                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 17, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 KATHRYNE L. CONNER,                                                No. 52454-6-II

                               Appellant,
                                                               PUBLISHED OPINION
        v.

 HARRISON MEDICAL CENTER and
 DEPARTMENT OF LABOR & INDUSTRIES
 OF WASHINGTON,

                               Respondent.



       MAXA, C.J. – Kathryne Conner appeals the superior court’s denial of her motion for

attorney fees after her partially successful appeal of a Board of Industrial Insurance Appeals

(BIIA) decision relating to her March 2010 industrial injury. She relies on RCW 51.52.130(1),

which provides that the superior court shall award reasonable attorney fees to an injured worker

on appeal of a BIIA decision if the BIIA’s decision is reversed or modified and “additional relief

is granted” to the worker.

       A superior court jury verdict affirmed all of the BIIA’s findings regarding Conner’s claim

except one. Contrary to the BIIA’s finding, the jury found that Conner’s March 2010 industrial

injury caused or aggravated her lumbar degenerative disc disease. Pursuant to this verdict, the

superior court’s judgment directed the Department of Labor and Industries (DLI) to issue an
No. 52454-6-II


order allowing the lumbar degenerative disc disease under Conner’s industrial injury claim. But

the court also directed that the claim be closed without the payment of any further benefits.

       Connor argues that the superior court erred in denying her motion for attorney fees

because allowing the lumbar degenerative disc disease condition constituted “additional relief.”

However, we conclude that the superior court’s ruling was not a grant of “additional relief”

under RCW 51.52.130(1) because the court did not order DLI to pay any further benefits to

Conner and whether the court’s ruling will benefit Connor in the future is speculative.

Accordingly, we affirm the superior court’s denial of Conner’s motion for attorney fees.

                                              FACTS

       Conner worked for Harrison Medical Center (HMC) as an occupational therapist from

2006 through 2010. On March 10, 2010, she was injured in the course of her employment,

sustaining sprain injuries to her low back and left shoulder. Conner filed a claim with DLI

seeking benefits in connection with this injury.1

       Conner received treatment for her injuries, including visits to a nurse practitioner with

HMC Employee Health, follow up appointments with her primary care physician, and massage

therapy. An MRI showed advanced degenerative disc disease in her lumbar spine. DLI

apparently paid for Conner’s medical treatment. Conner also received time-loss benefits

beginning in September 2010.

       On July 18, 2012, DLI issued an order ending Conner’s time-loss benefits as paid through

June 30, 2012 and closed her claim without awarding a permanent partial disability. On October




1
 Conner filed a total of four workers’ compensation claims against HMC, all of which were the
subject of her appeal of the BIIA’s decision to the superior court. At trial, the jury’s verdict did
not disturb the BIIA’s findings regarding Conner’s other claims.


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3, 2013, DLI issued an order affirming the July 18 order. Conner appealed the DLI order to the

BIIA.

        The BIIA affirmed DLI’s order. The BIIA made the following finding of fact:

“Before March 10, 2010, Kathryne L. Conner had degenerative disc disease of the cervical,

thoracic, and lumbar spine, including at L5-S1. These conditions were not proximately caused

or aggravated by her March 10, 2010 industrial injury.” Clerk’s Papers (CP) at 20 (emphasis

added). The BIIA concluded that Conner’s thoracolumbar sprain condition arising from her

employment was fixed and stable as of September 17, 2013 and that she was not entitled to

further treatment.

        The BIIA also concluded that (1) Connor was not temporarily totally disabled from July

1, 2012 through October 3, 2013, and (2) the conditions caused or aggravated by the March 2010

industrial injury were fixed and stable as of October 3, 2013 and were not entitled to further

treatment.

        Conner appealed the BIIA’s decision to the superior court. The jury returned a verdict

finding that the BIIA’s decision was correct in all respects except for the finding that the March

2010 industrial injury did not cause or aggravate Conner’s degenerative disc disease in her

lumbar spine. Instead, the jury answered “yes” to the question of whether the March 2010

industrial injury proximately caused or aggravated Conner’s lumbar degenerative disc disease.

