                                                                                           D'URTjOF ARP
                                                                                            O                r




                                                                                       2013 J
                                                                                                          9:43
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN


                                             DI VISION II                              S
                                                                                                MSH       GTM

                                                                                                DEP
LOIS J.NELSON, deceased,                                              No. 42456 8 II
                                                                                - -


                              Appellant,

       V.




WASHINGTON STATE DEPARTMENT OF                                   UNPUBLISHED OPINION
LABOR AND INDUSTRIES, .




       PENOYAR, J. — Lois     Nelson was injured on the job in 2003. Between the time of her

injury and her unrelated death in 2006, she received medical and vocational services and some
time loss benefits for
      -                  temporary      total   disability.   After she died, the Washington State

Department of Labor and Industries (Department) closed her claim in an order that categorized
her as permanently totally disabled. This prevented any award to Nelson's estate (Estate)for her
disability.

       TheEstate_
          __    argues that Nelson._
                                   should_
                                         have been categorized as permanently partially

disabled, entitling the Estate    to   an   award.   Having been unsuccessful in appeals before the

Department, the Board of Industrial Insurance Appeals (Board), the superior court,the Estate
                                                             and
now appeals to this court. The Estate argues that the superior court erred by concluding that (1)
Nelson was permanently totally disabled at the time of her death, 2)
                                                                  ( Nelson was not entitled to
any benefits for permanent partial disability, and (3)Nelson was not owed any unpaid benefits
for temporary total disability.

        The superior court's unchallenged findings support its conclusion that Nelson was

permanently totally   disabled at the time of her death.        Furthermore, Nelson cannot receive a

                                                                        of permanent total
permanent partial disability award for the 2003 injury when the finding
42456 8 II
      - -



disability   was   based in part   on   this   injury. Finally, the Estate has failed to identify which

temporary total disability benefits were unpaid and owed to Nelson. As a result,we affirm.
                                                    FACTS


         FACTUAL BACKGROUND

         On June 29, 2003, while on duty as a personal support counselor, Lois Nelson sat down

in a patio chair that then collapsed. She fell onto a cement floor,jarring her back and striking her

right ear. Her pain from the fall increased, and she took two weeks off work. When she returned
to work on July 11, her pain intensified, and so she remained off work.

         Nelson returned to work in August, but only briefly before turning to the Department for

assistance.' On August 19, Nelson filed a claim with the Department for benefits available under

the Industrial Insurance Act ( IIA). August 27, the Department allowed the claim, paying
                                   On

Nelson time loss benefits starting August 22 .4
             -



       The record does not clearly delineate Nelson's work history between her fall in 2003 and
her death in 2006. To begin with, Dr H: Richard -Johnson testified on direct examination that - - --
             -                                                          -      -
Nelson's employer disciplined her on August 10, 2003, for falling asleep on the job ( n effect of
                                                                                    a
the    Vicodin that Nelson    was   taking     at the   time). On cross -examination, however, Johnson
confirmed that Nelson had been fired for sleeping on the job. Yet Johnson also testified on direct
that Nelson returned to work on September 7,2003. Johnson does not clarify when Nelson was
fired or to which job she returned in September.
          The reasonable assumption seems to be that Nelson was unemployed for most of the
period between her fall and her death. The record shows that Nelson received time loss benefits
                                                                                   -
for large portions of that period, meaning that the Department would have considered her
temporarily totally disabled and thus incapable of any gainful, full time employment. See RCW
                                                                      -
090.
51. 2.
  3            Furthermore, scattered throughout the record are statements by both medical and
vocational professionals, and Nelson herself, regarding matters like. elson remaining off or
                                                                    N
returning to work that implied Nelson was not working.
2
     Title 51 RCW.

 3
   Time loss benefits are paid to workers who are temporarily but totally disabled because of an
         -
 industrial injury to compensate them for their lost earning power. See RCW 51. 2.
                                                                             090. 3
                                                          2
42456 8 II
      - -




        Nelson. visited Community Health Care in July and Fife MultiCare Healthworks in

August for treatment. These were the first in a long line of treatments Nelson received over the

next few years as a result of her fall from the patio chair. This fall contributed to numerous

health problems for Nelson, which compounded the effects of preexisting conditions she had.

