                                                                        FILED
                                                                     MARCH 17, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

 CHARLES K. ANDERSON,                         )
                                              )         No. 36297-3-III
                        Appellant,            )
                                              )
        v.                                    )
                                              )
 DEPARTMENT OF LABOR and                      )         UNPUBLISHED OPINION
 INDUSTRIES,                                  )
                                              )
                        Respondent.           )

      SIDDOWAY, J. — Charles Anderson appeals a superior court decision affirming the

Department of Labor and Industries’ (Department) calculation of the wage he was

receiving at the time he suffered an occupational injury. He contends that the value of a

truck and truck-related expenses that his employer provided for his business and personal

use should have been counted in arriving at his wages. Applying the Washington

Supreme Court’s controlling construction of the definition of wages, we reject his

challenge and affirm.

                    FACTS AND PROCEDURAL BACKGROUND

      In August 2015, the Department issued an order affirming its calculation that at

the time he suffered an occupational injury, Charles Anderson was receiving gross

monthly “wages,” as that term is defined by RCW 51.08.178(1), of $6,618.68. The
No. 36297-3-III
Anderson v. Dep’t of Labor and Indus.


$6,618.68 in wages consisted of his $5,582.94 monthly salary, health care benefits in the

amount of $785.74, and a bonus of $250.00 per month. Mr. Anderson, then a 29-year

employee and transfer station manager for Columbia Basin, LLC (Columbia), appealed

the order, contending that the value of an employer-provided vehicle, insurance,

maintenance and fuel that Columbia had provided him for almost 20 years should be

included in the wage calculation.

       At the hearing of Mr. Anderson’s appeal, he presented evidence that around 1997,

Columbia provided him with a 1997 Ford F-250 diesel pickup for his business and

personal use. This was a second car for the Anderson household; Mr. Anderson testified

that he owned a personal vehicle but after Columbia provided him with a truck, the use of

the Andersons’ vehicle was limited to rare occasions (once every couple of years) when

the company-provided truck was being repaired. Mr. Anderson fueled his employer-

provided truck at fueling stations located at his job site. Maintenance was provided at the

employer’s shop and was billed internally. Insurance coverage was paid by Columbia.

The only restriction on use of the truck imposed by Columbia was that Mr. Anderson not

have anyone in the truck with him except his wife. Mr. Anderson did not keep records of

his mileage, but he estimated he traveled 600 miles a month commuting to work and on

other work-related trips, and typically traveled 400 miles a month on personal trips. In

2010, Columbia replaced Mr. Anderson’s Ford pickup with a 2010 Chevrolet Duramax

diesel pickup.

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       Eugene Hill, Columbia’s chief financial officer, was called as a witness by the

Department, evidently for the purpose of establishing that Columbia had not provided

Mr. Anderson with cash with which to cover truck expenses; expenses were paid directly

by the company. Mr. Hill affirmed that as Mr. Anderson advanced in the company, his

compensation package came to include Columbia’s provision to him of a fully expensed

vehicle that was available for his personal as well as business use.

       The Department’s position was and remains that gas reimbursement and valuation

for an employer-provided vehicle are not included in “wages” as defined by RCW

51.08.178(1). On that basis, it moved to dismiss Mr. Anderson’s appeal. After the

receipt of posthearing briefing by the parties, the industrial appeals judge (IAJ) entered a

proposed decision and order granting the Department’s motion to dismiss for failure to

present a prima facie case.

       Mr. Anderson petitioned the Board of Industrial Insurance Appeals (Board) for

review. The Board denied review and the IAJ’s proposed decision and order became the

decision and order of the Board.

       Mr. Anderson appealed to the Benton County Superior Court. At the conclusion

of a hearing on the appeal, the trial court expressed reservations about the construction of

RCW 51.08.178(1) by this court and the Washington Supreme Court. Noting that it was

bound by those decisions, however, it affirmed the Board. Mr. Anderson appeals.