But the jury found that the BIIA was correct regarding the other two conclusions and was correct

in determining that Conner was not permanently and totally disabled.

        The superior court entered a judgment and order based on the jury’s verdict. The

judgment reversed the BIIA’s finding of fact that Conner’s industrial injury did not proximately

cause or aggravate her lumbar degenerative disc disease. The court also reversed the BIIA’s




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conclusion of law that the lumbar degenerative disc disease was not included in the enumeration

of conditions allowed under Conner’s claim. The court therefore reversed the BIIA’s October 3,

2013 order and directed DLI to

       issue an order allowing the condition described as degenerative disc disease of the
       lumbar spine under [Conner’s claim] effective July 18, 2012, then to issue a
       subsequent order closing this claim effective July 18, 2012 without further time loss
       compensation, award for permanent partial disability, and without award for total
       permanent disability.

CP at 244-45.

       Conner moved for an award of her attorney fees and costs under RCW 51.52.130. The

superior court denied Conner’s motion. The court found that the jury’s reversal of the BIIA’s

decision regarding lumbar degenerative disc disease did not entitle Conner to “additional relief”

because the jury did not grant additional benefits, treatment, or awards, and the only practical

effect of the decision was to reverse one element of the BIIA’s decision on a claim that remained

closed. The court also denied Conner’s motion for reconsideration.

       Conner appeals the superior court’s denial of her motion for attorney fees under RCW

51.52.130(1).

                                           ANALYSIS

A.     APPLICATION OF RCW 51.52.130(1)

       Conner argues that the superior court erred in denying her request for attorney fees

because the judgment reversing the BIIA’s finding that the March 2010 industrial injury did not

cause her lumbar degenerative disc disease constituted “additional relief” under RCW

51.52.130(1). We disagree.

       1.   Legal Principles

       RCW 51.52.130(1) provides:




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          If, on appeal to the superior or appellate court from the decision and order of the
          board, said decision and order is reversed or modified and additional relief is
          granted to a worker or beneficiary, . . . a reasonable fee for the services of the
          worker’s or beneficiary’s attorney shall be fixed by the court.

(Emphasis added.) Under this statute, an injured worker is entitled to recover the full, reasonable

amount of attorney fees incurred on appeal even though some of the claims were unsuccessful.

Brand v. Dep’t of Labor & Indus., 139 Wn.2d 659, 670-73, 989 P.2d 1111 (1999).

          Whether a party is entitled to attorney fees under RCW 51.52.130 is a question of law

that we review de novo. Sacred Heart Med. Ctr. v. Knapp, 172 Wn. App. 26, 28, 288 P.3d 675

(2012).

          2.   Meaning of “Additional Relief”

          Here, the superior court reversed the BIIA’s decision in part. Therefore, the only

question is whether the court granted Conner “additional relief.” The Industrial Insurance Act

(IIA) does not define “additional relief” for purposes of RCW 51.52.130(1). However, we

conclude that to grant “additional relief,” a reversal must include the grant of some further

benefits, treatment, or award. Under the facts of this case, a reversal of the Board’s finding did

not result in “additional relief.”

          Two cases support this conclusion. In Sacred Heart, an injured worker appealed DLI’s

determination that vocational services were not required for her to return to work. 172 Wn. App.

at 27-28. The superior court remanded the matter to DLI to consider additional information

before making any further vocational determinations. Id. at 28. But the superior court declined

to award attorney fees to the worker. Id.

          The appellate court held that the superior court’s remand to DLI for further consideration

regarding vocational services was not “additional relief” as contemplated by RCW 51.52.130(1).

Sacred Heart, 172 Wn. App. at 27. The court stated,



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No. 52454-6-II


       [T]he superior court’s holding was narrow; it required only that the department
       director review the evidence of changed circumstances and make a final
       determination on the need for vocational services. The holding recognized that the
       director had the ultimate authority to close the claim. It is for the director to resolve
       whether the claim has any remaining value.

