                                                                                                  FILED
                                                                                          COURT OF APPEALS
                                                                                               olvislom II

                                                                                         2015 APR - 7      AM 9: 20

                                                                                          STATE OF WASHINGTON

                                                                                          BY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

PATRICK J. BIRGEN,                                                                   No. 45692 -3 - I1


                                          Appellant,


         v.

                                                                               PUBLISHED OPINION
DEPARTMENT OF LABOR AND
 INDUSTRIES OF THE STATE
 OF WASHINGTON,


                                          Respondent.




         MAxA, P. J. —          Patrick Birgen appeals the superior court' s order affirming a Board of

Industrial Insurance Appeals ( Board) decision that the Department of Labor and Industries ( DLI)

properly calculated the amount by which his workers' compensation disability benefits must be

offset by his federal social security benefits. Under RCW 51. 32.220, a claimant' s workers'

compensation disability benefits must be reduced by the amount that person receives in social

security benefits     or   by   an amount calculated under        42 U. S. C. § 424a( a), whichever is less. The


amount of     the   offset under    42 U. S. C. §    424a(a) generally is the amount by which a claimant' s

combined monthly disability and social security benefits exceed 80 percent of the claimant' s

 average current earnings,"          which usually is one -twelfth of the claimant' s highest annual

earnings during the year of disability or the preceding five years.

         DLI   calculated       Birgen'   s offset under   42 U. S. C. § 424a( a) based on his 1983 earnings.


Birgen   argues     that DLI     was required   to   adjust   his 1983   earnings   to   present value –   i. e., 2012
45692 -3 -I1



dollars —when       calculating his offset. He claims that this present value adjustment would have

lowered the amount of the offset. Both the Board and the superior court rejected this argument.

We agree with the Board and the superior court, and hold that RCW 51. 32. 220 and 42 U. S. C. §

424a(a)( 8) unambiguously require that the offset for social security benefits be calculated using

Birgen' s unadjusted 1983 income. Accordingly, we affirm the Board and the superior court.

                                                    FACTS


          Birgen sustained an industrial injury in 1984 and filed a workers' compensation claim.

DLI allowed his claim, and ultimately determined that he was permanently and totally disabled

as of   July   1991.   As a result, Birgen was entitled to receive monthly workers' compensation

benefits for the remainder of his life. By 2012, those disability payments were $2, 911. 42 per

month.




          In 2012, DLI learned Birgen also was receiving social security benefits of $830 per

month. It issued an order offsetting Birgen' s workers' compensation benefits by that amount,

resulting in a new monthly disability payment of $2, 081. 42. The order states that the offset was

based on Birgen' s social security payments of $830 and his highest year earnings of $30,965 for

1983. 1 Birgen requested that DLI reconsider its order. After reconsidering the order, DLI

determined it was correct and affirmed the order.


          Birgen filed an appeal with the Board and the case was assigned to an industrial appeals

judge ( IAJ).      Birgen did not dispute on appeal that his social security offset should be based on



 1
     Presumably, DLI followed RCW 51. 32.220 and calculated the amount of the offset under 42
U. S. C. §     424a( a) based on the $ 30, 965 earnings and compared that to Birgen' s social security
payments of $830. DLI apparently found that Birgen' s monthly social security benefit was the
lesser   number, and reduced      Birgen'   s workers'   compensation   benefits   by $ 830.
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45692 -3 -II



his 1983 earnings. Instead, he argued that DLI should have adjusted the amount of his 1983

earnings to their present value in calculating the offset. Birgen filed a motion for summary

judgment on this issue. The IAJ ruled that DLI was not required to adjust Birgen' s 1983


earnings to present value, and that DLI was entitled to summary judgment even though it did not

file a cross motion.


        Birgen appealed to the Board. The Board affirmed DLI' s order, ruling that DLI correctly

calculated Birgen' s social security offset. Birgen appealed to the superior court, which affirmed

the Board' s order and decision.


         Birgen appeals.


