Summary
judgment is proper where " there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law." Afoa, 176 Wn.2d at 466. Because the parties agree on
the facts, this appeal turns on our de novo review of the Department' s interpretation of the
4 No. 44343- 1- 11
provisions of chapter 51. 32 RCW. Stuckey v. Dep' t of Labor & Indus., 129 Wn.2d 289, 295, 916
P. 2d 399 ( 1996).
I. THE STATUTORY BENEFIT SCHEME AND CRABB' S RATE OF BENEFIT PAYMENTS
Under RCW 51. 32. 090( 1) workers experiencing temporary total disability " shall" receive
benefit payments according to the same payment schedule as those receiving permanent total
disability, although only " so long as the total disability continues." The payment schedule for
workers with permanent total disability sets benefit payments as a variable percentage of the
workers' average monthly wages, conditioned on the workers' marital status and number of
dependent children at the time of the injury. RCW 51. 32. 060. For those, like Crabb, with no
spouse or dependent children at the time of injury, RCW 51. 32. 060( 1) and RCW 51. 32. 060
together require the Department to pay temporary total disability benefits at "[ 60] percent of [the
worker' s] wages." RCW 51. 32. 090( 1)( g). The Department fixed Crabb' s benefit schedule by
order, correctly determining that the statutory scheme entitled him to 60 percent of his $ 8, 917. 92
average monthly wage, or $5, 350. 57.
RCW 51. 32. 075 codifies the legislature' s attempt to-deal with the problem of inflation in
the context of worker' s compensation payments. See Dep' t of Labor & Indus. v. Auman, 110
Wn.2d 917, 920, 756 P. 2d 1311 ( 1988). Between the years 1982 and 2010, this statute required
the Department to make yearly adjustments to the injured worker' s compensation by multiplying
the payment schedule called for by RCW 51. 32. 090( 1) by a fraction determined by dividing that
year' s average monthly salary by the average monthly salary of the year in which the claimant
suffered his or her injury. Former RCW 51. 32. 075 ( 1983). In 2011, however, the legislature
suspended the COLA increase for the year and adjusted the formula so that any adjustments to
5 No. 44343 -1 - II
benefits lag a year behind the current pace of inflation. LAws OF 2011, 1st Spec. Sess., ch. 37, §
202 ( codified as RCW 51. 32. 075).
The payments required by RCW 51. 32. 090( 1) are also capped by a maximum monthly
payment rate. RCW 51. 32. 090( 9). As relevant here, the capping provision states that "[ i]n no
event shall the monthly payments provided in this section" exceed 120 percent of the average
monthly wage in the state as computed under the provisions of RCW 51. 08. 018. RCW
51. 32. 090( 9)( a). During the 2010 year, RCW 51. 32. 090( 9) limited payments to $4, 715. 30 per
month; for 2011 the provision restricted payments to a maximum of $4, 816. 20 per month.
II. RCW 51. 32. 075 AND THE COLA FREEZE
The Department first claims the superior court erred by misinterpreting the effects of the
legislature' s suspension of the 2011 COLA. The Department argues that the suspension of the
COLA precluded it from adjusting Crabb' s benefits because the rise in the maximum payment
amount allowed by RCW 51. 32.090( 9) is equal to the benefit increase that the COLA would
have provided. Crabb contends that the amendments have no bearing on his claim. We find the
statutory amendments ambiguous and, applying the canon of liberal construction, hold that the
Department erred.
The Department offers a reasonable interpretation of the 2011 amendments to RCW
51. 32. 075. As the Department argues, both the maximum monthly benefit payment and the
COLA are functions of the average monthly wage of Washington workers. See RCW 51. 32. 075,
090( 9). As a result, the yearly change to the maximum benefit payment is identical to the yearly
COLA. Given this, the legislature' s suspension of 2011' s COLA could indicate intent to prevent
increases to benefit payments like the one Crabb seeks.
6 No. 44343 -141
However, Crabb also offers a reasonable interpretation of the statutory scheme. As
Crabb notes, while the legislature amended RCW 51. 32. 075, it did not amend RCW
51. 32. 090( 9). The Department' s position that the 2011 amendments to RCW 51. 32. 075
suspended benefit increases for workers at the statutory maximum requires us to view them as
impliedly amending RCW 51. 32. 090( 9). We disfavor such implied amendments, and we
presume the legislature knows this. Wilbur v. Dep' t of Labor & Indus., 38 Wn. App. 553, 559,
686 P. 2d 509 ( 1984). Crabb thus reasonably argues that the legislature did not intend to preclude
the benefit raise he seeks here when it amended RCW 51. 32. 075 but not RCW 51. 32. 090( 9).
