Timothy D. Manion v. Schwan's Home Service, Inc.

• Court: Court of Appeals of Washington
• Decided: August 8, 2024
• Docket: 39972-9
• Status: Unpublished

Opinion

FILED AUGUST 8, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

TIMOTHY D. MANION, ) ) No. 39972-9-III Respondent, ) ) v. ) ) SCHWAN’S HOME SERVICE, INC. ) UNPUBLISHED OPINION ) Appellant. )

STAAB, A.C.J. — Timothy Manion appealed the Department of Labor and

Industries’ (L&I) decision to close his worker’s compensation claim to the Board of

Industrial Insurance Appeals (BIIA). The BIIA affirmed L&I’s decision and Manion

appealed to the superior court. A jury found that the BIIA was incorrect in its decision

and the trial court reversed the BIIA order. The employer, Schwan’s Home Service, Inc.

(Schwan’s), appeals the jury verdict, asserting that substantial evidence does not support

the jury verdict to overturn the BIIA’s decision. We affirm and award Manion his

reasonable attorney fees.

BACKGROUND

Procedural History

Timothy Manion opened a worker’s compensation claim after suffering a work-

related injury while employed by self-insured Schwan’s. Following medical intervention No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

and vocational retraining to be a general office clerk, L&I closed Manion’s claim based

on the recommendation of Julie Busch, a vocational rehabilitation counselor assigned to

Manion’s case.

Manion appealed the L&I order to the BIIA and hired his own vocational

rehabilitation counselor. The BIIA heard testimony from three witnesses and considered

the deposition testimony of each party’s expert witness. Schwan’s called Busch to testify

and Manion called Maurilio Garza. Ultimately the BIIA judge credited Busch’s opinion

that Manion was employable, and affirmed L&I’s order. Manion petitioned the BIIA to

review its proposed decision and order, but the BIIA denied the petition for review.

Manion filed a notice of appeal to superior court in Benton County and the matter was

tried before a jury on the record.

The Jury Trial and Facts of the Case

After opening statements, the parties read the transcript to the jurors.

First, the jury heard testimony from Manion that he was 57 years old and a high

school graduate from Kennewick. His early work experience included primarily manual

labor and he began working for Schwan’s in 1994. After 16 months, Schwan’s promoted

Manion to warehouse manager and Manion remained in that role for 20 years. As a

warehouse manager, Manion supervised an average of four people and used a computer

in a limited capacity.

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After the work injury in 2012, Manion underwent back surgery in 2015 and

subsequent physical therapy. Unable to return to his previous work at Schwan’s, Manion

agreed to a two-year vocational retraining program. Manion took math and computer

science classes to learn Microsoft programs such as Word, Excel, PowerPoint, and

Outlook, but did poorly or was not able to pass them. Despite his best efforts, Manion

was also unable to pass a college-level English course.

As part of his vocational retraining efforts, Manion participated in an internship at

West Coast Auto Dealers in the Tri-Cities for about eight hours per week for around six

months. Manion’s duties included inputting a list of vehicle identification numbers and

printing a report for each. The internship at West Coast Auto Dealers concluded, and

Manion was not offered permanent employment. Absent an offer from West Coast Auto

Dealers, Manion applied to about 200 jobs between June 2017 and January 2019, which

resulted in two interviews and no job offers.

Next, the jury heard testimony from Ryan Henning and Robert Henning, two

employees of West Coast Auto Dealers. Ryan said that Manion was a really nice guy,

but he did not spend much time training Manion or giving him tasks because Manion was

a temporary employee. Manion only had basic tasks and did not use Microsoft programs

or email customers.

Robert had previously submitted a letter stating that Manion was completing tasks

such as data entry, uploading pictures, and using photoshop to edit the pictures and add

3 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

banners. However, Robert admitted that Manion was not performing these tasks and

Robert had “talked [him] up” in that letter. Clerk’s Papers (CP) at 150-52.

