          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHRISTOPHER CARRILLO,                    )       No. 78376-9-1
                                         )
                    Appellant,           )
                                         )       DIVISION ONE
                    v.                   )
                                         )       UNPUBLISHED OPINION
STATE OF WASHINGTON,                     )
DEPARTMENT OF EMPLOYMENT                 )
SECURITY,                                )
                                         )
                     Respondent.         )       FILED: July 29, 2019



       MANN, A.C.J. — Christopher Carrillo asked the Department of Employment

Security to backdate his unemployment benefits to the date that he was terminated from

his position as a permanent employee and rehired as a temporary worker. Finding that

Carrillo's lack of knowledge as to his eligibility did not constitute good cause to backdate

his benefits, the Department denied Carrillo's request. Carrillo appealed the

Department's denial to the Department's Administrative Law Judge (AU), then to the

Department commissioner, and the superior court, all of whom affirmed the Department.

We also affirm.
No. 78376-9-1/2

                                             1.

       Prior to March 25, 2016, Carrillo worked as a permanent staff accounting

representative for Account Temps. During this time, Carrillo worked on various projects

on an assignment by assignment basis. When unassigned, Account Temps would still

pay Carrillo a salary.

       Sometime before March 25, 2016, Account Temps informed Carrillo that he was

terminated, but asked if he would be willing to transition to a role as a temporary

contractor. Carrillo agreed, and on March 28, 2016, Account Temps sent him a letter

that noted his termination date as March 25, 2016. In his new role, Carrillo still worked

on an assignment by assignment basis, but was not paid in between assignments.

       From March to August of 2016, Carrillo worked the majority of the time. Then for

the four-week period leading up to September 17, 2016, Account Temps did not assign

Carrillo to any projects. Carrillo filed for unemployment benefits on September 17,

2016. On March 12, 2017, Carrillo asked the Department to backdate his

unemployment benefits from September 2016 to March 2016. Carrillo explained that he

could have applied for unemployment benefits beginning in March 2016 but did not, and

he wanted his unemployment benefits to begin the same date as his termination from

his permanent position with Account Temps.

       On April 22, 2017, the Department denied Carrillo's request to backdate his

unemployment benefits upon finding that he did not have good cause to do so. Carrillo

appealed this decision to the Department's AU, who held a hearing on July 7, 2017.

The ALJ issued findings of fact, conclusions of law, and an order on July 10, 2017

denying Carrillo's appeal. Carrillo appealed the AL's decision to the Department


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No. 78376-9-1/3

commissioner, who also denied Carrillo's appeal. Carrillo appealed the commissioner's

decision to the King County Superior Court, which affirmed. Carrillo appeals.



        This dispute is governed by the Washington Administrative Procedure Act

(WAPA), ch. 34.05 RCW. "Judicial review of a decision of the [Department]

commissioner involving the review of an appeals tribunal decision may be had only in

accordance with the procedural requirements of RCW 34.05.570." RCW 50.32.120.1

The WAPA provides, as relevant to this appeal, that this "court shall grant relief from an

agency order. .. only if it determines that"

       (d) The agency had erroneously interpreted or applied the law; [or]
       (e)The order is not supported by evidence that is substantial when viewed
       in light of the whole record before the court.

RCW 34.05.570(3). "The burden of demonstrating the invalidity of agency action is on

the party asserting invalidity." RCW 34.05.570(1)(a). "In reviewing administrating

action, this court sits in the same position as the superior court, applying the standards

of the WAPA directly to the record before the agency." Tapper v. Wash. Emp't Sec.

Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).

       "We review the Commissioner's legal determinations using the error of law

standard . . . which allows us to substitute our view of the law for that of the

commissioner." Verizon Northwest, Inc. v. Wash. Emp't Sec. Dep't, 164 Wn.2d 909,

915, 194 P.3d 255 (2008)(citing Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 728,

818 P.2d 1062 (1991)). "However, under this standard, we accord substantial weight to



       I See also RCW 34.05.510 ("This chapter establishes the exclusive means of judicial review of
agency action . ."); RCW 34.05.010(3)(-Agency action' means. . . the granting or withholding of
benefits.").

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No. 78376-9-1/4

an agency's interpretation of a statute within its expertise. . . and to an agency's

interpretation of rules that the agency promulgated." Verizon Northwest, 164 Wn.2d at

915 (citing Macey v. Wash. Emp't Sec. Dep't, 110 Wn.2d 308, 313, 752 P.2d 372

(1988); Wash. St. Liquor Control Bd. v. Wash. St. Pers. Bd., 88 Wn.2d 368, 379, 561

P.2d 195 (1977)).

       We will affirm "an agency's factual findings unless they are not supported by

substantial evidence." King County Pub. Hosp. Dist. No. 2 v. Wash. St. Dep't of Health,

178 Wn.2d 363, 372, 309 P.3d 416 (2013)(citing RCW 34.05.570(3)(e); Tapper, 122

Wn.2d at 402). "Substantial evidence is evidence in sufficient quantum to persuade a

fair-minded person of the truth of the declared premise." William Dickson Co. v. Puget

Sound Air Pollution Control Agency, 81 Wn. App. 403, 411, 914 P.2d 750 (1996). We

give deference to the agency's factual determinations and view "the evidence and the

reasonable inferences therefrom in the light most favorable to the party who prevailed in

the highest forum that exercised fact-finding authority." William Dickson Co., 81 Wn.

App. at 411 (quoting State ex. rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65

Wn. App. 614, 618, 829 P.2d 217 (1992)).