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                                        ANALYSIS

                                   Standard of Review

       In industrial insurance cases, the superior court conducts a de novo review of the

Board’s decision, relying exclusively on the Board record. RCW 51.52.115; Gallo v.

Dep’t of Labor & Indus., 119 Wn. App. 49, 53, 81 P.3d 869 (2003), aff’d, 155 Wn.2d

470, 120 P.3d 564 (2005). The Board’s findings and decision are prima facie correct and

the party challenging the Board’s decision has the burden of proof. Id. at 53-54. On

appeal to this court, we review the superior court’s decision under the ordinary standard

of review for civil cases, determining whether substantial evidence supports the trial

court’s factual findings and then, de novo, whether the trial court’s conclusions of law

flow from the findings. RCW 51.52.140; Ruse v. Dep’t of Labor & Indus., 138 Wn.2d 1,

5, 977 P.2d 570 (1999). Here, the only issue presented is one of statutory construction,

which we review de novo. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82

(2005).

               “Board, housing, fuel, or other consideration of like nature”

       At issue is abstruse language in RCW 51.08.178(1) and the construction of that

language by our Supreme Court in Cockle v. Department of Labor & Industries, 142

Wn.2d 801, 16 P.3d 583 (2001). RCW 51.08.178 governs the Department’s calculation

of a worker’s compensation payment. RCW 51.08.178(1) provides that generally, the

monthly wages a worker was receiving from all employment at the time of an

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Anderson v. Dep’t of Labor and Indus.


occupational injury shall be the basis upon which worker’s compensation is computed.

Relevant to the issue on appeal, the statute states:

       The term “wages” shall include the reasonable value of board, housing,
       fuel, or other consideration of like nature received from the employer as
       part of the contract of hire, but shall not include overtime except in cases
       under subsection (2) of this section.

RCW 51.08.178(1) (emphasis added).

       In Cockle, a worker challenged the Department’s refusal to include her employer-

provided medical and dental insurance in computing her monthly wages for time-loss

compensation purposes. The term “wages” was added to Title 51 RCW’s definitional

section in 1971, when compensation in many cases was changed from fixed rates to an

amount proportionate to a worker’s actual wages at the time of injury. Cockle, 142

Wn.2d at 810; LAWS OF 1971, 1st Ex. Sess., ch. 289, § 14. By 2001, when the Supreme

Court decided Cockle, the Department had long excluded health care coverage from its

computation of “wages,” and it stressed the fact that the legislature had not responded by

altering the statutory definition. But the Supreme Court declined to defer to the

Department’s construction, which it characterized as “giv[ing] little, if any, meaning to

the statutory requirement that the ‘reasonable value’ of all ‘other consideration of like

nature’ be included in the calculation of an injured worker’s ‘wages.’” 142 Wn.2d at

812. It also viewed the Department’s construction as irreconcilable with the legislature’s

statutory mandate that Title 51 RCW provisions be liberally construed for the purpose of



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Anderson v. Dep’t of Labor and Indus.


reducing to a minimum the suffering and economic loss arising from injuries or death

occurring in the course of employment. Id. (citing RCW 51.12.010).

       Noting that Ms. Cockle and the Department had proposed “several reasonable

interpretations of the phrase ‘other consideration of like nature,’” the Supreme Court

found the phrase ambiguous and resorted to principles of statutory construction. Id. at

808. Because the legislature had limited the in-kind component of earnings that would be

counted as “wages” to the three examples and “other consideration of like nature,” the

Court found that a limited, ejusdem generis, construction was intended. Id. at 810.

