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                                                                                WASHINGTONf
                                                                                    INGTO

      IN THE COURT OF APPEALS OF THE STATE OF W                                      N     O


                                            DIVISION II

DALE A. WEEMS,                                                    No. 44713 -4 -II


                                 Appellant,


         v.



STATE OF WASHINGTON, BOARD OF
INDUSTRIAL INSURANCE APPEALS,                               UNPUBLISHED OPINION


                                 Respondent.


         WORSWICK, J. —     Dale Weems sought judicial review of an order of the Board of

Industrial Insurance Appeals denying his application to reopen his claim for worker' s

compensation benefits. After a bench trial, the superior court entered findings of fact,

conclusions of law, and an order vacating the Board' s order because the Board failed to provide

Weems with appointed counsel at public expense during its administrative proceeding. Later

granting the Board' s motion to reconsider this ruling, however, the superior court vacated its
own findings of fact, conclusions of law, and order. The superior court did not enter new

findings and conclusions, nor did it enter a new judgment in any party' s favor.

         Weems appeals from the superior court' s order granting the Board' s motion to

reconsider, arguing that both Title II of the Americans with Disabilities Act' and the Washington




1
    42 U. S. C. §§ 12131 - 12165 ( 2012).
No. 44713 -4 -II



Law Against Discrimination require appointment of counsel as an accommodation for Weems' s

mental disability. We decide that the superior court' s order is appealable, but we cannot review
it in the absence of findings of fact on disputed and material issues. Accordingly, we ( 1) vacate

                                                                     to                   2) vacate the superior
the   superior court' s order      granting the Board' s    motion        reconsider; (




court' s November 20, 2012 findings of fact, conclusions of law, and order; and ( 3) remand to the

superior court for entry of new findings of fact, conclusions of law, and judgment.
                                                          FACTS


          In 1973, while Weems worked for Delson Lumber, Inc., a cable struck Weems in the

head, broke cartilage in his nose, and bruised his nose and face. Weems applied for and received

time -loss benefits compensating him for two days during which he was unable to work. The
Department of Labor and Industries then closed the claim without granting further benefits.

          According to Weems, he was also involved in other accidents over the years. He testified
 that in 1981 he fell 75 feet off of a water tower while working for a different company. He
 further testified that his face struck a wall at home in 1997 or 1998, and this accident caused him

 to



 recall his 1973 injury for the first time. With assistance from his wife, whom he met in 1987,
                                                                          3
 Weems then     reconstructed        the   events of   his 1973 injury.




 2 Chapter 49. 60 RCW.

 3 Based on his reconstructed memories, Weems claimed that his 1973 injuries were more severe
 than his   medical   records      described.   Specifically,     Weems       claimed   that "[   his] face was tore off"
 from the    right ear   to left   cheek and "[   his]   neck was shattered,"     resulting in 36 hours of
                              and    5 days   of unconsciousness.         Tr. ( Sept. 10, 2008) at 32, 47. He also
 reconstructive    surgery
 claimed lasting brain damage. The industrial appeals judge did not credit these claims because
 they lacked support in medical records or reliable testimony.

                                                              2
No. 44713- 4- 11



       In 2007, Weems applied to reopen his claim due to the worsening of injuries allegedly

caused by the 1973 accident: neck pain, rhinitis, sinus infections, headaches, and depression. See
RCW 51. 32. 160. The Department denied Weems' s application.


       Acting pro se, Weems appealed the Department' s denial to the Board of Industrial
Insurance Appeals. 4          The Board assigned an industrial appeals judge to preside over

administrative proceedings.



        At the parties' first conference, the industrial appeals judge advised Weems that he was

entitled, at his own expense, to representation by an attorney or a qualified lay representative.

See WAC 263- 12- 020( 1)(            a).   Weems    stated, "   I' ve tried to get attorneys and they won' t take it."

Tr. (June 3, 2008) at 13.


