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

RONALD V. MA'AE,                                No. 77737-8-1

                        Appellant,

                V.                              PUBLISHED OPINION

WASHINGTON DEPARTMENT OF
LABOR AND INDUSTRIES,

                        Respondent.             FILED: April 1,2019

      SCHINDLER, J. — We must liberally construe the statutory provisions of the

Industrial Insurance Act (IIA), Title 51 RCW,to provide compensation to workers injured

in the course of employment. RCW 51.32.160 gives a worker the right to file an

application to reopen a claim for aggravation of an industrial injury. Case law requires

the worker to prove aggravation by presenting expert medical evidence of objective

worsening of the injury since closure of the claim. If the Department of Labor and

Industries (Department) denies the claim, the worker has the right to appeal, but review

is limited to the administrative record. In 2011, the legislature amended chapter 51.36

RCW,"Medical Aid," to establish a network of health care providers to treat injured

workers. In addition to adopting rules to establish the health care provider network, the

Department amended the WAC that governs reopening a claim for aggravation of an
No. 77737-8-1/2

industrial injury, WAC 296-14-400. The amendment to WAC 296-14-400 mandates that

only a Department network provider can submit medical documentation in support of an

application to reopen a claim to obtain benefits for aggravation of an industrial injury.

We conclude the amendment to WAC 296-14-400 conflicts with the intent and purpose

of the 11A; the amendment to chapter 51.36 RCW, Medical Aid; RCW 51.32.160; and

long-standing case law and the right of a worker to prove aggravation of an industrial

injury. We conclude the Department exceeded its statutory authority in promulgating

the amendment to WAC 296-14-400 and the amendment is invalid. We reverse the

declaratory judgment order.

Permanent Partial Disability Award

       The facts are not in dispute. In 2007, Ronald V. Ma'ae worked as a journeyman

carpenter for Safeway Services LLC. On January 19, Ma'ae suffered a back and

shoulder injury. On February 5, 2007, the Department of Labor and Industries

(Department) allowed the claim for industrial injury benefits under the Industrial

Insurance Act(IA), Title 51 RCW. On July 24, 2009, the Department closed the claim

and awarded Ma'ae permanent partial disability benefits for "right upper extremity

impairment."

2011 Amendment to Chapter 51.36 RCW

       In 2011, the legislature amended the IIA, chapter 51.36 RCW,"Medical Aid," to

establish a health care provider network to treat injured workers. LAWS OF 2011, ch. 6, §

1. RCW 51.36.010(1) states, in pertinent part:

       The legislature finds that high quality medical treatment and adherence to
       occupational health best practices can prevent disability and reduce loss
       of family income for workers, and lower labor and insurance costs for



                                             2
No. 77737-8-1/3

      employers. Injured workers deserve high quality medical care in
      accordance with current health care best practices.

      The legislature directed the Department to establish "a health care provider

network to treat injured workers" and "minimum standards for [network] providers who

treat workers." RCW 51.36.010(1). The legislature states the Department "may adopt

rules related to this section." RCW 51.36.010(10).

      In addition to promulgating and amending chapter 296-20 WAC,"Medical Aid

Rules," and chapter 296-14 WAC,"Industrial Insurance Rules," to establish a health

care provider network to treat injured workers, the Department amended the rule on

"Reopenings for Benefits," WAC 296-14-400. As amended, WAC 296-14-400

mandates that effective January 1, 2013,"where the department has established a

provider network," medical documentation in support of a reopening application shall

only "be completed by network providers." WASH. Si. REG.(WSR)12-06-066.

2014 Denial of Reopening Application

      On April 14, 2014, Ma'ae submitted an "Application to Reopen Claim Due to

Worsening of Condition" to the Department with medical documentation from orthopedic

surgeon Dr. H. Richard Johnson.