       In a lengthy analysis, the Court considered other provisions of Title 51 RCW,

workers’ compensation decisions from other jurisdictions, and the Department’s and

dissenting justices’ arguments against construing health care coverage as “consideration

of like nature.” It observed that in this court’s decision in Ms. Cockle’s case, it held that

“board”—meaning food, “housing”—meaning shelter, and “fuel”—meaning heat or

warmth, are each necessities of life, without which an injured worker cannot survive a

period of even temporary disability. 142 Wn.2d at 821 (citing Cockle v. Dep’t of Labor

& Indus., 96 Wn. App. 69, 74, 977 P.2d 668 (1999)). “Modify[ing] that analysis only

slightly,” the Supreme Court described the attribute shared by “board,” “housing,” and

“fuel” that determined the boundaries of the larger category of “other consideration of

like nature” as follows:



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Anderson v. Dep’t of Labor and Indus.


       We therefore construe the statutory phrase “board, housing, fuel, or other
       consideration of like nature” in RCW 51.08.178(1) to mean readily
       identifiable and reasonably calculable in-kind components of a worker’s
       lost earning capacity at the time of injury that are critical to protecting
       workers’ basic health and survival. Core, nonfringe benefits such as food,
       shelter, fuel, and health care all share that “like nature.” By contrast, we
       do not believe injury-caused deprivation of the reasonable value of fringe
       benefits that are not critical to protecting workers’ basic health and survival
       qualifies as the kind of “suffering” that Title 51 RCW was legislatively
       designed to remedy.

Id. at 822-23 (emphasis added and omitted) (footnote omitted).

       In a footnote to this holding that responded to dissenting Justice Talmadge’s

argument that different benefits would be “core” to differently-situated workers, the

Court said, “This is not a subjective determination.” Id. n.13. Justice Talmadge had said:

       How can this court, divorced from the reality of modern workplace
       compensation and the give and take of labor-management negotiations,
       determine what would be “core” to the well-being of a particular injured
       worker? Certainly, for an older injured worker approaching retirement age,
       deferred compensation plans and pension benefits might well constitute a
       “core benefit.” For a younger employee, vacation benefits, as Ms. Cockle
       originally argued, or tuition assistance programs for children in higher
       education, might equally be a core benefit.

Id. at 831 (Talmadge, J., dissenting). The Court answered that “Health care coverage is

‘of like nature’ to ‘board, housing [and] fuel’ because, like those employment benefits, it

is objectively critical to protecting the basic health and survival of virtually all workers.”

Id. at 822-23 n.13 (emphasis added) (alteration in original). In the context of the

majority’s disagreement with Justice Talmadge, this subjective/objective distinction ruled

out not only a worker’s individual belief about his or her needs as a basis for deciding


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Anderson v. Dep’t of Labor and Indus.


what is “core,” but also ruled out a worker’s individual circumstances as creating a

“core” benefit. On a related note, the Court stated elsewhere that the “proper application”

of its ejusdem generis construction would substantially address the Department’s warning

of a “potential ‘flood of litigation’ over which modern work benefits should and should

not be included in ‘wages’ in RCW 51.08.178.” Id. at 821.

       In 2007, the legislature codified the inclusion of health care benefits in the

definition of “wages” in RCW 51.08.178, without otherwise modifying the limitation of

in-kind components of earnings to “the reasonable value of board, housing, fuel, or other

consideration of like nature.”1

       Also in 2007, the Board—relying on the Supreme Court’s decision in Cockle—

interpreted RCW 51.08.178’s reference to “fuel” to refer to home utility expenses, not

transportation costs. In re Brammer, No. 06 10641, 2007 WL 1413101 at *4 (Wash. Bd.

of Indus. Ins. Appeals Feb. 7, 2007). In In re Yuchasz, No. 12 10803, 2013 WL 2476945

at *1 (Wash. Bd. of Indus. Ins. Appeals Feb. 28, 2013), it reaffirmed that interpretation,




       1
           Language added to the provision states:
       As consideration of like nature to board, housing, and fuel, wages shall also
       include the employer’s payment or contributions, or appropriate portions
       thereof, for health care benefits unless the employer continues ongoing and
       current payment or contributions for these benefits at the same level as
       provided at the time of injury.

