                                                                                                            FILED
                                                                                                  COURT OF APPEA? S
                                                                                                         Of' V' fS10N II

                                                                                              2015 JUL - 7 AN 3:            3
                                                                                                  STAT    o- W ; `     1GTD)tf

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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


EDERI HAGGENMILLER,                                                             No. 45478 -5 -II
                                                                   Consolidated w/ No. 45645 -1 - II
                          Appellant,                                       and No. 45778 -4 -II)


        V.

                                                                       UNPUBLISHED OPINION
DEPARTMENT OF LABOR & INDUSTRIES,
 STATE OF WASHINGTON,




       SUTTON, J. —      Ederi Haggenmiller appeals the superior court' s summary judgment order

in favor of the Department of Labor and Industries ( Department) and affirming his industrial

insurance    award   from the Board   of   Industrial Insurance Appeals ( Board).          Haggenmiller argues


that ( 1) he is entitled to a permanent partial disability award for hearing loss and tinnitus greater

than 24. 83 percent and a separate award      for   a related mental   health   condition, ( 2)   the Board should


have set his date of occupational injury, or manifestation date, as June 5, 2012, rather than October

9, 2009, ( 3) the Department' s   responses   to his        judgment motions violated
                                                       post -                                RCW 4. 24. 525, the
No. 45478 -5 - II
 Cons. w/ Nos. 45645 - 1 - II & 45778 -4 -II)




anti- SLAPP1 statute, and ( 4) he is entitled to an award of attorney fees, costs, and CR 11 sanctions

against     the Department.           We hold that ( 1) Haggenmiller failed to establish a genuine issue of


material fact that he' was entitled to a permanent disability award greater than 24. 83 percent or a

separate award          for   a mental    health   condition, (   2) res judicata bars relitigation of the October 9,


2009 manifestation date, and even if considered, the medical evidence supports October 9, 2009


as the manifestation date, ( 3) Haggenmiller' s claims under the anti- SLAPP statute, RCW 4. 24. 525,


are moot because the statute is unconstitutional,2 and ( 4) he is not entitled to relief on his. other

post judgment motions, an award of                   attorney fees    and costs, or   CR 11   sanctions.   We affirm the


superior court' s summary judgment order in favor of the Department, the Board' s final order dated

March 8, 2013, and dismiss Haggenmiller' s appeal.

                                                              FACTS


          I. WORKPLACE INJURY AND PERMANENT PARTIAL DISABILITY RATING AND AWARD

            Haggenmiller        worked as a       finishing   carpenter   for approximately 30    years.   As part of his


work,     he     used   noisy hand       power     tools.   In 2006 and 2007, he started using impact tools and

compound          power       saws;      during this time he started experiencing hearing problems that

progressively           worsened.     The Department accepted his hearing loss claim as an occupational

disease, provided treatment, including hearing aids, set October 9, 2009 as the manifestation date




1 Lawsuits filed under RCW 4. 24. 525 are called Strategic Lawsuits Against Public Participation
    SLAPP). See LAWS OF 2010,               ch.   118, § 1( b).

2
    Davis   v.   Cox, _       P. 3d _,     2015 WL 3413375, at* 11 ( 2015).



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                     3
of   his   injury,       and entered a       final   order   dated October 5, 2011. RCW 51. 32. 180( b); WAC 296- 14-


350.       Haggenmiller did             not appeal        the October 5, 2011        order.   The Department then closed his


claim; he requested reconsideration, but the Department affirmed the closure of his claim in its

December 8, 2011 order. Haggenmiller appealed that order to the Board.


            At the board hearing, Haggenmiller had the burden of proving, by a preponderance of the

evidence, that the Department' s order setting a permanent partial disability rating of 24. 83 percent

for   hearing     loss     and    tinnitus     was incorrect      under   RCW 51. 52. 050( 2)(       a).   Haggenmiller presented


the testimony of himself, his spouse, and a medical expert, Dr. David Kessler, an otolaryngologist.
Haggenmiller testified that "[                  h] earing loss is really not too much of a problem for [ him] at the

moment,"         and does not affect his social interactions because he does not " really have any problems

with       asking        people   to   repeat    themselves."       Clerk' s Papers ( CP)        at    178.   He testified that he


developed tinnitus, which he believed impacted his ability to sleep, ability to drive at the end of

the day, his social interactions, memory, and caused mood alterations and depression.

            Kessler testified that Haggenmiller' s 2009 audiogram showed a bilateral hearing loss and

that he has had             hearing     loss    since     2009.   Kessler testified that Haggenmiller' s condition was a


permanent partial             disability       because, in his    opinion,    it   would " not ...    improve   over   time."   CP at


209- 10.      Kessler opined that Haggenmiller had a 20. 83 percent hearing loss, with an additional 4

percent impairment due to his tinnitus, for a total combined hearing loss of 24. 83 percent. Kessler




3 The schedule of benefits for a permanent partial disability award under an occupational disease
claim       is determined "`           as of   the date the disease       manifests     itself,"' also referred to as the date of
manifestation.              Harry      v.   Buse Timber &         Sales, Inc., 166 Wn.2d 1,            13, 201 P. 3d 1011 ( 2009)

  quoting Dep'            t of Labor & Indus.        v.   Landon, 117 Wn.2d 122, 128, 814 P. 2d 626 ( 1991)); see RCW
 51. 32. 180( b).



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 Cons.   w/   Nos. 45645 -1 - II & 45778 -4 -II)




did not address the manifestation date of October 9, 2009 or provide an opinion that Haggenmiller

had a related mental health condition.


         The Department' s medical expert, Dr. Gerald G. Randolph, an otolaryngologist, examined

Haggenmiller in       January   2011.   Randolph testified that Haggenmiller' s last occupational noise


exposure was       in October 2009.     Randolph rated Haggenmiller' s bilateral hearing loss at 10. 31

percent, but did not provide a tinnitus rating because, at the time of the 2011 examination, the

tinnitus did    not   significantly impact Haggenmiller'   s   daily   life. Randolph did not disagree with


Kessler' s audiogram results or his assessment that Haggenmiller' s tinnitus had increased since


2009.


         The administrative law judge who conducted the board hearing agreed with Haggenmiller

that he was entitled to a permanent partial disability award of 24. 83 percent, including 4 percent

for his tinnitus. The judge ruled that Haggenmiller failed to present a prima facie case to show


that the October 9, 2009 manifestation date was incorrect, or that his bilateral hearing loss or his

tinnitus caused a mental health condition; and the judge denied Haggenmiller' s requests for

attorney fees and costs, noting he had no authority to grant this relief. Haggenmiller requested

review by the Board. The Board accepted the judge' s proposed decision and entered a final order

dated March 8, 2013.        Haggenmiller appealed that order to superior court but did not appeal the


order setting October 9, 2009 as the date of his occupational injury.

                          II. SUMMARY JUDGMENT AND POST -JUDGMENT ORDERS


         The Department moved for summary judgment' under CR 56 arguing that, with the

additional combined permanent partial disability award of 24. 83 percent, Haggenmiller could not

receive any further relief based on the issues on appeal and the substantial evidence in the record.

The superior court, after reviewing the pleadings and evidence, ruled that ( 1) a jury could not make

                                                      U
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 Cons.    w/   Nos. 45645 -1 - II & 45778 -4 -II)




any other decision but to affirm the Board' s March 8, 2013 order because there was no medical

evidence showing that Haggenmiller was entitled to a permanent partial disability award greater

than 24. 83 percent, (2) there was no evidence oftotal bodily impairment, (3) there was no evidence

from any expert that Haggenmiller had a related mental health condition, and ( 4) res judicata bars

relitigation of October 9, 2009 as the date of his injury, and even if considered, the medical

evidence       supported   October 9, 2609         as   the date       of    injury.      The superior court granted the


Department'      s   summary judgment         motion,        affirmed        the   Board' s March 8,          2013 order, and


dismissed the appeal. Haggenmiller appealed to our court.


                                           III. POST -JUDGMENT MOTIONS


           After filing his appeal in our court, Haggenmiller filed various postjudgment motions in

superior court.       He filed    a "   Motion for Order to Show Cause" and appeared ex parte, but the


superior court       denied the   motion.     He   also      filed   a "   Motion to Vacate the Judgment/ Order" for


reconsideration.       The Department        moved      to   strike    his   motion as     untimely. under CR 59( b),      and




because     under    RAP 7. 2( a), this    court   had    sole   authority         once   his appeal had been filed.       The


superior court denied reconsideration. Haggenmiller appealed that order to this court.