Id. at 29. The court concluded, “Nothing here could be construed as additional relief.” Id.

       The key fact in Sacred Heart was that the court reversed DLI’s determination without

granting any vocational benefits. Instead, DLI would determine at some time in the future

whether or not the claimant was entitled to such benefits.

       In Kustura v. Department of Labor & Industries, a worker requested attorney fees under

RCW 51.52.130 based on the superior court’s correction of the BIIA’s erroneous finding that she

was single instead of married. 142 Wn. App. 655, 692-93, 175 P.3d 1117 (2008), aff’d on other

grounds, 169 Wn.2d 81, 233 P.3d 853 (2010). The worker argued that the superior court’s

correction of her marital status resulted in an increase in worker benefits because as a married

worker, she was entitled to a 65 percent benefit rate rather than a 60 percent benefit rate for

unmarried workers. Id. at 692.

       The appellate court addressed a different provision in RCW 51.52.130(1), which requires

an award of attorney fees if DLI’s “accident fund or medical aid fund is affected by the

litigation.” Id. The court noted that DLI’s order determining her wage rate and amount of

allowable benefits was final and binding and that the superior court’s order did not increase the

amount of benefits. Id. Instead, the superior court corrected her marital status but did not order

a remand or adjustment of her benefits as a result of that correction. Id. at 692-93. Therefore,

the court denied the worker’s request for attorney fees. Id. at 693.




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No. 52454-6-II


       The key fact in Kustura was that the superior court simply made a correction to the

BIIA’s finding without affirmatively granting any benefits. Instead, the rate and amount of

benefits remained unchanged.

       On the other hand, attorney fees are recoverable under RCW 51.52.130(1) when the trial

court’s reversal results in an increased payment to the claimant. In Hi-Way Fuel Co. v. Estate of

Allyn, the surviving spouse and son of a worker fatally injured in a motor vehicle accident in the

course of his employment received workers’ compensation benefits and later recovered damages

from an at fault third party. 128 Wn. App. 351, 354-55, 115 P.3d 1031 (2005). DLI determined

the amount of its partial reimbursement for benefits paid by subtracting attorney fees and

litigation expenses from the spouse’s gross recovery as required under RCW 51.24.060. Id. at

355. However, DLI deducted costs for internal copying and postage when calculating the

amount of litigation expenses, which had the effect of increasing DLI’s reimbursement. Id.

       This court reversed DLI’s ruling, holding that DLI could not deduct internal copying and

postage from litigation costs. Id. at 363. The court remanded to DLI for redistribution of the

lawsuit proceeds. Id. The court held that the spouse was entitled to attorney fees under RCW

51.52.130(1) because the appeal had resulted in “additional relief” to her. Id. at 364.

       The key fact in Hi-Way Fuel was that the superior court’s order involved a correction of

DLI’s calculation that resulted in the claimant actually receiving additional funds.

       3.   Analysis

       Here, the jury’s verdict reversed one aspect of the BIIA’s decision: that Conner’s March

2010 industrial injury had not caused or aggravated her lumbar degenerative disc disease. And

the superior court’s order stated that this condition “should have been included in the

enumeration of conditions allowed” under her claim and directed DLI to issue an order allowing




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the condition effective July 18, 2012 and closing the claim the same day. But the verdict and the

superior court’s subsequent judgment resulted in no additional benefits, treatment, or award. The

order specified that DLI should make this change “without further time loss compensation,

award for permanent partial disability, and without award for total permanent disability.” CP at

244-45.

       This case is similar to Sacred Heart. In that case, the superior court did not order DLI to

provide any vocational benefits; the court only required DLI to consider the issue. 172 Wn. App.

at 28-29. The appellate court found that this did not constitute additional relief. Id. at 29. As in

that case, the superior court here did not order DLI to pay any benefits relating to Conner’s

degenerative disc disease or even direct DLI to consider claims arising from that condition.

Instead, the court merely stated that the degenerative disc disease was an allowable condition

under the March 2010 claim.

