      IN CLERKt OPPICE
8UPHBE town;OTOE OF WMMNOrei                    This opinion wasfiled for record
I DATE PEC 0 6 2018                           at.                _on
                   . CQ .
       cmefjusrici         f

                                                      SUSAN L. CARLSON
                                                    SUPREME COURT CLERK




            IN THE SUPREME COURT OF THE STATE OF WASHINGTON




MICHAEL E. MURRAY,
                                                       No. 95251-5
                         Petitioner,

       V.

                                                       En Bane
STATE OF WASHINGTON,DEPARTMENT
OF LABOR AND INDUSTRIES,
                                                                 DEC 0 6 2018
                         Respondent.                   Filed




       MADSEN,J.—This case concerns interpretation of the Health Technology

Assessment program(HTA or Act) and, specifically, the impact of the Health

Technology Clinical Committee(HTCC)coverage determinations regarding workers'

compensation claims in light of the requirements of the Industrial Insurance Act(IIA),

Title 51 RCW. As discussed below, we harmonize the HTCC legislation with the IIA. In

doing so, we reverse the Court of Appeals and remand petitioner Michael Murray's

reimbursement claim to the Washington Department of Labor and Industries(L&I or

Department) for a hearing on the merits. We also award Murray attorney fees on appeal.
No. 95251-5



                                           FACTS


       Overview of HTCC Legislation


       In 2006, the legislature enacted legislation establishing a state health technology

assessment program. See LAWS OF 2006, ch. 307(Engrossed Second Substitute House

Bill 2575(E2SHB 2575)), codified as chapter 70.14 ROW. Part of that legislation

formed the HTCC as an independent committee to judge selected medical technology and

procedures by their safety, efficacy, cost-effectiveness, and health outcomes. RCW

70.14.080-.130. The HTCC is an independent committee of 11 practicing medical

professionals. RCW 70.14.090(1). The HTCC evaluates medical evidence in

determining which health technologies and procedures the State will cover and,"if

covered, the criteria which the participating agency administering the program must use

to decide whether the technology is medically necessary, or proper and necessary

treatment." RCW 70.14.110(l)(b). Participating state agencies are the Health Care

Authority(HCA), L&l, and the Washington Department of Social and Health Services

(DSHS). RCW 70.14.080(6). The legislature created the independent "statewide" HTCC

to incorporate evidence-based medicine into the decision-making process about what

technologies and procedures the State would fund. See FINAL BILL REPORT ON E2SHB

2575, at 2-3, 59th Leg. Reg. Sess.(Wash. 2006).'

       The HTCC reviews a procedure or technology when there are concerns about its

safety, efficacy, or cost-effectiveness, especially relative to existing alternatives; or



'Located at http://lawfilesext.leg.wa.gov/biennium/2005-06/Pdf/Bill%20Reports/House/2575-
S2.FBR.pdf[https://perma.cc/8UPV-SKME].
No. 95251-5



significant variations in its use. RCW 70.14.100(l)(a). The HTCC obtains a report from

an evidence-based research center and requires the researchers to evaluate evidence

related to a medical procedure's safety, health outcome, and cost data, and evidence

submitted by any interested party. RCW 70.14.100(4)(a),(c). The HTCC then considers

the "evidence regarding the safety, efficacy, and cost-effectiveness ofthe technology as

set forth in the systematic assessment conducted under RCW 70.14.100(4)," public

comment, and expert treatment guidelines to determine the conditions under which the

State should cover a procedure. RCW 70.14.110. The legislation generally provides that

participating agencies comply with HTCC determinations. See RCW 70.14.110(1),

.120(1); see also Final Bill Report E2SHB 2575, at 3 ("Participating state agencies

will comply with clinical committee recommendations, unless they violate federal law or

regulations, or state law."(emphasis added)). If the HTCC covers a treatment, the

HTCC's coverage criteria establish what participating agencies must use to decide

medical necessity. RCW 70.14.110(1).