      Dr. Johnson examined Ma'ae on March 14, 2014. Dr. Johnson states Ma'ae is

experiencing "[d]aily headaches. Neck pain radiating into upper extremities. Right

shoulder pain. Left shoulder pain. Right hand numbness. Low back pain. Anxiety and

depression." Dr. Johnson states Ma'ae's industrial injury had objectively worsened and

recommended "curative treatment" that included low back, neck, and shoulder

diagnostic studies and consideration of low back surgery and "additional cervical spine

surgery."


                                           3
No. 77737-8-1/4

       Dr. Johnson attached a report of the "current medical findings including history,

examination, and test results that would support a measurable (objective) worsening of

his industrial injury or occupational disease since claim closure or the last reopening

denial."1

       [A]ggravation (permanent worsening) of cervical spondylosis; cervical
       radiculopathy, left greater than right; status post op three level anterior
       discectomies interbody fusions at C3-C4,C4-05, and C5-C6 with anterior
       plate fixation; right shoulder strain/sprain; impingement syndrome, right
       shoulder; adhesive capsulitis, right[] shoulder (frozen shoulder; status
       post op right shoulder manipulation under anesthesia followed by
       arthroscopic capsular release, anterior subacromial decompression, and
       distal clavicle resection; aggravation of pre-existing left shoulder
       dysfunction; adhesive capsulitis of left shoulder; frozen left shoulder; ulnar
       entrapment neuropathy at the left elbow; status post op anterior ulnar
       nerve transposition at the left elbow; left carpal tunnel syndrome; status
       post[ ]op left carpal tunnel release; right carpal tunnel syndrome; thoracic
       strain/sprain; aggravation of pre-existing asymptomatic thoracic
       spondylosis; small left paracentral disc herniation at T12-L1; lumbosacral
       strain/sprain; aggravation (permanent worsening) of pre-existing,
       asymptomatic lumbar spondylosis; lumbar radiculopathy, bilateral; tear of
       lateral meniscus, right knee; erectile dysfunction; adjustment disorder with
       mixed anxiety and depressed mood; pain disorder with anxiety,
       depression, irritability, and low back pain; and chronic pain syndrome
       related on a more-probable-than not basis to the industrial injury of
       January 19, 2007.

       The Department extended the time for the reopening application. At the direction

of the Department, Ma'ae participated in independent medical examinations.

       On September 5, 2014, the Department denied the reopening application

because Dr. Johnson was not a member of the medical provider network.

       After further review, we have learned that Dr. H. Richard Johnson is not a
       member of Labor and Industries Medical Provider Network. Only
       approved network provider can file reopening applications.[ ]Your request
       for reopening has been denied. This claim remains closed.




       I Emphasis in original.


                                             4
No. 77737-8-1/5

       The September 5, 2014 "Notice of Decision" states,"The department denies the

reopening of this claim because no medical documentation has been provided to the

department as required by law."

Appeal of Department Decision to Deny Reopening Claim

       On September 30, 2014, Ma'ae filed an appeal of the September 5 order denying

the application to reopen to the Board of Industrial Insurance Appeals (BHA).

       The Department filed a motion for summary judgment. The Department argued it

was entitled to judgment as a matter of law because Dr. Johnson was not a member of

the Department's medical provider network. The Department asserted the amendment

to WAC 296-14-400 "mandates that the documentation for reopening application 'must

be completed by network providers.'" In opposition, Ma'ae argued the amendment to

WAC 296-14-400 exceeded the authority of the Department to promulgate rules under

RCW 51.36.010. In reply, the Department argued the legislature gave it the authority to

amend WAC 296-14-400 to require a worker to submit documentation in support of an

application to reopen from only a network provider. The Department asserted the BHA

does not have the authority to review the validity of the rule.

       On June 25, 2015, a Board of Industrial Insurance Appeals judge (IAJ) issued a

proposed decision and order affirming the decision of the Department to deny the

application to reopen. On August 11, 2015, Ma'ae appealed the IAJ proposed decision

and order to the BHA.