LAWS OF 2007, ch. 297, § 1.

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Anderson v. Dep’t of Labor and Indus.


holding that the reasonable value of transportation fuel provided by an employer for

business use could not be included in wages under RCW 51.08.178(1).

       The Board’s decision in Yuchasz was appealed to superior court and then to this

court. See Yuchasz v. Dep’t of Labor & Indus., 183 Wn. App. 879, 335 P.3d 998 (2014).

This court agreed with the Board that in Cockle, the Supreme Court held that “fuel”

means heating fuel because heat is critical to protecting a worker’s basic health and

survival. Id. at 890. This court also recognized the “‘fundamental rule of statutory

construction that once a statute has been construed by the highest court of the state, that

construction operates as if it were originally written into it.’” Id. at 888 (quoting Hale v.

Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 506, 198 P.3d 1021 (2009).

       Mr. Anderson argues that because our Supreme Court has consistently held that

the purpose of time-loss compensation is to properly reflect a worker’s actual lost earning

capacity, RCW 51.08.178(1) must be interpreted in a way that reflects his real lost

earning capacity. Br. of Appellant at 3. But in Gallo, the Supreme Court—holding that

employer contributions to various trust funds benefitting employees would not count

toward “wages”—reaffirmed that while an injured worker should be compensated based

on actual lost earning capacity, that does not mean that all forms of consideration are to

be included in calculating “wages.” 155 Wn.2d at 488. It reiterated that “a benefit is

‘other consideration’ if a worker cannot survive without it, even during a period of

temporary disability.” Id. at 491.

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Anderson v. Dep’t of Labor and Indus.


       Mr. Anderson also argues that in his case, the employer-provided truck expense

was necessary to survival because Columbia provided a truck for his personal as well as

business use, and “it is a fact of life in modern times that a reliable vehicle in good

working order has absolutely become a basic health and survival necessity for working

families residing and/or working in rural areas.” Br. of Appellant at 12. Because he

claims to reside in an area with inadequate mass transportation, Mr. Anderson argues that

“[u]nder the very specific facts of [his] case,” the trial court failed to recognize that he

presented substantial evidence of the core nature of the benefit. Id. Of course, under the

very specific facts of Mr. Anderson’s case, his employer-provided truck was a second

family car, not the only family car.

       Even if the truck provided by Columbia were the only family car, Mr. Anderson

demonstrates only that his employer-provided truck was a means for securing necessities

such as food and medical care, not that the truck itself was critical to his health and

survival. And where Mr. Anderson recognizes that having a vehicle is not a core benefit

for a worker who lives in an area with adequate mass transportation, his argument asks us

to find a health and survival need based on the individual circumstances of persons living

in areas like Benton County—a subjective need analysis that the Court rejected in Cockle.

Under Cockle’s controlling construction, Mr. Anderson’s employer-provided truck was

not consideration “of like nature” to board, housing, or heating fuel.



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Anderson v. Dep 't of Labor and Indus.


       Affirmed. 2

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




I CONCUR:




      2
          The Department suggests we can affirm the superior court on the alternative
ground that Mr. Anderson failed to present evidence of a monetary value of the truck and
its costs in proceedings before the IAJ. When the Department moved to dismiss Mr.
Anderson's appeal, it did so solely on the basis of Yuchasz and the fact that an employer-
provided vehicle is not critical to a worker's basic health and survival. See Clerk's
Papers at 73-74. We will not consider an argument that was not raised and addressed in
proceedings before the IAJ and the Board. See RAP 2.5(a).

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No. 36297-3-III
Anderson v. Dep’t of Labor and Indus. (Dissent)



                                     No. 36297-3-III

      FEARING, J. (dissenting) — This appeal poses the question of whether an injured

person’s worker compensation benefit rates should reflect the personal transportation

costs reimbursed by his employer as part of his remuneration. I would rule in favor of the

worker. I thus dissent from this court’s majority and also disagree with Division One’s

opinion in Yuchasz v. Department of Labor & Industries, 183 Wn. App. 879, 335 P.3d

998 (2014).