Next, the jury was read the deposition transcript of Maurilio Garza, Manion’s

expert witness and vocational rehabilitation counselor. Manion was referred to Garza in

2017 to assess whether he was employable. Manion’s vocational rehabilitation plan was

aimed at making him employable as a general office clerk, which requires good written

and oral communication skills, proficiency in Microsoft programs, and clerical skills.

The plan was appropriate for the goal, but Manion did not complete the plan successfully.

In addition to considering Manion’s grades, Garza provided additional tests to

evaluate Manion’s aptitudes and proficiencies, and the results showed significant

deficiencies.

Garza also explained that an important criterion of employability is assessing the

labor market. Garza performed a labor market study that confirmed employers of office

clerks in the Tri-Cities expected good customer service, proficiency in Microsoft

products, good English oral and written communication skills, two years of recent clerical

experience, and preferred candidates that speak Spanish or are bilingual. Manion did not

have previous clerical experience and it would be difficult for Manion to substitute his

recent education for the requisite experience because he did not do well in school.

After meeting with Manion about 14 times, Garza opined that Manion had

adequate communication skills, marketable customer-service skills, a marketable ability

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to operate office equipment, but was not bilingual. Regarding the periods of July 6,

2017, through March 5, 2018, and March 6, 2018 onward, Garza concluded that Manion

was not able to obtain or maintain reasonably continuous gainful employment in the

position of a general office clerk in the Tri-Cities labor market and was not employable

from a general standpoint.

Finally, the jury heard the deposition of Julie Busch, Schwan’s expert witness and

vocational rehabilitation counselor. Manion was referred to Busch by the claims

examiner to conduct a vocational assessment. After Schwan’s was unable to

accommodate Manion’s return to work, Busch worked with Manion to determine whether

he had transferable skills and to decide on a vocational rehabilitation plan. The goal was

to ready Manion to be a general office clerk and he would undergo two years of

retraining. This plan was supported by Busch’s opinion that the Tri-Cities was a positive

labor market.

Busch confirmed Manion’s poor performance in school, which caused a revision

to the retraining plan and was the reason he did not successfully complete the retraining

program as originally written.

Busch facilitated the supervised employment with West Coast Auto Dealers who

indicated to her at the time that they intended to offer Manion full-time employment.

Busch closed Manion’s file, understanding that he was being offered a job with West

5 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

Coast Auto Dealers and the situation had concluded in a positive way. Based on Busch’s

report and recommendations, L&I agreed that Manion was employable.

Busch opined that the errors on Manion’s resume reflected poorly on his clerical

abilities and may be a reason for an employer to decline extending an interview.

However, Busch also testified that she is responsible for assisting a worker with a

resume, but she did not do that for Manion.

Finally, after testing and evaluation, Busch testified that Manion was average for

general learning, numerical and spacial skills, and below average for verbal, form

perception, and clerical skills. Additionally, Busch opined that the labor market in the

Tri Cities for entry-level clerical work was robust and would continue to be. Ultimately,

Busch concluded that Manion was capable of obtaining and maintaining reasonably

continuous gainful employment from July 6, 2017 to March 5, 2018, and March 6, 2018

onward.

Jury Instructions

The jury was provided the BIIA’s findings and decision with additional

instructions that those findings and decision are presumed correct. Jury Instruction No. 9

addressed the law of the case and the parties’ stipulations regarding the medical evidence:

Total disability is an impairment of mind or body that renders a worker unable to perform or obtain a gainful occupation with a reasonable degree of success and continuity. It is the loss of all reasonable wage- earning capacity.

6 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

A worker is totally disabled if he is unable to perform or obtain regular gainful employment as a result of an industrial injury. A determination of total disability should be made by giving consideration to the individual worker’s weaknesses and strengths, age, education, training and experience, any permanent loss of function which pre-existed the industrial injury, and any permanent loss of function that was proximately caused by the industrial injury.

A worker is not totally disabled solely because of inability to return to the worker’s former occupation. However, total disability does not mean that the worker must have become physically or mentally helpless.

Total disability is permanent when it is reasonably probable to continue for the foreseeable future.