Declaratory Judqment Action

       On August 12, 2016, Ma'ae filed a declaratory judgment action in Thurston

County Superior Court challenging the authority of the Department to amend WAC 296-



                                             5
No. 77737-8-1/6

14-400. Ma'ae asserted the amendment exceeded the authority of the Department to

promulgate rules under RCW 51.36.010.

        On October 20, 2016, the superior court entered an order and judgment. The

order states the WAC 296-14-400 amendment is a valid rule.2

Appeal of Declaratory Judgment Order

        Ma'ae contends the amendment to WAC 296-14-400 that limits the right of an

injured worker to present expert medical documentation to prove objective worsening of

an industrial injury from only a network provider exceeds the authority of the

Department. Ma'ae asserts the amendment conflicts with the intent and purpose of the

11A; the amendment to chapter 51.36 RCW, Medical Aid; the statute on aggravation,

RCW 51.32.160; long-standing case law; and the right to present evidence of

aggravation on appeal.

       The Washington Administrative Procedure Act, chapter 34.05 RCW, governs

judicial review of an administrative rule. RCW 34.05.570 governs the validity of a rule.

We review the validity of an agency rule de novo. Wash. Hosp. Ass'n v. Dep't of Health,

183 Wn.2d 590, 595, 353 P.3d 1285 (2015); Local 2916, 1AFF v. Pub. Emp't Relations

Comm'n, 128 Wn.2d 375, 379, 907 P.2d 1204 (1995); Tapper v. Emp't Sec. Dep't, 122

Wn.2d 397, 402, 858 P.2d 494 (1993). Agency rules are presumed valid. St. Francis

Extended Health Carey. Dep't of Soc. & Health Servs., 115 Wn.2d 690, 702, 801 P.2d

212 (1990). "The burden of overcoming this presumption rests on the challenger, and


        2 On November 23, 2015, the BHA reversed the decision of the Department to deny Ma'ae's
application to reopen. The BHA concluded the statute establishing a health care provider network, RCW
51.36.010, and the statute that allows a worker to reopen a claim for aggravation, RCW 51.32.160, do not
prevent a worker from filing an application to reopen with medical documentation from a doctor who is not
a member of the Department's network. We address the Department's appeal of the BlIA decision in
Department of Labor & Industries v. Ma'ae, No. 78030-1-1 (Wash. Ct. App. Apr, 1, 2019)(unpublished),
http://www.courts.wa.gov/opinions/.


                                                   6
No. 77737-8-1/7

judicial review will be limited to a determination of whether the regulation in question is

reasonably consistent with the statute being implemented." St. Francis, 115 Wn.2d at

702. "[T]he court shall declare the rule invalid" if "the rule exceeds the statutory

authority of the agency." RCW 34.05.570(2)(c). "'[A]lthough we generally accord

substantial deference to agency decisions, we do not defer to an agency the power to

determine the scope of its own authority.'" Fed'n of State Emps. v. Dep't of Gen.

Admin., 152 Wn. App. 368, 377-78, 216 P.3d 1061 (2009)3(quoting In re Registration of

Elec. Lightwave, Inc., 123 Wn.2d 530, 540, 869 P.2d 1045 (1994)).

      "'Administrative "Mules must be written within the framework and policy of the

applicable statutes."'" Wash. Hosp. Ass'n, 183 Wn.2d at 5954 (quoting Swinomish

Indian Tribal Cmty. v. Dep't of Ecology, 178 Wn.2d 571, 580, 311 P.3d 6(2013)

(quoting Dep't of Labor & Indus. v. Gongyin, 154 Wn.2d 38, 50, 109 P.3d 816 (2005))).

