                                                              ?nn, per nr:   • - • r.. r-'>




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEPARTMENT OF LABOR
AND INDUSTRIES,                                 NO. 71737-5


                    Appellant,                  DIVISION ONE


      v.

                                                PUBLISHED OPINION
BART A. ROWLEY, SR.,

                    Respondent.                 FILED: December 22, 2014


      Leach, J. — The Department of Labor and Industries (Department)

appeals a trial court decision awarding Bart A. Rowley Sr. industrial insurance

benefits and presents an issue of first impression. We must decide what burden

of proof and standard of proof apply when the Department claims the felony

payment bar of RCW 51.32.020 prevents a worker from receiving benefits for an

injury sustained in the course of employment.

      Because courts liberally construe the Industrial Insurance Act, Title 51

RCW, to provide coverage and defer to the Board of Industrial Insurance Appeals

(Board) in its area of expertise, we adopt the Board's conclusion that the

Department has the burden of proving the felony payment bar by clear, cogent,

and convincing evidence.    But because the trial court erroneously required a
NO. 71737-5-1/2




laboratory test to establish a substance as a narcotic, we remand for further

proceedings consistent with this opinion.

                                      FACTS


       Bart Rowley worked as a truck driver for 33 years and spent 6 years

working for Joseph B. Anderson.1 On August 14, 2008, Rowley signed into work

at 7:30 a.m. Later that clear, dry morning, he inexplicably drove his tractor-trailer

truck off an overpass on highway 599. The truck landed on the road below with

the trailer on top of the cab. Paramedics took Rowley to the Harborview Hospital

trauma center.


       Kent Police Officer Donevan Dexheimer went to the Harborview Medical


Center emergency room to investigate. Dexheimer, a certified drug recognition

expert, had training to perform a 12-step drug influence evaluation.              An

emergency staff member told him about a "surprise" found in Rowley's pocket: a

small plastic "baggie" with smiley faces on it.    By the time Dexheimer arrived,

hospital staff had placed Rowley's clothes in the trash. Staff also dumped the

white substance in the baggie in the sink and placed the baggie in the trash. At

Dexheimer's request, a nurse retrieved the baggie from the trash. The baggie

was "in a trash bag, a large trash bag that contained several smaller garbage


      1 The employer on Department documents is listed as Craig Mungas
Receiver for Jos (Sunset Machinery). Mungas was the court-appointed receiver
for Joseph Anderson.
                                         -2-
NO. 71737-5-1/3




bags that contained Mr. Rowley's clothing."           In the baggie, Dexheimer saw

residue of a crystalline substance that from its packaging and appearance

"looked to [him] like methamphetamine."

          Dexheimer placed the unconscious Rowley under arrest for DUI (driving

under the influence of an intoxicant). Dexheimer gave another nurse two vials to

hold blood samples, which the nurse took from Rowley in Dexheimer's presence.

Dexheimer labeled the samples and gave the vials and the baggie to Trooper

Nicholas King. King performed a field test on the substance in the baggie and

determined it was likely methamphetamine. Though the blood samples were

sent to the state toxicology lab, the baggie was not.           Subsequent toxicology

testing     of   the   blood   samples    revealed   0.88    milligrams   per   liter of

methamphetamine.2

          Rowley sustained extensive injuries, including a severed spinal cord. He

remained in an induced coma for 40 days following the accident and has no

memory of events from several days before the accident until 40 days afterward.

He remains partially paralyzed and confined to a wheelchair.

          In an October 27, 2008, order, the Department rejected Rowley's industrial

injury claim and required repayment of time-loss benefits in the amount of




          2 A state toxicologist testified at the administrative hearing that this was a
"pretty high level" that would likely cause impairment.
                                            -3-
NO. 71737-5-1/4




$3,542.88.    The order cited RCW 51.32.0203 as the basis for this rejection.