           While his   appeals were still    pending in this          court,   Hagge=       iller filed a " Request for Entry

of Default" and a " Motion and Declaration for Entry of Default Judgment or Alternative Entry of

Partial    Summary Judgment," and the superior court denied this motion, explaining that the motion

had   no    legal basis.    Haggenmiller filed          multiple " special          motions    to   strike"    arguing that the

Department' s prior responses to his motions violated RCW 4.24. 525, the anti- SLAPP statute. 4 The

superior court denied all of Haggenmiller' s special motions to strike and awarded costs to the




4 Suppl. CP at 738- 55, 763- 76, 813- 32, 833- 52.


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Department for two telephonic hearings.                         Haggenmiller   appealed   that   order,   as   well.     We


consolidated his three appeals.


                                                         ANALYSIS


         Haggenmiller argues that ( 1) he is entitled to a permanent partial disability award of 25. 94

percent, consisting of 20. 94 percent for bilateral hearing loss and 5 percent for tinnitus, and an

award    for   a related mental       health     condition, (   2) the Department' s responses to his postjudgment


motions interfered with his constitutional right to free speech and the right to petition and violated

RCW 4. 24. 525( 1)(     a),   the anti- SLAPP statute, and ( 3) he is entitled to an award of attorney fees,

costs, and CR 11 sanctions against the Department.

         We hold that ( 1) Haggenmiller failed to establish a genuine issue of material fact that he

was entitled to a permanent disability award greater than 24. 83 percent or a separate award for a

mental    health    condition, (     2) res judicata bars relitigation of the October 9, 2009 injury date, and

even if considered, the medical evidence supports October 9, 2009 as the date of his occupational

injury   or    manifestation        date, ( 3)    Haggenmiller' s claims under the anti- SLAPP statute, RCW

4. 24. 525, are moot because the anti- SLAPP statute is unconstitutional, and (4) he is not entitled to

relief on his other postjudgment motions, or an award of attorney fees, costs, or CR 11 sanctions.

We affirm the superior court' s summary judgment order in favor of the Departmentand the

Board' s final order dated March 8, 2013, and we dismiss Haggenmiller' s appeal.

                                                   I. STANDARD OF REVIEW


          On appeal to the Board, Haggenmiller had the burden of proving, by a preponderance of

evidence,      that the Department' s            order was   incorrect.   RCW 51. 52. 050( 2)(   x).   A claimant must


provide strict proof of each element of his or her claim for disability benefits under RCW

 51. 52. 050( 2).   Jenkins    v.   Dept of Labor & Indus., 85            Wn. App. 7, - 14, 931 P. 2d 907 (     1996).   To


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prove a prima         facie   case, expert medical             testimony "` must establish that it is more probable than

not   that [ the     industrial   injury]   caused       the   subsequent      disability."' Lewis v. Simpson Timber Co.,

145 Wn.       App.     302, 319, 189 P. 3d 178 ( 2008) ( quoting Grimes                    v.   Lakeside Indus.,   78 Wn. App.

554, 561, 897 P. 2d 431 ( 1995)).


             On appeal to superior court, the Board' s decision is prima facie correct and the burden of


proof is on the party challenging the decision. RCW 51. 52. 115; Harrison Mem' l Hosp. v. Gagnon,

110 Wn.       App.    475, 483, 40 P. 3d 1221 ( 2002). The superior court reviews the Board' s decision de


novo based on the same evidence as was before the Board. RCW 51. 52. 115; Harrison, 110 Wn.

App.    at   483. "` [   T] he superior court may substitute its own findings and decision for the Board' s

only if it finds,- from a fair preponderance of credible evidence, that the Board' s findings and
decision      are    incorrect."'    Harrison; 110 Wn. App. at 482 ( quoting McClelland v. ITT Rayonier,

Inc., 65 Wn. App. 386,_390, 828 P. 2d 1138 ( 1992)).