"'" IA]dministrative rules or regulations cannot amend or change legislative

enactments.'"'" Wash. Hosp. Ass'n, 183 Wn.2d at 595 (quoting Swinomish Indian

Tribal Cmtv., 178 Wn.2d at 580-81 (quoting Dep't of Ecology v. Campbell & Gwinn,

LLC, 146 Wn.2d 1, 19, 43 P.3d 4(2002)(quoting Dep't of Ecology v. Tehodoratus, 135

Wn.2d 582, 600, 957 P.2d 1241 (1998)))). If" 'the rule is "reasonably consistent with

the controlling statute[s]," an agency does not exceed its statutory authority.'" Wash.

Hosp. Ass'n, 183 Wn.2d at 5955 (quoting Swinomish Indian Tribal Cmtv., 178 Wn.2d at

580 (quoting Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wn.2d 637, 646,62 P.3d

462 (2003))). Rules that are not consistent with or are broader than the statutes they



       3 Alteration in original.
       4 Alteration in original.

       5 Alteration in original.



                                             7
No. 77737-8-1/8

implement are invalid. Wash. Hosp. Ass'n, 183 Wn.2d at 595 (quoting Swinomish

Indian Tribal Cmtv., 178 Wn.2d at 581 (citing Bostain v. Food Express, Inc., 159 Wn.2d

700, 715, 153 P.3d 846 (2007))).

       Statutory interpretation is also a question of law that we review de novo. W.

Telepaqe, Inc. v. City of Tacoma Dep't of Fin., 140 Wn.2d 599, 607, 998 P.2d 884

(2000); Cockle v. Dep't of Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583(2001)

(statutory construction is a question of law we review de novo). Our fundamental

objective is to ascertain and give effect to legislative intent. Darkenwald v. Emp't Sec.

Dep't, 183 Wn.2d 237, 244-45, 350 P.3d 647(2015). The "plain meaning" of a statute is

discerned from the ordinary meaning of the language at issue as well as the context of

the statute in which that provision is found, related provisions, and the statutory scheme

as a whole. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d

1283(2010). "While we look to the broader statutory context for guidance, we 'must not

add words where the legislature has chosen not to include them,' and we must

'construe statutes such that all of the language is given effect.' " Lake, 169 Wn.2d at

526 (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598

(2003)). Where the language of a statute is clear on its face, we give effect to the plain

meaning as an expression of legislative intent. Campbell & Gwinn, 146 Wn.2d at 9-10.

A statute is ambiguous if it has two or more reasonable interpretations, but not"'merely

because different interpretations are conceivable.'" Cerrillo v. Esparza, 158 Wn.2d

194, 201, 142 P.3d 155(2006)6 (quoting Agrilink Foods, Inc. v. Dep't of Revenue, 153

Wn.2d 392, 396, 103 P.3d 1226 (2005)).



       6 Internal   quotation marks omitted.


                                               8
No. 77737-8-1/9

       Whenever possible, statutes are to be read together to achieve a"'harmonious

total statutory scheme . . . which maintains the integrity of the respective statutes.'"

Dep't of Revenue v. Fed. Deposit Ins. Corp., 190 Wn. App. 150, 157-58, 359 P.3d 913

(2015)7 (quoting Employco Pers. Servs., Inc. v. City of Seattle, 117 Wn.2d 606, 614,

817 P.2d 1373(1991). An interpretation that reads language in isolation is too limited

and fails to apply this rule. Jongeward v. BNSF Ry. Co., 174 Wn.2d 586, 595, 278 P.3d

157(2012); see Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809, 109 S. Ct. 1500,

103 L. Ed. 2d 891 (1989)("It is a fundamental canon of statutory construction that the

words of a statute must be read in their context and with a view to their place in the

overall statutory scheme."). The construction of two statutes shall be made with the

assumption that the legislature does not intend to create an inconsistency. State v.

Bash, 130 Wn.2d 594, 602, 925 P.2d 978 (1996).

IIA

      The legislature enacted the IIA in 1911 as "the product of a grand compromise"

between employers and workers. LAWS OF 1911, ch. 74; Birklid v. Boeing Co., 127

Wn.2d 853, 859, 904 P.2d 278 (1995); Cowlitz Stud Co. v. Clevenger, 157 Wn.2d 569,

572, 141 P.3d 1 (2006).

