                                                                                                          ILED
                                                                                                 COURT Off' APPEALS
                                                                                                      DIVI500N ii

                                                                                                2015 AUG 18 AM 9= 0

                                                                                                STAVE Off' WASHINGTON

    IN THE COURT OF APPEALS OF THE STATE                                                           F_M#       1_NGT0N
                                                                                                               Y
                                                               DIVISION II

 JOSEPH H. WOODS,.                                                                              No. 45316 -9 -II


                                                  Appellant,


             SIM



 DEPARTMENT OF LABOR AND                                                                 UNPUBLISHED OPINION
 INDUSTRIES




         LEE, J. —            Joseph H. Woods appeals the superior court' s order affirming the Board of

Industrial Insurance Appeals' ( Board) order that upheld the Industrial Insurance Appeal judge' s


IIAJ)    order           affirming three      of    the Department          of   Labor   and   Industries' ( Department) orders


regarding his            occupational    disease      claim.     On appeal, the parties stipulated and agreed that if the


first order did not establish the time -loss rate, then the Department would reconsider the other two


appealed orders.             The first order did not establish the time -loss rate; therefore, the superior court


erred   by   affirming the Board'             s order.     Accordingly, we reverse the superior court and the Board

and remand to the Department for further proceedings consistent with the parties' stipulation.


                                                                   FACTS


          The underlying facts in this matter are not in dispute. Woods worked in construction from

1977    until      he    retired   in 2003.       From 2003 until 2006, Woods worked " intermittently" for a " tree

servicing     contractor."          Clerk'    s   Papers ( CP)   at   41.   On April 13, 2006, Woods first sought medical

treatment          for   shoulder pain, and         he   was   diagnosed     with   bilateral   rotator cuff syndrome.   Woods
No. 45316 -9 -II




filed an application for benefits with the Department, claiming that his injury was an occupational

disease resulting from " 35      years of   hammering,     sawing, [   and]
                                                                              heavy lifting."   Certified Board


Record ( CBR) Ex. 1.


A.      DEPARTMENT ORDERS


        On January 3, 2007, the Department issued an order notifying Woods that it accepted his

claim. On January 19, the Department issued an order designating the date of manifestation of his

occupational disease. It determined that for compensation purposes, the date of manifestation was


April 13, 2006, because that was the date that he first sought medical treatment.. The January 19

order stated   that the   order would   become final in 60 days   unless appealed.'      Woods did not appeal


the January 19 order.

        On December 4, 2007, the Department issued an order awarding time -loss compensation

based on the unchallenged date of manifestation in the amount of $3, 551. 05, for the period of May

23, 2007 through September 30, 2007.




 The final order language is as follows:


        THIS     ORDER BECOMES               FINAL    60 DAYS          FROM THE         DATE      IT IS
        COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE FOLLOWING:
        FILE     A   WRITTEN        REQUEST        FOR      RECONSIDERATION               WITH     THE
        DEPARTMENT OR FILE A WRITTEN APPEAL WITH THE BOARD OF
        INDUSTRIAL             INSURANCE          APPEALS.               IF     YOU      FILE      FOR
        RECONSIDERATION,                YOU     SHOULD        INCLUE          THE   REASONS        YOU
        BELIEVE THIS DECISION IS WRONG AND SEND IT TO: [ DEPARTMENT
        ADDRESS].           WE WILL REVIEW YOUR REQUEST AND ISSUE A NEW
        ORDER. IF YOU FILE AN APPEAL, SEND IT TO: [ BOARD OF INDUSTRIAL
        INSURANCE APPEALS ADDRESS] OR SUBMIT IT ON AN ELECTRONIC
        FORM FOUND AT [ WEBSITE].


CBR Exs. 8, 9.



                                                      1)
No. 45316 -9 -II



          On June 25, 2009, the Department issued an order designating the January 19, 2007 order,

which set       April 13, 2006     as   the   date   of manifestation, as          final   and   binding.2 The order notified

Woods that it could not reconsider the January 19, 2007 order designating the date of manifestation

because Woods did not appeal the order within 60 days.


