         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHARLES 0. CRESS, deceased, and          )     No. 78725-0-1
CHRISTINA ATHEY, disabled child,         )
                                         )     DIVISION ONE
                     Appellants,         )
                                         )     UNPUBLISHED OPINION
              v.                         )
                                         )
DEPARTMENT OF LABOR &                    )
INDUSTRIES OF THE STATE OF               )
WASHINGTON,                              )
                                         )
                     Respondent.         )
                                         )     FILED: December 9, 2019

         HAZELRIGG-HERNANDEZ, J.   — Christina Athey seeks reversal of a superior

court order upholding a decision of the Board of Industrial Insurance Appeals

(BHA).     The BHA determined that under RCW 51.32.050(6), Athey was a

dependent child entitled to five percent of deceased worker Charles Cress' monthly

wages after the death of his spouse. Athey contends that the statute entitles her

to 35 percent of Cress' monthly wages. Because the applicable portion of the

statute is ambiguous and ambiguities are resolved in favor of the claimant, we

reverse.


                                      FACTS

         Charles Cress sustained an industrial injury in 1981. The following year,

the Department of Labor and Industries determined that he was permanently and
No. 78725-0-1/2

totally disabled, and he began receiving pension benefits. Charles1 received these

benefits until his death in 1996, at which point his wife, Elva, applied for and was

granted survivor's benefits. Elva died in 2014. After Elva's death, Christina Athey

applied for survivor's benefits as a dependent child of the Cresses. Athey meets

the applicable statutory definition of a "child." The Department determined that

she was entitled to five percent of Charles' monthly wages under RCW

51.32.050(2) and (6).

      Athey appealed to the Board of Industrial Insurance Appeals (BHA),

claiming she was owed 35 percent of Charles' wages under the statute. The

parties stipulated to the foregoing facts, and the sole issue presented to the BHA

was:"What is the correct amount of survivor's benefits to which Christina Athey is

entitled under RCW 51.32.050?" The BHA agreed with the Department's decision

that Athey was entitled to five percent of Charles' wages under the statute.

      Athey appealed the BIIA's ruling to the superior court. The parties filed

cross-motions for summary judgment. The court granted summary judgment in

favor of the Department, finding the statute unambiguous and upholding the

Department's decision. The court explained its rationale in its oral ruling:

             "[T]he Court is bound to follow... the directive in the language
      of the statute. And I don't think the language is ambiguous. I think
      the language is clear, and there doesn't seem to be any precedence
      for the plaintiff's reading of the statute in this case.
             The language requires that when the surviving spouse of a
      deceased worker dies, then the benefits are as if the surviving
      spouse 'remarried. 'As if' is the way that I think the statute is to be
      read. And that requires a reading of 5%. It's drastic, it's hard, but it's
      what the Legislature provided in the language of the statute."



        The Cresses' first names are used for clarity. We intend no disrespect.


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No. 78725-0-1/3

Athey moved for reconsideration of the judgment, which was denied. She timely

appealed.


                                   ANALYSIS

I.    Benefits

      Athey argues that the superior court erred when it upheld the BIIA's

determination that she was entitled to only five percent of Charles' monthly wages

under RCW 51.32.050. She contends that she should receive 35 percent of

Charles' wages.

      Workers injured in the course of employment and surviving spouses or

children of workers killed in the course of employment are entitled to compensation

as set forth in the Industrial Insurance Act2 (IIA). RCW 51.32.010. The IIA "shall

be liberally construed for the purpose of reducing to a minimum the suffering and

economic loss arising from injuries and/or death occurring in the course of

employment." RCW 51.12.010. The Washington Supreme Court has construed

this directive to mean that courts should "resolve doubts as to the meaning of the

IIA in favor of the injured worker." Mclndoe v. Dep't of Labor & Indus., 144 Wn.2d

252, 257, 26 P.3d 903(2001).

      A person aggrieved by an action or decision of the Department in

administering the IIA may appeal to the BHA. RCW 51.52.050(2)(a). Decisions of

the BHA may be appealed to the superior court. RCW 51.52.110. The court

undertakes a de novo review of the record that was before the BHA. RCW

51.52.115. On appeal of the superior court's ruling, we apply the ordinary civil


      2 Chapter 51, RCW



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No. 78725-0-1/4

standard of review. RCW 51.52.140; Malang v. Dep't of Labor & Indus., 139 Wn.

App. 677, 683, 162 P.3d 450 (2007). "We may substitute our own judgment for

that of the agency regarding issues of law, but we give great weight to the agency's

interpretation of the law it administers." Bennerstrom v. Dep't of Labor & Indus.,

120 Wn. App. 853, 858, 86 P.3d 826 (2004).

       Appellate courts review summary judgment motions de novo, engaging in

the same inquiry as the trial court. Afoa v. Port of Seattle, 176 Wn.2d 460, 466,

296 P.3d 800 (2013). The trial court properly grants summary judgment when

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. CR 56(c).