      The IIA is a compensation system designed to give "sure and certain relief' to an

injured worker "regardless of questions of fault and to the exclusion of every other

remedy." RCW 51.04.010. The IIA is remedial in nature and the right of an injured

worker to obtain benefits is statutory. Cockle, 142 Wn.2d at 811; Murray v. Dep't of

Labor & Indus., 192 Wn.2d 488, 501, 430 P.3d 645 (2018).



      7 Alteration   in original; internal quotation marks omitted.


                                                      9
No. 77737-8-1/10

       The overarching and guiding principle in construing provisions of the IIA is that

the IIA "'is to be liberally construed in order to achieve its purpose of providing

compensation to all covered employees injured in their employment, with doubts

resolved in favor of the worker.'" Cockle, 142 Wn.2d at 8118 (quoting Dennis v. Dep't

of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987)).

       Chapter 51.36 RCW, Medical Aid, governs medical aid for injured workers. A

worker injured in the course of employment is entitled to compensation under the IIA.

RCW 51.32.010; Tobin v. Dep't of Labor & Indus., 145 Wn. App. 607, 613, 187 P.3d

780 (2008). RCW 51.36.010(2)(a) states that "[u]pon the occurrence of any injury to a

worker entitled to compensation under the provisions of this title, he or she shall receive

proper and necessary medical and surgical services." When a condition is "fixed," the

Department makes a permanent partial disability award and closes the claim. Dep't of

Labor & Indus. v. Slauqh, 177 Wn. App. 439, 446, 312 P.3d 676 (2013); see also Pvbus

Steel Co. v. Dep't of Labor & Indus., 12 Wn. App. 436, 436-37, 530 P.2d 350 (1975);

Robbins v. Dep't of Labor & Indus., 187 Wn. App. 238, 244, 349 P.3d 59(2015).

RCW 51.32.160

      The IIA allows an injured worker to reopen a claim for aggravation of the

disability and additional medical benefits within seven years of the final award. RCW

51.32.160; Hendrickson v. Dep't of Labor & Indus., 2 Wn. App. 2d 343, 352, 409 P.3d

1162 (citing Tollvcroft Yachts Corp. v. McCoy, 122 Wn.2d 426, 432, 858 P.2d 503

(1993)), review denied, 190 Wn.2d 1030, 421 P.3d 450 (2018). A worker may seek to




      8   Alteration in original.


                                             10
No. 77737-8-1/11

reopen a claim for "aggravation" of the disability only after the award is final. RCW

51.32.160(1)(a). RCW 51.32.160(1)(a) provides, in pertinent part:

        If aggravation, diminution, or termination of disability takes place, the
        director [of the Department] may, upon the application of the beneficiary,
        made within seven years from the date the first closing order becomes
        final, or at any time upon his or her own motion, readjust the rate of
        compensation in accordance with the rules in this section provided for the
        same, or in a proper case terminate the payment: PROVIDED, That the
        director may, upon application of the worker made at any time, provide
        proper and necessary medical and surgical services as authorized under
        RCW 51.36.010.

Objective Worsening

        Long-standing case law requires the worker to prove aggravation by presenting

medical testimony that establishes a causal connection "'between the injury and the

subsequent disability' "based on "some objective medical evidence" that the injury "has

worsened since the initial closure of the claim." Eastwood v. Dep't of Labor & Indus.,

152 Wn. App. 652,656-57, 219 P.3d 711 (2009)(quoting Phillips v. Dep't of Labor &

Indus., 49 Wn.2d 195, 197, 298 P.2d 1117 (1956)); Tollvcroft Yachts, 122 Wn.2d at

432;9 see Hendrickson, 2 Wn. App. 2d at 352; see also Lewis v. ITT Cont'l Baking Co.,