Since both parties offer reasonable, conflicting interpretations of the text and purpose of
the statutory scheme at issue, we find the scheme ambiguous. Interpreting the provision requires
us to turn to extrinsic aids to ascertain the legislature' s intent. The Department invokes several
canons of construction that it claims support its interpretation; Crabb invokes only one, the
doctrine of liberal construction. We find the canon invoked by Crabb to be dispositive,
especially in light of the differing roles of the monthly cap and the COLA.'
The legislature has declared that the provisions of Title 51 RCW " shall be liberally
construed for the purpose of reducing to a minimum the suffering and economic loss arising
from injuries and /or death occurring in the course of employment." RCW 51. 12. 010; Cockle,
142 Wn.2d at 811. The Supreme Court has commanded that this legislative directive requires
that we resolve all reasonable doubt in favor of the injured worker. See, e.g., Clauson v. Dep' t of
We acknowledge some uncertainty in the case law as to whether rules of liberal construction are to be consulted in determining whether a statute is ambiguous or whether they are applied after ambiguity has been found. Compare Jametsky v. Olson, 179 Wn.2d 756, 764 -65, 317 P. 3d 1003 ( 2014) with Cockle, 142 Wn.2d at 811. Because Cockle applied the specific rule of liberal construction for workers' compensation statutes only after ambiguity had been found, we do the same.
7 No. 44343- 1- 11
Labor & Indus., 130 Wn.2d 580, 586, 925 P. 2d 624 ( 1996). Because Crabb makes at least a
reasonable case for his entitlement to the higher benefit rate, we must resolve the Department' s
appeal in his favor, despite the canons of construction invoked by the Department. See, e. g.,
Cockle, 142 Wn.2d at 811 - 13.
The voice of the canon of liberal construction in this setting is strengthened by the
differing purpose and role of the statutory limitations under examination. The monthly cap is
simply a device to hold benefits, however calculated, below a set maximum. It applies whatever
the mix of factors entering into the benefit calculation and whatever the contribution of a COLA
to those benefits. The COLA on the other hand, increases benefits up to the monthly cap. The
annual adjustment to the monthly cap, therefore, is not a COLA, even though their amounts may
be the same in an individual year. Here, the raising of the cap simply allows Crabb to enjoy
more of the benefits the statute otherwise would grant him, benefits which do not include the
suspended COLA for 2011. Since the cap increases are not a COLA, it would offend the canon
of liberal construction even more to deny Crabb the cap increase simply because it was the same
amount as the suspended COLA.
The Department attempts to overcome the legislature' s directive that we construe the
provisions of Title 51 RCW liberally by arguing that liberal construction cannot overcome the
canon against interpretations producing absurd results. Senate Republican Campaign Comm 'n v.
Pub. Disclosure Comm' n, 133 Wn.2d 229, 243, 943 P. 2d 1358 ( 1997); Bird-Johnson v. Dana
Corp., 119 Wn.2d 423, 427, 833 P. 2d 375 ( 1992). The Department claims that Crabb' s
interpretation allows higher paid workers to receive what amounts to a COLA for 2011 while
8 No. 44343- 1- 11
less well paid workers do not and labels this a " strained and unrealistic" result. Br. of Appellant
at 26. There are two problems with the Department' s argument.
First, the Department' s interpretation produces an absurdity of its own. The Department
asks us to hold on one hand that Crabb' s rate of payment is determined by the maximum
payment provision, but then to hold on the other hand that changes to the maximum payment
provision have no effect on Crabb' s rate of payment. This inconsistency is difficult to accept.
Second, we cannot say that Crabb' s interpretation is absurd, as it accords with prior
legislative amendments to chapter 51. 32 RCW. Workers' compensation payments, like the ones
made under RCW 51. 32. 090( 1), exist to compensate injured workers " based not on an arbitrarily
set figure, but rather on his or her actual ` lost earning capacity.'" Cockle, 142 Wn.2d at 811
quoting Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 798, 947 P.2d 727, 952 P.2d 590
1997)). In fact, the legislature amended Title 51 to make workers' compensation payments
dependent on wages, rather than set payments for particular types of injuries, precisely to more
accurately reflect lost wages. Cockle, 142 Wn.2d at 810 -11. Because Crabb' s lost wages
resulted in benefits that exceeded the maximum monthly payment, allowing Crabb to receive a
larger benefit payment when the maximum monthly payment is increased comports with the goal
of better compensating Crabb for his lost earning capacity.