Following Rowley's protest, the Department affirmed its order on January 13,

2009. Rowley appealed to the Board.

      On July 8, 2011, an industrial appeals judge (IAJ) reversed the

Department's order, concluding that Rowley's "injury did not result from the

deliberate intention of Mr. Rowley himself while he was engaged in the attempt to

commit, or in the commission of, a felony, within the meaning of RCW

51.32.020." The Department appealed the lAJ's order. On January 30, 2012, in

a split decision, the Board likewise reversed the Department's January 13, 2009,

order, concluding that "Mr. Rowley's industrial injury did not occur while he was

engaged in the attempt to commit, or in the commission of, a felony, within the

meaning of RCW 51.32.020."

      The Department appealed to Pierce County Superior Court, which

affirmed the Board's decision on December 7, 2012. The superior court adopted

the Board's legal conclusion that "[t]he Department bore the burden of proving,

by clear, cogent and convincing evidence that Mr. Rowley's injury occurred when


      3 RCW 51.32.020 states,

      If injury or death results to a worker from the deliberate intention of
      the worker himself or herself to produce such injury or death, or
      while the worker is engaged in the attempt to commit, or the
      commission of, a felony, neither the worker nor the widow, widower,
      child, or dependent of the worker shall receive any payment under
      this title.
                                        -4-
NO. 71737-5-1/5




he was in the commission of a felony, within the meaning of RCW 51.32.020,

which burden the Department did not meet." The court also concluded, "Absent

a confirming laboratory test the Department did not prove the white substance in

the baggie, found in Mr. Rowley's clothes, was methamphetamine."                   The

Department appeals.

                             STANDARD OF REVIEW


       In workers' compensation cases, this court reviews a superior court

judgment as it does in other civil cases.4 This means that we examine the record

to see if substantial evidence supports the trial court's factual findings and then

review, de novo, whether the trial court's conclusions of law flow from those

findings.5 When the trial court has applied the wrong standard for the sufficiency

of the evidence or burden of proof, this court remands to the trial court for the trial

court to apply the correct standard.6

                                     ANALYSIS


       In this case we address three issues in the order identified:          (1) what

burden of proof and standard of proof apply when the Department claims the

felony payment bar of RCW 51.32.020, (2) can the Department prove the identity



       4 RCW 51.52.140.
       5 Rogers v. Dep't of Labor & Indus.. 151 Wn. App. 174, 180, 210 P.3d 355
(2009).
       6 Spring v. Dep't of Labor & Indus.. 96 Wn.2d 914, 920-21, 640 P.2d 1
(1982).
                                          -5-
NO. 71737-5-1/6




of an alleged controlled substance without a laboratory test, and (3) does the

felony payment bar authorize the Department to deny a claim or only payments?

       Washington's Industrial Insurance Act reflects a legislatively imposed

compromise between employers and workers.7

       In exchange for limited liability the employer would pay on some
       claims for which there had been no common law liability. The
       worker gave up common law remedies and would receive less, in
       most cases, than he would have received had he won in court in a
       civil action, and in exchange would be sure of receiving that lesser
       amount without having to fight for it.[8]

Because the Industrial Insurance Act is remedial in nature, courts liberally

construe its provisions "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."9

       A worker who applies for benefits must prove an injury in the course of

employment.10     If the Department denies the claim, the injured worker may

appeal to the Board.11 At this appeal, the worker has the burden of establishing

a right to compensation.12 If a worker's injury occurs while the worker is in the


       7 Dennis v. Dep't of Labor & Indus.. 109 Wn.2d 467, 469, 745 P.2d 1295
(1987).
       8 Dennis. 109 Wn.2d at 469.
       9 Dennis. 109 Wn.2d at 470.
       10 RCW 51.52.050(2)(a); WAC 263-12-115(2); Knight v. Dep't of Labor &
Indus.. 181 Wn. App. 788, 795-96, 321 P.3d 1275 (2014), petition for review filed.
No. 90587-8 (Wash. Aug. 5, 2014).
      11 RCW51.52.050(2)(a).
      12RCW51.52.050(2)(a).
                                           -6-
NO. 71737-5-1/7




commission of a felony, the act's felony payment bar prevents the worker from

receiving benefits.13

      The parties do not dispute that Rowley's injury occurred in the course of

his employment.     However, the Department alleged that Rowley possessed

methamphetamine when injured and ordered Rowley to repay the time-loss

compensation previously paid to him. Possession of methamphetamine is a

felony under the Uniform Controlled Substances Act, chapter 69.50 RCW.