      Worker compensation is remedial in nature and its calculation should reflect a

worker’s actual lost earning capacity. Cockle v. Department of Labor & Industries, 142

Wn.2d 801, 822, 16 P.3d 583 (2001). The worker compensation system determines an

injured worker’s time-loss and loss of earning power compensation rates by reference to

a worker’s “wages,” as that term is defined in RCW 51.08.178, at the time of the injury.

Cockle v. Department of Labor & Industries, 142 Wn.2d at 806.

      The relevant portion of RCW 51.08.178 reads:

              (1) For the purposes of this title, the monthly wages the worker was
      receiving from all employment at the time of injury shall be the basis upon
      which compensation is computed unless otherwise provided specifically in
      the statute concerned. . . .
              ....
              The term “wages” shall include the reasonable value of board,
      housing, fuel, or other consideration of like nature received from the
      employer as part of the contract of hire, but shall not include overtime pay
      except in cases under subsection (2) of this section. As consideration of
      like nature to board, housing, and fuel, wages shall also include the

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Anderson v. Dep’t of Labor and Indus. (Dissent)


       employer’s payment or contributions, or appropriate portions thereof, for
       health care benefits unless the employer continues ongoing and current
       payment or contributions for these benefits at the same level as provided at
       the time of injury.

(Emphasis added.)

       Note that RCW 51.08.178 allows recovery of worker compensation benefits not

solely on the basis of wage payments but also on some of the benefits afforded an

employee by the employer. RCW 51.08.178(1) expressly expands that definition of

“wages” to include the “reasonable value” of in-kind work benefits such as “board,

housing [and] fuel” and “‘consideration of like nature.’” Cockle v. Department of Labor

& Industries, 142 Wn.2d 801, 808, (2001) (alteration in original).

       If not for a Washington Supreme Court decision to the contrary, I would conclude

that the word “fuel” in RCW 51.08.178 includes at a minimum gasoline provided by an

employer for transportation to and from work and gasoline provided for pleasure travel.

In an age before the extensive use of motor vehicles, the word might be limited to heating

fuel or other methods of warming an abode, but the legislature inserted the word “fuel” in

the statute in 1971. LAWS OF 1971, 1st Ex. Sess., ch. 289, § 14. The first definition of

“fuel” in the Merriam Webster Online Dictionary is “a material used to produce heat or

power by burning.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-

webster.com/dictionary/fuel (last visited Mar. 5, 2020). Thus the primary definition

extends to fuel that powers motor vehicles.


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Anderson v. Dep’t of Labor and Indus. (Dissent)


       In Cockle v. Department of Labor & Industries, 142 Wn.2d 801 (2001), the

Washington Supreme Court limited the term “fuel” to heating fuel for a residence. The

court noted that the Washington Legislature borrowed the phrase “board, housing, [and]

fuel” from boilerplate language inserted in worker compensation acts adopted in the early

1900s. Cockle v. Department of Labor & Industries, 142 Wn.2d at 809 n.3. Apparently,

we do not always discern the meaning of statutory terms based on the meaning of the

terms at the time of their adoption. One might deem the high court’s construction of the

word “fuel” in Cockle as dicta since the court only answered the question of whether

health care benefits should be considered wages for purposes of RCW 51.08.178.

Nevertheless, I abide by the Supreme Court’s comment that the word “fuel” in the statute

only references heating fuel.

       Limiting the word “fuel” to heating fuel does not end the analysis for this appeal.

The definition of “wages” for purposes of RCW 51.08.178 also extends to “other

consideration of like nature received from the employer as part of the contract of hire.”

RCW 51.08.178(1)(g).