       This case also is similar to Kustura. In that case, the superior court merely changed the

worker’s marital status without changing the terms of DLI’s order. 142 Wn. App. at 692-93. As

in that case, the superior court here merely ruled that the degenerative disc disease should be

included in the enumeration of conditions that had become fixed and stable and directed DLI to

allow the condition as of July 18, 2012 and then close the claim on the same date. The court did

not order DLI to pay any additional benefits.

       Conner’s arguments to the contrary are not persuasive. First, she contends that the jury’s

verdict awarded her “additional relief” under RCW 51.52.130 because it enabled her to now seek

reimbursement for treatment she had received for her lumbar degenerative disc disease while her

claim was pending before July 18, 2012. She points out that under WAC 296-20-125(8)(b), such




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reimbursement requests are payable if made within one year of the superior court’s reversal.

Conner also suggests that payment for treatment before July 18, 2012 is inevitable.

       However, the superior court did not order DLI to reimburse Conner for any treatment it

previously had not covered. And there is no evidence in the record that Conner received

treatment specific to lumbar degenerative disc disease while her claim was pending. The

superior court’s order only has the effect of requiring DLI to consider Conner’s reimbursement

claims if she submits them. Although Conner may submit additional medical treatment bills to

DLI for lumbar degenerative disc disease, any relief is speculative and does not flow directly

from the superior court’s order. Conner points to no authority stating that the mere potential for

reimbursement of past medical expenses qualifies as “additional relief” under RCW 51.52.130.

Sacred Heart rejected the argument that “additional relief” could be defined as the superior

court’s direction that DLI “make a final determination [regarding] . . . whether the claim has any

remaining value.” 172 Wn. App. at 29.

       Second, Conner argues that the superior court’s order granted her “additional relief” in

the form of an expanded scope for reopening her claim in the future under RCW 51.32.160. She

argues that the superior court’s addition of lumbar degenerative disc disease to the allowed

conditions under her claim provides her an additional medical condition upon which to seek to

reopen her claim in the future. However, once again whether Conner will seek a reopening in

the future and whether DLI would agree to reopen the claim is speculative.

       Third, Conner argues that the superior court’s denial of attorney fees under RCW

51.52.130(1) was contrary to the statute’s purpose of ensuring adequate legal representation to

injured workers. She points to Brand, which as stated above held that the superior court must

award the full amount of attorney fees to the worker under RCW 51.52.130 without regard to the




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worker’s degree of overall recovery. 139 Wn.2d at 670. Conner claims that the limited nature of

her success on appeal must have adversely affected the trial court’s determination of whether she

obtained additional relief.

       However, there is no indication in the record that the superior court based its denial of

attorney fees on the fact that she prevailed on only one of many issues. And the court in Sacred

Heart explained that Brand “simply refused to segregate successful claims from unsuccessful

claims and apportion fees,” but did not “require an automatic award of fees upon remand.” 172

Wn. App. at 29.

       Finally, Conner argues that the superior court narrowly construed the term “additional

relief” in contravention of the mandate in RCW 51.12.010 that the IIA be liberally construed.

But the term needs no “construction” here because it is clear that the superior court did not grant

Conner any additional relief.

       We hold that Conner was not entitled to attorney fees because the superior court’s

judgment stating that her lumbar degenerative disc disease should be allowed under her

industrial injury claim did not constitute “additional relief” under RCW 51.52.130(1).

B.     ATTORNEY FEES ON APPEAL

       Conner requests her reasonable attorney fees on appeal under RCW 51.52.130. We

decline to award attorney fees.

       RCW 51.52.130 encompasses fees in both the superior and appellate courts when both

courts review the matter. Doan v. Dep’t of Labor & Indus., 143 Wn. App. 596, 608, 178 P.3d

1074 (2008). But because we hold that Conner is not entitled to attorney fees in superior court

under RCW 51.52.130(1), she also is not entitled to attorney fees on appeal.




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                                      CONCLUSION

       We affirm the superior court’s denial of Conner’s request for attorney fees under RCW

51.52.130.



                                                 MAXA, C.J.


 We concur:



LEE, J.




SUTTON, J.




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