       The interpretation of a statute is a question of law that we also review de

novo. Kustura v. Dep't of Labor & Indus., 169 Wn.2d 81, 87, 233 P.3d 853(2010).

When interpreting a statute, our objective is to ascertain and carry out the

legislature's intent in enacting the statute. Dep't of Ecology v. Campbell & Gwinn,

L.L.C., 146 Wn.2d 1, 9,43 P.3d 4(2002). If the meaning of the statute is "plain on

its face, then the court must give effect to that plain meaning as an expression of

legislative intent." Id. at 9-10. We are required to give effect to every word in a

statute whenever possible. Dennis v. Dep't of Labor & Indus., 109 Wn.2d 467,479,

745 P.2d 1295(1987). "No word is deemed inoperative or superfluous unless it is

the result of an obvious mistake or error." Id.

       To determine the plain meaning of a statute, we consider its text, the context

of the statute, related provisions, amendments to the provision, and the scheme

as a whole. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421,432,




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No. 78725-0-1/5

395 P.3d 1031 (2017). If the statute remains susceptible to more than one

reasonable interpretation after we complete this inquiry, it is ambiguous, and we

may turn to principles of statutory construction, legislative history, and relevant

case law to determine the legislature's intent. Cockle v. Dep't of Labor and Indus.,

142 Wn.2d 801, 808, 16 P.3d 583(2001).

       The IIA contains a specific statute detailing the method of calculating

benefits to be paid to a worker's family after their death. RCW 51.32.050. The

subsections of this statute break down the payments to apply in various factual

scenarios. Subsection (2) provides the calculations for benefits when the injured

worker dies because of the injury and leaves a surviving spouse with or without

children. RCW 51.32.050(2). Generally speaking, a surviving spouse is entitled to

receive benefits "for life or until remarriage." RCW 51.32.050(2)(a). If the surviving

spouse remarries, the benefits to the surviving spouse terminate, but a deceased

worker's surviving child begins receiving five percent of the worker's wages. RCW

51.32.050(2)(c). The IIA allows a worker's child who would otherwise have aged

out to remain qualified as a "child"for purposes of the IIA if"the child is a dependent

as a result of a physical, mental, or sensory handicap." RCW 51.08.030.

       Subsection (3) applies when the deceased worker leaves a surviving child

but no surviving spouse. RCW 51.32.050(3). In that case, the child is entitled to

receive benefits in the amount of 35 percent of the worker's wages. Id. Subsection

(4) in its entirety reads as follows: "In the event a surviving spouse receiving

monthly payments dies, the child or children of the deceased worker shall receive




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No. 78725-0-1/6

the same payment as provided in subsection (3) of this section." RCW

51.32.050(4).

      The statute also contains a specific subsection that details slightly different

death benefits for older claims:

      For claims filed prior to July 1, 1986, if the injured worker dies during
      the period of permanent total disability, whatever the cause of death,
      leaving a surviving spouse, or child, or children, the surviving spouse
      or child or children shall receive benefits as if death resulted from the
      injury as provided in subsections(2)through (4) of this section. Upon
      remarriage or death of such surviving spouse, the payments to such
      child or children shall be made as provided in subsection (2) of this
      section when the surviving spouse of a deceased worker remarries.

RCW 51.32.050(6).

      The parties present two very different interpretations of this subsection.

Athey contends that the second sentence applies only when the surviving spouse

of a deceased worker remarries and that, as the child of a surviving spouse who

never remarried, her benefits should be calculated using the first sentence of the

subsection. Under her interpretation, the "when" clause sets out a necessary

condition for the second sentence to apply. She argues that the "remarriage or

death" referenced in the second sentence concerns the death of the remarried

spouse. Athey believes this language is intended to clarify that the child of a

remarried spouse would remain entitled only to five percent of the deceased

worker's wages when the remarried spouse died, rather than an increased

payment of 35 percent.

      The Department argues that the "when" clause does not restrict the time

that the second sentence applies, but specifies which provision of subsection (2)

should be used to calculate the child's benefits when the surviving spouse



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No. 78725-0-1/7

remarries or dies. Because subsection (2)contains multiple methods of calculating

benefits covering many different factual scenarios, the directive to a specific fact

pattern under subsection (2) clarifies the appropriate provision.

       The word "when" can mean "at what time" or "in what circumstances."

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2602 (3d ed. 2002). Applying

these two different meanings to the statute yields two very different interpretations

of subsection (6), which basically mirror the two interpretations presented by the

parties. Athey contends the fact that the phrase beginning with the word "when"

is not set off by a comma indicates that it is a restrictive clause restricting the time

of the main verb,"be made." Under her interpretation, we could reword the second

sentence to read more clearly as follows: "at the time the surviving spouse of a

deceased worker remarries, upon remarriage or death of such surviving spouse,

the payments to such child or children shall be made as provided in subsection (2)

of this section."