           Weems participated in the conference with assistance from his wife, but his performance
                  5
was erratic.           According to Weems, he could read words and sentences, but he could not
 understand paragraphs. The industrial appeals judge, Weems, and Ms. Weems discussed

 whether an attorney should represent Weems:

           JUDGE: ....         You are held to the standard of an attorney in conducting any
                  discovery,    all right?   Mr. Weems, do you understand that?
           MR. WEEMS:           Yes.
                                 So it' s                         that   we   do   need an   attorney.   We do need
           MRS. WEEMS:                      almost pertinent


                  an attorney, I' m sure.
           JUDGE: I would say that I highly recommend an attorney to any-


 4 Through a lay representative, Delson Lumber declined to participate in Weems' s appeal.
 5 For example, at the industrial appeals judge' s request, Weems listed four witnesses he intended
 to call: himself, his wife, and two doctors who had treated him. Later, Weems interjected to say
                                                                         he             local television   show.   Tr. (June
 that he   also       intended to   call " The   Media,"   by   which         meant a


 3, 2008)    at       19 -20. The industrial     appeals   judge   replied, "   Well, a television show, Mr. Weems,
 cannot    be   a witness."      Tr. (June 3, 2008) at 20.




                                                                   3
No. 44713 -4 -II



       MRS. WEEMS:           Because I don' t think Mr. Weems             can represent      himself.   His
           mental   capacity is — I' ve said he wouldn' t be able to represent himself.
       JUDGE:      All right. He seems responsive today and seems very able to                     answer
           questions. He seems to understand what' s going on.
       MRS. WEEMS:          He can answer questions, but I don' t think he fully can understand
           the consequences or the procedures [ like the Department' s attorney can].

       JUDGE:       Well,   As I indicated previously, unless you have specific legal
                            yes.


           training, Mr. Weems, it' s unlikely that you would be able to—
       MRS. WEEMS: Prevail?
        JUDGE:     Well, handle the case like an attorney would handle it just because you
               don' t have the training and the understanding of the Workers' Compensation
               laws. All right?
        MR. WEEMS: Yeah, I imagine I don' t.
        JUDGE:      So I do recommend that you talk to an attorney or attorneys to see if you
               can find someone to represent you because it would be to your benefit to do
               so. All right?


Tr. (June 3, 2008) at 28 -29.


        At the close of Weems' s case -in- chief, the industrial appeals judge granted the

Department' s motion to dismiss on the ground that Weems failed to establish a prima facie case

that his injury had worsened between 2003 and 2008. Weems petitioned the Board for review,
but the Board denied the petition and adopted the industrial appeals judge' s proposed decision

 and order. The Board also denied Weems' s motion to reconsider its decision.

        Weems then sought judicial review of the Board' s order. The superior court found that

  Weems currently suffers from a mental health condition that [a] ffects his ability to fully and
               represent   himself   and prosecute   his labor   and   industries   case."   Board Record (BR) at
 effectively


 66. Accordingly, the superior court appointed counsel to represent Weems pursuant to GR 33
 and the Americans with Disabilities Act.




                                                         4
No. 44713 -4 -II



         The superior court also reversed the Board, concluding that Weems had in fact

established a prima        facie    case   that the 1973   accident caused one or more            injuries— namely


headaches, depression,           or a mental    health   condition —     that had worsened. Upon entering its
                                                                                                                         6
order,   the   superior court relieved        Weems'     s appointed counsel of all        further     representation.




          On remand to the Board, an industrial appeals judge reopened the hearing to allow the

Department to present its case. The parties agreed to accept the results of a medical examination

                        Board -                    neurologist.        However, the neurologist' s examination
performed      by   a         commissioned




failed to address the issues on remand, and the industrial appeals judge ordered Weems to

participate in a psychiatric evaluation.


          In the administrative proceedings following the superior court' s remand, Weems again

acted pro se with assistance from his wife. Weems and his wife became upset with the delay in

the proceedings, the Department' s refusal to offer a settlement, and their lack of representation:

                                 We haven' t                            We' ll have to     go   find    one.   Because
          Ms. WEEMS:                            got an   attorney.
                you     guys [   i. e.,   the Department] have had an attorney in this court sitting
                across from us, we' re sitting here without any representation all this time.
                And you' ve made it last another year.
          JUDGE: Well —
          Ms. WEEMS:             So we' re going to have to wait another year, and probably another
                year, and another year, and then pretty soon we' ll be dead and there won' t be
                anybody to        give    this money to,   so   then   she can —    then the State can keep it.
          JUDGE: Well, look, I' d recommend that you get an attorney.




 6
     In his first appeal to superior court, Weems apparently did not argue that the Board should have
 appointed counsel for him.