      The HTA provides transparency and independence in the HTCC's decision-

making process. Specifically, the Act provides that in making its determination, the

committee shall consider,"in an open and transparent process," evidence about the

safety, efficacy, and cost-effectiveness of the particular technology. RCW

70.14.110(2)(a). The committee must provide an opportunity for public comment. RCW

70.14.110(2)(b). The committee meetings and any advisory group meetings are subject

to the Open Public Meetings Act of 1971, chapter 42.30 RCW. RCW 70.14.090(4). The

committee members may not contract with or be employed by a health technology
No. 95251-5



manufacturer or a participating agency during their term or for 18 months before the
appointment, and each member must agree to terms and conditions regarding conflicts of
interest. RCW 70.14.090(3)(a). The HTCC's coverage determinations must be reviewed
at least once every 18 months if evidence has since become available that could change a
previous determination. RCW 70.14.100(2). As noted, the HTCC's coverage

determinations apply to L&I, HCA,and DSHS and thereby provide a measure of

uniformity in the provision of health care services. RCW 70.14.080(6). Those agencies

generally "shall comply" with HTCC coverage determinations. RCW 70.14.120(1).

       Two provisions ofthe HTA concern review. RCW 70.14.120(3) provides:

       A health technology not included as a covered benefit under a state
      purchased health care program pursuant to a determination of the health
      technology clinical committee under RCW 70.14.110, or for which a
      condition of coverage established by the committee is not met, shall not be
      subject to a determination in the ease of an individual patient as to whether
       it is medically necessary, or proper and necessary treatment.

RCW 70.14.120(4) provides:

       Nothing in chapter 307, Laws of 2006 diminishes an individual's right
       under existing law to appeal an action or decision of a participating agency
       regarding a state purchased health care program. Appeals shall be governed
       by state and federal law applicable to participating agency decisions.

Also, section 6 of the bill, as originally passed by the legislature but vetoed by the

governor, additionally provided,"The[HCA] administrator shall establish an open,

independent, transparent, and timely process to enable patients, providers, and other

stakeholders to appeal the determinations ofthe [HTCC]." 2 HOUSE JOURNAL, 59th
No. 95251-5



Leg., Reg. Sess., at 1201 (Wash. 2006); LAWS OF 2006, ch. 307, § 6 (vetoed). In her veto
message. Governor Christine Gregoire stated:

      I strongly support [the bill] and particularly its inclusion of language that
      protects an individual's right to appeal. Section 5(4) of the bill states that
      "nothing in this act diminishes an individual's right under existing law to
      appeal an action or decision of a participating agency regarding a state
      purchased health care program. Appeals shall be governed by state and
      federal law applicable to participating agency decisions." This is an
      important provision and one that I support whole-heartedly.
             I am, however, vetoing Section 6 of this bill, which establishes an
      additional appeals process for patients, providers, and other stakeholders
      who disagree with the coverage determinations of the [HTCC]. The health
      care provider expertise on the clinical committee and the use of an
      evidence-based practice center should lend sufficient confidence in the
      quality of decisions made. Where issues may arise, I believe the individual
      appeal process highlighted above is sufficient to address them, without
      creating a duplicative and more costly process.
             In the implementation of this bill, I expect the Health Care
      Authority, with the cooperation of participating agencies, to facilitate a
      timely and transparent process, to prioritize and manage the review of
      technologies with appropriated funds, and to meaningfully consider
      stakeholder feedback regarding the program and appeals processes. I
      further expect that the implementation of the Health Technology
      Assessment Program will be consistent with sound methods of assessment
      and the principles of evidence-based medicine.
             I appreciate the Legislature's passage of this bill and have full
      confidence that it will help ensure that Washingtonians receive health care
      services that are safe and effective.
              For these reasons, I have vetoed Section 6 of Engrossed Second
       Substitute House Bill No. 2575.
              With the exception of Section 6, Engrossed Second Substitute House
       Bill No. 2575 is approved.