       In Rowley's appeal, the Board concluded that once a worker has

established a prima facie case, the burden shifts to the Department "to prove by

at least clear, cogent, and convincing evidence that the worker was injured while

engaged in the attempt to commit or the commission of a felony as defined under

state or federal criminal law." The superior court affirmed this legal conclusion.

       The Department disagrees with this interpretation of RCW 51.32.020. It

contends that Rowley must make an initial prima facie showing both that he was

injured in the course of employment and that he was not engaged in the

commission of a felony when injured. It also asserts that the preponderance of

the evidence standard of proof applies rather than the clear, cogent, and

convincing standard.




       13 RCW 51.32.020.
                                         -7-
NO. 71737-5-1/8




       On cross appeal, Rowley makes three arguments. First, he contends that

a worker establishes a prima facie entitlement to benefits by showing that an

injury occurred in the course of employment.        Next, he claims that when the

Department asserts the felony payment bar, it must prove a felony conviction.

Alternatively, he claims the Department must prove beyond a reasonable doubt

that a worker's injury occurred during the commission of a felony.

       We agree with the superior court:        the Department must prove facts

establishing the felony payment bar by clear, cogent, and convincing evidence.

       We first address the burden of proof.       As noted by the Board, felony

payment bar appeals differ from ordinary industrial insurance appeals.            The

felony payment bar creates a statutory exception to the general rule that the

Industrial Insurance Act provides benefits for a covered worker suffering an

industrial injury. Courts treat a statutory exception as an affirmative defense to

be proved by the party asserting it "unless the statute reflects legislative intent to

treat proof of the absence of the exception as one of the elements of a cause of

action, or the exception operates to negate an element of the action."14

       The legislative history for the felony payment bar in chapter 51.32 RCW

provides no indication of any legislative intent to treat the absence of felonious

conduct as an element of an industrial insurance claim.      Proof that an industrial


       14 Asplundh Tree Expert Co. v. Dep't of Labor & Indus.. 145 Wn. App. 52,
61, 185 P.3d 646 (2008).
                                         -8-
NO. 71737-5-1/9




injury occurred during the commission of a felony does not negate any element

of an industrial insurance claim. Thus, we conclude that the trial court properly

treated the felony payment bar as an affirmative defense to be proved by the

Department.    We note that this allocation of the burden of proof furthers the

general policy of construing the Industrial Insurance Act liberally "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."15

       Citing Stafford v. Department, of Labor & Industries.16 the Department

asks this court to analogize the felony payment bar to the burden of a crimes

victim compensation act17 (CVCA) claimant.         Stafford does not support the

Department's position. In Stafford, the court decided that a CVCA claimant had

the burden of proving the innocence of the crime victim. We find significant the

analysis used by the court. It acknowledged the general rule that one asserting

the benefits of a general limitation of a statute has the burden of proof.18 It used

the language of the legislature's statutory statement of intent as a lens to inform

its construction of the relevant statute and concluded the legislature intended to

deviate from the general rule and place on the claimant the burden of proving the




       15 Dennis. 109 Wn.2d at 470.
       16 33 Wn. App. 231, 653 P.2d 1350 (1982).
       17 Ch. 7.68 RCW.
       18 Stafford. 33 Wn. App. at 236.
                                          -9-
NO. 71737-5-1/10




victim's innocence.19 The Department has not identified any parallel statement of

legislative intent to support its request that we also deviate from the recognized

general rule.

       We next address the standard of proof.           The preponderance of the

evidence standard of proof usually applies in industrial insurance appeals.20 No

general principle or fixed rule exists for deciding when to require more than a

preponderance of the evidence to prove something. Without any one guiding

principle or rule, Washington courts have required proof of facts by clear, cogent,

and convincing evidence in over 30 different types of cases.21 These cases

include those involving "involuntary mental illness commitment, fraud, 'some

other quasi-criminal wrongdoing by the defendant' as well as the risk of having

one's 'reputation tarnished erroneously.'"22 For the most part, when these cases

do not involve the loss of liberty or deprivation of a property interest, they reflect

a policy decision.