             The ordinary civil standard of review governs appeals of proceedings under the Industrial

Insurance Act, Title 51 RCW. RCW 51. 52. 140. As a result, we review the superior court' s order,

not   the Board'       s order.     See Rogers      v.   Dep' t    of Labor & Indus.,       151 Wn. App. 174, 179- 80, 210

P. 2d 355 ( 2009).         We review the superior court' s summary judgment order de novo and engage in

the same inquiry as the superior court. Columbia Cmty. Bank v. Newman Park, LLC, 177 Wn.2d

566, 573, 304 P. 3d 472 ( 2013).                   Summary judgment is proper if there is no genuine issue of

material      fact   and   the moving party        is   entitled   to   a   judgment   as a matter of   law. CR 56( c); Munich


v.   Skagit    Emergency       Commc'       n   Ctr., 175 Wn.2d 471, 877, 258 P. 3d 676 ( 2012).               A genuine issue


of material fact exists if "reasonable minds could differ on the facts controlling the outcome of the

litigation."        Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258 P. 3d 676 ( 2011).




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 Cons.    w/   Nos. 45645 -1 - II & 45778 -4 -II)



We construe all evidence and reasonable inferences in the light most favorable to the nonmoving

party.    Young       v.   Key Pharm.,         Inc., 112 Wn.2d 216, 226, 770 P. 2d 182 ( 1989).


          The moving party in a summary judgment motion has the initial burden to show the

nonexistence      of a genuine          issue    of material      fact. Knight    v.   Dep' t ofLabor     & Indus.,   181 Wn. App.

788, 794- 95, 321 P. 3d 1275,                  review   denied, 339 P. 3d 635 ( 2014).             Once this showing is made, the

burden shifts to the nonmoving party to make a showing sufficient to establish the existence of an

element essential           to his   case.      Cho v. City of Seattle, 185 Wn. App. 10, 15, 341 P. 3d 309 ( 2014),

review    denied, _           P. 3d (           2015). " In a claim for workers' compensation benefits, the injured


worker    bears the burden            of   proving that he is        entitled   to benefits."       Knight, 181 Wn. App. at 795-

96. "    If this burden cannot be met as a matter of law, summary judgment for the Department is

proper."    Knight, 181 Wn.              App.     at   796. "   A nonmoving party must set forth specific facts showing

a genuine      issue for trial       and   may    not    rely   on speculation."       Knight, 181 Wn. App. at 796; CR 56( e);

see   Boguch     v.   Landover       Corp., 153 Wn. App. 595, 610, 224 P. 3d 795 ( 2009).

                               II. PERMANENT PARTIAL DISABILITY FOR HEARING Loss


          To establish a permanent partial disability award, the Department relies on a physician to

calculate hearing loss in accordance with the American Medical Association' s Guides to

Impairment        and      RCW 51. 32. 080( 2).              Tomlinson   v.   Puget Sound Freight. Lines, Inc., 166 Wn.2d


105,     111, 206 P. 3d 657 ( 2009); WAC 296- 20- 2015.                            The physician may also separately rate

tinnitus accompanying                hearing loss. See Pollard v. Weyerhaeuser, 123 Wn. App. 506, 510, 98

P. 3d 545 ( 2004);           see   also    Jenkins      v.   Weyerhauser Co.,          143 Wn. App. 246, 252, 177 P. 3d 180

 2009).    If the physician rates tinnitus, the Department will add zero to five percent to the hearing

loss formula, depending                 on     the severity of the tinnitus.           In   re   Harold Sells, Nos. 95 4334 &   95


4547, 1996 WL 879376,                   at *   2 ( Wash. Bd.. of Indus. Ins. Appeals December 20, 1996).
No. 45478 -5 -II
 Cons.   w/   Nos. 45645 -1 - II & 45778 -4 -II)




         Of the ratings provided by the two physicians who presented medical evidence in support

of Haggenmiller' s permanent partial disability award, Haggenmiller' s physician established the

highest rating, testifying that the industrial injury caused 24. 83 percent of Haggenmiller' s total

hearing loss. Haggenmiller presented no expert medical testimony that his hearing loss was greater

than 24. 83 percent. The Board agreed with Haggenmiller' s physician and awarded Haggenmiller

the highest    disability    award supported       by   the   medical evidence: "        a bilateral hearing loss of 20. 83

percent, and an increase of bilateral hearing loss caused by tinnitus of 4 percent, resulting in a total

bilateral   hearing   loss   of   24. 83   percent."   CP at 50.


         During the October 1, 2012 hearing, the Department and the administrative law judge

questioned     Haggenmiller'        s physician    regarding the       physician' s      hearing       loss     calculations.   The


judge initially questioned Haggenmiller' s physician regarding the physician' s tinnitus rating:

            JUDGE:] [         H] ow did you rate Mr. Haggenmiller, as far as his tinnitus goes?
            WITNESS:]        Well, he has provided me with a fair amount of written testimony
         about how much this tinnitus bothers him. So I would rate him in the 4 to 5 percent
         range.

            JUDGE:]          Well, Doctor,       you' re   going to    get   to— you    have to get off the fence.
         You have to pick 4 or 5.
            WITNESS:]         I would say 4.

CP at 213.


         During this same hearing, the physician described the mathematical formula that he used

to reach his final figure of 24. 83 percent, but the hearing transcript reflects that the physician had

significant difficulty correctly performing the necessary division and addition functions. He made

several errors,    including       using imprecise,      rounded numbers.           See,     e.
                                                                                                  g., CP   at   225 (" And then on


the combined       hearing loss        formula, this       comes     out   to   about   25   percent.").         At one point the


Department and the physician had the following exchange:



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No. 45478 -5 - II
 Cons.     w/   Nos. 45645 - 1 - II & 45778 -4 -II)




           DEPARTMENT:] [                W] ithout tinnitus, Mr. Haggenmiller' s bilateral hearing loss
           is just about 21 percent; correct?
            WITNESS:]                    And I' m running those right now. Give me just a second.
            DEPARTMENT:]                 Specifically, 20. 94 percent?
            JUDGE:]                      Just wait until the doctor answers.
            WITNESS:]                    Yes, I agree with that.


CP at 225


           It appears that Haggenmiller uses this exchange as the supporting evidence for his assertion

that he is entitled. to a 25. 94 percent total hearing loss, consisting of the aforementioned 20.94

percent hearing loss and a 5 percent tinnitus rating, based on his physician' s statement that he

would " rate      him in the 4 to 5     percent range."   CP at 213.


           But after performing several more calculations, the physician corrected himself during the

following exchange:

            WITNESS:]               I   rounded   that to 25   percent, you guys.   I think it' s actually
           24. 83333.
            DEPARTMENT:]            Okay. 24. 83. So without tinnitus we' re at 20. 4 percent, with
           the tinnitus we' re at 24. 83 percent; correct?
            WITNESS:]               Correct.


CP at 227


           Haggenmiller provided no other supporting medical evidence, other than lay testimony,

that he was entitled to a permanent partial disability award of 25. 94 percent. See Jenkins, 143 Wn.

App. at 253 ( party attacking the Board' s decision must support its challenge by a preponderance

of   the   evidence).      Viewing the evidence in a light most favorable to Haggenmiller, as the

nonmoving party, he has not established a genuine issue of material fact that he was entitled to a

greater award than the. combined permanent partial disability rating of 24. 83 percent for his

bilateral hearing loss and tinnitus.




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No. 45478 -5 -II
 Cons.     w/    Nos. 45645 - 1 - II & 45778- 4- 11)



           III. PERMANENT PARTIAL DISABILITY AWARD FOR A MENTAL HEALTH CONDITION


           Haggenmiller next argues that he is entitled to a separate permanent partial disability award

for a mental health condition related to his hearing loss and tinnitus. Before the Board he argued

that lay testimony was sufficient, that objective medical evidence was not necessary, and that

certain impairments are compensable based solely on subjective statements. He also argued before

the Board that it          is "   appropriate to analogize [ his hearing loss] to categories of mental health

impairment in light of the similarity in the disruption of daily' living caused by the worker' s

tinnitus."       CP at 31.


           Kessler and Randolph, the two physicians who presented medical evidence, did not address


any related mental health condition. The Board found that:.

           Haggenmiller failed to present the necessary evidence to prove his bilateral hearing
            loss    and    tinnitus   caused   a mental   health    condition.   No medical opinion was

            introduced during the hearing to prove [ he] was suffering from a mental health
            condition. No medical opinion was introduced that stated a diagnosis, a cause of
            any mental health condition, or a permanent partial disability rating for any mental
            health condition.