                                                 ANALYSIS


A.        STANDARD OF REVIEW


         The Administrative Procedure Act (APA), chapter 34. 05 RCW, governs judicial review


of the Board' s decision in a workers' compensation case. RCW 51. 52. 140; see Eastwood v.


Dep 't of Labor   & Indus., 152 Wn.      App. 652, 657,     219 P. 3d 711 ( 2009).     We review the agency

record rather than the trial court record. Eastwood, 152 Wn.2d at 657. We review the Board' s

findings of fact for substantial evidence, which is evidence sufficient to persuade a fair -minded

person of the declared premise. Id. We review the Board' s legal conclusions de novo, but we


give " substantial weight to the agency' s interpretation when the subject area falls within the

agency'   s area of expertise."     Dep' t of Labor & Indus. v. Mitchell Bros. Truck Line, 113 Wn.

App.   700, 704, 54 P. 3d 711 ( 2002). On      appeal, "[   t] he burden of proving that the agency action

was   invalid ... lies   with   the party challenging the   action."   Mader   v.   Health Care Muth., 109 Wn.


App.   904, 911, 37 P. 3d 1244 ( 2002), reversed in part on other grounds, 149 Wn.2d 458 ( 2003).



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B.       CALCULATING THE SOCIAL SECURITY OFFSET


         Birgen challenges DLI' s calculation of his social security offset. He argues that under 42

U. S. C. § 424a( a) the term " average current earnings" is ambiguous because the term fails to state


whether   the   DLI     must adjust a claimant' s wages                  for inflation. We hold that 42 U. S. C. § 424a( a)


is not ambiguous and affirm the Board and the superior court.2

         1.     Legal Principles


         Under RCW 51. 32. 220, a claimant' s workers' compensation disability benefits must be

reduced by the amount that person receives in social security benefits or by an amount calculated
                                                               3
under   42 U. S. C. § 424a( a),        whichever    is less.        42 U. S. C. § 424a( a)( 2) -( 6) provides that the


amount of the offset is the amount by which a person' s combined monthly disability and social




2 Birgen assigns error to the Board' s determination that DLI was entitled to summary judgment
even though it had not filed a cross motion for summary judgment. Birgen fails to support this
assignment of error with argument as required by RAP 10. 3( a)( 6). Skagit County Pub. Hosp.
Dist. No. 1     v.
                     Dep' t   of Revenue, 158 Wn.       App.         426, 440, 242 P. 3d 909 ( 2010).      Accordingly, we
decline to consider this argument further.


3 The record is unclear on whether Birgen received social security disability or social security
retirement     benefits       under   42 U. S. C. § 424( a)(       a).       Because he received a type of social security
benefit, DLI is authorized by either RCW 51. 32. 220 ( social security disability benefits) or RCW
51. 32. 225 ( social security retirement benefits) to offset Birgen' s workers' compensation benefits.
The parties recognized that our analysis would not differ under either statute. For clarity, we
refer only to RCW 51. 32.220 but recognize that our analysis would be the same under RCW
51. 32. 225.



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45692 -3 -II




security benefits     exceed    80   percent of    that   person' s " average current earnings ". ` 4 42 U.S. C. §

424a(a)( 8) defines " average current earnings" as the largest of three different amounts, which in

most situations is one -twelfth of the person' s highest annual earnings in the year of disability or

in the preceding five years.

          Using Birgen' s 1983 earnings without adjustment for present value results in an amount

calculated under      42 U. S. C. § 424a( a) that is       greater   than the $ 830   he received in social security

benefits. Birgen claims that if his 1983 earnings were increased to present value, the amount of


the   offset under    42 U. S. C. § 424a( a) would be lower than $830.