       Under RCW 50.20.010, an unemployed individual is eligible to receive

unemployment benefits from the State, if the individual is "able to work, and is available

for work." The statute defines available for work as "ready, able, and willing,

immediately to accept any suitable work which may be offered to him or her and must

be actively seeking work." RCW 50.20.010(1)(c)(ii). Once the Department approves an

individual's request for unemployment benefits, the individual may also request that the



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No. 78376-9-1/5

Department backdate his or her application. The Department may do so, "either for the

convenience of the [D]epartment . . . or for any other reason deemed by the

commissioner to be good cause." RCW 50.04.030.

        The Department defines good cause for the purposes of backdating employment

benefit applications as "factors that would prevent a reasonably prudent person in

similar circumstances from filing an application for benefits. These include, but are not

limited to, incapacity due to illness or injury, or other serious factors." WAC 192-110-

095(2)(a).

        Carrillo argues that the Department's denial of his request to backdate his

benefits was not supported by substantial evidence and was an erroneous interpretation

or application of the law. Carrillo asserts that his employer listed the wrong termination

date on his termination letter and because of this error he did not know when his actual

termination date was. Carrillo argues that the Department should have granted his

request to backdate his unemployment benefits to the date of his actual termination,

and that the Department erred by refusing to acknowledge that the termination date

listed on his termination letter was wrong.

        Even if we assume that Carrillo's version of the facts are true,2 Carrillo still has

not met his burden to show that the Department's decision was not supported by

substantial evidence or was an erroneous interpretation or application of the law

because the record establishes that Carrillo does not have good cause to backdate his

benefits. Carrillo admitted numerous times that he "never knew.. . that a temporary



       2 Which we do not have to do since we view reasonable inferences from the record in the light most
favorable to the Department, "the party that prevailed in the highest forum that exercised fact-finding
authority." William Dickson Co., 81 Wn. App. at 411.

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No. 78376-9-1/6

worker can still file [for unemployment benefits]." All Fager asked Carrillo if the reason

he wanted to backdate his benefits was because he did not know that he was able to

file for unemployment as a temporary worker, to which Carrillo responded,"Yes. In

error, I was "not aware that I could file as a temporary worker."3

        Even if it is true that Account Temps actually terminated Carrillo prior to March

25, 2016, and thus the AL's finding that Carrillo was terminated on that date was

erroneous, Carrillo admitted that he did not know until September 2016 that he was

eligible to file for unemployment benefits as a temporary worker. But a lack of

knowledge as to eligibility is not good cause under the statute. See Leschner v. Dep't of

Labor and Indus., 27 Wn.2d 911, 926, 185 P.2d 113(1947)(there is a "universal maxim

that ignorance of the law excuses no one.").

        Carrillo's situation is similar to that in In re McCallum, No. A-28412, 1955 WL

47723(Wash. Emp't Sec. Dep't Comm'r Dec. No. 247, Oct. 4, 1955).4 There, the

petitioner became eligible for benefits on March 31, but did not apply until July 6

because he was under the mistaken belief that "he would be entitled to a maximum of

26 weeks of benefits payments, regardless of when applied for." McCallum, 1955 WL

47723 at 247. The Commissioner affirmed the Department's denial of the petitioner's

benefits and reasoned that

        Although the petitioner governed his actions in accordance with his
        general understanding of the law, the fact remains that at all times herein
        he could have obtained correct and exact information with respect to his
        rights and obligations under the Act. His failure to do so has resulted in a


      3 See also Carrillo's request to backdate: "I could have applied for unemployment in March 2016
soon after I was terminated from the [permanent] position. Recently, I made this discovery. In error, I did
not apply because I continued as a temporary worker."
      4 See RCW 50.32.095 ("The commissioner may designate certain commissioner's decisions as
precedents."). The Department posts precedential decisions of the Commissioner at the website
https://govt.westlaw.com/wapcd/Index.

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No. 78376-9-1/7

        substantial loss of benefits for which the Act provides no remedy. Harsh
        as it may be, the axiom of 'ignorance of the law is no excuse' is most
        appropriate to the factual situation presented.
McCallum, 1955 WL 47723 at 247.5

        Although not binding on this court, the commissioner's precedential decisions are

persuasive authority showing that the Department regularly refuses to interpret good

cause as including a lack of knowledge on the applicant's part. See Martini v. Wash.

Emp't Sec. Depl, 98 Wn. App. 791, 795, 990 P.2d 981 (2000)(the commissioner's

precedential decisions "are persuasive authority in this court"). As we accord

substantial weight to an agency's interpretation of rules it promulgated, Verizon

Northwest, 164 Wn.2d at 915, we agree with the Department that Carrillo's lack of

knowledge as to his eligibility for benefits as a temporary worker was not good cause to

backdate his benefits under RCW 50.04.030.

        Therefore, even if the Department's findings as to Carrillo's termination date was

erroneous, the record still supports the Department's determination that Carrillo did not

have good cause to backdate his benefits.

        We affirm.



                                                                     tlef,n4, Areq:
WE CONCUR:




      5 See also, In re E ps. of Crowley Maritime Petitioners, No. 7-06062, 1987 WL 995736(Wash.
Emp't Sec. Dep't Comm'r Dec. No. 796, 2d Series, Oct. 30, 1987)(good cause was not present when
claimants relied on a third party's statement that they probably would not qualify for benefits because
"[e]ach individual had the obligation to report to a Job Service Center in order to safeguard his right to
receive benefits").

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