2 House Journal at \52>l\seealsoJoyv. Dep't ofLabor & Indus., 170 Wn. App. 614,

625-26, 285 P.Bd 187(2012), review denied, 176 Wn.2d 1021 (2013).
No. 95251-5



      HTCC's coverage determination

      In 2010, the HTCC began its review of a controversial procedure—

femoroacetabular impingement(FAI)syndrome hip surgery. FAI surgery is an invasive
procedure in which a surgeon cuts off abnormal bone growths, removes damaged
cartilage, and reshapes the femoral neck ofthe hip. Potential complications include

avascular necrosis (cellular death of bone tissue), femoral head-neck fracture, deep

infection, significant hip motion limitation, neurovascular injury, and symptomatic

venous thromboembolism (blood clot).

       HTCC conducted a one-year review process that included contracting with an

evidence-based researcher who conducted a scientific assessment, holding public

meetings, reviewing the scientific evidence, and providing an opportunity for formal

public comment. The HTCC ultimately determined that the evidence weighed against

FAI surgery, decided that it would not be covered, and noted that participating state

agencies are "required to comply" with HTCC decisions. Admin. Record(AR)at 76-79.

Since the HTCC decision, no one has requested that the HTCC revisit its FAI surgery

determination. AR at 72; see RCW 70.14.100(2).

       Chronologv of Murrav's case

       Michael Murray sustained a hip injury while at work in August 2009. L&I

allowed his claim and provided medical treatment. Murray's physician. Dr. James

Bruckner, asked L&I to authorize surgery regarding Murray's hip condition, FAI

syndrome. L&I denied payment for FAI surgery because the HTCC disallowed coverage

for that procedure. L&I has not independently determined whether the FAI surgery is
No. 95251-5




medically proper and necessary. Dr. Bruckner performed the surgery on Murray without

authorization from L&I. The FAI surgery purportedly successfully rehabilitated

Murray's hip injury.

       Murray appealed L&I's decision denying payment for the surgery to the Board of

Industrial Insurance Appeals (Board or BIIA), which affirmed L&I. Murray appealed to

the superior court, which affirmed the Board. Murray appealed to the Court of Appeals,

which affirmed the superior court. Murray v. Dep 't ofLabor & Indus., 1 Wn. App. 2d 1,

403 P.3d 949(2017). The Court of Appeals held that the legislature constitutionally

delegated its powers to the HTCC because sufficient procedural protections existed and

because individuals could file writs of certiorari to obtain judicial review. Id. at 8-12.

And "[bjased on the plain language analysis of the statute," an'"HTCC noncoverage

determination is a determination that the particular health technology is not medically

necessary or proper in any case.'" Id. at 13 (quoting Joy, 170 Wn. App. at 624). Murray

petitioned for review, which this court granted. 190 Wn.2d 1001,412 P.3d 1262(2018).

                                        ANALYSIS


       Standard of Review


       This court reviews issues of statutory interpretation de novo. Dep't ofEcology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,43 P.3d 4(2002).

       Interplav of the HTA and the IIA

       As noted, this case concerns the interplay of legislation creating the HTCC and the

requirements of the IIA. As originally presented in the parties' briefing, the arguments

focused on the propriety ofthe legislative delegation of authority to the HTCC to make
No. 95251-5



state health care coverage determinations. At oral argument, however, the parties'
contentions evolved substantially, and in response, this court ordered the parties to submit

additional briefing as follows;

       Considering the present workers' compensation context, in which the
      Industrial Insurance Act(IIA) provides workers with "sure and certain"
      relief for injuries on the job, ROW 51.04.010; Department ofLabor &
      Industries v. Lyons Enterprises Inc., 185 Wn.2d 721, 733, 374 P.3d 1097
      (2016)(IIA's grand compromise provides workers with a swift, no-fault
      compensation system for injuries on the job), what is the legal significance
      ofthe governor's veto in this case? The parties should address what the
      language used in the veto means; how RCW 70.14.120(3) and .120(4) are
      to be applied in this case in light of the veto; and what remedy is available
      to Murray under RCW 70.14.120(3) and .120(4), in light ofthe Department
       of Labor and Industries' Medical Aid Rules (i.e., chapter 296-20 WAC,and
      regulations therein regarding medical coverage decisions—WAC 296-20-
      02700 through 296-20-02850), the IIA statutes providing for appeals
      (chapter 51.52 RCW), and any other relevant workers' compensation
      provisions concerning appeals of Department determinations and coverage
       decisions.