       Although she is correct that the "when" clause is restrictive because it is

necessary to the meaning of the sentence, the word "when" could be read to

restrict the word "provided." This reading, which aligns with the Department's

interpretation of the statute, is easier to understand when we reword the provision

with active verbs: "upon remarriage or death of such surviving spouse, the

Department shall make payments to the child or children as subsection (2) of this

section provides in the circumstance that the surviving spouse of a deceased

worker remarries."




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No. 78725-0-1/8

       Reading subsection (6) as a whole under the Department's interpretation,

however, reveals a potential ambiguity. The first sentence of the subsection

provides that the surviving spouse or child or children in this situation shall receive

benefits "as provided in subsections (2) through (4)." RCW 51.32.050(6).

Subsection (2) applies when there is a surviving spouse, and subsection (3)

applies when there is a child or children but no surviving spouse. Subsection (4),

however, applies only when a surviving spouse receiving monthly benefits dies

and leaves a surviving child. Because the second sentence of subsection (6)

explicitly applies to this same scenario, the reference to subsection (4) in the first

sentence appears to be superfluous.

       Athey argues that the reference to subsection (4) demonstrates that

subsection (6) contemplates payment of 35 percent of a worker's wages to a

dependent child after a surviving spouse dies without remarrying. The Department

argues that the first sentence applies when the worker dies (as opposed to the

second sentence, which applies when the surviving spouse dies) and establishes

the benefit for the initial beneficiary. Although this is mostly accurate, it does not

explain the reference to subsection (4), which applies when the surviving spouse—

who would have been the initial beneficiary—dies.

       Neither explanation provided by the parties is without its flaws. Athey's

interpretation requires considerable rewording of the subsection, while the

Department's reading renders a portion of the provision superfluous.

       The amendment history of subsection (6) does not provide much clarity. In

the version of the statute approved in 1965, subsection (6) provided separate




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No. 78725-0-1/9

benefit schemes for the child of a deceased worker depending on whether a

surviving spouse died or remarried. Laws of 1965, Ex. Sess., ch. 122,§ 1. When

the surviving spouse remarried, the child's benefits were to "continue as before"—

meaning, continue as set out in subsection (2). Id. If, however, after the worker's

death the child "is or shall be without father or mother—that is, there was no

surviving spouse or the surviving spouse subsequently died—then the child would

receive the same benefit as under subsection (3) or (4). Id.

       In the 1971 amendment, the subsection was amended to state that the

surviving spouse would receive "benefits as if death resulted from the injury as

provided in subsections (2) through (5) of this section." Laws of 1971, 1st Ex.

Sess., ch. 289, § 7. The statute did not specifically state the benefit that a child

would receive after the death of a surviving spouse. Id. The remarriage provision

in subsection (6) was not amended, so a child of a remarried spouse would

continue to receive benefits under subsection (2). Id.

       In 1975, the legislature added the phrase "or death" to the second sentence

of subsection (6), which had previously only applied "[u]pon remarriage." Laws of

1975, 1st Ex. Sess., ch. 179, § 1. The legislature also removed the language

stating that the child's benefits were to "continue as before" and substituted the

functional equivalent of the current language that the payments "be made as

provided in subsection (2) of this section when the surviving spouse of a deceased

[worker] remarries." Id.

       Presumably, the legislature had noticed that the subsection did not specify

the benefit that a child would receive after the death of an unmarried surviving




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No. 78725-0-1/10

spouse and intended to fill that gap.        However, it is not clear from these

amendments whether the legislature intended to create one unified benefit scheme

that would apply when a surviving spouse remarried or died without remarrying or

if it intended to clarify the distinction between these two eventualities.

       Because the provision could reasonably be read two different ways and the

legislative intent is unclear, RCW 51.32.050(6) is ambiguous. The 11A and the

Washington Supreme Court direct us to construe the provision liberally in favor of

the claimant to achieve the 11A's purpose of providing compensation when workers

are injured in the course of employment. RCW 51.12.010; Murray v. Dep't of Labor

& Indus., 192 Wn.2d 488, 501,430 P.3d 645(2018). Accordingly, we construe the

statute in Athey's favor. Under her reasonable interpretation of the statute, she is

entitled to 35 percent of Charles' wages.


II.    Attorney Fees

       Athey requests that she be awarded reasonable attorney fees as authorized

by RCW 51.52.130. Under RAP 18.1(a), we may grant a party reasonable attorney

fees on appeal if the applicable law allows for such an award. The IIA provides for

an award of reasonable attorney fees to a worker or beneficiary who prevails on

appeal and obtains relief. RCW 51.52.130. Because Athey has prevailed in this

appeal, she is entitled to an award of attorney fees in an amount to be determined

by a commissioner of this court in accordance with RAP 18.1.




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No. 78725-0-1/1 1

      Reversed.




WE CONCUR:
