                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          July 26, 2016



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 MICHAEL L. SIMS,                                                   No. 47604-5-II

                        Appellant,

        v.                                                     PUBLISHED OPINION

 DEPARTMENT OF LABOR AND
 INDUSTRIES OF THE STATE OF
 WASHINGTON,

                        Respondent.

       MAXA, J. – Michael Sims appeals a superior court order affirming a Board of Industrial

Insurance Appeals (Board) ruling denying permanent partial disability benefits. The Board ruled

that Sims was unable to receive a permanent partial disability award for his March 2012

industrial injury because that injury occurred after the September 2010 effective date of a

permanent total disability determination relating to a 2003 injury. Sims argues that the Board

and the superior court erred because the Department of Labor & Industries (DLI) did not enter its

decision regarding his permanent total disability until after his March 2012 injury.

       A worker who has a permanent partial disability (PPD) because of an industrial injury

receives a one-time award of benefits based on his or her loss of function. RCW 51.32.080. A

worker who has a permanent total disability (PTD) receives a certain percentage of his or her

wages as a monthly pension. RCW 51.32.060. Under settled Washington law, an injured worker

who has been classified as being permanently and totally disabled and subsequently is injured
No. 47604-5-II


again cannot receive a PPD award for the second injury. E.g., Harrington v. Dep’t of Labor &

Indus., 9 Wn.2d 1, 7-8, 113 P.2d 518 (1941). However, a worker who suffers one injury and

later is classified as being permanently and totally disabled because of another injury can receive

a PPD award for the first injury. McIndoe v. Dep’t of Labor & Indus., 144 Wn.2d 252, 266, 25

P.3d 903 (2001).

          Sims argues that under McIndoe he is entitled to a PPD award for the March 2012 injury

because that injury occurred before DLI entered the decision that he was permanently and totally

disabled. DLI argues that Sims is not entitled to a PPD award for the March 2012 injury because

that injury occurred after the September 24, 2010 effective date of his permanent and total

disability.

          We agree with DLI. We hold that Sims is not entitled to a PPD award for the March

2012 injury because that injury occurred after the effective date of his PTD, as determined by the

Board and DLI. Accordingly, we affirm the superior court’s order.

                                              FACTS

          In 2003, Sims injured his left arm at work. He filed a workers’ compensation claim,

which DLI allowed. DLI provided Sims with time-loss benefits until October 2009.

          In April 2010, DLI closed Sims’s claim and determined that Sims was permanently and

partially disabled because of the 2003 injury. After Sims protested, DLI affirmed its disability

determination in a decision dated September 24, 2010. Sims appealed to the Board, claiming

that he was permanently and totally disabled rather than partially disabled because of the 2003

injury.




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No. 47604-5-II


        While this appeal was pending before the Board, Sims was injured at work in March

2012. Sims filed another workers’ compensation claim. DLI allowed the claim and determined

that Sims was entitled to receive medical treatment and other benefits under this claim.

        In August 2012, the Board reversed DLI’s decision on Sims’s appeal for the 2003 injury.

The Board found that Sims was “unable to perform or obtain gainful employment on a

reasonably continuous basis . . . as of September 24, 2010.” Clerk’s Papers (CP) at 76. The

Board concluded that Sims “was a permanently totally disabled worker within the meaning of

RCW 51.08.160, as of September 24, 2010.” CP at 76. Finally, the Board remanded the matter

to DLI to determine that Sims was totally and permanently disabled.

        In September 2012, DLI issued a notice of decision correcting and superseding its

September 24, 2010 order. The decision stated, “This worker is totally and permanently disabled

and is placed on pension effective 9/24/2010.” CP at 80.

        In February 2013, DLI closed Sims’s claim for the March 2012 injury without a PPD

award. Sims protested the decision. DLI affirmed its decision and issued a letter stating that

Sims was not entitled to a PPD award for the March 2012 injury because he was pensioned in

2010.

        Sims appealed to the Board. Sims filed a motion for summary judgment and DLI filed a

cross motion for summary judgment. An industrial appeals judge (IAJ) issued a proposed

decision and order granting summary judgment to DLI. The proposed decision and order ruled

that Sims was not entitled to consideration of a PPD award for his March 2012 injury because he

was permanently and totally disabled as of September 2010.