Order for Suppl. Briefing at 1-2.

       In its response to the above order, the State contended that RCW 70.14.120(3) and

.120(4) are not ambiguous when read together and, thus, the governor's veto message,

which is legislative history, should be disregarded. The State's view is that L&I must

comply with the HTCC coverage decision. RCW 70.14.120(1). As in the present case,

where L&I makes no substantive coverage decision and merely applies the HTCC's

categorical denial of coverage determination, upon any appeal of the L&I action denying

the worker's claim, BIIA has nothing before it except L&I's application ofthe prior

HTCC determination. Thus, BIIA can review only whether L&I's application of HTCC's

coverage determination was proper, not HTCC's substantive coverage decision. Further,
No. 95251-5



the State asserts that the legislature's amendment of other HTA provisions after Division

Two's decision in Joy (holding HTCC's noncoverage determination binds L&I and all

reviewing bodies), without amending RCW 70.14.120(3) and .120(4), indicates

legislative acquiescence in Joy's interpretation ofthose provisions.^

       Regarding the veto's significance in light ofthe IIA's sure and certain relief to

injured workers, the State responds that under the IIA, workers get benefits as dictated by

statute and that care is limited to "proper and necessary" care. See RCW 51.36.010(2)(a).

That is, the HTCC's evidence-based coverage determinations promote uniform and safe

treatment, in accord with determining what is proper and necessary under the IIA. Thus,

in the State's view, the HTA shows legislative intent to adopt a binding and uniform

evidence-based approach for care determinations.

       Concerning the appropriate remedy, the State argues that workers have never had

the right to get treatment that is barred by rule or coverage decision. See WAC 296-20-

03002(6)(no coverage for controversial treatment). Accordingly, the State distinguishes

In re Pleas, No. 96 7931 (Wash. Bd. ofIndus. Ins. Appeals Aug. 31, 1998)




^ As noted, the Court of Appeals here also relied on Joy, which held that(1)the governor's veto
created conflicts among the health technology act statutes,(2)the lack of remedy for claimants
denied coverage by L&I due to HTCC determinations is a problem for the legislature to address,
and (3)the more specific statutes, RCW 70.14.120(1)(requiring participating agencies to comply
with HTCC determinations) and RCW 70.14.120(3)(barring individual determination where
HTCC has decided that a health technology is not covered), prevailed over RCW 70.14.120(4)
(right to appeal under existing law unaffected), which Joy characterized as a more general
statute. Further, Joy held that an HTCC determination of noncoverage binds L&I, and also binds
BIIA and the superior court on review as well. 170 Wn. App. at 622-23. Joy, however, does not
address L&Ts medical aid rules (discussed infra) that we rely on herein, which were
promulgated after the HTA enactment and which clarify the appropriate advisory role that HTCC
provides to the Department. To the extent Joy is at odds with this decision, it is disapproved.

                                               9
No. 95251-5



[https://perma.cc/FXB3-MJJU](discussed infra). There, the treatment at issue was

controversial and thus not covered under WAC 296-20-03002; but that rule allowed case-

by-case exceptions. The State asserts there are no such exceptions here. See RCW

70.14.120(1)(L&I "shall comply" with HTCC coverage determinations).

       The State contends that RCW 70.14.120(3) and .120(4) read together allow three

challenges only: (1)that the HTCC determination does not apply,(2)that an exception

listed in RCW 70.14.120(1) applies, or(3)that the HTCC's criteria for coverage is met.

According to the State, only this reading harmonizes RCW 70.14.120(3) and .120(4),

giving effect to all of the language in both provisions. We disagree.