          On June 26, the Department issued an order setting out the Department' s wage calculations.

he   order notified    Woods that the Department had determined that his                             wages were $    68. 75 per


month, and that it calculated those wages " based on the reported income for the twelve- month

period    from [ April 1, 2005] to [ March 31, 2006]."                      CBR Ex. 15. Woods appealed June 26 order.


          On October 5, the Department issued another order affirming the June 26, 2009 order.

          On October 6, the Department issued an order that corrected and superseded its December


4, 2007     order.     The    order     notified     Woods that the Department                   overpaid   Woods'   time -loss


compensation, and       that Woods            must reimburse       the difference to the Department.            On April 22,


2010, the Department issued an order affirming the October 6, 2009 order.

B.        WOODS' APPEAL TO THE INDUSTRIAL INSURANCE APPEALS JUDGE


          Woods      appealed   three Department           orders      to   an   IIAJ: ( 1) the June 25, 2009 order (which


refused    to   reconsider   the   January 19        order); (   2) the October 5, 2009 order (which affirmed the


June 26    wage order);      and (3) the April 22, 2010 order (which affirmed the October 6 overpayment


order).    The IIAJ consolidated the three appeals.




2 There is no record that Woods appealed the January 19, 2007 order, or other explanation of why
the Department issued the June 25, 2009 order denying reconsideration.

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No. 45316 -9 -II



         On   appeal   before the IIAJ, the        parties stipulated      to the facts.     The parties also agreed that


 if the Department Order          of   January    19, 2007 is   not   a   binding   determination    as   to the time[ -]loss


rate under this claim, that then and in that instance this matter would be remanded to the

Department to       use   the   earlier   date   and prior earnings       to   establish   the time[ -]loss rate and onset


date."   CBR at 86.


         The IIAJ         affirmed     the   June 25,   2009 order, finding that the Department correctly

determined that the January 19, 2007 order is final because Woods did not appeal it within 60 days.

Because the January 19, 2007 order was final,rthe IIAJ found that the doctrine of collateral estoppel

prevented Woods from challenging April 13, 2006 as the date of manifestation of his occupational

disease.    On May 31, 2011, the IIAJ affirmed the Department' s orders dated June 25, 2009,

October 5, 2009, and April 22, 2010.


C.       WOODS' APPEAL TO THE BOARD OF INDUSTRIAL INSURANCE APPEALS


         Woods appealed the IIAJ' s order to the Board of Industrial Insurance Appeals. The parties


entered the same stipulated facts and agreement as entered into before the IIAJ. In Woods' petition


for review, he argued that the January 19, 2007 order was not binding on him for purposes of

calculating time -loss compensation, and that the time -loss rate should be based on the wages that

Woods      earned   in 2003.      And, Woods argued that because the January 19, 2007 order was not

determinative of his time -loss rate, the Department should reconsider the wage calculation


pursuant to the parties' stipulation. On July 19, 2011, the Board affirmed the IIAJ' s order, finding

that the orders dated June 25, 2009, October 5, 2009, and April 22, 2010 were correct.




                                                                W
No. 45316 -9 -II



D.       WOODS' APPEAL TO THE SUPERIOR COURT


         Woods     appealed   the Board'   s order   to the   superior court.      The parties agreed that if the


superior court found that the January 19, 2007 order was not binding as to the time -loss rate, then

the Department would reconsider the remaining issues.

         The superior court found that " Mr. Woods is barred by collateral estoppel from a
                                                                                         - rguing his

date   of manifestation,   for   compensation purposes,       is   not   April 13, 2006."   CP at 44. The superior


court affirmed the Board' s order affirming the IIAJ' s order. The superior court' s findings of fact

and conclusions of law incorporated the Board' s findings of fact and conclusions of law. Woods

appeals.


                                                 ANALYSIS


         Woods appeals the superior court' s order affirming the Board' s order. Woods argues that

the Board and the superior court failed to honor the parties' stipulation because the parties'

stipulation was triggered and his claim should have been remanded to the Department. We agree.