       19 Stafford. 33 Wn. App. at 236.
     20 Olvmpia Brewing Co. v. Dep't of Labor & Indus.. 34 Wn.2d 498, 504,
208P.2d 1181 (1949).
     21 See 5 Karl B. Tegland, Washington Practice: Evidence Law and
Practice § 301.3, at 200-06 & nn.5-41 (5th ed. 2007).
       22 Bang P. Nguyen v. Dep't of Health Med. Quality Assurance Comm'n.
144 Wn.2d 516, 524-25, 29 P.3d 689 (2001) (quoting Addington v. Texas. 441
U.S. 418, 424, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)).


                                          -10-
NO. 71737-5-1/11




      For example, in American Products Co. v. Villwock.23 the court held that

emancipation of a minor must be proved by clear, cogent, and convincing

evidence because the right and duty of a parent "to exercise parental control and

to provide parental care and support, is of such paramount importance and

necessity, and is so thoroughly recognized in law and by society in general."

      Here, the Board made a policy decision about the standard of proof based

upon the consequences of a felonious conduct finding,

      [A]n injured worker subjected to the felony provision of RCW
      51.32.020 could also be subject to significant reputation damage, a
      potential for later criminal prosecution, and (as is the case at bar)
      significant financial consequences, such as an overpayment of
      benefits received prior to a determination that the worker committed
      the felony. The felony payment bar in RCW 51.32.020 punishes
      the worker who committed or attempted to commit a felony when
       injured inasmuch as it denies the worker and his or her
      beneficiaries the right to receive payments for time-loss
      compensation, permanent partial disability, and permanent total
      disability, under an otherwise allowed claim. The consequences of
      a finding of felony commission are punitive and sufficiently
      analogous to cases of willful misrepresentation to require the
      heightened standard of proof we have long applied in cases where
      the Department or self-insured employer alleges a worker
      committed intentional misrepresentation under RCW 51.32.240.[24]
       While not controlling, the construction and application of a statute by an

administrative agency charged with its enforcement often provides a valuable aid



       23 7 Wn.2d 246, 268, 109 P.2d 570 (1941).
       24 In re Rowley. No. 09 12323, 2012 WL 1374566, at *4 (Wash. Bd. of
Indus. Ins. Appeals Jan. 30, 2012).

                                       -11-
NO. 71737-5-1/12




to the courts and should be given great weight.25 This includes consideration of

how the agency "'fill[ed] in the gaps'" to effect a general statutory scheme, so

long as the "agency does not purport to 'amend' the statute."26

       Here, the legislature has not provided any standard of proof for the felony

payment bar under RCW 51.32.020.               Consistent with the purpose of the

Industrial Insurance Act, the policy of liberal construction of the act, and other

decisions of the Board involving the standard of proof, the Board adopted a clear,

cogent, and convincing standard of proof.        It provided a sound analysis for its

decision that recognizes the significant differences and consequences between a

felony payment bar appeal and an ordinary industrial insurance appeal. The trial

court appropriately deferred to the expertise of the Board on this issue. Because

we find the Board's justification for its decision persuasive, we hold that the State

must prove the facts supporting the felony payment bar under RCW 51.32.020 by

clear, cogent, and convincing evidence to deny a worker industrial insurance

benefits the worker should otherwise receive.


       The Department contends that Mercer v. Department of Labor &

Industries27 requires a different result because it involved the same statute. In

addition to barring benefits for workers while in commission of a felony, RCW

      25 Hama Hama Co. v. Shorelines Hearings Bd.. 85 Wn.2d 441, 448, 536
P.2d 157(1975).
       26 Hama Hama Co.. 85 Wn.2d at 448.
       27 74 Wn.2d 96, 442 P.2d 1000 (1968).
                                        -12-
NO. 71737-5-1/13




52.32.020 also bars benefits for beneficiaries of workers who commit suicide.   In


Mercer, the court held the claimant had the burden of establishing by competent

medical evidence that the decedent acted under an incontrollable impulse or

while in a delirium when he committed suicide.      The Department claims that

Mercer means all claimants must affirmatively prove that the bars to

compensation in RCW 52.32.020 do not apply. However, in Mercer, the parties

did not dispute the decedent's suicide.28 Instead, the claimant asserted that an

exception to the suicide bar applied.     Consistent with our analysis, the court

allocated the burden of proof to the party claiming an exception, the claimant.29

Thus, Mercer provides no support for the Department's position.

      The Department also points to statutory exclusions in RCW 51.12.020 to

show that a claimant has the burden to establish that he or she does not fall


within these exclusions.30 However, these exclusions negate employment status



      28 Mercer. 74 Wn.2d at 101.
      29 Mercer. 74 Wn.2d at 98.
      30 Bennerstrom v. Dep't of Labor & Indus.. 120 Wn. App. 853, 871, 86
P.3d 826 (2004) (summary judgment in favor of Department of Social and Health
Services when the claimant did not consent to an employment relationship);
Hanguet v. Dep't of Labor & Indus.. 75 Wn. App. 657, 662, 879 P.2d 326 (1994)
(while the claimant had the burden of proof, he "cannot reasonably be expected
to prove the negative of every one of the nine possible exclusions"); Berry v.
Dep't of Labor & Indus.. 45 Wn. App. 883, 885, 729 P.2d 63 (1986) (trial court
upholds Department denial of claim when partner is expressly excluded from
coverage in statute); Stelter v. Dep't of Labor & Indus.. 147 Wn.2d 702, 711, 57
P.3d 248 (2002) (when claimant's employer was exempt from Industrial
Insurance Act, summary judgment was reinstated to affirm denial of claim).
                                        -13-
NO. 71737-5-1/14




or deal with an employer's exempted status under the Industrial Insurance Act,

thus undermining a necessary element of a prima facie case, covered

employment status. In contrast, the felony payment bar does not negate proofof

a worker's covered employment status.

      We next address Rowley's arguments on cross appeal about the standard

of proof. Rowley claims that the felony payment bar only applies if the

Department proves a felony conviction.          Alternatively, he contends that the

Department must prove beyond a reasonable doubt the facts supporting the

felony payment bar. We disagree with both contentions.

      Although this case involves alleged criminal conduct, it is a civil case

governed by civil law.31 Generally, Washington courts do not require proof of a

conviction to establish criminal conduct in a civil case.32 Washington's slayer

statute bars those who have willfully and unlawfully participated in killing another

person from receiving any benefit as a result.33 An action under the slayer

statute is civil, and the determination of whether a slaying was willful and

unlawful must be made in civil court independently of the result of any criminal

case.34 A party can offer a criminal conviction as evidence, but the lack of a

criminal conviction does not foreclose the possibility of one acting unlawfully and

       31 RCW 51.52.140.
       32 In re Estate of Kissinger. 166 Wn.2d 120, 122-23, 206 P.3d 665 (2009).
       33 Ch. 11.84 RCW.
       34 Kissinger. 166 Wn.2d at 132.
                                         -14-
NO. 71737-5-1/15




falling under the civil slayer statute.35 Rowley offers no persuasive reason why

the same rule should not apply here.

      Alternatively,    Rowley argues that due       process    requires that the

Department should have to prove felonious conduct beyond a reasonable doubt.

Rowley relies upon Mathews v. Eldridge36 to support this claim.           With the

elevated standard of proof applied by the Board and the trial court, an

administrative hearing, and a trial de novo in superior court, Rowley received

greater procedural protections than most civil litigants. His due process claim

borders on frivolous.


       Next, we address the Department's challenge to the superior court's

conclusion of law that "absent a confirming laboratory test the Department did not

prove the white substance in the baggie, found in Mr. Rowley's clothes, was

methamphetamine."       The Department contends that it can satisfy the clear,

cogent, and convincing standard of proof for the identity of the white substance

without a laboratory test. We agree.