The Department also argues that we should defer to its interpretation of RCW 51. 32. 090
and that we should accept its interpretation because it gives effect to all the statutory language.
We generally defer to the Department' s interpretation of Title 51 RCW. Littlejohn Constr. Co. v.
Dep 't of Labor & Indus., 74 Wn. App. 420, 423, 873 P. 2d 583 ( 1994). This deference has limits
however, and where the Department' s reading " conflicts with a statutory mandate," deference is
9 No. 44343 -1 - II
inappropriate. ' Cockle, 142 Wn.2d at 812 ( quoting Dep' t of Labor & Indus. v. Landon, 117
Wn.2d 122, 127, 814 P. 2d 626 ( 1991)). For the reasons set out above, the Department' s reading
conflicts with applicable statutory mandates, even giving that reading its due deference. Further,
the Department' s reading contravenes the express language of RCW 51. 32. 090, which provides
that the worker " shall" receive benefits according to the statutory schedule during his disability.
Only by allowing Crabb to benefit from increases in the monthly cap can this requirement be
met. Denying him that benefit because the COLA was suspended reads RCW 51. 32. 090( 1) right
out of the statutory scheme. For this reason also, we decline to follow the Department' s
construction of RCW 51. 32. 090.
III. STATUTORY MECHANISMS FOR BENEFIT INCREASES
The Department next contends that the superior court erred by ordering it to increase
Crabb' s benefits because it has no means to do so. The Department claims that adjustments must
be made using an applicable mechanism and contends that without the COLA it had no
mechanism applicable to Crabb because the maximum monthly benefit cap does not, in and of
itself, provide a mechanism to increase payments. We disagree.
As noted above, the Department used the factors prescribed by RCW 51. 32. 090( 1) to
calculate Crabb' s benefit schedule. Because the Department correctly fixed Crabb' s benefit
schedule in excess of the maximum monthly payment allowed by RCW 51. 32. 090( 9), increases
in the maximum monthly payment operate as a mechanism to increase Crabb' s benefit payments.
See RCW 51. 32. 090( 1), ( 9). When the maximum monthly payment rises, Crabb' s benefit
payments are necessarily reduced less. This adjustment inheres in the raising of the monthly cap,
and no additional legal mechanism is necessary to effect it.
10 No. 44343- 1- 11
Nevertheless, the Department cites our opinion in Hyatt v. Department ofLabor and
Industries, 132 Wn. App. 387, 132 P. 3d 148 ( 2006), and Division One' s similar opinion in Lynn
v. Department of Labor and Industries, 130 Wn. App. 829, 125 P. 3d 202 ( 2005), claiming that
they support its contention that it needed a statutory mechanism to increase Crabb' s benefit
payments. Those cases stand for the proposition that once the Department fixes a claimant' s
benefit schedule by final order, principles of res judicata require the claimant to show some kind
of change in personal circumstances to warrant recalculation of that schedule. Hyatt, 132 Wn.
App. at 396 -400; Lynn, 130 Wn. App. at 834 -40. Crabb is not seeking a recalculation of his
benefit schedule. He is literally seeking to compel the Department to pay him what it initially
decided it should. 2 Res judicata cannot justify the Department' s refusal to pay Crabb according
to the factors it fixed by order.
IV. ATTORNEY FEES
The superior court awarded Crabb attorney fees and costs. Crabb devoted a portion of his
opening brief to the attorney fees issue and asks that we award appellate attorney fees based on
RCW 51. 52. 130, which allows-for such fees. Crabb has satisfied the requirements of RAP 18. 1.
Because we affirm the trial court' s summary judgment order, we affirm its award of fees and
costs to Crabb. We also award Crabb fees on appeal, in an amount to be set by a commissioner
of our court.
2 The Department points to several orders in the record and claims that these fix Crabb' s benefit payments at the 2010 maximum monthly payment rate. These orders fix Crabb' s payments at those levels for set periods of time consistent with the provisions of RCW 51. 32. 090( 9). Again, the Department fixed Crabb' s benefit schedule according to RCW 51. 32. 090( 1). The
Department must pay him according to that schedule as modified by the provisions of RCW 51. 32. 090( 9), which allowed for a larger monthly rate of payment for the period of time at issue here. 11 No. 44343 -1 - II
CONCLUSION
The legislature' s command that we construe the provisions of chapter 51 RCW liberally
in favor of injured workers, along with the different purpose and role of the monthly benefit cap
and the COLA, requires that we resolve the Department' s appeal in Crabb' s favor. We affirm
the superior court' s grant of summary judgment.
A.c.r.