93 Wn.2d 1, 3, 603 P.2d 1262(1979)("Medical evidence—based at least in part on

objective symptoms—must show that an aggravation of the industrial injury resulted in

increased disability."); Dinnis v. Dep't of Labor & Indus., 67 Wn.2d 654, 656, 409 P.2d

477(1965)("In an aggravation case, the burden of proving a claimed disability to be

greater on the last terminal date than on the first terminal date is upon the claimant; and



        9(Emphasis omitted.) The requirement that the worker provide objective medical evidence does
not apply "if the symptoms of a condition are exclusively subjective in nature." Felipe v. Dep't of Labor &
Indus., 195 Wn. App. 908, 918, 381 P.3d 205 (2016); Price v. Dep't of Labor & Indus., 101 Wn.2d 520,
528, 682 P.2d 307(1984)(objective medical evidence is not required in worker compensation cases
involving psychiatric disability because symptoms of psychiatric injury are necessarily subjective in
nature). On appeal, Ma'ae does not argue that this exception applies.


                                                    11
No. 77737-8-1/12

to prevail he must produce medical evidence to that effect based, at least in part, upon

objective findings of a physician."); Page v. Dep't of Labor & Indus., 52 Wn.2d 706, 709,

328 P.2d 663(1958)(the extent of the disability at any relevant date must be

determined by medical testimony and some objective evidence); Moses v. Dep't of

Labor & Indus., 44 Wn.2d 511, 517, 268 P.2d 665(1954)(To "establish a claim for an

increase in an award as a result of the aggravation of a prior industrial injury, the burden

is on the claimant to produce medical evidence, some of it based on objective findings,

to prove that there has been an aggravation of the injury which resulted in increased

disability."); Kresoya v. Dep't of Labor & Indus., 40 Wn.2d 40, 44, 240 P.2d 257(1952)1°

("[W]hether the condition of an injured workman had become aggravated since his claim

had been closed . . .[can] be established only by medical testimony, and . . . a claim for

aggravation is not sustained by such testimony if it is based upon subjective symptoms

alone."); Felipe, 195 Wn. App. at 914 ("case law requires the worker to support a

request to reopen with some objective medical evidence").

      The Supreme Court defines "objective symptoms" as "those within the

independent knowledge of the doctor, because they are perceptible to persons other

than a patient." Hinds v. Johnson, 55 Wn.2d 325, 327, 347 P.2d 828 (1959)); see also

Felipe, 195 Wn. App. at 915.

Right to Appeal Denial of Reopening Application

       If the Department denies the application to reopen, the injured worker may

appeal to the BHA. RCW 51.52.050(2)(a). Following a hearing on the appeal before an

IAJ, the worker may file a petition to review the proposed decision and order to the BIIA.

RCW 51.52.104, .106; WAC 263-12-145.
       10 Emphasis in original.


                                            12
No. 77737-8-1/13

        The worker has the right to appeal the decision of the BHA to superior court.

RCW 51.52.110. However, review of the final decision of the BIIA is de novo, based

only on the administrative record and evidence presented to the BIIA. RCW 51.52.115.

In an appeal to superior court, "either party shall be entitled to a trial by jury upon

demand." RCW 51.52.115. 6A Washington Practice: Washington Pattern Jury

Instructions: Civil 155.09 (6th ed. 2012)(WPI),"Extent of Disability or Aggravation—

Basis of Medical Opinion," sets forth the burden of proof to establish aggravation of an

industrial injury. WPI 155.09 states that "aggravation" of an "industrially related

condition and the extent of" the increased disability "must be supported by medical

testimony based at least in part upon one or more objective findings."11

        The worker has the right to appeal the superior court decision to the Court of

Appeals and the Supreme Court under the Rules of Appellate Procedure. RCW

51.52.110,.140 (appeal "shall lie from the judgment of the superior court as in other civil

cases").