A.       STANDARD OF REVIEW


         Under the Industrial Insurance Act (" IIA"),         the Board' s orders are prima facie correct, and

the parry challenging the order has the burden of proof. RCW 51.52. 115; Rogers v. Dept ofLabor

     Indus., 151 Wn.   App.      174, 180, 210 P. 3d 355,     review       denied, 167 Wn.2d 1015 ( 2009).    The


superior court reviews the issues de novo and relies exclusively on the certified board record.

RCW 51. 52. 115; Rogers, 151 Wn. App. at 179.

         On appeal of the superior court' s order, we review the superior court' s order, not the


Board' s order, using the ordinary standard ofreview for civil cases. RCW 51. 52. 140. In reviewing

the superior court' s order, we determine " whether substantial evidence supports the trial court' s




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No. 45316 -9 -II



factual findings and then review, de novo, whether the trial court' s conclusions of law flow from

the   findings."   Rogers, 151 Wn. App. at 180. A factual finding is supported by substantial evidence

 when the evidence in the record is sufficient to persuade a rational, fair-minded person that the

finding is true."    Watson    v.   Dep' t ofLabor & Indus., 133 Wn. App. 903, 909, 138 P. 3d 177 ( 2006).

 Credibility determinations are solely for the trier of fact and cannot be reviewed on appeal."

Watson, 133 Wn. App. at 909.

B.        DATE OF MANIFESTATION AND TIME -LOSS RATE


          Under the IIA, "time        -loss and loss of earning power compensation rates are determined by

reference    to a worker' s    wage at   the time   of   injury."      Gallo   v.   Dep' t of Labor &   Indus., 155 Wn.2d


470, 481, 120 P. 3d 564 ( 2005). " In the context of occupational disease, the counterpart to date of


injury is   date of manifestation." Kilpatrick           v.   Dep' t   of Labor & Indus., 125 Wn.2d 222, 228, 883


P. 2d 1370 ( 1994); RCW 51. 32. 180( b); WAC 296- 14- 350. The " date of manifestation" is " the date


the disease required medical treatment or became totally or partially disabling, whichever occurred

first, without regard to the date of the contraction of the disease or the date of filing the claim."

WAC 296- 14- 350( 3).


          The rate of compensation for an occupational disease claim " shall be established as of the


date the disease requires medical treatment or becomes totally or partially disabling, whichever

comes first, and without regard to the date of the contraction of the disease or the date of filing the

claim."     RCW 51. 32. 180( b). "[ T] he purpose of workers' compensation benefits is to reflect future


earning capacity      rather   than   wages earned       in   past employment."           Kilpatrick, 125 Wn.2d at 230.


Thus, for an occupational disease claim, the time loss or loss of earning power compensation rate




                                                                rei
No. 45316 -9 -II



is determined by the date the disease required medical treatment or became totally or partially

disabling, whichever occurred first.

          Here, the parties' agreed that that " if the Department Order of January 19, 2007 is not a

binding   determination            as   to the time[ -]loss   rate under this claim, that then and in that instance this


matter would be remanded to the Department to use the earlier date and prior earnings to establish

the time[ -]loss    rate and onset          date."   CBR at 13. Based on the language of the parties' agreement,


determining whether the January 19, 2007 order was a binding determination as to the time -loss

rate requires two steps: First, whether the January 19, 2007 order setting the date of manifestation

was a binding determination; and second, whether the date of manifestation set the time -loss rate.

          With regard to the first inquiry, the January 19, 2007 order, setting the date of manifestation

as   April 13, 2006, is        a   final    and   binding   order.   The January 19, 2007 order explicitly informed

Woods that he had 60. days to                 challenge     the   order or   it   would   become final. ' Failure to appeal a


Department order within 60 days renders the order a final adjudication. Marley v. Dep' t ofLabor

     Indus., 125 Wn.2d 533, 538, 886 P. 2d 189 ( 1994); Cena                         v.
                                                                                          Dep' t   of Labor & Indus., 121 Wn.


App.    915, 924, 91 P. 3d 903 ( 2004),              review   denied 153 Wn.2d 1015 ( 2005); see RCW 51. 52. 060.


The record contains no evidence that Woods challenged the January 19, 2007 order within 60 days.