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No. 47604-5-II


       Sims filed a petition for review of the proposed decision and order with the Board. The

Board considered and denied the petition, adopting the IAJ’s proposed decision and order as the

Board’s decision and order.

       Sims appealed the Board’s order to the superior court. The superior court affirmed the

Board’s order adopting the IAJ’s proposed decision and order.

       Sims appeals.

                                            ANALYSIS

A.     STANDARD OF REVIEW

       Under the Industrial Insurance Act (IIA), the superior court’s review of a Board order is

de novo and based solely on the evidence and testimony presented to the Board. Butson v. Dep’t

of Labor & Indus., 189 Wn. App. 288, 295, 354 P.3d 924 (2015); RCW 51.52.115. In the

superior court, the Board’s decision is prima facie correct and the party challenging the Board’s

decision must support its challenge by a preponderance of the evidence. Butson, 189 Wn. App.

at 296; RCW 51.52.115.

       In an industrial insurance case, we review the superior court’s decision, not the Board’s

decision. Butson, 189 Wn. App. at 296; RCW 51.52.140. DLI is charged with administering the

IIA, so we afford substantial weight to its interpretation of the act when the subject area falls

within the agency’s area of expertise. Birrueta v. Dep’t of Labor & Indus., 188 Wn. App. 831,

844, 355 P.3d 320 (2015), review granted, 184 Wn.2d 1033 (2016). However, we are not bound

by DLI’s interpretation. Id.

       The superior court held that the Board correctly granted summary judgment to DLI. We

review summary judgment orders de novo. Rickman v. Premera Blue Cross, 184 Wn.2d 300,

311, 358 P.3d 1153 (2015). Summary judgment is appropriate if there are no genuine issues of




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No. 47604-5-II


material fact and the moving party is entitled to judgment as a matter of law. Lakey v. Puget

Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013); CR 56(c).

B.     PERMANENT DISABILITY UNDER THE IIA

       The right to workers’ compensation benefits is statutory, and we look to the provisions of

the IIA to determine whether a particular worker is entitled to compensation. Clauson v. Dep’t

of Labor & Indus., 130 Wn.2d 580, 584, 925 P.2d 624 (1996). When construing the IIA, we

must liberally construe the act “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; see also Harry v. Buse Timber & Sales, Inc., 166 Wn.2d 1, 8, 201 P.3d 1011 (2009).

Therefore, doubts as to the meaning of the IIA are resolved in favor of the injured worker.

McIndoe, 144 Wn.2d at 257.

       The IIA provides two types of classifications for a permanent disability: permanent

partial disability and permanent total disability. Permanent partial disability involves a

permanent injury or disease that does not prevent the worker from working. See id. Once DLI

determines that the worker is permanently partially disabled, he or she is entitled to receive a

specific amount as compensation, calculated under guidelines stated in RCW 51.32.080 and

related administrative regulations. Id. PPD benefits are often referred to as “lump-sum” benefits

because the benefit is a one-time award. Stone v. Dep’t of Labor & Indus., 172 Wn. App. 256,

262, 289 P.3d 720 (2012).

       Permanent total disability involves certain specific injuries and an injury or disease that

“permanently incapacita[tes] the worker from performing any work at any gainful occupation.”

RCW 51.08.160; see also McIndoe, 144 Wn.2d at 257. Once DLI determines that the worker is

permanently and totally disabled, the worker is entitled to receive a monthly payment in an




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No. 47604-5-II


amount based on a percentage of his or her wages. RCW 51.32.060; Boeing Co. v. Doss, 183

Wn.2d 54, 58, 347 P.3d 1083 (2015). PTD benefits are often referred to as “pension” benefits

because the benefit represents a monthly wage replacement. Stone, 172 Wn. App. at 262.

        A worker who receives a PPD award before being classified as permanently and totally

disabled based on an unrelated injury is entitled to a full pension for the subsequent PTD,

“notwithstanding the payment of a lump sum for his or her prior injury.” RCW 51.32.060(4);

see also McIndoe, 144 Wn.2d at 257-58. However, if the worker receives a PPD award for an

injury and then is classified as permanently and totally disabled for the same injury, the amount

of the PPD award is deducted from the PTD benefits. RCW 51.32.080(4).