Amendment to Chapter 51.36 RCW, Medical Aid

        In 2011, the legislature amended chapter 51.36 RCW, Medical Aid, to establish a

health care provider network and minimum standards for providers who treat workers in

order to provide high quality treatment to injured workers and lower labor and insurance



        11 WPI 155.09 states, in pertinent part:
                  Statements of complaints by the worker made to a physician are called
        subjective complaints. Findings of disability that can be seen, felt, or measured by an
        examining physician are called objective findings.
                  In determining [whether aggravation has occurred and]the extent of[any
         resulting increased] disability, a physician cannot rely solely upon complaints, but must
         have some objective basis for his or her opinion. On the other hand, a physician need
         not rely solely upon objective findings. If there are objective findings, then the physician
         may also consider subjective complaints.
(Alterations in original.)


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No. 77737-8-1/14

costs for employers. LAWS OF 2011, ch. 6,§ 1.12 The legislature directs the Department

to establish a medical provider network to treat injured workers and adopt minimum

standards for health care providers. RCW 51.36.010. The legislature requires injured

workers to obtain treatment from a network provider except for "an initial office or

emergency room visit." RCW 51.36.010(2)(b). RCW 51.36.010 states, in pertinent part:

       (1) The legislature finds that high quality medical treatment and
       adherence to occupational health best practices can prevent disability and
       reduce loss of family income for workers, and lower labor and insurance
       costs for employers. Injured workers deserve high quality medical care in
       accordance with current health care best practices. To this end, the
       department shall establish minimum standards for providers who treat
       workers from both state fund and self-insured employers. The department
       shall establish a health care provider network to treat injured workers, and
       shall accept providers into the network who meet those minimum
       standards. The department shall convene an advisory group made up of
       representatives from or designees of the workers' compensation advisory
       committee and the industrial insurance medical and chiropractic advisory
       committees to consider and advise the department related to
       implementation of this section, including development of best practices
       treatment guidelines for providers in the network. The department shall
       also seek the input of various health care provider groups and
       associations concerning the network's implementation. Network providers
       must be required to follow the department's evidence-based coverage
       decisions and treatment guidelines, policies, and must be expected to
       follow other national treatment guidelines appropriate for their patient.
       The department, in collaboration with the advisory group, shall also
       establish additional best practice standards for providers to qualify for a
       second tier within the network, based on demonstrated use of
       occupational health best practices. This second tier is separate from and
       in addition to the centers for occupational health and education
       established under subsection (5) of this section.
              (2)(a) Upon the occurrence of any injury to a worker entitled to
       compensation under the provisions of this title, he or she shall receive
       proper and necessary medical and surgical services at the hands of a
       physician or licensed advanced registered nurse practitioner of his or her
       own choice, if conveniently located, except as provided in (b) of this
       subsection and proper and necessary hospital care and services during
       the period of his or her disability from such injury.

       12 We  note the legislature amended RCW 51.36.010 again in 2013 to change the language in
subsection (4)from "state board of pharmacy" to "pharmacy quality assurance commission." Lianis OF
2013, ch. 19,§ 48.


                                                 14
No. 77737-8-1/15

               (b) Once the provider network is established in the worker's
        geographic area, an injured worker may receive care from a nonnetwork
        provider only for an initial office or emergency room visit. However, the
        department or self-insurer may limit reimbursement to the department's
        standard fee for the services. The provider must comply with all
        applicable billing policies and must accept the department's fee schedule
        as payment in full.
               (c) The department, in collaboration with the advisory group, shall
        adopt policies for the development, credentialing, accreditation, and
        continued oversight of a network of health care providers approved to treat
        injured workers. . . .

               (10) The department may adopt rules related to this section.[13]

Amendment of WAC 296-14-400, Reopening for Benefits

        The legislature did not amend the statute that governs reopening a claim to

obtain additional benefits under the IIA for aggravation of an industrial injury, RCW

51.32.160. However, in addition to promulgating Medical Aid Rules, chapter 296-20

WAC, and Industrial Insurance Rules, chapter 296-14 WAC,the Department amended

the WAC on Reopening for Benefits, WAC 296-14-400. WSR 12-03-091 ("Proposed

Rules Department of Labor and Industries"), 12-06-066.

