                                                                                                 1LED
                                                                                       COURT 0   APPEALS
                                                                                            G1V181m 11
                                                                                      2013 APR -9 AN 9: 03

                                                                                      ST
       IN THE COURT OF APPEALS OF THE STATE OF WASHI
                                                                                     NC
                                           DIVISION II

BRODERICK HAGSETH,                                                  No. 42680 3 II
                                                                              - -


                                Appellant,

         V.



STATE OF WASHINGTON, DEPARTMENT
OF LABOR AND INDUSTRIES,                                      UNPUBLISHED OPINION




         WORSWICK, C. . —
                    J    Broderick        Hagseth appeals the superior court's judgment as a matter

of law holding him liable for a $ 3, 48. overpayment in industrial insurance benefits. He
                                81
                                1 2

argues that he presented evidence that he was not a part-ime or intermittent employee of Express
                                                        t

Personnel Services, making judgment as a matter of law inappropriate. We reverse and remand.

                                                FACTS


          Hagseth worked for Express Personnel Services, Inc., temporary staffing service. In
                                                             a
late   January 2005, Hagseth   was   working for Express on assignment to Adams Lumber when he

injured his shoulder. In 2005, L I issued an interlocutory order awarding Hagseth time loss
                                 &

compensation based on wages of 1, per month. Hagseth received compensation under this
                               $ 496

interlocutory order until 2007, when L I issued a wage order affirming $ , per month as the
                                       &                               1496

correct wage rate. L I determined this rate using the statutory calculation method for
                     &

employees who are normally employed five days per week and are not seasonal, part-ime or
                                                                                 t
intermittent. RCW     e),
                      178( 2).
                      51. 8.
                         1)(
                         0                                       (
No. 42680 3 II
          - -



       Express protested the wage order. L I reconsidered the order and issued a new,
                                           &

superseding order in 2008. The 2008 order adjusted Hagseth's monthly wage calculation to

239. 8 per month based on his average pay during the twelve month period before his injury.
   0

L I determined this rate using the statutory calculation for employees who are "exclusively
  &

seasonal," " ssentially part-ime or intermittent."RCW 51. 8.Based on this adjusted
         or e               t                         178(
                                                         2
                                                         0 ).

rate, L I determined that it had overpaid Hagseth $ 3, 48.
        &                                         81.
                                                  1 2

       Hagseth protested the 2008 order, but L I affirmed its decision. Hagseth appealed to the
                                               &

Board of Industrial Insurance Appeals (BIIA)and the case proceeded to a hearing before an

industrial appeals judge.

       At the hearing, Hagseth testified that while he was available and wanted to work full time

for Express in 2004,he did not work full time for the entire year. He further testified that during

his assignment at Adams, he worked between eight and ten hours per day, five to six days per

week. He testified that he wanted to be hired for a full time position with Adams, and that it was

his understanding that Adams planned on hiring him.

       L I presented evidenced based on Hagseth's employment records, that Hagseth started
         &

working for Express in 1991. The record showed that Hagseth worked for Express for six weeks

in 1991; a full year in 1992; one day in 1994; four weeks and three'days in 1996; five days in

1997; one week and three days in 1999; three days in 2000; 33 weeks and two days in 2003; and

four weeks in 2004 before his accident at Adams.' Hagseth's assignment at Adams Lumber

lasted five weeks, after which he spent five weeks doing lightduty work at the Express office.
                                                              -

  Hagseth did not work for Express at all in 1993, 1995, 1998, 2001, or 2002. State records show
that Hagseth worked for a variety of other employers in 2000, 2001, 2002, and 2003, but never
achieved full time employment.
               -



                                                 2
No. 42680 3 II
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L I further presented evidence that Hagseth had never sought unemployment benefits between
  &
2000 and 2009.


       L I called Jackie Rayan, Express's worker's compensation manager for western
         &

Washington. Rayan testified that Hagseth's work history was typical of a temporary worker.