       The Supreme Court, in Cockle v. Department of Labor & Industries, rejected the

argument that, by not including health insurance benefits in its definition of wages in the

1971 version of RCW 51.08.178, the legislature intentionally excluded such benefits.

Accordingly, by not including transportation benefits in RCW 51.08.178, the legislature



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Anderson v. Dep’t of Labor and Indus. (Dissent)


did not necessarily mean to exclude such costs in the worker compensation definition of

wages.

         When determining whether RCW 51.08.178 covered health care benefits, the

Washington Supreme Court, in Cockle v. Department of Labor & Industries, employed

the statutory principle of construction known as ejusdem generis. In turn, the Court

wrote:

                 We therefore construe the statutory phrase “board, housing, fuel, or
         other consideration of like nature” in RCW 51.08.178(1) to mean readily
         identifiable and reasonably calculable in-kind components of a worker’s
         lost earning capacity at the time of injury that are critical to protecting
         workers’ basic health and survival. Core, nonfringe benefits such as food,
         shelter, fuel, and health care all share that “like nature.” By contrast, we do
         not believe injury-caused deprivation of the reasonable value of fringe
         benefits that are not critical to protecting workers’ basic health and survival
         qualifies as the kind of “suffering” that Title 51 RCW was legislatively
         designed to remedy.

Cockle v. Department of Labor & Industries, 142 Wn.2d at 822-23 (footnote omitted).

The legislature has since amended the statute to expressly include health care benefits as

wages. In Gallo v. Department of Labor & Industries, 155 Wn.2d 470, 488-89, 120 P.3d

564 (2005), the Supreme Court reiterated that, in order to qualify as an employee benefit

considered in determining worker compensation benefits, the benefit must be critical to

the basic health and survival of the injured worker at the time of injury and necessary to

maintain the worker’s health or ensure his survival during even temporary periods of

disability.


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Anderson v. Dep’t of Labor and Indus. (Dissent)


       Based on the Cockle test, a court must assess whether a benefit is critical to basic

health and survival. RCW 51.08.178 assumes that food, housing, and heat are critical to

basic health and survival. Nevertheless, I note that one might survive without housing

and heat since I often see Spokane citizens camped and sleeping under bridges in the

midst of winter. In the course of history, billions have lived without board and fuel.

Food and water may be the only materials essential for survival. But in our civilized

society, we prefer that all receive shelter and warmth. The example of the homeless

should compel this court to adjudge generously those benefits critical for survival and to

include those benefits considered preferable or customary for survival in our era of

history and in Washington civilized society.

       I worry that, by announcing transportation to be a preferred, customary, and

desired element of survival in today’s world, I become overly simplistic. But then

simplicity sometimes holds value and leads to the truth. In today’s society, transportation

looms critical. Survival and the payment of housing, heat, and food demands a job. A

worker needs transportation to the job site such that transportation looms essential to

maintaining a job and thereby garnering food, shelter, and warmth. The overwhelming

majority of Washingtonians cannot hold a job without transportation to and from work, a

benefit afforded Charles Anderson by his employer. In a larger city, the employer might

pay for the employee’s bus pass. Anderson needed a vehicle to attend work outside the

city of Pasco.

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Anderson v. Dep’t of Labor and Indus. (Dissent)


       The Cockle test also asks whether the subject employee benefit aids survival

during even temporary periods of disability. The disabled worker may no longer need

transportation to and from work, but the worker still demands transportation for survival.

Presumably the worker needs to travel for medical treatment. The worker needs to travel

for the purpose of gaining food and other necessities.

       The Supreme Court, in Cockle v. Department of Labor & Industries, mentioned

the need to construe RCW 51.08.178 broadly. The court noted RCW 51.12.010, which

declares:

              This title 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.

The failure to recognize the essential need for transportation in modern society conflicts

with this principle of liberal interpretation.

       I dissent.



                                                  Fearing, J.




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