       Notably, the State's purported plain language approach ignores section RCW

70.14.120(4)'s express provision that "[njothing in [this chapter] diminishes an

individual's right under existing law to appeal an aetion or decision of a participating

agency regarding a state purchased health care program." (Emphasis added.) Such

existing law, the IIA, chapter 51.52 RCW,provides injured workers multiple layers of

review to qualify for necessary and proper medical care. Under the IIA, L&I makes the

initial coverage determination based on its "Medical Aid Rules." See WAC 296-20-

02700("A medical coverage decision is a general policy decision by the director or the

director's designee to include or exelude a specific health care service or supply as a

covered benefit."), -02701 (L&Ts "director or the director's designee makes medical

coverage decisions"), -02703(1)(L&I's ''Medical Aid Rules . . . specify covered and

noncovered services and supplies."); see also RCW 51.36.010(1)(providers must follow

L&I's coverage decisions).


                                             10
No. 95251-5



       The injured worker (or claimant or other aggrieved party) may then appeal L&I's

decision to the BIIA. RCW 51.52.050(2)(a). Following a hearing on the appeal before

an industrial appeals judge (lAJ) who is assigned to the case, the lAJ issues a proposed

decision and order, which the lAJ files with the BIIA. RCW 51.52.104. The worker may

then file a petition seeking review of the lAJ's proposed decision and order by a panel of

the Board. Id.-, RCW 51.52.106; WAC 263-12-145. Once the BIIA makes a final

decision, the claimant may appeal to superior court. RCW 51.52.110.

       The superior court reviews the BIIA's decision de novo, based only on the

evidence presented to the BIIA. RCW 51.52.115. In such appeal to the superior court,

"either party shall be entitled to a trial by jury upon demand." Id. From the superior

court's decision, parties may appeal to the Court of Appeals and then to this court under

the Rules of Appellate Procedure. RCW 51.52.140 (appeal shall lie from the judgment of

the superior court as in other civil cases). Accordingly, the existing appeal rights

preserved in RCW 70.14.120(4) provide an injured worker multiple layers of substantive

review.


       How can such robust appellate rights under the IIA be reconciled with the

proscription in RCW 70.14.120(3) that an HTCC determination of noncoverage "shall

not be subject to a determination in the case of an individual patient as to whether it is

medically necessary, or proper and necessary treatment"? Murray answers that question

by asserting that RCW 70.14.120(3) and .120(4) conflict, and thus urges this court to look

to the legislature's and the governor's intent in adopting the HTCC legislation in order to




                                             11
No. 95251-5



harmonize these provisions.^ Murray correctly argues that both the legislature and the
governor sought to protect workers' appellate rights, not diminish them. Indeed, the
legislative history ofthe HTA program, that is, the various house and senate versions of
the bill, all contained appeal provisions.'* Moreover, the governor's veto message

expressly relied on preservation ofthe "individual appeal process" to address any issues

that may arise (seemingly protecting a worker's ability to establish coverage in a specific

case). 2 HOUSE JOURNAL at 1587.

       Murray also argues that he has a right under the Medical Aid Rules to prove FAI

surgery (a controversial treatment) rehabilitated his hip. Under the Medical Aid Rules,

while L&I normally will not pay for controversial treatment, a worker can, nevertheless,

provide evidence to rebut the presumption against coverage. See WAC 296-20-01002

(defining "proper and necessary" and noting that controversial services are presumed to

be not proper and necessary and will be authorized only as provided in WAC 296-20-




^ The tension in these provisions indeed creates sufficient ambiguity to warrant consideration of
legislative intent. See In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 778, 903 P.2d 443
(1995)("When a statute is ambiguous, we attempt to determine the intent of the Legislature" and
"[t]he legislative history ofthe statute is an important tool to ascertain intent.").
"See H.B. 2575 § 3(7), 59th Leg., Reg. Sess.(Wash. 2006); S.B. 6306 § 3(7), 59th Leg., Reg.
Sess.(Wash. 2006); Substitute H.B. 2575 § 3(6)-(7), 59th Leg., Reg. Sess.(Wash. 2006);
Second Substitute H.B. 2575 § 3(6)-(7), 59th Leg., Reg. Sess.(Wash. 2006); E2SHB 2575 §
3(6)-(7); and S. Comm.on Ways and Means Amendment to E2SHB 2575, 59th Leg., Reg.
Sess.(Wash. 2006)(rewriting the entire house bill, but retaining the house bill's core appeal
provision and adding a separate, additional appeal provision at § 5(4) and § 6, respectively); see
also Final Bill Report on E2SHB 2575, at 3 (noting,"An appeals process is established for
patients, providers, and stakeholders to appeal determinations of the Health Technology
Committee," but also noting,"The Governor vetoed the requirement that the Administrator of
the Health Care Authority establish a process for patients, providers, and other stakeholders to
appeal coverage determinations of the health technology clinical committee").