         2.    Adjustment of Average Current Earnings to Present Value


         Birgen      argues   that 42 U. S. C. §   424a( a)( 8)' s definition of "average current earnings" is


ambiguous with respect to whether a claimant' s highest annual earnings should be adjusted to

present value. We disagree.


               a.      Statutory Interpretation

          Statutory interpretation is a question of law that we review de novo. Jarnetsky v. Olsen,

179 Wn.2d 756, 761, 317 P. 3d 1003 ( 2014).                  The goal of statutory interpretation is to determine

and give effect to the legislature' s intent. Id. at 762. To determine legislative intent, we first

look to the plain language of the statute. Id. We consider the meaning of the provision in



4Fecleral law allows the federal government to reduce the amount of social security benefits it
pays to a worker under the age of 65 who also receives state disability benefits. 42 U. S. C. §
424a. This process eradicates the potential problem of a worker being financially better off
disabled than if he      or she returned     to   work.     42 U. S. C. § 424a( d) contains an exception to the
general offset rule; it allows for a " reverse offset" if a state passes enabling state legislation.
Frazier v. Dep' t of Labor & Indus., 101 Wn. App. 411, 416, 3 P. 3d 221 ( 2000). RCW 51. 32. 220


and .225 were passed by the Washington legislature to take advantage of this reverse offset
provision.     Id.
45692 -3 -II



question, the context of the statute in which the provision is found, and related statutes. Lowy v.

PeaceHealth, 174 Wn.2d 769, 779, 280 P. 3d 1078 ( 2012). If a statute is unambiguous, we must


apply the statute' s plain meaning as an expression of legislative intent without considering other

sources of such intent. Jametsky, 179 Wn.2d at 762.

         If the plain language of the statute is susceptible to more than one reasonable

interpretation, the statute is ambiguous. Id. But a statute is not ambiguous merely because

different interpretations are conceivable. Agrilink Foods, Inc. v. Dep' t ofRevenue, 153 Wn.2d

392, 396, 103 P. 3d 1226 ( 2005).          We resolve ambiguity by considering other indications of

legislative intent, including principles of statutory construction, legislative history, and relevant

case law. Jametsky, 179 Wn.2d at 762.

         We do not rewrite unambiguous statutory language under the guise of interpretation.

Cerrillo   v.   Esparza, 158 Wn.2d 194, 201, 142 P. 3d 155 ( 2006).           Similarly, we " must not add

words where       the legislature   has   chosen not   to   include them." Rest. Dev., Inc. v. Cananwill, Inc.,


150 Wn.2d 674, 682, 80 P. 3d 589 ( 2003).              Instead, we construe statutes assuming that the


legislature meant exactly what it said. In re Marriage ofHerridge, 169 Wn. App. 290, 297, 279

P. 3d 956 ( 2012).


                 b.   Plain Language of Statutes


         Our analysis must start with the plain language of the relevant statute. Jametsky, 179

Wn.2d at 762. The relevant statute here is RCW 51. 32.220, which allows DLI to take an offset if

the claimant is receiving social security benefits. However, RCW 51. 32. 220 provides that the

offset   may depend     on a calculation     based   on   42 U. S. C. § 424a( a). Therefore, we must analyze


the language of both statutes.


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45692 -3 -I1



            The question here is whether a claimant' s highest annual earnings in the year of disability

or   in the five preceding     years, which         is   used   to   calculate   the   offset under   42 U.S. C. § 424a( a),


must be adjusted to present value before performing the offset calculation. The parties agree that

neither     RCW 51. 32.220      nor   42 U.S. C. §        424a( a) expressly provides that a claimant' s highest

annual earnings must be adjusted to present value before performing the offset calculation. On

the other hand, neither statute expressly precludes such an adjustment. The statutes are silent on

this issue.


            We hold that the plain language of the statutes provides that a claimant' s highest annual

earnings should not be adjusted to present value before making the offset calculation. The

statutes    do   not provide   for   such an adjustment.              Further, 42 U.S. C. §    424a( a)( 8) clearly looks to

the claimant' s earnings in a particular year in the past, without in any way suggesting that those

historical wages be adjusted in any manner. Only by adding language to the statute could we

allow the adjustment to present value. And if a statute is silent on an issue, we generally decline

to   read   into the   statute what   is   not   there. See, e. g., Spokane Research &                Def.Fund v. City of

Spokane, 155 Wn.2d 89, 103, 117 P. 3d 1117 ( 2005).