She testified that employees interested in full time work are typically sent on " valuation
                                                 -                              e

assignment[s]," for an Express client for 17 weeks so that the client can decide
            where they work
whether to hire them. Report of Proceedings (RP)Feb. 26, 2009)at 41 42. But Rayan testified
                                                 (                  -

that the longest Hagseth ever worked for a single Express client was twelve weeks.

       Rayan admitted that Adams was evaluating Express employees as permanent hires, and

thus the Adams job could have been classified as an evaluation assignment. But Adams was

filling fewer positions than there were Express workers assigned to work there, i..Adams would
                                                                                 e

not hire every Express employee. Rayan further testified that while she assumed that " nyone"
                                                                                     a

would desire full time employment, she could not say whether Hagseth desired full time work.
                   -                                                               -

       The industrial appeals judge issued a proposed decision and order finding that Hagseth's

relationship with Express was "ntermittent and not continuous or regular employment. " -
                              i

Administrative Record (AR)at 28. The judge accordingly concluded that Hagseth's relationship

to his employment was " ssentially part-ime or intermittent."AR at 28. The judge affirmed
                      e                t

L I' order reducing Hagseth's benefits and holding him responsible for an overpayment.
  &s

       Hagseth petitioned the BIIA for review of the industrial appeals judge's proposed

decision and order. The BIIA affirmed. Hagseth then appealed to the superior court. L I filed
                                                                                      &

a motion for judgment as a matter of law before the superior court. The superior court held a




                                                 Q
No. 42680 3 II
          - -



hearing on L I' motion. The superior court issued findings of fact and conclusions of law,
             &s

granting judgment as a matter of law to L I.
                                          & Hagseth now appeals to this court.
                                                   ANALYSIS


                                          I. STANDARD OF REVIEW


       In an industrial insurance appeal, unlike in a typical agency appeal, we review the

superior court's decision, not that of the agency. Compare RCW 51. 2.industrial insurance
                                                               140 (
                                                                 5
       shall
appeal "            lie from the judgment of the   superior   court   as   in other civil   cases ")   with Hardee v.


Dep't of Soc. & Health Servs.,172 Wn. d 1, 7,256 P. d 339 (
                                    2             3       2011)example of typical agency
                                                                (

appeal where appellate court stands "in the same position as the superior court"and directly

reviews agency record).Before the superior court, the BIIA's decision is prima facie correct; the

challenging party bears the burden of proof. RCW 51. 2.
                                                 115.
                                                   5

       We review motions for judgment as a matter of law de novo, applying the same standard

as the trial court. Davis v. Microsoft Corp., Wn. d 521, 530 31,70 P. d 126 (2003).
                                            149 2            -      3

Judgment as a matter of law is proper when, viewing the evidence and the inferences therefrom

in the light most favorable to the nonmoving party, substantial evidence does not support the

nonmoving party's claims. Joy. v. Dep't of Labor              &   Indus.,170 Wn. App. 614, 619, 285 P. d
                                                                                                     3

187 (2012).The nonmoving plaintiff bears the burden of production on this question. Burchfiel

v. Boeing Corp.,149 Wn. App. 468,479, 205 P. d 145 (2009).Substantial evidence is evidence
                                           3

sufficient to persuade a rational, fair -
                                        minded person that a premise is true. Joy, 170 Wn.App. at

GiU


       We must liberally construe the Industrial Insurance Act ( ct)for the purpose of
                                                               A     "

reducing   to   a   minimum the   suffering   and economic loss       arising from injuries ... occurring in the



                                                        E
No. 42680 3 II
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course of employment."RCW 51: 2. Doubts are to be resolved in favor of the injured
                          010.
                            1

worker. Michaels v. CH2MHill, Inc., Wn. d 587, 598, 257 P. d 532 (2011).While we may
                                  171 2                  3

substitute our own view of the law for that of the BIIA,we give great weight to the BIIA's

interpretation   of the Act. VanHess      v.   Dep't of Labor & Indus.,
                                                                      132 Wn. App. 304, 315, 130 P. d
                                                                                                  3

