Matthew Aird, V. Wa State Dept Of Transportation

• Court: Court of Appeals of Washington
• Decided: May 20, 2024
• Docket: 85611-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MATTHEW AIRD, No. 85611-1-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION WASHINGTON STATE DEPARTMENT OF TRANSPORTATION,

Appellant.

SMITH, C.J. — In December 2017, Matthew Aird injured his back in the

course of his employment with the Ferries Division of the Washington State

Department of Transportation (WSDOT). Pursuant to the Jones Act, 46 U.S.C.A.

§ 30104, WSDOT immediately began paying two forms of benefits: maintenance,

which is day-to-day living expenses, and cure, which is the right to medical

expenses. WSDOT terminated Aird’s benefits three years later in January 2020,

based on a finding from Aird’s primary physician that Aird had reached maximum

medical improvement. Another three years later, Aird sought reinstatement of

benefits based on continued pain and new symptoms. The trial court granted

Aird’s motion to reinstate maintenance and cure. On appeal, WSDOT asserts

that Aird did not plead a claim for maintenance and cure, that the trial court erred

in applying the unequivocal evidence standard, and that the trial court erred in

denying WSDOT’s motion for a continuance. No. 85611-1-I/2

We affirm the trial court’s determination that Aird sufficiently pleaded a

claim for maintenance and cure and the trial court’s denial of WSDOT’s motion

for a continuance. We remand for the court to vacate the order reinstating the

benefits until there is a determination at trial.

FACTS

Matthew Aird is a seaman employed by Washington State Ferries, a

division of the Washington State Department of Transportation (WSDOT). In

December 2017, while attending a mandatory meeting at WSDOT’s offices, Aird

slipped in the parking lot and injured his lower back. The next day, Aird began

treatment for the injury and sought maintenance and cure benefits from WSDOT.

Maintenance is a per diem living allowance for food and lodging comparable to

what the seaman is entitled to while at sea and cure is payment of medical

expenses incurred treating the seaman’s injury or illness. WSDOT

acknowledged the request, initiated both benefits immediately and continued

providing benefits for three years.

In January 2020, Dr. Michael Welsh, Aird’s treating physician, determined

that Aird had reached maximum medical improvement (MMI) and signed a form

stating the same. Based on Dr. Welsh’s opinion, WSDOT closed Aird’s claim

and discontinued paying the benefits. Aird did not dispute Dr. Welsh’s opinion as

to MMI and initially did not contest WSDOT’s discontinuation of the benefit

payments.

In September 2020, Aird sued WSDOT, alleging negligent administration

of his maintenance and cure claim, negligent orders, instructions, and

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assignments of duties, failure to warn of known dangers, failure to provide a safe

workplace, and other negligence. His petition included a request for relief in the

form of maintenance and cure. Aird’s complaint alleged that despite his back

surgery, he was now permanently and totally disabled, that he had not worked

since December 2017, and that he will not work for the rest of his work life

expectancy. In July 2021, based on the stipulation of the parties, the trial court

entered an order dismissing Aird’s claim that WSDOT failed to properly

administer maintenance and cure.

But in September 2022, Aird’s surgeon, Dr. Richard Wohns, testified that

he believed, based on his knowledge and experience, that Aird could benefit

from further care and had not reached MMI. Given this new medical opinion,

Aird moved to reinstate his maintenance and cure benefits in May 2023.

WSDOT opposed the motion, asserting that Aird had not included a claim for

ongoing entitlement and maintenance and cure to his complaint since the 2017

event. WSDOT sought summary judgment asserting laches, willful misconduct,

and claim preclusion; the trial court denied this motion.

In July 2023, the trial court granted Aird’s motion to reinstate maintenance

and cure benefits. WSDOT appeals.

ANALYSIS

Discretionary Review

In response to WSDOT’s appeal, Aird asserts that this court’s

commissioner improperly granted discretionary review of the trial court’s

reinstatement of his benefits because the commissioner mistakenly believed that

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Aird did not plead a cause of action for maintenance and cure. We decline to

reach this issue.

Under RAP 17.7(a), an aggrieved party can object to a commissioner’s

ruling only by filing a motion to modify the ruling with the “judges of the court

served by the commissioner.” The motion must be filed within 30 days of the

now-challenged ruling. RAP 17.7(a).