            Birgen     argues without analysis           that 42     U. S. C. § 424a( a)( 8) is ambiguous because it is


silent on whether a claimant' s highest annual earnings must be adjusted to their present value.

He apparently        claims   that 42 U. S.      C. §    424a(a)( 8) reasonably can be interpreted as requiring a

present value adjustment or not requiring an adjustment, which creates an ambiguity. However,

Birgen does not explain how we can adopt this interpretation without adding language to the

statute. Further, he does not explain how a statue that does not provide for a present value

adjustment can be interpreted as requiring such an adjustment.


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45692 -341




         The     plain   language   of   42 U. S. C. § 424a( a)( 8) provides no support for Birgen' s argument


that the statute requires DLI to adjust a claimant' s past earnings to present value when


calculating the offset for social security benefits. Neither does RCW 51. 32.220. Arguably, if

either the Washington legislature or Congress had intended such an adjustment, they would have

provided appropriate language in the statutory provisions.

                 c.      Related Statutes


           While our analysis must first and foremost focus on performing a plain language analysis,

we may consult the context of the statute in which the provision is found as well as related

                       determine the                        of the statute.    Henne         City   of Yakima,     Wn.2d
statutes   to   help                     plain   meaning                                v.




       341 P. 3d 284, 288 ( 2015).         Both parties rely on the fact that other statutes in the Industrial

Insurance Act ( IIA),       chapter   51 RCW,       provide   for   cost of   living   increases. However, the


existence of these statutes supports DLI' s interpretation and does not support Birgen' s

interpretation.


           The parties are correct that the IIA includes provisions providing for cost of living

adjustments and present wage calculations. RCW 51. 32. 075 addresses updating a claimant' s

permanent total disability benefits to account for cost of living changes. This statute is the

legislature' s attempt to deal with the problem of inflation in the context of workers'


compensation          benefits. Crabb     v.   Dep' t   of Labor & Indus.,      181 Wn. App. 648, 656, 326 P. 3d

815,   review    denied, 181 Wn.2d 1012 ( 2014). Another IIA provision, RCW 51. 32. 090( 3)( a)( ii),


addresses calculating a claimant' s loss of earning power benefits and specifically refers to

calculating a claimant' s benefits using " eighty percent of the actual difference between the

worker' s present wages and           earning     power at   the time of      injury." (   Emphasis    added.)   Similarly,


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45692 -3 - II




42 U.S. C. § 424a( f) requires a triennial redetermination of the amount of a worker' s benefits


subject to an offset.


         Birgen argues that these provisions provide support for his interpretation of RCW

51. 32. 220     and   42 U. S. C. §   424a(a)( 8) because they show that the Washington legislature and

Congress intended to provide benefits that reflect present value. However, these statutes actually

support DLI' s interpretation. They show that the Washington legislature and Congress knew

how to update a claimant' s benefits to account for inflation and knew how to use a claimant' s


present wages in calculating his or her benefits, but specifically chose not to do so in the context

of   adopting 42 U. S. C. §      424a(a)( 8)' s offset formula.5 Here, we presume that the legislature was

deliberate when it did not provide a directive that a claimant' s offset be calculated using his

wages at their present day value. See State v. Kelley, 168 Wn.2d 72, 83, 226 P. 3d 773 ( 2010)

    Expression of one thing in a statute implies exclusion of others, and this exclusion is presumed

to be deliberate. ").


                 d.      Liberal Construction /Policy Considerations

          RCW 51. 12. 010 provides that the IIA "shall be liberally construed for the purpose of

reducing to      a minimum      the    suffering   and economic         loss arising from injuries .. ,   occurring in the

course of employment."            See   also   Harry   v.   Buse Timber & Sales, Inc., 166 Wn.2d 1, 8, 201 P. 3d


1011 ( 2009).         Birgen argues that this statement of intent must be considered in determining the



5
    Birgen   also argues     that 42   U. S. C. § 424a( a)( 8), which states that " an individual' s average
current earnings means          the largest     of [the three options]," supports the inference that the

legislature intended for        a worker' s wages         to be   adjusted. (    Emphasis   added.)   This argument is
unpersuasive      because it ignores the         remainder of         42 U. S. C. § 424a( a)( 8), which as discussed
above, requires        the DLI to     use   the largest   number of      three   set options —not   the largest possible
number imaginable.