In this case the parties have stipulated that the medical evidence supports that on a more-probable-than-not basis, Mr. Manion was unable to return to work at his job of injury, that of a Senor [sic] Material Handler/Supervisor, due to his permanent physical restrictions related to his industrial injury between July 6, 2017 and March 5, 2018 and from March 6, 2018 onward.

The parties have also stipulated, or agreed, the medical evidence supports that on a more-probable-than-not basis, that Mr. Manion’s permanent physical restrictions related to the industrial injury would not preclude Mr. Manion from performing the physical activities required for the job of General Office Clerk as it is generally performed in the Tri- Cities, Washington labor market between July 6, 2017 and March 5, 2018 and from March 6, 2018 onward.

CP at 405-06. Jury Instruction No. 11 added:

Temporary total disability (time loss compensation) and permanent total disability (pension) differ only in duration, and not in its character. Temporary total disability would be a condition temporarily incapacitating the worker from performing any work at any gainful occupation.

CP at 408.

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Judgment on Verdict

The jury was asked: “Was the Board of Industrial Insurance Appeals correct in

deciding that Timothy Manion was not a temporarily totally disabled worker within the

meaning of RCW 51.32.090 from July 6, 2017, through March 5, 2018?” CP at 412.

The jury indicated no. CP at 412.

The jury was asked: “Was the Board of Industrial Insurance Appeals correct in

deciding that Timothy Manion was not a permanently totally disabled worker within the

meaning of RCW 51.08.160, as of March 6, 2018?” CP at 413. The jury indicated no.

CP at 413.

Accordingly, the trial court reversed the BIIA’s decision and order and awarded

Manion attorney fees and costs.

Schwan’s Home Service, Inc. appeals.1

ANALYSIS

1. SUBSTANTIAL EVIDENCE

Schwan’s contends that a reasonable jury could not have disagreed with the

BIIA’s ruling. It reasons that the evidence supports the BIIA’s determination and

1 The notice of appeal is not included in the record. L&I was a defendant in the case but does not join Schwan’s in its appeal.

8 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

substantial evidence does not support the jury verdict. We conclude that the jury verdict

is supported by substantial evidence and affirm.

Judicial review of a BIIA decision “is limited to examination of the record to see

whether substantial evidence supports the findings made after the superior court’s de

novo review, and whether the court’s conclusions of law flow from the findings.” Young

v. Dep’t of Lab. and Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996); see RCW

51.52.140. The BIIA decision is considered prima facie correct and the “party attacking

the decision must support its challenge by a preponderance of the evidence.” Ruse v.

Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999); see also RCW 51.52.115.

Upon demand of either party, a jury may be empaneled to review a BIIA decision and

resolve factual disputes. RCW 51.52.115. As a trier of fact, the jury may disregard the

BIIA’s decision if it believes that other substantial evidence is more persuasive, even if

substantial evidence supports the BIIA’s findings. Lewis v. Simpson Timber Co., 145

Wn. App. 302, 315-16, 189 P.3d 178 (2008).

Here, there was sufficient evidence to support the jury’s finding that the BIIA was

incorrect in deciding that Manion was not a temporarily totally disabled worker from July

6, 2017 through March 5, 2018, and not a permanently totally disabled worker as of

March 6, 2018, as discussed below.

Jury instructions become the law of the case unless the instructions are properly

objected to. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). Schwan’s does

9 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

not assign error to the jury instructions; thus, the instructions are the law of the case. As

such, the remaining question is whether sufficient evidence supports the jury verdict.

Because the parties stipulated to the medical evidence and Manion’s physical

abilities, the jury was left to consider “the individual worker’s weaknesses and strengths,

age, education, training and experience.” CP at 405. Here, viewing the facts and

drawing inferences in a light most favorable to Manion, there was sufficient evidence for

the jury to find that the BIIA’s decision was incorrect.

Manion was 57 years old and only had a high school education. He worked as a

warehouse manager for Schwan’s for 20 years, where his use of computers was

extremely limited. Despite Manion’s best efforts, he performed poorly in the math,

English, and computer classes that were part of the retraining plan. Both experts

confirmed Manion’s poor performance in the classes, below average performance on

specialized aptitude tests, and inability to complete the original plan successfully.