After her fall,Nelson was diagnosed with several back problems and mental disorders, including

degenerative disc disease and depressive disorder. Her treatment for these various conditions

ranged from prescription medication like morphine and Effexor to physical therapy to placement
in an extended care facility for about a month. In addition to medical care, Nelson also received
               -

vocational services during this time, including ability to work assessments in March 2005 and
                                                         - -

July 2006.

         On August 3, 2006, only a little over a week after moving to Las Vegas to be closer to

family, Nelsonthen 57 years olddied of a drug overdose, which included morphine,
               —               —
methadone, and cocaine. At the time of her death, Nelson was still receiving time loss benefits.
                                                                                   -

After Nelson's death, the Department issued an order dated July 3, 2007, finding Nelson
permanently totally disabled as of the day she died as a result of the injuries she sustained from
her fall in 2003.    Finding 'no qualified beneficiaries under the IIA, the Department closed

Nelson's claim without making any award for her permanent total disability.




4
    This was not Nelson's first claim with the Department. On April 28, 2001, Nelson suffered
injuries to her neck, left arm, and low back when a tall man had a seizure and fell on her while
she was accompanying a client at a bank. Nelson opened a claim for 'industrial -injury benefits
with the Department, receiving medical treatment and some time loss benefits. Eventually, after
                                                                 -
an independent medical evaluation of Nelson, two doctors released her to return to work without
restriction, and the Department closed her claim in February 2002. Nelson applied to reopen this
claim in May 2004 on grounds that the condition had worsened, but the Department denied the
application.
                                                3
42456 8 II
      - -



II.      PROCEDURAL BACKGROUND


          In August 2007, the Estate requested that the Department reconsider its order finding

Nelson permanently totally disabled at the time of her death. But the Department affirmed the

order days later.

          The Estate appealed the Department's order to the Board in October 2007, claiming that

Nelson was entitled to an award for permanent partial disability for her low back and mental

health conditions. The Board granted the appeal. After a hearing, an industrial appeals judge

issued a proposed decision and order in October 2008, affirming the Department's order. The
Estate petitioned the Board for review. The Board granted the petition. The Board issued its
final decision and order in January 2009, likewise affirming the Department's order.

          The Estate appealed the Board's final order to Pierce County Superior Court in February
2009. After a bench trial, the court affirmed the Board's final order in July 2011. The Estate
timely appeals.

                                               ANALYSIS


I.        THE TRIAL COURT'S CONCLUSION THAT NELSON WAS PERMANENTLY TOTALLY
          DISABLED FLOWS FROM ITS UNCHALLENGED FINDINGS


          Normally, our review in a workers' compensation case is limited to examining the record
to see whether substantial evidence supports the findings of fact the superior court made after its

de novo review of the case, and whether the superior court's conclusions of law flow from these

findings.    Ruse   v.   Dep't of Labor & Indus.,138 Wn. d 1, 5, 977 P. d 570 (1999)quoting Young
                                                       2              2              (

v.    Dep't of Labor &     Indus.,81 Wn. App. 123, 128, 913 P. d 402 (1996)). the Estate has not
                                                             2             But

assigned any error to the trial court's findings of fact, making them verities on appeal. Stone v.
Dep't of Labor & Indus.,172                                 3       2012).Thus, our review here is
                                    Wn. App. 256, 260, 289 P. d 720 (
42456 8 II
      - -



limited to a de novo review of whether the superior court's conclusions flow from its findings.

Rogers   v.   Dep't of Labor & Indus.,
                                     151 Wn. App. 174, 180, 210 P. d 355 (2009).
                                                                 3

         The Estate and the Department dispute whether substantial evidence supports the superior

court's conclusion that Nelson was permanently totally disabled at the time of her death. We

decline the parties' invitation to reconsider the evidence because the superior court's conclusion

that Nelson was permanently totally disabled flows directly and necessarily from unchallenged

finding of fact 1. , which states that, at the time of her death, "Nelson was permanently
                 8

precluded from obtaining or performing reasonably continuous gainful employment in the

competitive labor market, as a proximate result [of]the June 29, 2003 industrial injury, when
considered in                    with her . . .    preexisting disabling   medical conditions. "   Clerk's
                  conjunction

Papers ( CP) at 131.       Therefore, we affirm the trial court's conclusion that Nelson was

permanently totally disabled.