Here, the commissioner issued the ruling granting discretionary review in

December 2023. Aird has not moved to modify that ruling.

Reinstatement of Maintenance and Cure

WSDOT argues that the trial court erred in considering Aird’s request for

reinstatement of maintenance and cure because Aird did not plead a cause of

action for maintenance and cure. Because Aird identified the 2017 injury in the

fact section of his complaint, stated that he was permanently disabled as a result,

and listed maintenance and cure as damages, the trial court did not err in

determining that Aird properly pleaded the claim.

We review a trial court’s decisions regarding the application of civil rules

for an abuse of discretion. Sprague v. Sysco Corp., 97 Wn. App. 169, 171, 982

P.2d 1202 (1999). A court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds or reasons. Summers v. Sea Mar

Cmty. Health Ctrs., __ Wn. App. __, 541 P.3d 381, 389 (2024). The standard is

extremely deferential and we will only reverse a trial court decision if the decision

applies the wrong legal standard, relies on unsupported facts, or adopts a view

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no reasonable person would take. Hoffman v. Kittitas County, 4 Wn. App. 2d

489, 495, 422 P.3d 466 (2018), aff’d, 194 Wn.2d 217, 449 P.3d 277 (2019).

Washington is a notice pleading state. Burchfiel v. Boeing Corp., 149 Wn.

App. 468, 495, 205 P.3d 145 (2009). Under CR 8(a)(1), a complaint need only

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” A complaint fails to meet this standard only if it does not give

the opposing party fair notice. Champagne v. Thurston County, 163 Wn.2d 69,

84, 178 P.3d 936 (2008). Therefore, “ ‘even silly or trivial . . . claims can easily

survive . . . where the plaintiff pleads facts that put the defendant on notice of

[their] claim, however vague or lacking in detail these allegations may be.’ ”

Thomson v. Doe, 189 Wn. App. 45, 59, 356 P.3d 727 (2015) (quoting Doe No. 1

v. Cahill, 884 A.2d 451, 456 (Del. 2005)).

Here, Aird sought “maintenance, cure, and unearned wages” as damages

in both his original and amended complaints. WSDOT answered those

complaints, acknowledging that it paid maintenance and cure benefits

immediately following Aird’s injury and stating that Aird’s entitlement to further

benefits “is a legal matter for the Court to decide.” Because WSDOT recognized

that maintenance and cure benefits are a legal matter for the court to consider, it

is contradictory for it to now argue that it did not receive notice that Aird sought

those benefits. The complaint provided sufficient information that those benefits

were at issue. The fact that Aird did not request immediate reinstatement of

maintenance and cure benefits until 2022, after he obtained a medical opinion to

support his contention, is not determinative as to whether he pleaded the issue.

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Given that the abuse of discretion standard is a high bar when it comes to

overruling a trial court’s decision and how little is required in Washington for a

claim to be appropriately plead, it was well within the trial court’s discretion to

determine that WSDOT had notice and Aird properly pleaded his claim.

The trial court did not err in considering Aird’s request for reinstatement of

maintenance and cure.

Unequivocal Evidence Standard

WSDOT contends that the trial court applied the incorrect legal standard in

reinstating Aird’s maintenance and cure benefits. Aird argues that the court did

not err because the Washington Supreme Court determined in Dean v. Fishing

Company of Alaska, Inc., 177 Wn.2d 399, 405-06, 300 P.3d 815 (2013), that to

terminate the benefits, a ship owner must prove maximum medical improvement

by unequivocal evidence. The trial court erred in reinstating Aird’s maintenance

and cure benefits based on the unequivocal evidence standard because the

circumstances here are distinguishable from Dean and because the trial court

held that the determination of maximum medical improvement was a genuine

issue of material fact for the jury to decide.

“The application of an incorrect legal standard is an error of law that we

review de novo.” Dean, 177 Wn.2d at 405. We also review a trial court’s grant

or denial of summary judgment de novo. Dean, 177 Wn.2d at 405.