CP   at.   50.     The Board concluded that he " failed to establish a prima facie case that his bilateral


hearing      loss    and   tinnitus caused     a mental   health   condition."   CP   at   50.   Haggenmiller failed to


present any medical evidence to create a genuine issue of material fact of a related mental health
condition.




5 Haggenmiller presented only lay testimony from himself and his wife that he has a mental health
condition.




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                       IV. OCTOBER 9, 2009 HEARING LOSS MANIFESTATION DATE


         Haggenmiller next argues that the manifestation date of his occupational injury should be

June 5, 2012, the date that Kessler performed an audiogram,6 rather than October 9, 2009, as set

by   the Board in    its October 5, 2011      order.    The Department responds that res judicata precludes


the parties from rearguing this issue as Haggenmiller did not appeal the Department' s order?

setting October 9, 2009 as the manifestation date, and that order is final and binding on both parties.
We agree with the Department.


           T] he civil rules for superior court, including CR 60, apply to proceedings before the

Board    and superior court."     Kingery      v.   Dep' t   of Labor & Indus., 132 Wn.2d 162, 172, 937 P. 2d


565 ( 1997) (    a party must " properly appeal" a Board order for the appellate court to consider it);

RCW 51. 52. 140; WAC 263- 12- 125. If a party fails to appeal aboard order within the 60 -day time

limit   under   RCW 51. 52. 060( 1),    the party' s " claim is deemed res judicata on the issues the order

encompassed, and `[       t] he failure to   appeal an order ...           turns the order into a final adjudication,


precluding any      reargument of      the same claim."'           Arriaga   v.   Dep' t   of Labor & Indus., 183 Wn.


App.    817, 824- 25, 335 P. 3d 977 ( 2014). (alteration in           original) (   quoting Kustura v. Dep' t ofLabor

     Indus., 142 Wn. App. 655, 669, 175 P. 3d 1117 ( 2008)), review denied, 182 Wn.2d 1012 ( 2015).


          Under RCW 51. 52. 050( 1)( a) and . 060, Haggenmiller had 60 days to appeal the Board' s

October 5, 2011      order ( setting   the   manifestation     date   of   October 9, 2009).     He did not appeal and




6 The parties refer to this as an audiogram, which is the graphical display of the hearing test.

7 The Department' s separate October 5, 2011 order affirmed its July 27, 2011 order, set the
manifestation date of injury as October 9, 2009, and allowed Haggenmiller' s claim for bilateral
hearing loss due to occupational noise exposure.


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No. 45478 -5 -II
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the October 5, 2011 order is final and binding on both parties and res judicata bars relitigation of

this issue. Arriaga, 183 Wn. App. at 824- 25.

                                                    V. ANTI- SLAPP MOTION


          Haggenmiller argues that the Department' s pleadings filed in response to his postjudgment


motions        infringed    on   his free    speech and right      to    petition and violated   RCW 4. 24. 525( 1)(   a),   the



anti-   SLAPP       statute.     RCW 42. 24. 525.         Haggenmiller also implies that his pleadings qualify as

 protected activity" under RCW 4. 24.525( 1)( a), to include: prelitigation letters and threats to sue,

motion     to   reconsider, motion          for   relief, motions   for    costs, and notice of appeal.   Br. of Appellant


at   29, 38;        see   Suppl. CP     at    738- 39.    He claims the Department' s pleadings violate RCW


4. 24. 525( 1)( a) because they " pre- empt[ ed] Haggenmiller' s ability to seek relief from a court ...

at a    time   of   his   own   choosing[,]" which in turn " create[ d] an undue burden on Haggenmiller that


he did    not anticipate when          making the initial         claim     for   compensation."   Br. of Appellant at 38.


And he argues that the Department' s " suit against Haggenmiller for making a permanent partial

disability claim creates a chilling effect on all citizens who are contemplating making a permanent

partial   disability       claim."   Br. of Appellant at 38- 39.


           Our Supreme Court recently held that the anti- SLAPP statute is unconstitutional. Davis v.

Cox, _          P. 3d ,         2015 WL 3413375,          at *   11 ( 2015).      Thus, Haggenmiller' s claims under the


anti- SLAPP statute are moot.


                                                  VI. ATTORNEY FEES AND COSTS


           Haggenmiller requests attorney fees and costs in this appeal under RAP 18. 1( a) and RCW

51. 52. 130( 1).          RAP 18. 1( a) provides that a party may recover its reasonable attorney fees if

 applicable         law"   permits such       recovery.    RCW 51. 52. 130( 1) allows attorney fees and costs only

in cases where the worker has appealed and " the decision and order of the board is reversed or

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 Cons.   w/   Nos. 45645 -1 - II & 45778 -4 -II)




modified and      if the   accident      fund   or medical aid      fund is     affected    by the    litigation." Haggenmiller


cites no authority for a pro se litigant to receive attorney fees. He is not a prevailing party under

RAP 18. 1( a) or RCW 51. 52. 130( 1) and thus, he is not entitled to an award of fees or costs.

                                                     VII. CR 11 SANCTIONS


         Haggenmiller also requests sanctions against the Department under CR 11. 8 He argues that

it was " unfair" for the Board to schedule the board hearing in Olympia, rather than in Jefferson

County,   where       Haggenmiller        resides.     Br.   of   Appellant     at   2.   He claims that ( 1) the Department


engaged    in   a "   fraud   on   the   court,". ( 2)   he   refers     to the Department            as "   cheaters," (   3) he was


prejudiced, and (4) he was denied due process. Br. of Appellant at 2, 48- 49. He requests an award


in the   amount of $ 1,       710. 45 to    reimburse        him for four hours            driving    at $   400. 00 per hour, plus


 0. 555 per mile for 190 miles, plus a $ 5. 00 bridge toll fee. But Haggenmiller fails to show how

the Department' s request that the Board hold its hearing in Olympia to accommodate a witness




8 CR 11 provides in part:
         The signature of a party or of an attorney constitutes a certificate by the party or
          attorney that the party               or   attorney has        read    the      pleading,    motion,.     or legal
         memorandum,            and that to the best of the party' s or attorney' s knowledge,
          information,        and   belief, formed after an inquiry reasonable under the
          circumstances:

                      1)   it is well grounded in fact;
                  2) is warranted by existing law or a good faith argument for the extension,
          modification, or reversal of existing law or the establishment of new law;
                  3) it is not interposed for any improper purpose, such as to harass or to
          cause unnecessary delay or needless increase in the cost of litigation; and
                      4)   the denials of factual contentions are warranted on the evidence or, if
          specifically so identified, are reasonably based on a lack of information or belief. .
                If a pleading, motion, or legal memorandum is signed in violation of this rule,
          the    court ... may impose upon the person who signed it, a represented party, or
          both, an appropriate sanction, which may include an order to pay to the other party
          or parties the amount of the reasonable expenses incurred because of the filing of
          the pleading, motion, or legal memorandum, including a reasonable attorney fee.
                                                                    14
No. 45478 -5 -II
 Cons.   w/        Nos. 45645- 1- 11 &   45778 -4 -II)




was   for    an "   improper   purpose"    or violated   the   rules.   CR 11(   a)(   3):   We deny his request for CR 11

sanctions.



                                                     CONCLUSION


            We hold that ( 1) Haggenmiller failed to establish a genuine issue of material fact that he


was entitled to a permanent disability award greater than 24. 83 percent or a separate award for a

mental health condition, (2) res judicata bars relitigation of the October 9, 2009 manifestation date,

and even if considered, the medical evidence supports October 9, 2009 as the manifestation date,

 3) Haggenmiller' s claims under the anti- SLAPP statute, RCW 4. 24. 525, are moot because the

anti- SLAPP statute is unconstitutional, and ( 4) he is not entitled to relief on his other post-

judgment motions, or an award of attorney fees, costs, or CR 11 sanctions. We affirm the superior

court' s summary judgment order in favor of the Department, affirm the Board' s final order dated

March 8, 2013, and dismiss Haggenmiller' s appeal.

            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.




                                                                      SUTTON, J.


 We concur:




 WOR WICK, J.




 F JR       T .,
                    A.C. J.



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