II.      THE DEPARTMENT'S FINDING THAT NELSON WAS PERMANENTLY PARTIALLY DISABLED
         DOES NOT RESULT IN AN AWARD


         Both_    agree that the Estate
             sides_                                not directly entitled to__benefits that flow from the
                                                       _                   any

conclusion that Nelson was         permanently totally      disabled.   But the Estate argues that other

circumstances in this     case    support   an    award: ( 1)The   Department also found Nelson to be.

permanently partially disabled, ( )no double recovery would occur if the Department were to
                                2
pay the Estate for Nelson's permanent partial disability, and (3) timing of the Department's
                                                                 the

findings denied Nelsonand consequently
                      —                              her Estate —benefits,   contrary to the IIA's purpose.

Even assuming the finding of permanent partial disability applied to Nelson as a worker under

5 "`
 Permanent total disability' means loss of both legs, or arms, or one leg and one arm, total loss
of eyesight, paralysis or other condition permanently incapacitating the worker from performing
any work at any gainful occupation."RCW 51. 8.emphasis added).
                                              160 (
                                                 0
                                                        5
42456 8 II
      - -



the IIA, the Estate's claims fail because a worker who is permanently totally disabled has no

right to receive a permanent partial disability award for an injury factored into the finding of that

worker's permanent total disability. See Stone, 172 Wn. App. at 258. Furthermore, the timing of

the Department's decisions here did not affect Nelson's or the Estate's eligibility for benefits.
         A.      A Finding of Permanent Total Disability Based in Part on a Particular Injury
                 Precludes an Award for a Permanent Partial Disability Based on That Same Injury

         The superior court adopted as its own the Board's finding of fact 1,which acknowledged

that after Nelson's death the Department also found Nelson permanently partially disabled as a

result of her 2003 industrial injury. The Department, however, emphasizes that it issued this

finding only for calculating Nelson's employer's insurance costs. The Department did not send
the order detailing this finding to Nelson or her Estate; thus, the finding was not final with




6 "`Permanent partial disability' means the loss of either one foot, one leg, one hand, one arm,
one eye, one or more fingers, one or more toes, any dislocation where ligaments were severed
where repair is riot complete -or any other injury - known in surgery - be permanent -partial - -- - --
                                                             - -        to --
disability."RCW 51. 8.
                150.
                  0
7
    The relevant part of the Board's finding of fact 1 read:

          On July 5, 2007, the Department determined that the worker had been placed on a
          pension; permanent and total disability resulted because the injury or disease was
          superimposed on prior disabling conditions; the permanent partial disability
          resulting from this injury was a Category 2 lumbosacral impairment, 7455.
                                                                                  81;
                                                                                   $ ,
          the employer's cost experience would be charged with that sum; and the balance
          of the pension reserve would be charged against the Second Injury Fund.
CP at 3


8 The Department explains that it issued this order as a technicality because it was required under
RCW 51. 6.to follow the second -injury fund statute and calculate her level of pre-
      120 "
          1                                                                                 existing
disability for the sole purpose of addressing the employer's experience rating" for purposes of
determining the employer's industrial insurance premiums. Br. of Resp't at 37.
                                                    6
42456 8 II
      - -




respect to Nelson or her Estate. Even assuming, however, that this finding of permanent partial
disability applied to Nelson under the IIA for purposes of compensation, the finding that Nelson

was permanently totally disabled as a result of her 2003 industrial injury forecloses any award

for the permanent partial disability.

       Division One recently considered whether a worker may receive an award for a

permanent partial disability where the injury giving rise to such a disability is factored into the

finding that the worker is permanently totally disabled. In Stone v. Department of Labor and

Industries, the Department found the worker permanently totally disabled because of the

combined effects of a knee injury, a separate back injury, and mental health conditions. 172 Wn.

App. at 259.    The worker argued that he should have received a permanent partial disability

award for the knee injury despite this injury being a contributor to the permanent total disability

finding. Stone, 172 Wn. App. at 259 60. The court disagreed, holding that the worker could not
                                    -

receive the permanent partial disability award when his permanent total disability was based in

part on that knee injury. Stone, 172 Wn. App. at 271.