C.      RECOVERY OF BOTH PPD AND PTD BENEFITS

        In Harrington, the Supreme Court held that a worker who has been classified as

permanently and totally disabled for an industrial injury and has been awarded a PTD pension

cannot recover disability benefits for a second injury that occurred after being classified as

permanently and totally disabled. 9 Wn.2d at 7-8. The court stated, “[h]aving been classified as

permanently and totally disabled, [the worker] could not, in law, be further disabled.” Id. at 7.

The court further stated,

        [The worker] has already received all the benefits that may be allowed for
        permanent and total disability. A subsequent lesser disability cannot be
        superimposed upon the maximum disability recognized by the law. A contrary
        conclusion would result in an overlapping of classifications and in the allowance
        of double payment.

Id. at 8.

        The Supreme Court acknowledged this rule in two cases decided shortly after

Harrington. See Peterson v. Dep’t of Labor & Indus., 22 Wn.2d 647, 651-52, 157 P.2d 298

(1945); Sorenson v. Dep’t of Labor & Indus., 19 Wn.2d 571, 577-78, 143 P.2d 844 (1943). The




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No. 47604-5-II


court also has confirmed the Harrington rule in more recent cases. See McIndoe, 144 Wn.2d at

259-60; Clauson, 130 Wn.2d at 585.

       However, a worker can recover PPD benefits for an injury that occurred before he or she

was classified as permanently and totally disabled because of a different injury, even if the PPD

award had not yet been made at the time of the PTD classification. McIndoe, 144 Wn.2d at 266;

Clauson, 130 Wn.2d at 586.

       In Clauson, the worker injured his right hip in 1974 and injured his lower back and left

hip in 1983. 130 Wn.2d at 582. DLI determined that the worker was permanently and totally

disabled because of the 1983 back injury and awarded him a PTD pension. Id. Later, DLI

determined that Clauson was permanently partially disabled because of the 1974 hip injury, but

denied the worker PPD benefits because he already had been classified as permanently and

totally disabled. Id. at 582-83. The Supreme Court held that Clauson was entitled to PPD

benefits under the particular circumstances of that case. Id. at 586. The court distinguished

Harrington because Clauson’s injury resulting in the PPD occurred before the injury resulting in

the PTD, the PPD was considered under a separate claim, and the PPD claim was pending at the

time Clauson was classified as permanently and totally disabled. Id.

       In McIndoe, three workers in consolidated cases suffered injuries for which they were

classified as permanently and totally disabled, but also sought PPD awards for unrelated hearing

loss that developed before the PTD classification. 144 Wn.2d at 254-56. The Supreme Court

stated that unlike in Harrington, the workers were not seeking disability benefits for an injury

suffered after they had been classified as permanently totally disabled. Id. at 259-60. Instead,

the workers were seeking PPD awards for an occupational disease that occurred before their

pension awards. Id. at 260. The court stated that “[a]s in Clauson, the workers in this case had




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No. 47604-5-II


valid, preexisting, compensable claims for occupational disease suffered before their totally

disabling injuries.” Id. at 265. The court concluded:

        Based on the holding of Clauson, the principle that provisions of the IIA be
        liberally construed in favor of injured workers, and that workers should not be
        penalized for the sequencing of the filing of claims, we hold that a worker may
        receive permanent partial disability benefits for a valid occupational injury or
        disease claim that preexisted and is unrelated to the worker’s permanent total
        disability condition if the permanent partial disability claim is filed within the
        statute of limitations.

Id. at 266.

        In both Clauson and McIndoe, it was not material whether the date of DLI’s decision and

the effective date of the PTD were different; the injuries for which the workers were seeking a

PPD award all occurred before the effective date of the PTD. Here, however, Sims’s March

2012 injury occurred after the effective date of the PTD (September 24, 2010) but before the date

of DLI’s decision stating that Sims was permanently and totally disabled (September 11, 2012).

The issue here is whether the relevant date for determining Sims’s entitlement to PPD benefits

for his March 2012 injury is the effective date on which he became permanently and totally

disabled (2010) or the date of DLI’s decision stating that he became permanently and totally

disabled (2012).