                                                12
No. 95251-5



03002(6) and -02850)); see also WAC 296-20-03002(6)(controversial treatment may be
approved); -02850 (director may determine that controversial treatment is appropriate).^
We agree with Murray.

       Harmonizing the HTA and the IIA

       Washington's workers' compensation law provides for "sure and certain relief for

workers" in exchange for generally abolishing state court causes of action for personal

injuries against employers. RCW 51.04.010; see also Birklid v. Boeing Co., 127 Wn.2d
853, 859, 904 P.2d 278(1995)(noting the IIA's "grand compromise"). Provisions ofthe

IIA must be "liberally construed for the purpose of reducing to a minimum the suffering

and economic loss arising from injuries .. . occurring in the course of employment."

RCW 51.12.010. Courts are to resolve all doubts as to the meaning of the IIA in favor of

coverage. See Dep't ofLabor & Indus, v. Lyons Enters., Inc., 185 Wn.2d 721, 734, 374

P.3d 1097(2016). The "guiding principle" when interpreting provisions ofthe IIA is that

"it is a remedial statute that is 'to be liberally construed in order to achieve its purpose of

providing compensation to all covered employees injured in their employment, with

doubts resolved in favor of the worker.'" Id.(quoting Dennis v. Dep 't ofLabor & Indus.,

109 Wn.2d 467, 470, 745 P.2d 1295 (1987)).

       Injured workers' rights to benefits are statutory. See Mclndoe v. Dep't ofLabor &

Indus., 144 Wn.2d 252, 256, 26 P.3d 903 (2001). Under the IIA, an injured worker is




^ This approach was applied in Pleas at 8, which noted that serviees that are controversial are
presumed to not be medically necessary, but that such presumption may be rebutted by evidence
of a suceessful treatment/surgery. {Pleas is more fully discussed infra.)

                                                13
No. 95251-5




entitled to "receive proper and necessary medical and surgical services." RCW

51.36.010(2)(a); 5ee also Rogers v Dep't ofLabor & Indus., 151 Wn. App. 174, 181,210

P.3d 355(2009). The legislature gave L&I authority to make rules regarding the

provision of medical care and treatment. See RCW 51.04.020,.030; see also Dep't of

Labor & Indus v. Kantor, 94 Wn. App. 764, 780, 783, 973 P.2d 30(1999). Pursuant to

this authority, L&I promulgated Medical Aid Rules in chapter 296-20 WAG,which

address medical coverage under the IIA. The Medical Aid Rules provide that L&I shall

pay for "proper and necessary medical care"(WAG 296-20-010(9)) and include a

definition of"proper and necessary" health care services. WAG 296-20-01002; see also

Rogers, 151 Wn. App. at 181-82; Kantor, 94 Wn. App. at 783. "Proper and necessary"

refers to health care services that are(a)reflective of standards of good practice,(b)

curative or rehabilitative,(c) not delivered primarily for the convenience of the claimant

or health care providers, and(d) cost-effective. See WAG 296-20-01002; Rogers, 151

Wn. App. at 182. The Medical Aid Rules list specific provider types, services, and

treatments that L&I will not authorize. See WAG 296-20-01505, -03002.

       The definition of"proper and necessary" health care services in WAG 296-20-

01002 states in subsection(4)that "[sjervices that are controversial, obsolete,

investigational or experimental are presumed not to be proper and necessary, and shall be

authorized only as provided in WAG 296-20-03002(6) and 296-20-02850." WAG 296-

20-03002(6) and 296-20-02850(1) provide that L&I will not allow or pay for treatment

measures of a controversial, obsolete, or experimental nature, except "[u]nder certain

conditions" when treatment may be approved.