       In a criminal prosecution, without a laboratory test, the State can establish

beyond a reasonable doubt the identity of a controlled substance with lay

testimony and circumstantial evidence.37 The same types of evidence can satisfy


       35 Kissinger. 166 Wn.2d at 128.
       36 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
       37State v. Hernandez. 85 Wn. App. 672, 675, 935 P.2d 623 (1997).
                                         -15-
NO. 71737-5-1/16




the lesser standard of clear, cogent, and convincing evidence. The Board and

trial court erred by requiring a laboratory test to establish the identity of the

substance allegedly possessed by Rowley.

         Finally, we address the Department's challenge to the trial court's

conclusion of law that the "Department could not reject a claim under the felony

provision of RCW 51.32.020," suggesting that the Department may only reject

payments. The Department argues that this parsing of claims versus payments

contradicts the plain meaning of the statute. Rowley responds that the trial court

did not err and that RAP 2.5(a) prevents the Department from raising this issue

for the first time on appeal.

         The Department argued to the trial court that the plain language of RCW

51.32.020 allowed the Department to properly reject Rowley's claim.                The

Department properly challenges the trial court's conclusion of law on appeal.38

         The relevant portion of the statute containing the felony payment bar

reads,

         If injury . . . results to a worker. . . while the worker is engaged in
         the attempt to commit, or the commission of, a felony, neither the
         worker nor the widow, widower, child, or dependent of the worker
         shall receive any payment under this title.[39]




         38 RAP 2.5(a).
         39 RCW 51.32.020.
                                           -16-
NO. 71737-5-1/17




         The Department must be able to reject claims when payments are

prohibited.    Under the Industrial Insurance Act, the Department has powers

expressly granted as well as implied powers.40 When the legislature charges an

agency with a specific duty but does not specify the means of accomplishing that

duty, the agency has implied authority to accomplish that duty.41 If a claimant is

found to be in the commission of a felony during an industrial injury, the claimant

may not collect "any payment under this title."42 The unambiguous language of

the statute that empowers the Department to deny all payments under Title 51

RCW implies the Department's power to deny the underlying claim should a

statutory bar to payment apply.

         The Department cites In re Mathieson.43 a 1958 Board decision, to show

that the term "payment" refers to all benefits and coverage. Mathieson held that

a widow was not entitled to any "benefits" because her husband had died while

driving under the influence of alcohol, a crime that placed him under the purview

of the statutory bar at the time.44 The Department also notes that the trial court's

interpretation would require the Department to pay for medical and vocational

       40 Tuerk v. Dep't of Licensing. 123 Wn.2d 120, 124-25, 864 P.2d 1382
(1994).
       41 Tuerk. 123 Wn.2d at 124-25; Ortblad v. State. 85 Wn.2d 109, 117, 530
P.2d 635 (1975).
         42 RCW 51.52.020.
         43 No. 7099, 1958 WL 56109 (Wash. Bd. of Indus. Ins. Appeals Jan. 28,
1958).
         44 Mathieson. 1958 WL 56109, at *7-8.
                                        -17-
NO. 71737-5-1/18




benefits since these are not direct payments to the worker. We agree with the

Department's assertion that the legislature intended the felony payment bar of

RCW 51.32.020 to exclude workers engaged in felonious conduct from any

industrial insurance "coverage."    This means the Department has the implied

authority to deny that worker's claim.

       When the Department appeals, the worker can recover attorney fees

under RCW 51.52.130(1) if the worker's "right to relief is sustained." Because we

must remand this matter to the trial court to decide if the Department presented

sufficient evidence to prove Rowley possessed methamphetamine, we deny

Rowley's fee request.

                                   CONCLUSION


       Because courts liberally construe the Industrial Insurance Act to provide

coverage, we adopt the Board's conclusion that the Department has the burden

of proving the felony payment bar of RCW 51.32.020 by clear, cogent, and

convincing evidence. Because the trial court erroneously required a laboratory

test to establish the identity of the substance allegedly possessed by Rowley, we




                                         -18-
NO. 71737-5-1/19




remand for further proceedings consistent with this opinion.




                                                  <M*L&Kr
WE CONCUR:




   \/\ pi<Q W            ^T

                                                               a




                                       •19-