The jury heard competing testimony from the vocational rehabilitation counselors.

Garza met with Manion about 14 times, whereas Busch only confirmed meeting with

Manion once. Additionally, Busch closed Manion’s file, understanding that he was being

offered a job with West Coast Auto Dealers and the situation had concluded in a positive

way. Based on Busch’s report and recommendations, L&I agreed that Manion was

employable. However, Manion was not offered permanent employment by West Coast

Auto Dealers.

10 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

Further, Busch received a letter from West Coast Auto Dealers stating that Manion

was completing tasks such as data entry, uploading pictures, and using photoshop to edit

the pictures and add banners. However, Robert Henning admitted that Manion was not

performing these tasks and Robert had “talked him up” in that letter. CP at 150-52.

Given the material discrepancies surrounding Manion’s employment with West Coast

Auto Dealers, a reasonable jury could infer that Busch’s recommendation to L&I was

based on incomplete or erroneous information. This inference alone is likely sufficient

for the jury to overcome the presumption that the BIIA’s findings were correct.

Absent an offer from West Coast Auto Dealers, Manion applied to about 200 jobs

over 18 months, which resulted in two interviews and no job offers. Busch opined that

the errors on Manion’s resume reflected poorly on his clerical abilities and may be a

reason for an employer to decline extending an interview. However, Busch also testified

that she is responsible for assisting a worker with a resume, but she did not do that for

Manion.

Ultimately the parties’ dueling experts made competing conclusions regarding the

labor market and Manion’s employability and there is enough evidence to support that a

reasonable jury could find Garza the more credible expert witness, and accordingly

conclude that Manion was not employable for the periods in question.

Schwan’s argues that a reasonable jury could not find Manion unemployable

because he was given more training than he needed to become a general office clerk.

11 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

However, given Manion’s poor performance in classes and on aptitude tests, a reasonable

jury could find that despite significant training, Manion nonetheless remained

unemployable.

Next, Schwan’s argues that a reasonable jury could not have found Garza more

credible than Busch because Busch was far more familiar with Manion, Garza was hired

solely to discredit Busch, and the BIIA judge ultimately credited Busch’s opinion.

However, as discussed, the evidence supports that a reasonable jury could have found

Garza more credible or persuasive than Busch and this court will not re-weigh evidence

or determine the credibility of witnesses on appeal. See Robinson v. Dep’t of Lab. and

Indus., 181 Wn. App. 415, 425, 326 P.3d 744 (2014).

Finally, Schwan’s argues that substantial evidence does not support the jury

verdict because it supports the opposite finding—BIIA’s initial decision. This argument

fails because reasonable minds can differ and substantial evidence supports the jury

verdict as discussed herein. See Lewis, 145 Wn. App. at 315-16.

2. ATTORNEY FEES

Schwan’s requests that if this court overturns the trial court’s decision on appeal,

the fees and costs imputed to Schwan’s by the trial court should be reversed. Because

this court is not reversing the lower court’s decision, Schwan’s is not relieved from those

fees and costs.

12 No. 39972-9-III Manion v. Schwan’s Home Service, Inc.

Manion requests that if this court affirms the trial court on appeal, Manion should

be awarded reasonable attorney fees incurred while defending this appeal pursuant to

RAP 18.1 and RCW 51.52.130.

RCW 51.52.130(1) provides that if “a party other than the worker or beneficiary is

the appealing party and the worker’s or beneficiary’s right to relief is sustained, a

reasonable fee for the services of the worker’s or beneficiary’s attorney shall be fixed by

the court.” See also RAP 18.1 (requiring a party to request fees in its brief). Here,

Schwan’s is the appealing party and Manion prevails. Thus, Manion should be awarded

his reasonable attorney fees.

We affirm and award Manion attorney fees on appeal.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Staab, A.C.J.

WE CONCUR:

_________________________________ Fearing, J.

_________________________________ Cooney, J.