902 (2006).The BIIA designates certain of its decisions as "significant decisions,"
                                                                                  which we

consider persuasive but not binding authority. RCW 51. 2.Stone v. Dep't ofLabor &
                                                   160;
                                                     5

Indus.,     Wn. App.     ,         289 P. d 720, 725 (2012).We have declined to consider BIIA
                                        3

decisions not    designated   as   significant. O'eefe
                                                 K       v.   Dep't of Labor & Indus.,126 Wn. App. 760,

767 n. , 109 P. d 484 (2005).
     3        3

                             H. CLASSIFICATION OF HAGSETH'S EMPLOYMENT


       Hagseth argues that he was not an essentially part-ime or intermittent worker, making
                                                         t

the trial court's judgment as a matter of law against him erroneous. Because Hagseth produced

substantial evidence to support this claim, we agree and reverse the judgment as a matter of law

against Hagseth.

        The Act's default"provision for calculating time loss benefits is RCW 51. 8.
                  "                                                           178(
                                                                                 1
                                                                                 0 ).

Dep't of Labor & Indus. v. Avundes, 140 Wn. d 282, 290, 996 P. d 593 (2000).
                                          2                  2             Under this

subsection, monthly wages for the purpose of time loss compensation are calculated by

multiplying the employee's daily wage by a multiplier based on the number of days per week the

employee worked. RCW 51. 8.But when the worker's employment is " xclusively
                     178(
                        1
                        0 ).                                   e

seasonal in nature"or when "he worker's current employment or his or her relation to his or her
                           t

employment is essentially part-ime or intermittent,"
                              t                    wages are calculated under RCW

178(
51. 8.Wages are determined under subsection ( ) dividing by twelve the wages
   2
   0 ).                                     2 by



                                                         5
No. 42680 3 II
          - -



earned " n any twelve successive calendar months preceding the injury which fairly represent the
       i

claimant's employment pattern."RCW 51. 8.
                                   178(
                                      2
                                      0 ).

         It is undisputed that Hagseth's employment was neither exclusively seasonal nor

essentially part-ime. It is further undisputed that his employment itself was not essentially part-
                t

time. The only issue here is whether Hagseth's relation to his employment was essentially

intermittent. Our Supreme Court adopted the test for determining whether employment is

essentially intermittent in Avundes, 140 Wn. d at 290.
                                           2

         The Avundes test has two stages. 140 Wn. d at 290. If,under either stage, the employee
                                                2
is found to be an intermittent worker, RCW 51. 8.
                                           178(
                                              2 applies. 140 Wn. d at 290. Under the
                                              0 )              2

first stage, we examine " he type of employment."Avundes, 140 Wn. d at 290. The Avundes
                        t                                       2

court   adopted this test   from the BIIA's decision in In   re   John Pino, Nos. 91 5072 & 92 5878,


1994 WL 144956 (Wash. Bd. of Indus. Ins. Appeals Feb. 2, 1994).Avundes, 140 Wn. d at 287.
                                                                              2

And Pino clarifies that this first stage analysis focuses on " he nature of the work actually
                                                             t

performed at the time of the injury."1994 WL 144956, at *4.

         The second stage of the Avundes test examines whether the employee's relation to the

work was intermittent. 140 Wn. d at 290. To determine whether the employee's relation to the
                             2

work was intermittent, we examine " ll relevant factors, including"1) " nature of the work,"
                                  a                                ( the

2) " worker's intent," ( the relation with the current employer," ( ) " worker's
 the                 3) "                                       and 4 the

work history."140 Wn. d at 290. Pino clarifies that this second stage analysis focuses on " he
                    2                                                                     t

worker's participation in or relationship to the employment."1994 WL 144956, at *4.