General maritime law requires that a shipowner provide maintenance and

cure to a seaman who is ill or injured while “ ‘in the service of a ship.’ ” Dean,

177 Wn.2d at 405-06 (quoting Vella v. Ford Moto Co., 421 U.S. 1, 3, 95 S. Ct.

6 No. 85611-1-I/7

1381, 43 L. Ed. 2d 682 (1975)). A seaman establishes his right to maintenance

and cure by proving by a preponderance of evidence: (1) that he was a seaman;

(2) his illness or injury occurred, was aggravated, or manifested itself while in the

service of a vessel; (3) the wages to which he is entitled; and (4) the

expenditures for medicine, medical treatment, board, and lodging. Mai v. Am.

Seafoods Co., LLC, 160 Wn. App. 528, 538-39, 249 P.3d 1030 (2011).

The seaman does not need to provide any evidence of negligence or fault

on the part of the employer. Mai, 160 Wn. App. at 539. Once established, the

entitlement to maintenance and cure lasts until the seaman reaches MMI or cure.

Mai, 160 Wn. App. at 539. MMI is reached “ ‘when the seaman recovers from

the injury, the condition permanently stabilizes or cannot be improved further.’ ”

Dean, 177 Wn.2d at 406 (quoting McMillan v. Tug Jane A. Bouchard, 885 F.

Supp. 452, 459 (E.D.N.Y. 1995)).

“A seaman’s initial entitlement to maintenance and cure presents legal

questions that can properly be resolved on summary judgment.” Dean, 177

Wn.2d at 412. Summary judgment is appropriate when there is “no genuine

issue as to any material fact and . . . the moving party is entitled to a judgment as

a matter of law.” CR 56(c).

WSDOT asserts that the trial court applied the wrong legal standard in

reinstating maintenance and cure and argues that, because this is a new claim,

the court should have applied the standard for summary judgment. Relying on

Dean, Aird claims that the Washington Supreme Court has adopted the

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unequivocal evidence standard for similar cases requesting reinstatement. Dean

is distinguishable.

In Dean, Ian Dean was injured while working on a fishing vessel owned by

the Fishing Company of Alaska (FCA). 177 Wn.2d at 403. FCA immediately

began paying maintenance and cure. Dean, 177 Wn.2d at 402. Three years

after the incident, FCA hired a physician to examine Dean’s injury. Dean, 177

Wn.2d at 403. The FCA physician determined that Dean had reached MMI and

FCA stopped paying the benefits. Dean, 177 Wn.2d at 403. Dean’s treating

physician, however, believed that Dean would benefit from further treatment.

Dean, 177 Wn.2d at 403. No delay occurred between FCA terminating benefits

and Dean filing suit. Considering the contradiction between physicians, and

FCA’s role in it, the Dean court stated that if a shipowner unilaterally decides to

stop paying the benefits based on its own determination of MMI, the shipowner

has to prove MMI with unequivocal evidence. Dean, 177 Wn.2d at 409-10.

In contrast, here, Aird’s treating physician determined that he had reached

MMI and did so without prompting from WSDOT. Aird did not immediately

dispute his physician’s opinion and no medical professional contradicted the

determination. Relying on this uncontested evidence, no reason existed for

WSDOT to continue to pay the benefits. It was not until three years later that

Aird contested WSDOT’s termination of benefits. Because WSDOT did not

unilaterally terminate Aird’s benefits, the standard announced in Dean does not

apply here. The trial court erred in applying the unequivocal evidence standard.

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The trial court also erred in reinstating the benefits because it determined

that a genuine issue of material fact existed as to whether Aird’s 2023 claim was

a new claim for maintenance and cure or if it stemmed from the original injury.

When Aird first sued WSDOT in September 2020, the only medical opinion

presented was Dr. Welsh’s January 31, 2020 chart note which indicated that Aird

had reached MMI. Without a contrasting medical declaration, Aird did not have

evidence to support his assertion that he had not reached MMI and to request

the reinstatement of benefits. It was not until late 2022 that Dr. Wohns testified

to proposed treatments that were an extension of the treatments previously

provided to Aird and, in doing so, provided the medical evidence to support Aird’s

motion. Aird suggests that his motion contains evidence which proves he never

reached MMI, while WSDOT asserts that it is an entirely new injury claim.