                                                                                        asserting, " We were forced to do
 7
     Weems'    s wife    later denied that he     agreed   to this     examination,


 that. We had       no choice.        We have    no power, we         have   no   attorney."   Tr. (Apr. 7, 2011) at 10.




                                                                  5
No. 44713 -4 -II



         Ms. WEEMS:        We should have did that at the beginning, instead of us playing this
              game.




Tr. ( June 13, 2011) at 5.


         Weems and his wife then accused the industrial appeals judge of forcing Weems to

proceed pro se, while Weems himself stated that he did not want to hire an attorney:

          Ms. WEEMS: ....         We have had no representation at all, and you wouldn' t allow
              us   to   have   representation.          You told us we couldn' t have an attorney.
              Remember?
           JUDGE: No, I did not.
           MS. WEEMS: You did that, sir.[81
           JUDGE: Now, are you going to get an attorney?
           MR. WEEMS: I don' t think so. I don' t think I need an attorney.
           Ms. WEEMS:      We' re going to go back to Superior Court.
           MR.] WEEMS:         I don' t think I have to                share   my money         with   anybody.   I' ve

              already won my case.
           Ms. WEEMS: We' re going          to go back to Superior Court.
           JUDGE: Well, okay.

Tr. (June 13, 2011) at 7.


           Similarly, shortly after the next conference began, Weems abruptly left the hearing room
                                                              9
because he     was " not   going to   put   up   with   this. "       Tr. ( Aug.    29, 2011) at 4. Weems' s wife

remained; the industrial appeals judge explained the nature of his inquiry on remand, and then

 the following exchange occurred:

           Ms. WEEMS:          And   are    we   supposed         to   get     an   attorney?    Is that what we' re

               supposed    to do?     Are we supposed to get an attorney to look after our rights?
               Or what?
           JUDGE: If you get an attorney, you have to do that on your own.

 8
     Nothing in the record supports Ms. Weems' s assertion.

 9 The record does not explain why Weems became frustrated. He left when the Department
 requested a medical examination to determine whether the 1973 accident caused a psychiatric
 injury.



                                                                  6
No. 44713 -4 -II




          Ms. WEEMS: I      understand    that,   sir.   I didn' t think you guys were going to pay for
             anything.
          JUDGE: So if you     wish to get an attorney, you—
          Ms. WEEMS:      We' ll have to pay them ourselves, I know.

Tr. (Aug.   29, 2011) at 9. Weems still did not hire an attorney, and nothing in the record shows
that Weems requested the Board to appoint counsel for him.

          Further, between August 5, 2010, and September 12, 2011, the industrial appeals judge

sent Weems 11 notices of various conferences and hearings. Each of the 11 notices stated,

 NOTE: If you are a person with a disability and need assistance at the scheduled event, please

contact   the judge' s   assistant."   BR at 68, 75, 76, 78, 79, 80, 105, 108, 120, 126, 130. But nothing

in the record shows that Weems requested assistance for any disability.

          During its case, the Department called Dr. Thomas Dietrich and Dr. Richard Schneider to
testify as medical experts. They opined that (1) Weems' s 1973 injury did not cause his
headaches or any mental illness and ( 2) Weems' s mental state had not worsened between 2003
and 2008. Weems declined to cross -examine Dr. Dietrich because he believed that the testimony

had been favorable.       Describing herself as "        attorney illiterate,"   Ms. Weems also declined to


 cross -examine    Dr. Dietrich because     she    did   not   know   what questions   to   ask.   Tr. (Oct. 11, 2011)


 at 19. But both Mr. Weems and Ms. Weems cross -examined Dr. Schneider.

          The industrial appeals judge entered a proposed decision and order affirming the

 Department' s denial of Weems' s application to reopen his claim. Weems filed a petition seeking

 the Board' s review of the proposed decision and order. The Board denied the petition and

 adopted the industrial appeals judge' s proposed decision and order.




                                                               7
No. 44713 -4 -II



         Weems again sought judicial review of the Board' s order.10 Pursuant to GR 33, the

superior court again appointed counsel to represent Weems at public expense. Weems' s

appointed counsel and the Department delivered argument, but neither party presented additional

                                      11
evidence   in the   superior court.