See CBR at 5, 29; Verbatim Report of Proceedings ( VRP) at 5. Because Woods did not appeal the


January 19, 2007 order within 60 days, the January 19, 2007 order is a final order.

          With regard to the second inquiry, the date of manifestation is not binding as to the time -

loss   rate.    Because Woods reported working intermittently at the time his occupational disease

manifested, RCW 51. 08. 178( 2) determines Woods' time -loss compensation. Although the time -


loss   rate   is based   on   the date     of manifestation, see         RCW 51. 32. 180( b); WAC 296- 14- 350; see also




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No. 45316 -9 -II



Kilpatrick, 125 Wn.2d          at   228,    under    RCW 51. 08. 178( 2), the date of manifestation does not


necessarily determine the time -loss rate.

         RCW 51. 08. 178( 2) provides:


         In cases where (a) the worker' s employment is exclusively seasonal in nature or (b)
         the worker' s current employment or his or her relation to his or her employment is
         essentially part-time or intermittent, the monthly wage shall be determined by
         dividing by twelve the total wages earned, including overtime, from all employment
         in any twelve successive calendar months preceding the injury which fairly
         represent the claimant' s employment pattern.


Therefore,      under    RCW 51.08. 178( 2), the Department has discretion to determine a 12 -month


period   that   fairly   represented       Woods'    employment pattern and not just the 12 -month period


preceding the date of manifestation. Accordingly, because of the Department' s ability to select a

12 month period preceding the date of manifestation, the date of manifestation does not uniformly

set the time -loss rate in this instance. Thus, based on the parties' stipulation, Woods' claim should


have been remanded to the Department.


         Woods also argues that the Department miscalculated his time -loss rate by basing his

wages on his date of manifestation and not on the date of exposure to the conditions that caused


his occupational disease. Woods asks us to interpret RCW 51. 08. 178( 2) as allowing a claimant to

 reach back" into any time during his or her employment history to calculate the monthly wage.

We decline to do so.


         The     relevant   focus in       an   occupational   disease   claim   for "   determining benefits is the

manifestation      of    disease,   not   the date    of exposure."      Kilpatrick, 125 Wn.2d       at   230.   RCW


51. 32. 180( b) 3 provides:



3"
     Occupational diseases— Limitation"
No. 45316 -9 -II



           T] he rate of compensation for occupational diseases shall be established as ofthe
          date the disease requires medical treatment or becomes totally or partially
          disabling, whichever occurs first, and without regard to the date of the contraction
          of the disease or the date of filing the claim.

Emphasis           added.)    Furthermore, WAC 296- 14- 3504 provides:


              2)   The compensation schedules and wage base for claims shall be based on the
          schedule in effect on the date of disease manifestation. Compensation shall be
          based on the monthly wage of the worker as follows:

              a) If the worker was employed at the time the disease required medical treatment
          or became totally or partially disabling, whichever occurred first, compensation
          shall be based on the monthly wage paid on that date regardless of whether the
          worker is employed in the industry that gave rise to the disease or in an unrelated
          industry.

 Emphasis           added.)      Because    Woods'   argument is contrary to the purpose of worker' s

compensation benefits, we decline to adopt his interpretation.


          The parties' stipulation provided that if the January 19, 2007 order was not binding as to

the time -loss rate, then Woods' claim would be remanded to determine the time -loss rate. Because


the date of manifestation does not necessarily dictate the time -loss rate under RCW 51. 08. 178( 2),

the   superior court erred         by   affirming the Board'   s   decision.   Therefore, Woods' claim must be


remanded to the Department for calculation of the time -loss rate.


C.        ATTORNEY FEES


          Woods requests attorney fees on appeal if the superior court is reversed and additional

relief   is    granted.       Although we reverse the superior court, we do not grant additional" relief.


Accordingly, we deny Woods requests for attorney fees.




4 " Claim allowance and wage determination in occupational disease cases"


                                                          9
No. 45316 -9 -II




        We reverse the superior court' s order and the Board' s order affirming the IIAJ' s order, and

remand to the Department for proceedings consistent with the parties' stipulation.


        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.




                                                                          Lee, J.
 We concur:




 Nx         0
                JIIIZIL , ')
                               Maxa, P. J.




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