                                                                                                        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


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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


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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




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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


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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.



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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.

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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




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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




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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.


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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.
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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.




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