         Without challenging the merits of the Board' s order, Weems argued for the first time in
the superior court that the Board' s order should be vacated and the case remanded for rehearing

with Weems represented by a GR 33 attorney because a mental disability prevented him from
meaningful participation in the administrative proceeding as required by. the Americans with

Disabilities Act and the Washington Law Against Discrimination. Initially agreeing with

Weems, the superior court entered findings of fact, conclusions of law, and an order vacating the

Board' s order on November 20, 2012. The superior court' s order further directed the Board to

appoint an attorney for Weems and rehear his application.

         The Board then entered an appearance and moved for reconsideration of the superior
                                           12
 court' s order under   CR 59( a)( 9).          Determining that substantial justice had not been done



 1° Weems' s complaint named only the " Board of Industrial Appeals" as defendant. CP at 9. The
 Department promptly       entered a notice of appearance with "[ sic]"       in the caption, but the record
 does not show that the Department was joined to the case as a defendant. CP at 10. The
 Department and the Board have each filed a respondent' s brief in this appeal.

 11 The record on appeal does not include the verbatim report of proceedings in the superior court.
 The clerk' s minutes state merely that each side presented argument.

 12 Because the Board is a quasi-judicial agency, it is generally inappropriate for the Board to
 participate in judicial review of its decisions; however, the Board may participate when the
                                                               Aluminum & Chem. Corp. v. Dep' t of
                           making process is at issue. Kaiser
 integrity of its decision -
 Labor & Indus., 121 Wn.2d 776, 781 - 82, 854 P. 2d 611 ( 1993).             In this case, the Department
 alone defended the Board' s order at first. After the Board' s procedures had become an issue, the
 Board   entered an appearance.
No. 44713 -4 -II



because it had committed an error of law, the superior court on March 8, 2013, granted the

Board' s motion and vacated its own findings of fact, conclusions of law, and order. The superior

court explained that " there is no requirement presently in constitution, statute, or rule requiring

the Board" to undertake a fact -finding investigation to determine whether Weems needed

appointed counsel as a reasonable accommodation. CP at 204. But the superior court did not

enter new findings of fact and conclusions of law, and it did not enter a new judgment in any

party' s favor.

          Weems appeals from the superior court' s order granting the Board' s CR 59 motion to

reconsider   the   superior court' s   findings,   conclusions, and order.   Three   nonparties—   Disability

Rights Washington, the Fred T. Korematsu Center for Law and Equality, and the Northwest

Justice Project —each      received our permission to submit briefs as amici curiae in support of

Weems. The Department and the Board each answered the amici.

          Before oral argument, this court' s clerk sent a letter advising all counsel of record that the

trial court made no findings of fact related to the legal issues argued in the briefs. The letter

 further directed the parties to prepare to discuss at oral argument the appealability and

justiciability of this case, even though the briefs did not mention these issues.
                                                     ANALYSIS


          Weems assigns error to the legal basis of the superior court' s March 8, 2013 order

 granting the Board' s CR 59 motion to reconsider and vacating the findings of fact, conclusions
 of law, and order entered on November 20, 2012. First addressing a threshold issue, we decide

 that the superior court' s March 8 order was appealable. However, the superior court' s findings

 of   fact are inadequate to   permit appellate review of      Weems'   s argument.
No. 44713 -4 -I1



A.           The Superior Court' s Order Was Appealable


             Weems' s notice of appeal designated only the superior court' s March 8 order granting the

Board'       s   CR 59    motion        to   reconsider.     13 This order was appealable.

             RAP 2. 2( a) lists the types of decisions that are appealable as a matter of right. In re

Chubb, 112 Wn.2d 719, 721, 773 P. 2d 851 ( 1989). At oral argument, the Department argued


that the         superior court' s       March 8          order was appealable under            RAP 2. 2( a)( 10).        We agree.


              RAP 2. 2( a)( 10)         provides         that "[   a] n order granting or denying a motion to vacate a

judgment" is             appealable.         Thus the March 8             order was appealable          if the   order   it   vacated — that is,


the November 20 findings                      of   fact,   conclusions of       law,   and order —      was a judgment. A judgment


is    a "   final determination              of   the   rights of   the   parties   in the   action."   CR 54( a)( 1);        see Dep' t of

                                                                         661 P. 2d 133 ( 1983).                                The November
Labor & Indus.              v.   City   of Kennewick, 99 Wn.2d 225, 228,


20 findings of fact, conclusions of law, and order was a judgment because it finally determined

that Weems was entitled to the remedy he sought on judicial review: a remand to the Board for

 rehearing with counsel appointed to represent him in the administrative proceedings. Therefore
 the March 8 order granting the Board' s motion to reconsider was appealable under RAP
                    14
 2. 2( a)( 10).