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45692 -3 - II



plain   meaning    of   RCW 51. 32. 220     and   42 U. S. C. §   424a(a)( 8) and mandates that we liberally

construe   42 U. S. C. § 424a( a)( 8) to hold that DLI must adjust Birgen' s 1983 earnings to their


present value.




         Similarly, Birgen argues that our interpretation of RCW 51. 32.220 and 42 U.S. C. §

424a(a)( 8) must be guided by policy considerations. He argues that the policy of the IIA is to

provide full compensation to injured workers, and that not requiring a claimant' s highest annual

earnings to be adjusted to present value would undermine this policy. Birgen correctly points out

that he may be worse off if his highest annual earnings are not adjusted to present value before

calculating his    offset under     42 U. S. C. § 424a( a)( 8).    He argues that this result is inconsistent with


the policy of the IIA.

         In general, where the statute at issue or a related statute includes an applicable statement

of purpose, the statute must be read in a manner consistent with that stated purpose. See

Nationscapital     Mortg. Corp.      v.   Dep' t of Fin. Inst., 133 Wn. App. 723, 736 -37, 137 P. 3d 78

 2006). However, the liberal construction requirement also must be applied in conjunction with


our ultimate goal of carrying out legislative intent by giving effect to the legislature' s statutory

language.       Doty   v.   Town of South Prairie, 155 Wn.2d 527, 533, 120 P. 3d 941 ( 2005). We


cannot use the liberal construction requirement to support a " strained or unrealistic


interpretation" of statutory language. Senate Republican Campaign Comm. v. Pub. Disclosure

Comm 'n, 133 Wn.2d 229, 243, 943 P. 2d 1358 ( 1997).


          In addition, Birgen' s policy arguments are inconsistent with the plain statutory language.

We " resist the temptation to rewrite an unambiguous statute to suit our notions of what is good


public policy, recognizing the principle that the drafting of a statute is a legislative, not a

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45692 -3 - II




judicial, function.' "      Sedlacek   v.   Hillis, 145 Wn.2d 379, 390, 36 P. 3d 1014 ( 2001) (        quoting State

v. Jackson, 137 Wn.2d 712, 725, 976 P. 2d 1229 ( 1999)).

         Here, the      plain   language    of   RCW 51. 32. 220   and   42 U.S. C. § 424a( a)( 8), as well as the


IIA' s related statutes, suggests that the' legislature intended to calculate a claimant' s offset using

the claimant' s actually earned wages. We refrain from giving a liberal construction to the statute

that would be contrary to the plain language of the statute. See Doty, 155 Wn.2d at 533.

         4.      Conclusion


         42 U.S. C. § 424a( a)( 8) bases its offset calculation on the claimant' s highest annual


earnings during the year of disability or in the preceding five years. This statute generally refers

to a claimant' s highest annual wages earned during some past year. Nevertheless, neither RCW

51. 32. 220     nor   42 U.S. C. § 424a(a)( 8) provides that the highest annual earnings be adjusted to


present value, even though other Washington and federal statutes do provide for a cost of living

adjustment. Accordingly, we hold that the plain language of RCW 51. 32. 220 and 42 U.S. C. §

424a( a)( 8) does not require that a claimant' s highest annual earnings be adjusted to present value

before DLI       conducts   the   offset calculation under    42 U. S. C. §   424a(a). 6




6 Birgen requests reasonable attorney fees pursuant to RCW 51. 52. 130. A party may be awarded
attorney fees when a claimant' s appeal results in a reversal or modification of a Board decision.
Chunyk & Conley /Quad -C v. Bray, 156 Wn. App. 246, 256, 232 P. 3d 564 ( 2010). Here because
we affirm the superior court and the Board, we deny Birgen' s request for attorney fees. Id.
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45692 -3 -II




        We affirm.the Board and the superior court.




We concur:




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