                                                     n
No. 42680 3 II
          - -


         There is no indication in the record that the nature of the work Hagseth was performing at

the time of his injury,,
                      was anything but full time,and thus the parties do not dispute the first
                                             -

stage of the Avundes test. But they dispute the second stage, whether Hagseth's relation to the
work   was   intermittent. Taking the evidence in the light most favorable to Hagseth, we cannot
conclude as a matter of law that his relation to his work was intermittent. We therefore reverse

judgment as a matter of law against Hagseth.

         There is no dispute in the record that the nature of the work for Adams was full time.
                                                                                           -

And Hagseth testified that he intended to work for Express full time. Moreover,Hagseth wanted
                                                                 -
to be hired away from Express, and there was the possibility that Adams would do so.

According to Hagseth, he could perform the work at Adams and it was his understanding that

Adams planned to hire him. And while Hagseth's work history shows that Hagseth had been

intermittently employed in the past, we cannot say that this factor predominates as a matter of

law. Taking the evidence in the light most favorable to Hagseth, there was substantial evidence

to show that his relation to his work was not intermittent.




2 It appears that the parties are correct on this point; taking the evidence in the light most
favorable to Hagseth, he was working approximately full time when he was injured. Payroll
records show that Hagseth worked for Adams for 19.5 hours for the pay period ending January 2;
40. hours for the pay period ending January 9;42. hours for the pay period ending January 23;
  5                                              5
and 34 hours for the pay period ending January 30. Although he worked only 8 hours for the
next pay period ending February 6,he was injured on January 31, the Monday of that week.
3
    L I argues that Hagseth's claim also fails under the definition of the word "ntermittent"that
      &                                                                         i
we adopted in School Dist.No. 401 v. Minturn, 83 Wn. App. 1, 920 P. d 601 (1996).But the
                                                                  2
current analysis of this issue is set out in the Supreme Court's more recent Avundes case. There
appears to be no legal basis to treat Minturn as having established an alternative and equally
valid analytical test. We do not address the State's arguments regarding Minturn.


                                                   7
No. 42680 3 II
          - -



       Our conclusion is bolstered by Avundes. There, the Supreme Court agreed with the Court

of Appeals decision in the same case, which held,

       There is no logical reason why a claimant should be penalized solely because
       his prior employment was irregular or uncontinuous. Such a rule would be unfair
       to an employee who had worked a ' series of jobs before being injured, and it
       would shift the analysis away from the proper focus on the injured worker's lost
       earning capacity. Nor does the conclusion negate RCW 51. 8.
                                                                a),
                                                                178(    2)(
                                                                        0         which
       properly should apply to a claimant whose current employment relationship is
       intermittent."


140 Wn. d at 288 (
      2          quoting   Dep't of Labor & Indus v. Avundes, 95 Wn. App. 265, 276 77,976
                                                                                   -

P. d 637 (1999)).
 2             Thus, it would be error for us to focus solely on Hagseth's history of sporadic

employment to determine that his relation to his work for Express was intermittent as a matter of

law.


       L I cites In re Richard Brixey,No. 02 14516, 2003 WL 22696970, at *3 Wash. Bd. of
         &                                                                  (

Indus. Ins. Appeals Sep. 15, 2003), the contrary. There, the BIIA found that a worker's
                                  to

employment was essentially part-ime and intermittent under the first prong of the Avundes test.
                               t

Brixey, 2003 WL 22696970, at *
                             3.But the BIIA has not designated Brixey as a significant

decision. Moreover, the BIIA decided Brixey in its role as a fact finder, rather than on a motion

for judgment as a matter of law. Because we are reviewing a judgment as a matter of law, we are

limited to determining whether substantial evidence supports Hagseth's claims. Because such

evidence exists,judgment   as a   matter of law   was   inappropriate   here
No. 42680 3 II
          - -



       We reverse and remand to the trial court for further proceedings consistent with this

opinion.

       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




                                                                    J.
                                                                    Worswick/
                                                                            k.
We concur:




                                                  6