                 Further,   under       RAP 2. 4( c),       an appeal from an order deciding a CR 59 motion to _

 reconsider allows us to consider the propriety of the underlying order. Davies v. Holy Family


 13
      Under CR 59( a),            a party may move ( 1) to vacate a verdict and grant a new trial or (2) to vacate
 and reconsider " any other decision or order."
 14
       Because the         order was appealable under                     RAP 2. 2( a)( 10), we need not consider Weems' s

 argument that the order was appealable under RAP 2. 2( a)( 3).



                                                                              10
No. 44713 -4 -II



Hosp.,       144 Wn.       App.       483, 492, 183 P. 3d 283 ( 2008).             Thus we may consider the November 20

findings of fact, conclusions of law, and order.

B.           The Superior Court' s Findings ofFact Are Insufficient for Appellate Review

             Weems claims that the superior court erred because the Board discriminated against him

in violation of the Americans with Disabilities Act (ADA) and the Washington Law Against

Discrimination ( WLAD).                     We cannot review this claim because the record before us lacks

findings of fact on material issues.

              Chapter 51. 52 RCW establishes a procedure for obtaining judicial review of the Board' s

orders. When a party appeals the Board' s order to the superior court, the superior court conducts
                                                                        15
a    trial   de    novo on      the   administrative record.                 RCW 51. 52. 115.   The party challenging the

Board' s findings and decisions bears the burden of establishing that they are incorrect by a
preponderance              of   the   evidence.      Raysten       v.   Dep 't of Labor   & Indus., 108 Wn.2d 143, 146, 736


 P. 2d 265 ( 1987);          see      RCW 51. 52. 115.        Thus the Board' s findings are prima facie correct only in

 a limited sense: if the superior court decides that the evidence on an issue is evenly balanced, the
 Board'       s   finding   must stand.           Groff v. Dep' t of Labor         &   Indus., 65 Wn.2d 35, 43, 395 P. 2d 633


     1964).


                  Our review of the superior court' s decision following a bench trial is limited to

 determining whether substantial evidence supports the superior court' s findings of fact and, if so,
 whether           the   findings     of   fact   support   the   conclusions of       law. Ruse   v.   Dep' t   of Labor & Indus.,




 15 The superior court may take additional testimony " in cases of alleged irregularities in
 procedure           before the board,            not shown       in [ the   administrative] record."      RCW 51. 52. 115. But

 here, neither party elicited additional testimony in the superior court.


                                                                              11
No. 44713 -4 -II



138 Wn.2d 1, 5, 977 P. 2d 570 ( 1999).                 The precise issues that must be determined in findings of

fact will depend on the circumstances of each case. Groff, 65 Wn.2d at 40 ( quoting Kelley v.

Everglades Drainage Dist., 319 U. S. 415, 419, 63 S. Ct. 1141, 87 L. Ed. 1485 ( 1943)).                               But to


enable appellate review, the superior court must ( 1) enter findings of fact that resolve the

disputed issues of material fact and ( 2) apply the law to the facts it has found. Groff, 65 Wn.2d

at 40.


          In Groff,the superior court' s findings of fact were inadequate for appellate review.

Groff, 65 Wn.2d at 40. In that case, a claimant' s application for benefits presented two factual
issues: ( 1)   whether     the    claimant   had   a   disabling injury     and,   if   so, (   2) whether the claimant' s


employment caused           the   injury.    Groff, 65 Wn.2d at 36. The Board denied the application,

determining that the claimant failed to show causation. Groff, 65 Wn.2d at 37. The claimant
 sought judicial review; but after a hearing de novo, the superior court entered findings of fact

that merely recited the procedural history and determined that the Board' s decision was correct
 as   to the facts   and   law.    Groff, 65   Wn.2d      at   37 -38.   Although the superior court' s findings of fact

 were enough to dispose of the case in that court, the findings were " completely inadequate" for

 appellate review because the appellate court could not tell which facts determined the issues or

 whether the superior court properly applied the law. Groff, 65 Wn.2d at 39 -40.
           Here, the superior court vacated its November 20 findings of fact when it entered the

 March 8 order granting the Board' s CR 59 motion to reconsider. Nonetheless, RAP 2.4(c)
 allows us to consider those findings of fact. Davies, 144 Wn. App. at 492. But under the

 circumstances of this case, those findings of fact are inadequate for us to consider Weems' s

 argument that the Board discriminated against him in violation of the ADA and WLAD by


                                                                    12
No. 44713 -4 -II




failing to appoint counsel at public expense as a reasonable accommodation for his mental

disability. See Groff, 65 Wn.2d at 40.

          Whether the Board discriminated against Weems on the basis of his disability is a mixed

question of     fact   and   law. Fell   v.   Spokane TransitAuth., 128 Wn.2d 618, 637, 911 P. 2d 1319


 1996).     To identify the factual issues that are material to Weems' s argument, we must consider

the elements of his ADA and WLAD claims. See Groff, 65 Wn.2d at 36.

           Title II   of   the ADA, 42 U. S. C. §§ 12131 - 12165 ( 2012) ( Title II), prohibits public entities

                                                                                                                  16
from                                              individuals   with   disabilities in   public accommodations.
        discriminating        against qualified




Tennessee      v.   Lane, 541 U. S. 509, 517, 124 S. Ct. 1978, 158 L. Ed. 2d 820 ( 2004). A public


entity must provide a reasonable accommodation where necessary to provide meaningful access
to individuals with disabilities, including " an equal opportunity to participate in, and enjoy the

benefits    of, a service, program, or         activity   conducted   by   a public   entity."   28 C. F. R.


     35. 160( b)( 1) ( 2009);    see Randolph v. Rodgers, 170 F. 3d 850, 858 ( 8th Cir. 1999).

           A person alleging a Title II violation must show that ( 1) he is a qualified individual with
 a   disability; ( 2) he was excluded from participation in or denied the benefit of a public entity' s

 services, programs, or activities, or the public entity otherwise discriminated against him; and ( 3)

 the exclusion, denial, or discrimination was by reason of his disability. Duvall v. Kitsap County,

 260 F. 3d 1124, 1135 ( 9th Cir. 2001).            When a public entity receives a request for an


 16
      Specifically,    42 U. S. C. § 12132 provides:
            Subject to the provisions of this subchapter, no qualified individual with a
            disability shall, by reason of such disability, be excluded from participation in or
            be denied the benefits of the services, programs, or activities of a public entity, or
            be subjected to discrimination by any such entity.



                                                               13
No. 44713- 4- 11



accommodation —          or when " the need for accommodation is obvious, or required by. statute or

regulation " —     it must conduct a fact -specific investigation to determine the appropriate

accommodation under the circumstances. Duvall, 260 F. 3d at 1139. But a public entity has an

affirmative defense if it shows that the requested accommodation would impose an undue

financial or administrative burden. Randolph, 170 F. 3d at 858.

        Similarly, the WLAD requires all places of public accommodation to provide people with

disabilities an equal opportunity compared to people without disabilities. Fell, 128 Wn.2d at
631, 635.    A plaintiff alleging disability discrimination must show that ( 1) he has a recognized
                   the defendant        operates a place of public accommodation, (           3) the defendant
disability, ( 2)

discriminated against the plaintiff by providing treatment that was not comparable to the level of

services enjoyed by persons without disabilities, and ( 4) the disability was a substantial factor
 causing the discrimination. Fell, 128 Wn.2d at 637. But the defendant has not engaged in
 unlawful disability discrimination if its failure to accommodate the plaintiff rests on a legitimate
 and nondiscriminatory reason, including financial unfeasibility. Fell, 128 Wn.2d at 642.
         The     superior court' s      findings   of   fact left   material   factual disputes   undecided.   17 In

 relevant part, the superior court found:

          1. 1     At   a    scheduling    conference    held June 3, 2008, before the [ Board], [ Ms.
         Weems]         asked    that   court   to appoint an attorney to represent [ Mr. Weems]. Ms.

         Weems          advised    that    court   that [ Mr. Weems]            lacked the mental capacity to
         represent himself.
          1. 2 No appropriate colloquy nor investigation was conducted by the [ Board] with
          respect       to   whether [        was suffering from a mental condition that
                                          Mr. Weems]
          would impair his ability to proceed pro -se.


 17 The parties do not dispute that the Board is ( 1) a public entity subject to Title II of the ADA
 and ( 2) a place of public accommodation subject to the WLAD.



                                                                    14
No. 44713 -4 -II




                1. 6 [   In his first      appeal    to superior court, [ t] his court appointed an attorney to
                represent      [ Mr. Weems],        pursuant to [ t]he Amercians [ w] ith Disabilities Act, after
                 f]inding that [ Mr. Weems]                    was   unable    to "   fully   and   effectively"   represent


                himself.


                1. 8     On remand, the [ Board] did not conduct an appropriate inquiry into [ Mr.
                Weems' s] mental condition.
                                                                                                                         Mr.
                1. 9     Ultimately,       after   once   again      exhausting his      administrative    remedies, [


                Weems] timely appealed the [ Board' s] decision to this court, with the assistance
                of his GR 33 appointed attorney.

                          18
CP    at    135 -36.


                These findings leave at least four material factual disputes unresolved. First, the superior

court did not determine whether Weems is a person with a " disability" as the statutes define that

term.
           19
                 See 42 U. S. C. § 12102( 1);          RCW 49. 60. 040( 7).           Second, the superior court did not


determine whether Weems requested that the Board appoint him counsel as an accommodation

for his disability or whether Weems' s need for accommodation was " obvious" to the Board. See
Duvall, 260 F.3d at 1139. Third, the superior court did not decide whether the Board' s

 alternatives            to the   appointment of counsel at public expense —                  such as Weems' s ability to hire an
                                                          20
 attorney          on a   contingency fee basis,               Ms. Weems' s assistance as a lay representative, and the

 industrial            appeals    judge'   s   questioning     of witnesses —    either (a) failed to provide Weems with a

 level of service comparable to that enjoyed by non -disabled claimants or (b) deliberately failed


 18 The omitted findings merely recite the procedural history of the case.

 19 The Department suggests that Weems does not have a disability because he has not been found
 incompetent to represent himself. But Weems correctly observes that an individual may have a
 disability yet still be competent.
 20
      Relying entirely on speculation, Weems and the Board dispute whether he could have hired an
 attorney on a contingency fee basis.


                                                                          15
No. 44713 -4 -II



to accommodate Weems' s disability so as to discriminate against him. Duvall, 260 F. 3d at 1138-

39; Fell, 128 Wn.2d at 639 -40. Fourth, the superior court did not determine whether the

appointment of counsel at public expense would unduly burden the Board. See Randolph, 170

F. 3d at 858; Fell, 128 Wn.2d at 642.


         Notwithstanding the absence of findings of fact resolving these issues, the parties invite
us to make our own factual determinations. But we decline the invitation because it is not the

role of an appellate court      to find facts.   Quinn   v.   Cherry   Lane Auto Plaza, Inc.,   153 Wn. App.

710, 717, 225 P. 3d 266 ( 2009).         On the record before us, we cannot consider Weems' s

            21
argument.




C.       Remedy

         Having concluded that the findings of fact here are inadequate to support appellate
review, we must now fashion an appropriate remedy. In Groff, our Supreme Court ( 1) set aside

the superior court' s judgment and the findings of fact and conclusions of law on which it was

 based and ( 2) remanded the case for the superior court to enter adequate findings of fact,

 appropriate conclusions of law, and a new judgment. 65 Wn.2d at 47. The remand in Groff did

 not prejudice the right of any party to appeal from the new judgment. 65 Wn.2d at 47.
          Likewise, we vacate ( 1) the March 8, 2013 order granting the Board' s motion to

 reconsider and ( 2) the findings of fact, conclusions of law, and order entered on November 20,

 2012. We remand this case to the superior court for the entry of new findings of fact, new



 21 Weems further requests an award of reasonable attorney fees and costs on appeal. The
 prevailing party on appeal may recover attorney fees and costs when applicable law authorizes
 the   award.    RAP 18. 1(   a).   But because Weems has not prevailed, we deny his request.



                                                              16
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conclusions of law, and a new judgment. Any party aggrieved by the superior court' s decision

on remand          seek review as provided   by the Rules   of   Appellate Procedure. RAP 2. 1(   a),   3. 1.
            may


        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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