D.      DATE OF DISABILITY VS. DATE OF DLI DECISION

        Sims argues that Clauson and McIndoe control and he is entitled to a PPD award because

the March 2012 injury occurred and his claim was pending before DLI’s decision that he was

permanently and totally disabled. DLI argues that the Harrington rule controls and Sims is not

entitled to a PPD award because the March 2012 injury occurred after the effective date of

Sims’s PTD and receipt of pension benefits. We agree with DLI.

        Sims’s argument finds some support in the language of McIndoe and Clauson. Both

cases focus on when the worker was “classified” as permanently and totally disabled. McIndoe,


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No. 47604-5-II


144 Wn.2d at 260; Clauson 130 Wn.2d at 585. As in those cases, DLI had not classified Sims as

permanently and totally disabled when his March 2012 injury occurred. However, neither

Clauson nor McIndoe involved the situation here, where DLI’s PTD decision stated that the date

on which Sims had become permanently and totally disabled was approximately two years

earlier.

           Focusing on the effective date of the PTD rather than the date of DLI’s PTD decision is

consistent with the reasoning in Harrington. As the Board and DLI determined, Sims actually

became permanently and totally disabled on September 24, 2010. Once he became totally

disabled, he could not become further disabled by another injury. Harrington, 9 Wn.2d at 7.

           Focusing on the effective date of the PTD also is consistent with the purpose of the rule

that a permanently and totally disabled worker cannot receive a PPD award for a subsequent

injury: to avoid double recovery. Id. at 8. DLI’s decision stated that Sims was entitled to a

pension retroactive to September 24, 2010. A pension is the maximum benefits allowed for a

permanent total disability. See id. at 7. Giving Sims a PPD award in addition to maximum PTD

benefits would result in double recovery.

           Sims argues that as in Clauson, he is entitled to a PPD award because the claim for his

March 2012 injury was pending when the Board and DLI determined that he was permanently

and totally disabled effective September 24, 2010. However, the proper question is whether the

claim for the March 2012 injury was pending at the time Sims actually became disabled, not

when DLI made its decision. Sims’s March 2012 claim was not pending on the effective date of

his disability and pension.

           Sims also argues that he is being penalized because of DLI’s erroneous initial decision

that he was only partially disabled because of his 2003 injury and that denying a PPD award for




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the 2012 injury would be unfair. But Sims does not explain why denying him a PPD award

would be unfair. If DLI had correctly decided in September 2010 that Sims was permanently

and totally disabled, he would have begun receiving a pension at that time and there would be no

question under Harrington, Clauson and McIndoe that he could not recover a PPD award for the

2012 injury. DLI’s corrected decision established the same result retroactively.

       Finally, Sims argues that if DLI actually had awarded him PPD benefits for the March

2012 injury before the Board’s August 2012 ruling, he would be able to retain those benefits.

Although we need not decide this issue, it is not clear that Sims would be able to retain the PPD

benefits in this situation. Because under DLI’s corrected decision Sims received a PTD pension

effective September 24, 2010, a reasonable argument may be made that allowing him to retain a

PPD award in this situation would result in double recovery.

       We hold that because Sims became permanently and totally disabled as of September 24,

2010 and received pension benefits retroactive to that date, he cannot obtain PPD benefits for an

injury that occurred after that date.

E.     ATTORNEY FEES

       Sims requests an award of reasonable attorney fees pursuant to RCW 51.52.130. RCW

51.52.130(1) provides for an award of attorney fees to workers or beneficiaries when the superior

court “decision and order is reversed or modified and additional relief is granted to a worker or

beneficiary.” Because we affirm the superior court’s order, we do not award Sims attorney fees

under RCW 51.52.130.

                                         CONCLUSION

       After the Board’s decision on Sims’s appeal, DLI determined that Sims was permanently

and totally disabled as of September 24, 2010. Sims received a monthly wage-replacement




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pension effective on that date. Sims’s March 2012 injury occurred after he was permanently and

totally disabled. Therefore, under settled law Sims was not entitled to a PPD award for the

March 2012 injury. We affirm the superior court’s order.



                                                    MAXA, J.



 We concur:




BJORGEN, C.J.




LEE, J.




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