Given these contradicting perspectives, the trial court specifically stated, “I

find that there are material issues of fact here as to whether or not [Aird] reached

maximum medical improvement . . . [t]hat’s for the trier of fact to decide.” The

error arose, however, when the court went on to state that it “c[ould not] find that

the defense has provided unequivocal evidence that [Aird] has reached

maximum cure.” The court then used that determination to reinstate Aird’s

benefits. In relying on the wrong standard, the court stepped into the role it had

just set for the jury. Had the court used the summary judgment standard, the

question of reinstatement would have remained properly with the trier of fact.

The trial court erred in applying Dean’s unequivocal evidence standard in

reinstating Aird’s maintenance and cure benefits.

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Continuance

WSDOT asserts that the trial court erred in denying its motion to continue

to investigate Aird’s new claim for maintenance and cure. Because WSDOT

does not state what evidence would be established through the additional

discovery, and the court found that material issues of fact existed, the trial court

did not abuse its discretion in denying the motion.

We review a trial court’s ruling on a motion for a continuance for an abuse

of discretion. Keck v. Collins, 181 Wn. App. 67, 82, 325 P.3d 306 (2014), aff’d,

184 Wn.2d 358, 357 P.3d 1080 (2015)). A trial court abuses its discretion if its

decision is manifestly unreasonable or based on untenable grounds or reasons.

Summers, 541 P.3d at 389. A court’s decision is manifestly unreasonable if the

court adopts a view that no reasonable person would take. PowerCom, Inc. v,

Valley Elec. Co. of Mt. Vernon, Inc., __ Wn. App. __, 540 P.3d 1181, 1184

(2024).

CR 56(f) provides that a trial court “may order a continuance to permit

affidavits to be obtained or depositions to be taken or discovery to be had or may

make such other order as is just.” However, a trial court may deny a motion for a

continuance if “ ‘(1) the requesting party does not offer a good reason for the

delay in obtaining the desired evidence; (2) the requesting party does not state

what evidence would be established through the additional discovery; or (3) the

desired evidence will not raise a genuine issue of material fact.’ ” Keck, 181 Wn.

App. at 87-88 (internal quotation marks omitted) (quoting Tellevik v. Real

10 No. 85611-1-I/11

Property Known As 31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111

(1992)).

WSDOT argues that it should be granted an opportunity to investigate

Aird’s new request for maintenance and cure and therefore, that the trial court

erred in denying WSDOT’s motion to continue. But WSDOT fails to state what

evidence it might be likely to find and the trial court specifically found that a

genuine issue of material fact exists as to whether this claim arose from a new

injury or was related to Aird’s original injury. Because this is an issue for the trier

of fact, not the court, nothing that WSDOT would be able to provide through the

requested discovery, articulated at the time of the request or not, would allow the

court to make the ultimate decision. As a result, WSDOT cannot offer a valid

reason for delaying proceedings further. The trial court did not abuse its

discretion in denying WSDOT’s motion for a continuance.

Attorney Fees

Aird requests fees at trial and on appeal under the rule announced in

Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 272 P.3d 827 (2012), which

provides that when a maritime employer withholds maintenance and cure, it must

pay the worker’s attorney fees for successfully securing the right to those

benefits. We decline to award fees because the question of whether WSDOT

has withheld benefits must be answered by a jury.

RAP 18.1 provides that applicable law may grant a party the right to

recover reasonable attorney fees or expenses on review. Clausen provides that,

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under general maritime law, a finding that an employer willfully withheld

maintenance and cure is a basis for recovering attorney fees. 174 Wn.2d at 77.

Aird asserts that he is entitled to fees at trial and on appeal because

WSDOT withheld his maintenance and cure benefits. But the trial court

determined that whether WSDOT actually withheld benefits is a question for the

trier of fact. As previously noted, WSDOT began paying maintenance and cure

as soon as Aird informed it of his injury and terminated the benefits when Aird’s

treating physician determined he had reached MMI. Aird now asserts, however,

that he had not reached MMI and is still entitled to benefits. Because the

question of whether Aird actually reached MMI is a genuine issue of material fact

for the jury to determine, it is not appropriate to award fees.

We affirm the trial court’s determination that Aird sufficiently pleaded a

claim for maintenance and cure and the trial court’s denial of WSDOT’s motion

for a continuance. We remand for the court to vacate the reinstatement of

benefits pending determination at trial.

WE CONCUR: