                                                                                                 FILED
                                                                                       CCURT
                                                                                                OF APPE LS
                                                                                             DIVISION II
                                                                                     2014 JUN 24 '
                                                                                                      H 9: 02
                                                                                     a T',
                                                                                                     SHIN   0
                                                                                     BY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

LINDA DARKENWALD,                                                 No. 44376 -7 -I1


                                 Respondent,


       v.



STATE OF WASHINGTON EMPLOYMENT
SECURITY DEPARTMENT,                                          PUBLISHED OPINION


                                 Appellant.




       MAxA, J. — The      Employment Security Department (the Department) appeals the superior

court' s reversal of the Department Commissioner' s order denying Linda Darkenwald

unemployment benefits. Darkenwald left her job as a dental hygienist because she believed that


her injured neck and back prevented her from working the increased hours her employer

required. Darkenwald argues that she qualifies for unemployment benefits because she either

was discharged or voluntarily left her job for good cause, or because as a part-time employee

RCW 50. 20. 119 allowed her to reject a job requiring more than 17 hours of work per week

without disqualifying her from benefits. She also moves this court to dismiss the Department' s

appeal as moot, arguing that its payment of unemployment benefits to her after the filing of its

notice of appeal constituted a final determination of benefits that cannot be recouped without

evidence of   fraud,   misrepresentation, or nondisclosure.
44376 -7 -II



         We hold that ( 1) because the superior court directed the Department to pay

unemployment benefits to Darkenwald and the Department appealed that ruling, that payment

did   not constitute a   final determination         of   benefits that   moots   this   appeal; (   2) Darkenwald was


not discharged but instead left work voluntarily, and therefore was required to prove that she had

good cause     for   leaving   in   order   to   receive unemployment       benefits; ( 3) Darkenwald did not have


good cause to leave work because she failed to prove that (a) her disability was her primary

reason for leaving, or ( b) her employer caused a 25 percent reduction in her hours; and ( 4) RCW

50.20. 119 does not apply to currently employed workers, and therefore does not allow her to

qualify for unemployment benefits. Accordingly, we reverse the superior court, affirm the

Department Commissioner' s order denying Darkenwald unemployment benefits, reverse the

superior court' s award of attorney fees to Darkenwald attorney fees, and deny Darkenwald' s

request for attorney fees on appeal.

                                                             FACTS


          Darkenwald began working as a dental hygienist in Dr. Gordon Yamaguchi' s office in

1985. In 1998, she suffered a neck and back injury and filed a claim for benefits with the

Department      of   Labor   and    Industries ( L &      I). L & I provided benefits and stated that Darkenwald

had a permanent impairment. For the next eight years, Darkenwald continued to work either


three or four days per week. In 2006, Darkenwald reduced her hours from three to two days per

week,    working approximately 15 - 16 hours               per week on     Mondays       and   Wednesdays. She later


asserted that the reduction was because her chronic pain made it impossible for her to work

more. Yamaguchi later asserted that the reduction was so that Darkenwald could spend more


time with her family.



                                                                2
44376 -7 -II



           On July 28, 2010, Yamaguchi told Darkenwald that he needed her to work three days per

week because his practice had grown. Yamaguchi suggested that Darkenwald work on Fridays


to extend her hours to three days per week, or alternatively to work as an on call hygienist. In

response    to Yamaguchi'     s request   that   she work   three   days   per       week, Darkenwald      stated, "   I hear


you   saying that I   am   fired." Administrative Record ( AR)             at   22. She later asserted that she


believed Yamaguchi' s request that she either work three days per week or accept work as a


substitute hygienist meant that he was firing her due to her disability because she did not have a

meaningful choice that would allow her to maintain her employment.


           Yamaguchi' s wife, the office manager, told Darkenwald that a replacement hygienist had


been hired and asked Darkenwald to continue working until August 23, the replacement' s start

date.   On August 2, Darkenwald returned to work but sent a letter to Yamaguchi stating that she

had been fired and declining to work after that date. The letter did not mention any health

concerns or request consideration of any other alternatives. Yamaguchi' s office records reflect

that the   reason   for Darkenwald'     s separation was "[    d] ischarge"          and stated that "[   s] he refused to


work    three days.   She   could not   do three days   a week."      AR        at   131.   Darkenwald later stated that


she could not have worked three days per week because of her health and that she did not want to


accept the substitute dental hygienist position because it would have amounted to a significant


reduction in her hours, no paid holidays, and no reliable shifts.


           In contrast, Yamaguchi claimed that he did not intend to fire Darkenwald and that she


quit voluntarily. He stated that he asked her if she could work three days per week, but she said

that she could not. He then asked if she could work Fridays, and she said she could not because

of   her husband'   s schedule.   Darkenwald did      not   tell Yamaguchi that             she could not work     three
44376 -7 -II



days per week because of her health condition. Yamaguchi stated that after their conversation,


he did not believe that Darkenwald' s employment had terminated and that he wanted her to work

for him as a substitute dental hygienist.


        Darkenwald filed a claim for unemployment benefits with the Department. She did not


mention her disability in her initial application. The Department denied her claim, stating that

she quit for personal reasons and therefore did not have good cause to terminate her employment.

Darkenwald     appealed    to   an administrative   law judge ( ALJ). The ALJ ruled that Darkenwald


voluntarily quit employment without good cause under RCW 50. 20.050, and therefore she was

not entitled to unemployment benefits. Although disqualification from benefits is not required if


a claimant quits due to " illness or disability" under RCW 50.20. 050( 2)( b)( ii), the ALJ ruled that

Darkenwald " has not established that her medical condition was the reason she was not able to

                     i'
work on   Fridays.        AR at 92. Darkenwald petitioned for review by the Department' s

Commissioner. The Commissioner affirmed the ALJ' s decision and adopted the ALJ' s findings

and conclusions.




        Darkenwald then petitioned for review by the superior court. The superior court

concluded that the Commissioner' s findings were not supported by substantial evidence and that

Darkenwald quit with good cause, and therefore was entitled to unemployment benefits. The

superior court reversed the Commissioner' s denial of benefits and directed the Department to


grant Darkenwald unemployment benefits. The superior court also awarded Darkenwald


attorney fees.

1 The ALJ also ruled that Darkenwald was not available for employment because she was
unwilling to work on Fridays, and therefore was ineligible for unemployment benefits under
RCW 50. 20. 010( 1)( c). However, the superior court later reversed this ruling by stipulated order.




                                                         4
44376 -7 -II



          The Department appealed the superior court' s order reversing the Commissioner' s

decision. After the Department filed its notice of appeal, it made the benefit payments to


Darkenwald in compliance with the superior court' s ruling.

                                                               ANALYSIS


A.        MOTION TO DISMISS APPEAL


          As a threshold matter, Darkenwald moves to dismiss the Department' s appeal under RAP

                                  2
17. 1   and   RAP 17. 4( d).           She argues that because the Department' s payments to her after it filed

its notice of appeal constituted a final determination of her benefit eligibility, RCW 50. 20. 160( 3)

precludes the Department from recouping those benefits and this appeal is moot. We disagree.

          A   case   is   moot    if   a court " ` cannot provide           the basic   relief   originally   sought ...   or can no




longer   provide effective relief.' "              Bavand      v.   OneWest Bank, F.S.B.,          176 Wn. App. 475, 510, 309

P. 3d 636 ( 2013) (       alteration      in   original) (   internal   quotations marks omitted) ( quoting




Dioxin /
       Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wn.2d 345, 350 -51, 932

P. 2d 158 ( 1997)).        If a   case    is   moot, we      generally      will   dismiss the   appeal.   Wash. OffHighway

Vehicle Alliance v. State, 176 Wn.2d 225, 232, 290 P. 3d 954 ( 2012).


          Darkenwald        relies on          RCW 50. 20. 160( 3),         which provides:




          A determination of allowance of benefits shall become final, in absence of a
          timely appeal therefrom: PROVIDED, That the commissioner may redetermine
          such allowance at any time within two years following the benefit year in which
          such allowance was made in order to recover any benefits improperly paid and for
          which      recovery is          provided      under       the     provisions    of     RCW 50. 20. 190: AND
          PROVIDED FURTHER, That in the absence of fraud, misrepresentation, or
          nondisclosure, this provision or the provisions of RCW 50. 20. 190 shall not be


2 RAP 17. 1( a) allows a party to seek relief, other than a decision on the merits of the case, by
filing a motion. RAP 17. 4( d) allows a party to include a motion in a brief if it is " a motion
which, if granted, would preclude hearing the case on the merits."



                                                                        5
44376 -7 -II



          construed so as to permit redetermination or recovery of an allowance of benefits
          which having been made after consideration of the provisions of RCW
          50. 20. 010( 1)(   c),   or the provisions of RCW 50. 20. 050, 50. 20. 060, 50. 20. 080, or
          50. 20. 090 has become final.


 Emphasis      added.).      Darkenwald argues that the Department' s payment of benefits following the

superior court' s    ruling    was a   final determination   under    RCW 50. 20. 160( 3), and therefore the


Department cannot recover payments it made to her pending this appeal unless it shows evidence

of fraud, misrepresentation, or nondisclosure. She relies on four decisions published by the

Department' s Commissioner in which the Commissioner concluded that under RCW


50.20. 160( 3) the Department could not initially award benefits to a claimant, then make a

redetermination of ineligibility for benefits and recoup the overpayments made absent a finding

of fraud, misrepresentation, or nondisclosure. In re Weingard, Emp' t Sec. Comm' r Dec.2d 920,

2008 WL 6691601 ( 2008);             In re Young, Emp' t Sec. Comm' r Dec.2d 951, 2010 WL 6795717

 2010);   In re Hendrickson -
                            Jackson, Emp' t Sec. Comm' r Dec.2d 953, 2010 WL 6795719 ( 2010);

In re Hader, Emp' t Sec. Comm' r Dec.2d 952, 2010 WL 6795718 ( 2010).

          However, Darkenwald' s argument is inconsistent with a plain reading of the statute,

which states     that "[   a] determination of allowance of benefits shall become final, in absence ofa

timely   appeal   therefrom."        RCW 50. 20. 160( 3) (   emphasis added).     Here, because the Department


appealed, its determination of benefits did not become final. Accordingly, we hold that the

payments were not final determinations of benefits and that RCW 50. 20. 160( 3) does not apply.

          Further, in all of the cases Darkenwald cites, the Department initially awarded benefits

and   then   later determined that the      claimants were       ineligible for those benefits.   Subsequently, the

claimants appealed to the Commissioner. Here, the Department denied eligibility, and

Darkenwald appealed to the Commissioner and subsequently to the superior court. Because the


                                                             6
44376 -7 -II



superior court reversed the Department' s denial of benefits, the Department began making

payments.      Paying benefits pursuant to a superior court order is procedurally distinguishable

from the Department' s decision to rescind its own initial determination of benefits eligibility.

Darkenwald provides no authority for her contention that the two situations are comparable or

that RCW 50.20. 160( 3) should apply.

        In addition, the Department was required to pay Darkenwald unemployment benefits

once the superior court reversed the Commissioner' s order because the benefits became due at


that time. In California Department ofHuman Resources Development v. Java, 402 U.S. 121,

91 S. Ct. 1347, 28 L. Ed. 2d 666 ( 1971), the United States Supreme Court held that a California


Unemployment Insurance Code provision allowing the state to withhold unemployment benefits

from a claimant when an employer appealed from an initial determination of eligibility did not

comply with Section 303( a)( 1) of the Social Security Act. The Court held that the provision

violated the requirement in the Social Security Act that state unemployment compensation

programs must " `     be reasonably calculated to insure full payment of unemployment

compensation when          due.' "   Java, 402 U. S.   at   130 ( quoting 42 U. S. C. § 503(   a)(   1)).   The Court


also held that unemployment compensation becomes " due" at " the time when payments are first


administratively allowed as a result of a hearing of which both parties have notice and are

permitted   to   present   their   respective positions."     Java, 402 U.S. at 133.


        Although Java involved invalidation of a California statute that has no Washington


equivalent, the reasoning underlying the case nevertheless applies. The Department was required

to pay Darkenwald benefits when they became due, and the benefits became due when the




                                                             7
44376 -7 -II



superior court reversed the Commissioner' s denial of benefits and directed the Department to


pay Darkenwald unemployment benefits.

         We hold that RCW 50. 20. 160( 3) does not preclude the Department from recovering

payments made to Darkenwald if it succeeds on the merits. Accordingly, this case is not moot.

We deny Darkenwald' s motion to dismiss the Department' s appeal.

B.       ELIGIBILITY FOR UNEMPLOYMENT BENEFITS


         Darkenwald argues that the Department erroneously denied her unemployment benefits

because she either was discharged or voluntarily left her job for good cause. We disagree.

         The legislature enacted the Unemployment Security Act, chapter 55. 20 RCW, to award

unemployment        benefits to " persons   unemployed         through   no   fault   of   their   own."   RCW


50. 01. 010; Safeco Ins. Co.    v.   Meyering,   102 Wn.2d 385, 392, 687 P. 2d 195 ( 1984). "[ T] o


accomplish this end, the act provides for the payment of unemployment benefits to unemployed

individuals    unless a claimant     is disqualified from receiving           such   benefits."     Meyering, 102

Wn.2d at 388 -89.


           A claimant is disqualified from receiving benefits if he or she " left work voluntarily

without good cause."       RCW 50. 20. 050( 2)(     a).   In   other words, "    if a worker `voluntarily quits' her

job,   she will   be denied benefits   unless she   has `   good cause'       for quitting."       Meyering, 102 Wn.2d

at 389. Here, the parties dispute whether Darkenwald " left work voluntarily" and if so, whether

she had " good cause" to leave.


          1.      Standard of Review


           The Washington Administrative Procedure Act (APA), chapter 34. 05 RCW, governs


judicial review of a final decision of the Department' s Commissioner. RCW 50. 32. 120; Verizon




                                                               8
44376 -7 -II



Nw., Inc.   v.   Emp' t Sec. Dep' t,     164 Wn.2d 909, 915, 194 P. 3d 255 ( 2008). Under the APA, the


Commissioner is empowered to review the ALJ' s decision regarding eligibility for

unemployment benefits and is the final authority on that matter. RCW 50. 32. 080; Bauer v.

Emp' t Sec. Dep' t,     126 Wn.      App.     468, 472, 108 P. 3d 1240 ( 2005).                    Therefore, we review only the

Commissioner' s decision, not that of the superior court or the ALJ, except to the extent that the

Commissioner        adopts    the ALJ'   s    findings   of   fact.       Kirby   v.   Emp' t Sec. Dep' t,       Wn. App. at

     320 P. 3d 123, 126 -27 ( 2014);            Courtney v. Emp' t Sec. Dep' t, 171 Wn. App. 655, 660, 287

P. 3d 596 ( 2012), review denied, 177 Wn.2d 1012 ( 2013).


          We consider a Commissioner' s decision to be prima facie correct and the party

challenging the decision bears the burden of demonstrating its invalidity. RCW 50.32. 150;

Kirby, 320 P. 3d at 127. Therefore, although the Department is the appellant here, Darkenwald

has the burden on appeal of establishing her entitlement to unemployment benefits. We sit in the

same position as the superior court and apply the standards of the APA directly to the record

before the agency. Courtney, 171 Wn. App. at 660. Because we sit in the same position as the
superior court, we      do    not give   deference to the        superior court' s rulings.             Verizon Nw., 164 Wn.2d


at 915.


          The APA sets out nine grounds for invalidating an administrative order. RCW

34. 05. 570( 3).    Darkenwald asserts three. First, she argues that the Commissioner erroneously

interpreted      or applied   the   law. See RCW 34. 05. 570( 3)( d). We review the Commissioner' s legal


conclusions using the APA' s " error of law" standard, which allows us to substitute our view of

the law for the Commissioner'            s.    Verizon Nw., 164 Wn.2d                  at   915.   We review an agency' s

interpretation     or application of      the   law de   novo.        Courtney, 171 Wn. App. at 660. We give



                                                                      9
44376 -7 -II



substantial weight to an agency' s interpretation of the law within its expertise, such as

regulations the agency administers, but we are not bound by the agency' s interpretation.

Courtney,          171 Wn.   App.   at   660; Affordable Cabs, Inc.            v.   Dep 't of Emp 't Sec., 124 Wn. App. 361,

367, 101 P. 3d 440 ( 2004).

             Second, Darkenwald argues that substantial evidence does not support the

Commissioner'           s order.   See RCW 34. 05. 570( 3)(          e).    We review the Commissioner' s findings of


fact for     substantial evidence         in light   of   the   whole record.       RCW 34. 05. 570( 3)(   e);   Smith v. Emp 't

Sec.   Dep' t,      155 Wn.   App.    24, 32, 226 P. 3d 263 ( 2010). " Substantial evidence is evidence that


would persuade a           fair -
                                minded      person of      the truth or     correctness of   the matter."    Smith, 155 Wn.


App.    at   32 -33. Findings to which error has not been assigned are verities on appeal and our


review is limited to whether those findings support the commissioner' s conclusions of law.

Brown        v.   Dep' t of Health,   94 Wn.    App.       7, 13, 972 P. 2d 101 ( 1998);       Tapper v. Emp' t Sec. Dep' t,

122 Wn.2d 397, 407, 858 P. 2d 494 ( 1993).


             Third, Darkenwald argues that the Commissioner' s decision was arbitrary and capricious

under   RCW 34. 05. 570( 3)( i). "          An agency acts in an arbitrary and capricious manner if its actions

are willful,        unreasoning     and   in disregard      of   facts   and circumstances."     Lenca v. Emp 't Sec. Dep 't,

148 Wn. App. 565, 575, 200 P. 3d 281 ( 2009).

             2.      Statutory Interpretation

             In evaluating Darkenwald' s claims, we must interpret certain provisions in chapter 50. 20

RCW and the Department' s regulations in chapter 192 -170 WAC. The interpretation of statutory

language is a question of law that we review de novo. Advanced Silicon Materials, LLC v. Grant

County,           156 Wn.2d 84, 89, 124 P. 3d 294 ( 2005).                 The primary goal of statutory interpretation is



                                                                     10
44376 -7 -II



to   ascertain and give effect         to the legislature'   s    intent.   Dep' t of Ecology   v.   Campbell & Gwinn,


LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002). "[             I] f the statute' s meaning is plain on its face, then the

court must give effect         to that   plain   meaning   as an expression of       legislative intent." Campbell &


Gwinn, 146 Wn.2d at 9 - 10. The plain meaning of a statute is derived from all the legislature has

said in the statute and related statutes that disclose legislative intent about the provision in

question.      Campbell & Gwinn, 146 Wn.2d at 11 - 12.


          All of the language in the statute must be given effect so that no portion is
          rendered meaningless                    Davis v. Dep' t of Licensing, 137 Wn.2d
                                          or superfluous.

          957, 963,                                  Related statutory provisions must be
                            977 P. 2d 554 ( 1999). . . .
          harmonized to effectuate a consistent statutory scheme that maintains the integrity
          of   the   respective statutes.        State v. Chapman, 140 Wn.2d 436, 448, 998 P. 2d 282
             2000).         Statutes  relating to the same subject matter will be read as
          complimentary.           State v. Wright, 84 Wn.2d 645, 650, 529 P. 2d 453 ( 1974).
          Finally,      statutes   should     be   construed        to   avoid   unlikely,   absurd,    or   strained

          consequences. State v. Fjermestad, 114 Wn.2d 828, 835, 791 P. 2d 897 ( 1990).


Bauer, 126 Wn. App. at 474.

          3.       Leaving Work Voluntarily

          Darkenwald argues that she did not leave work voluntarily because Yamaguchi gave her

no choice —        she had to work three days per week and endanger her health or leave. We disagree.


             The phrase ` left work voluntarily' in RCW 50. 20.050 is a legal phrase determined by the

facts   of   the   case."   Courtney,    171 Wn.    App.     at   661.   Therefore, whether a worker voluntarily left

work is a question of law that we review de novo, although we give substantial weight to the


agency' s decision. Meyering, 102 Wn.2d at 390. A claimant leaves work voluntarily for the

purposes of RCW 50.20. 050 if he or she either ( 1) intentionally terminated his or her own

employment or ( 2) committed an act that the employee knew would result in discharge.


Courtney, 171 Wn. App. at 661.



                                                                   11
44376 -7 -II



          Here, the unchallenged findings of fact state that Darkenwald " was unwilling to consider

working for [ Yamaguchi] more than two days per week" and that she " decided to stop working

for [ him]." AR       at   89 -90. Substantial evidence in the record supports these findings. Yamaguchi


testified that he " didn' t    consider   her fired,"   and the Commissioner found his testimony to be

more credible than Darkenwald' s. AR at 26. And although Darkenwald testified that she


believed she was fired, we do not make credibility determinations or weigh evidence. Brighton

v.   Dep' t   of Transp., 109 Wn.    App.   855, 862,' 38 P. 3d 344 ( 2001). ,   Accordingly, we hold that the

Commissioner did not err in concluding that Darkenwald voluntarily left work.

          4.     Leaving Work for Good Cause

          Because Darkenwald voluntarily left work, she was not entitled to unemployment

benefits unless she can show that she had good cause for leaving. Meyering, 102 Wn.2d at 389.

A claimant can establish good cause only if he or she establishes one of the circumstances set

forth in RCW 50. 20. 050( 2)( b).         Campbell v. Emp 't Sec. Dept, 174 Wn. App. 210, 216, 297 P. 3d

757 ( 2013), aff'd,           Wn.2d ,            P. 3d (     2014). Darkenwald argues that she had good


cause to terminate employment because ( 1) leaving work was necessary due to her disability

under RCW 50. 20. 050( 2)( b)( ii) and ( 2) her hours were reduced by more than 25 percent under

RCW 50. 20. 050( 2)( b)( vi). We disagree.


                 a.    Separation Not Necessary Due to Disability

          Darkenwald argues that she established good cause to leave work because she had a


disability.     Under RCW 50. 20. 050( 2)( b)( ii),     an employee who voluntarily leaves work will not

be disqualified from benefits if "[ he
                                  t]            separation was   necessary because     of   the ...   disability of

the   claimant."      In order to establish good cause for leaving work due to a disability under RCW



                                                            12
44376 -7 -II



50. 20. 050( 2)( b)( ii),       a claimant must show that ( 1) he or she left primarily because of the

disability, ( 2) the disability made it necessary for the claimant to leave work, and ( 3) the claimant

first exhausted all reasonable alternatives before leaving work. WAC 192 -150- 055( 1).

                       i.      Disability

         The Department' s regulations define a " disability" as a sensory, mental, or physical

condition       that ( 1)     is medically   recognizable or        diagnosable, ( 2)      exists as a record or history, and

 3) substantially limits the proper performance of the claimant' s job. WAC 192 -170- 050( 1)( a).

The   parties     do   not    dispute that Darkenwald had            a "   disability."    Darkenwald filed   an   L & I claim


in 1998, and she was classified as having a permanent impairment. The unchallenged findings

provide that Darkenwald " has a serious back and neck problem which becomes more painful if

she works        too   much."      AR at 89. The record also shows that Darkenwald saw medical


professionals to treat her condition. Accordingly, we hold that Darkenwald had a " disability" for

the purposes of RCW 50. 20. 050( 2)( b)( ii).


                        ii.     Primary Reason for Leaving

            Darkenwald challenges the Commissioner' s finding that Darkenwald' s primary reason

for quitting       was not      her   disability.   The Commissioner           stated: "   Claimant had good personal


reasons for quitting her job as she did not want to work more than two days per week. Claimant

has not established that her medical condition was the reason she was not able to work on


Fridays."        AR at 92. This finding actually is listed as a conclusion of law in the order. However,

because a determination of a claimant' s primary reason for quitting is a factual question, we

review      this "   conclusion"       as a question of    fact     under   the   substantial evidence standard.      Wallace


v.   Emp'   t   Sec.   Dep' t, 51     Wn.   App.    787, 792,   n   2, 755 P. 2d 815 ( 1988); see also Tapper, 122




                                                                     13
44376 -7 -II



Wn.2d   at. 406   ( " When   findings of fact are not explicitly delineated, or where those findings are

buried or hidden within conclusions of law, it is within the prerogative of an appellate court to


exercise its own authority in determining what facts have actually been found below. ").

        Darkenwald argues that the Commissioner erred in finding that the primary reason for her

leaving was not her disability because the Commissioner relied on another finding that was later

vacated ( that she simply did not want to work on Fridays) and because the finding is not

supported by substantial evidence. However, even assuming Darkenwald is correct that the

evidence did not support the Commissioner' s finding that she did not want to work on Fridays,

other evidence in the record supports the finding that her primary reason for leaving was not her

disability.    Darkenwald did     not   tell Yamaguchi —in   person or   in her letter —that her physical


impairment was the reason she could not increase her work week to three days. Darkenwald also


did not mention her disability in her initial application for unemployment benefits. Further,

Yamaguchi testified that Darkenwald stated that she did not want to increase her work hours

because that would conflict with spending time with her family. Based on this evidence, we hold

that the Commissioner' s finding that Darkenwald' s disability was not her primary reason for

leaving work was supported by substantial evidence.

                   iii.   Necessary to Leave

        Even if Darkenwald' s disability was the primary reason she left her job, she cannot

establish good cause because she failed to show that her disability made it necessary for her to

leave work. A disability renders leaving work " necessary" if " conditions are of such degree
                                                               the

or severity in relation to [ the claimant' s] particular circumstances that they would cause a

reasonably     prudent person     acting   under similar circumstances   to   quit work."   WAC 192 -150-




                                                        14
44376 -7 -II



055( 4)(   c).   Further, the Department' s regulations provide that if a worker leaves work because of

a   disability, "[ a] ny restrictions on the type or hours of work [the worker] may perform must be

supported        by   a physician' s statement."   WAC 192- 150- 060( 2).


           Here, Darkenwald presented no physician statement indicating that she had any

restrictions on her ability to work three days a week. In fact, she presented no medical testimony

at all. The fact that she had a permanent impairment does not necessarily mean that she was

unable to work three days a week. We hold that because Darkenwald did not present any

evidence from a physician stating that the number of hours she could work was restricted due to

her disability, she failed to meet her burden of proving that her disability made it necessary for

her to leave work.3

                      b.   Reduction in Usual Hours


           Darkenwald also argues that she had good cause to terminate employment under RCW


50.20. 050( 2)( b)( vi) because her hours were reduced by more than 25 percent. Again we

disagree.


           Under RCW 50. 20. 050( 2)( b)( vi), an individual has good cause to quit if the individual' s


hours are reduced by 25 percent or more. However, to constitute good cause for quitting work,

some employer action must have caused the reduction in the employee' s compensation. WAC

192 -150- 115( 3).         Here, Yamaguchi asked Darkenwald to work three days per week instead of


her usual two. This was an increase in Darkenwald' s hours and, therefore an increase in her

compensation. Because Yamaguchi' s action did not cause a reduction in compensation as




3 Because Darkenwald' s claim fails based on our rulings on primary reason for leaving and
necessity, we need not address whether Darkenwald exhausted all reasonable alternatives prior to
leaving work as required in RCW 50.20. 050( 2)( b)( ii) and WAC 192 -150- 055( 1)( c).

                                                           15
44376 -7 -II



required      in WAC 192 -150- 115( 3), Darkenwald did not have good cause to quit under RCW


50. 20. 050( 2)( b)( vi).


          Darkenwald points out that Yamaguchi suggested she work as an on call hygienist. She


argues that if she had done this, her hours probably would have been reduced by more than 25

percent.        However, " good   cause must be based upon existing facts as contrasted to conjecture."

Korte    v.
              Emp' t Sec. Dep' t, 47   Wn.   App.   296, 302, 734 P. 2d 939 ( 1987). Although Darkenwald


points to testimony that Yamaguchi had used four hygienists to cover 54 days of work in the

preceding year, there is no evidence in the record that he would have continued to use four

substitute hygienists instead of allowing her to work on all or most of the days a substitute was

needed. Further, Yamaguchi stated that one of the reasons he wanted Darkenwald to work three


days per week was so he would " not have four different temporary substitute hygienists come

here."    AR at 27. Therefore, it was just as plausible that Yamaguchi would have allowed


Darkenwald to exclusively fill the temporary hygienist position, resulting in her hours not being

reduced by more than 25 percent.

          Yamaguchi wanted to increase, not decrease, Darkenwald' s hours and Darkenwald' s


claim that her hours as an on call hygienist would have been reduced by more than 25 percent

was conjectural. Accordingly, we hold that Darkenwald did not have good cause to quit under

RCW 50. 20. 050( 2)( b)( vi).


           5.      Part- Time Worker Status


          Darkenwald next argues that because she was a part time worker, RCW 50.20. 119


allowed her to reject a position with increased hours without disqualifying her from benefits.

She apparently claims that RCW 50.20. 119 essentially provides an alternative basis for showing



                                                           16
44376 -7 -II



good cause      to leave her      employment apart          from the         provisions of    RCW 50. 20. 050( 2)( b). We


disagree that RCW 50.20. 119 applies to the circumstances here.

         RCW 50. 20. 119( 1) provides that:


          A] n otherwise eligible individual may not be denied benefits for any week
         because the individual is a part-time worker and is available for, seeks, applies
         for, or accepts only work of seventeen or fewer hours per week by reason of the
         application        of   RCW 50. 20. 010( 1)(            c),   50. 20. 080,   or     50. 22. 020( 1)    relating to
         availability for work and active search for work, or failure to apply for or refusal
         to accept suitable work.


A "part-time worker" is an individual who did not work more than 17 hours per week in the year

in   question.     RCW 50. 20. 119( 2). Whether this statute applies only to workers who are currently


unemployed or also to employed part-time workers is a question of first impression.

         Darkenwald' s claim that RCW 50. 20. 119 gave her good cause to quit work instead of


accepting a request to work more hours fails for two reasons. First, Darkenwald' s argument

constitutes a misreading of the Department' s statutes and regulations. RCW 50. 20. 119, the

statute upon which Darkenwald primarily relies, applies to unemployed claimants seeking

benefits. An       unemployed       individual seeking benefits                must show,      among    other    things, that "[ h] e



or she is able to work, and is available for work in any trade, occupation, profession, or business

for   which   he   or she   is reasonably fitted." RCW 50. 20. 010( 1)(                c).    Generally, to be " available for

work,"    a claimant must be " willing to work full -ime, part-time, and accept temporary work
                                                    t

during   all of the usual        hours   and   days   of   the   week       customary for    your occupation."         WAC 192 -


170- 010( 1)(    a).   But the    requirement     to be     available        for full -ime
                                                                                      t      work   does   not   apply "[ i] f you


are a part- time eligible worker as            defined in RCW 50. 20. 119."                WAC 192 - 170 -070( 1).,        Under


those circumstances, the worker " may limit [his or her] availability for work to 17 or fewer hours

per week. [      He    or she]   may   refuse   any job     of    18   or more    hours    per week."      WAC 192 - 170 -070.



                                                                       17
44376 -7 -II



Therefore, RCW 50.20. 119 operates to protect an unemployed part-time worker seeking benefits

from being disqualified if that worker refuses to accept full -ime employment opportunities.
                                                              t

Because Darkenwald was employed when Yamaguchi offered her an on call position, RCW

50.20. 119 does not apply here.

          Darkenwald nevertheless argues that the statute' s and regulation' s use of the present


tense means that RCW 50.20. 119 applies not only to job seekers, but also to those currently

employed.        She notes that RCW 50.20. 119 provides that " an otherwise eligible individual may

not be denied benefits for any week because the individual is a part-time worker and is available

for,   seeks, applies   for,    or accepts     only   work of seventeen or     fewer hours   per week." (    Emphasis


added.).    And WAC 192 - 170 -070( 1)            provides: "     If you are a part-time eligible worker as defined


in RCW 50.20. 119, you may limit your availability for work to 17 or fewer hours per week. You

may     refuse   any job   of   18   or more   hours   per week." (    Emphasis   added.).   But we must harmonize


statutory provisions, and in light of the overall statutory scheme, we reject Darkenwald' s

interpretation. Bauer, 126 Wn. App. at 474. The provisions involving the claimant' s ability to

refuse full -ime work as a part-time worker relate directly to the portion of the statute requiring
            t

claimants      seeking benefits to be "        available   for   work."   RCW 50. 20. 010( 1)(   c).   This provision, in


turn,   relates   exclusively to " unemployed" individuals. RCW 50. 20. 010( 1)(                 c).   Accordingly, we

reject Darkenwald' s expansive reading of the statute and hold that RCW 50. 20. 119 and WAC

192- 170 -070 apply only to unemployed part-time workers seeking benefits.

           Second, Darkenwald' s argument would require us to read an additional " good cause"


provision into the enumerated ways good cause can be established in RCW 50.20. 050( 2)( b)( i)-

 xi).   Before the legislature amended RCW 50. 20. 050( 2)( b) in 2009, the statutory list of reasons



                                                                  18
44376 -7 -II



that established good cause to quit was considered a nonexclusive list. Spain v. Emp' t Sec.

Dep' t,    164 Wn.2d 252, 259, 185 P. 3d 1188 ( 2008).        But we held in Campbell that in amending

RCW 50. 20. 050( 2)( b) in 2009, the legislature " made clear that good cause to quit was limited to

the listed statutory   reasons."    174 Wn. App. at 216. And our Supreme Court confirmed on

review     in Campbell that the    holding   in Spain does   not   apply to the 2009   amendments.   P. 3d


at         n.2. A part-time employee' s decision to leave work after being asked to work more than

17 hours per week is not one of the eleven enumerated options in the statute. See RCW

50. 20. 050( 2)( b)( i)-(xi).


           We hold that RCW 50. 20. 119 applies only to workers who are currently unemployed.

And we decline to adopt an additional reason for establishing good cause beyond the exclusive

list in RCW 50. 20. 050( 2)( b).    Accordingly, Darkenwald cannot establish good cause for leaving

her job on this basis.


D.         ATTORNEY FEES


           The superior court awarded Darkenwald her attorney fees. RCW 50. 32. 160 provides that

if the decision of the Commissioner is reversed or modified, attorney fees " shall be payable out

of   the   unemployment compensation administration           fund." But because we reverse the superior


court and affirm the Commissioner' s decision, we reverse the superior court' s award of attorney

fees.


            Darkenwald also requests attorney fees on appeal under RCW 50. 32. 160 and RAP 18. 1.

Once again, because we now affirm the Commissioner' s decision we deny Darkenwald' s request

for fees.




                                                        19
44376 -7 -II



        We reverse the superior court and affirm the Commissioner' s decision denying

Darkenwald unemployment benefits, reverse the superior court' s award of attorney fees to

Darkenwald, and deny Darkenwald' s request for attorney fees on appeal.




We concur:




                                               20