        The   same   situation exists here.          The Department found Nelson permanently totally

disabled "as a proximate result of the June 29, 2003 industrial injury, when considered in

conjunction   with her ...     preexisting disabling medical conditions." CP at 131. Nonetheless,

Nelson's Estate argues that it should receive an award for the permanent partial disability that

was predicated on this same 2003 injury. But, given Stone's.
                                                           holding,the Estate cannot receive


9 The order notes that it was mailed only to Nelson's employer, not to Nelson or her Estate.
Therefore, the order could have been final only with respect to the employerthe order states
that "[ his order becomes final 60 days from the date it is communicated to you [Nelson's
      t]
employer only] 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."
Administrative Record Ex. 2.
                                                         7
  42456 8 II
        - -




  this award because the injury on which it would be based also forms part of the basis for the

  finding   that Nelson    was   permanently totally, disabled. Because no award for the permanent

  partial disability is even available here, we do not need to address the issue of double recovery.

            B.     The Timing of the Department's Findings Did Not Deny Nelson or Her Estate
                   Benefits to Which They Are Entitled Under the IIA

            The Estate insists that, contrary to the IIA's purpose of benefitting injured workers, the
  timing of the Department's orders finding Nelson permanently disabled disadvantaged Nelson,

  and thus her Estate. But beyond allusions to the IIA's broad purposes, the Estate makes no legal

  argument why the Department could not posthumously make these findings; the Estate fails to

  specify any improper delay except to say that there is "no explanation" of the Department's
  failure to determine Nelson's type of permanent disability between June 2005 and August 2006.

  Br. of Appellant at 17. Moreover, nothing in the timing of the Department's actions appears
  untoward.


            First, Nelson's receipt of time loss benefits for her temporary total disability right up to
                                             -

her-eath precluded-an earlier finding of_ disability. See Franks v. Dep't ofLabor &
   d                                  _ permanent
  Indus.,35 Wn. d 763, 767, 215 P. d 416 (1950) ( "[ claimant cannot at one and the same time
              2                  2              A]

  be classified   as   temporarily totally disabled   and   permanently partially   disabled. "). Second, had


  Nelson wanted the Department to determine during this period whether she was permanently

  disabled, she could have made that request            at any time.     See RCW       51. 2. Third,
                                                                                       055(
                                                                                          2
                                                                                          3 ).

  vocational counselor Amanda Boley was making her final assessment for the Department that

  Nelson was permanently totally disabled during the same month Nelson died, but Boley did not
  learn of Nelson's death until nearly two years later, only days before she testified in this case.


  See       RCW 51. 2.
                010.
                  1
42456 8 II
      - -




         We see nothing suspicious in the timing of the Department's actions. And we are not

persuaded by the "what if' scenarios the Estate advances where we are told that Nelson or the

Estate would have received benefits if the timing of events had differed. In actuality, consistent

with the IIA's purpose of benefitting injured workers, the Department provided Nelson with
medical and time loss benefits
                  -                  after her   injury   in 2003.   Furthermore, had Nelson had

beneficiaries as defined under the IIA,the Department's permanent total disability finding here

would have resulted in compensation, and these arguments would vanish. But we cannot conjure

up beneficiaries or change the events of the past so that, under the law, additional compensation

appears.     We can only determine whether the Department acted properly in the actual

circumstances, and we conclude that it did.

III.     THE ESTATE DID NOT ADDRESS UNPAID TEMPORARY TOTAL DISABILITY BENEFITS

         The Estate also assigns error to the trial court's conclusion that, in addition to there being

no unpaid permanent partial disability benefits owed to Nelson, there were no unpaid temporary
total   disability   benefits owed either.   But in its briefing, the Estate does not identify the

temporary total disability benefits that remain to be paid, much less argue why they should be

paid. "We do not consider assignments of error unsupported by argument or authority."Angelo
v. Angelo, 142 Wn. App. 622, 628 n. , 175 P. d 1096 ( 2008) ( iting RAP 10. (
                                  3        3                c           a)(
                                                                          6)).
                                                                          3
Therefore, we do not consider this issue.

IV.       ATTORNEY FEES


          Finally, the Estate assigns error to the trial court's award of $ 00 in attorney fees to the
                                                                          2

Department. But the Estate does not advance any argument why this was error, and so we do not
consider it. RAP 10. ( Estate also requests attorney fees under RCW 51. 2.in the
                 a)( The
                   6).
                   3                                                130
                                                                      5


                                                    6
42456 8 II
      - -



event we reverse or modify the superior court's order, or grant additional relief. Because we

have not done so, we do not award the Estate those fees.

       Affirmed.


       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

040,
2:6.it is so ordered.
 0




We concur:




       Van   Deren, J. .
                    TP




                                               10