                                            14
No. 95251-5



       In Pleas at 1, BIIA reversed and remanded to L&I with direction to issue an order

authorizing payment for a spinal cord stimulator. BIIA granted review "in order to

provide an analytical framework for determining what constitutes 'proper and necessary

medical and surgical services' to which injured workers are entitled pursuant to RCW

51.36.010," because "[sjuch a framework is important to aid in uniformity in analysis of

the facts and the applicable law." Id. at 1-2.^ BIIA noted that L&I refuses to authorize

spinal cord stimulator implants in all cases, based on the recommendation from its

"Medical Advisory Industrial Insurance Committee," and reviewed medical testimony

from L&I witnesses, who stated there was insufficient medical literature meeting

scientific standards to show treatment was effective or leads to functional improvement

of patients. See id. at 2-3. BIIA found that the treatment was "controversial" within the

meaning of WAG 296-20-03002(6), so it must be presumed not to be medically

necessary. See id. at 7. BIIA discussed how to analyze whether the treatment could be

determined to be medically necessary:

       Since such treatment can be approved in certain cases, it follows that the
       presumption that it is not medically necessary can be rebutted. This
       regulation requires the Department to use a case-by-case analysis based on
       the definition of medically necessary found in WAG 296-20-01002.

Id. at 8(emphasis added). Examining Pleas' individual case, BIIA held that the spinal

cord stimulator was "proper and necessary medical and surgical services" within the




® The BIIA has designated Pleas as a "Significant Decision," indicating the Board considers
Fleas to be a decision of substantial importance, containing analysis and guidance significant to
the Board in carrying out its duties. See WAG 263-12-195(1).


                                                15
No. 95251-5



meaning of WAC 296-20-01002. See idJ This was so because the claimant had proved
that in her case the treatment had been rehabilitative. Id.

       The Medical Aid Rules provide that a "medical coverage decision" is a decision
by the L&I director (or the director's designee)to include or exclude a specific health
care service as a covered benefit. See WAC 296-20-02700. The Medical Aid Rules

provide that the director ofL&I makes medical coverage decisions (see WAC 296-20-
02701), the medical coverage decisions are used by L&I claim managers "to help them
make claim-specific decisions"(see WAC 296-20-02702), and covered and noncovered
medical services are specified in the Medical Aid Rules (see WAC 296-20-02703).
       Under Pleas, if a particular medical treatment is not specified in the Medical Aid

Rules as a treatment that is "not covered" by L&I, an injured worker has a right to an

individual determination as to whether that particular medical treatment is proper and

necessary treatment under RCW 51.36.010. FAI surgery is not specified in the Medical

Aid Rules as a treatment or service that is excluded from coverage. See WAC 296-20-

01505,-03002.

        Further, the legislature created the HTCC in chapter 70.14 RCW in 2006.

Following that enactment, L&I filed Medical Aid Rules that specifically reference the

role of HTCC determinations in L&Ts medical coverage decisions. WAC 296-20-01001

provides for the appointment of a medical advisory committee(MAC)that advises L&I




'''"While the Board's interpretation of the [IIA] is not binding upon this court, it is entitled to
great deference.'" Doty v. Town ofSouth Prairie, 155 Wn.2d 527, 537, 120 P.3d 941 (2005)
(quoting Weyerhaeuser Co. v. Tri, 117 Wn.2d 128, 138, 814 P.2d 629(1991)).

                                                  16
No. 95251-5



with respect to the development of coverage criteria and review of coverage decisions
and technology assessments. See WAC 296-20-0100l(2)(a). The MAC's function may
include advising L&I "on coverage decisions from technology assessments based on the
best available scientific evidence, from which the Department may use the committee s

advice for making coverage decisions and for making proper and necessary industrial
insurance claim decisions for covered services." WAC 296-20-0100l(2)(d)(i).

Subsection (4) provides that the MAC "shall coordinate with the state health technology
assessment program," and that "[w]ith regard to issues in which the committee's [i.e.,
MAC'S] opinion may differ with findings of the state health technology assessment

program ... the department must give greater weight to the findings ofthe state's health
technology assessment program." WAC 296-20-01001(4).

       More specifically, WAC 296-20-02704 lists sources of information L&I uses to

make medical coverage decisions, which include, but are not limited to,

recommendations from L&I's MAC and the HTCC. See WAC 296-20-02704(1),(3)(b).

The regulation provides that because ofthe "unique nature of each health care service,"

the quality of information available may vary and the director "weighs the quality of the

available evidence in making medical coverage decisions." See WAC 296-20-02704(1).

Subsection (3) also expressly designates the HTCC as an "advisory committee" to L&I,

stating in part,"As appropriate to the subject matter," the director's consideration of

information in making coverage decisions "may include recommendations from the

department'sybrma/ advisory committees." WAC 296-20-02704(3)(b)(emphasis added).



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No. 95251-5



The regulation then lists several such committees, including the MAC and [t]he
Washington state health technology assessment clinical committee." Id.
      WAG 296-20-02705 provides that L&I may develop treatment guidelines in
collaboration with specified committees, which include the Department's MAC and the
HTCC. Subsection(3) provides that in implementing these guidelines, L&I may find it
necessary to make a formal coverage decision on treatment options. "The department,
not the advisory committees [which include the HTCC],is responsible for implementing
treatment guidelines andfor making coverage decisions that result from such
implementation." WAC 296-20-02705(3)(emphasis added).
       As can be seen, the Medical Aid Rules promulgated after the 2006 creation ofthe

HTCC provide that HTCC determinations are one of several sources of information that
L&I uses to make medical coverage decisions. While the HTCC determinations are

given greater weight than MAC opinions, the regulations do not give HTCC
determinations preclusive effect. Under the Medical Aid Rules, the Department, not the
HTCC,remains responsible for medical treatment coverage decisions. Those Department

medical coverage decisions are then subject to review before the BIIA and in superior

court, pursuant to chapter 51.52 RCW,as discussed above.

       Under this analysis,"an individual's right under existing law to appeal an action or

decision of a participating agency regarding a state purchased health care program"

remains undiminished. RCW 70.14.120(4). Harmonizing the legislation establishing the

HTCC with the IIA in this fashion comports with the guiding principles in the L&I



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context favoring compensation to injured workers and resolving doubts in favor ofthe
worker.


       Accordingly, for the reasons discussed above and consistent with Pleas, we hold
that Murray is entitled to an opportunity to rebut the presumption that the controversial
FAI surgery he received was not "proper and necessary" under the circumstances of his
case. That is, Murray is entitled to an individual coverage decision by L«fel, which is then

subject to the appeal procedures of chapter 51.52 RCW. We reverse the Court of
Appeals and remand Murray's reimbursement claim to L&I for a hearing on the merits in
accordance with Pleas.


       Attomev fees

       Murray continues his request for an award of attorney fees on appeal. In the Court

of Appeals, he sought fees under RAP 18.1(a) and RCW 51.52.130(1). RAP 18.1(a)

allows a party to be awarded attorney fees provided for by statute. RCW 51.52.130(1)

entitles a claimant to attorney fees if a decision of the Board is reversed or modified on

appeal. Because we reverse and remand to L&l for a determination on the merits, we

also award Murray attorney fees on appeal.

                                      CONCLUSION


       We hold that applying L&l's Medical Aid Rules, HTCC determinations are one of

several sources of information that L&l uses to make medical coverage decisions. While

HTCC determinations are given considerable weight, the Medical Aid Rules do not

afford such determinations preclusive effect. Under the Medical Aid Rules, L&l, not the

HTCC,remains responsible for medical treatment coverage decisions. Accordingly, such

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No. 95251-5



Department medical coverage decisions are then subject to review before the BIIA and in
superior court, pursuant to chapter 51.52 RCW. We reverse the Court of Appeals and
remand Michael Murray's reimbursement claim to L&I for further proceedings consistent
with this opinion. We also award Murray attorney fees on appeal.




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No. 95251-5




WE CONCUR:




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