        Former WAC 296-14-400 (2004), Reopening for Benefits, provides, in pertinent

part:

        The director [of the Department] at any time may, upon the workers'
        application to reopen for aggravation or worsening of condition, provide
        proper and necessary medical and surgical services. . . .
                The seven-year reopening time limitation shall run from the date the
        first claim closure becomes final and shall apply to all claims regardless of
        the date of injury. . . .

               A formal application occurs when the worker and doctor complete
        and file the application for reopening provided by the department. Upon
        receipt of an informal request without accompanying medical
        substantiation of worsening of the worker's condition, the department or


        13 Added   emphasis shows the 2011 amendments to RCW 51.36.010. See LAWS OF 2011, ch. 6,
§1.


                                                 15
No. 77737-8-1/16

      self-insurer shall promptly provide the necessary application to the worker
      for completion.
               If, within seven years from the date the first closing order became
      final, a formal application to reopen is filed which shows by "sufficient
      medical verification of such disability related to the accepted condition(s)"
      that benefits are payable, the department, or the self-insurer, pursuant to
      RCW 51.32.210 and 51.32.190, respectively shall mail the first payment
      within fourteen days of receiving the formal application to reopen. If the
      application does not contain sufficient medical verification of disability, the
      fourteen-day period will begin upon receipt of such verification. If the
      application to reopen is granted, compensation will be paid pursuant to
      RCW 51.28.040. If the application to reopen is denied, the worker shall
      repay such compensation pursuant to RCW 51.32.240.

      The 2012 amendment to WAC 296-14-400 mandates that where the Department

has established a medical provider network, the worker can submit documentation only

from a network provider as part of the application to reopen. WSR 12-06-066. WAC

296-14-400 states, in pertinent part:

             A formal application occurs when the worker and doctor complete
      and file the application for reopening provided by the department. Upon
      receipt of an informal request without accompanying medical
      substantiation of worsening of the worker's condition, the department or
      self-insurer shall promptly provide the necessary application to the worker
      for completion. For services or provider types where the department has
      established a provider network, beginning January 1, 2013, medical
      treatment and documentation for reopening applications must be
      completed by network providers.(141

      The Department asserts RCW 51.36.010 gives it the authority to adopt the

amendment to WAC 296-14-400 that only allows a worker to file an application to

reopen a claim with medical documentation from only a Department network provider.

Neither the plain and unambiguous language of the IIA, chapter 51.36 RCW,and RCW

51.32.160 nor long-standing case law and the right to appeal supports the Department's

assertion.



       14   Added emphasis shows the 2012 amendment to WAC 296-14-400. See WSR 12-06-066.


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       The 2011 amendment to the Medical Aid statute, chapter 51.36 RCW,does not

address either the statute that governs reopening a claim for aggravation of an industrial

injury or case law that requires the worker to present medical testimony to establish a

causal relationship between the injury and subsequent disability based on some

objective findings.

       A worker has the right to submit an application to reopen a claim to obtain

benefits for aggravation of an injury. Case law establishes the worker has the burden of

proving aggravation of an injury under RCW 51.32.160 by presenting objective medical

findings. The amendment to the WAC rule on reopening impermissibly restricts the

right of an injured worker to meet this burden of proof. The WAC amendment limits

medical evidence of aggravation to documentation from only doctors who are members

of the Department's approved health care provider network.

       Contrary to the Department's argument, a medical examination and report

submitted in support of reopening a claim is not "treatment" under RCW 51.36.010. The

plain and unambiguous language of RCW 51.36.010(1) and (2)(a) address the intent to

establish a network of health care providers in order to provide "high quality" medical

treatment, providers who "treat injured workers," and "proper and necessary medical

and surgical services" in accord "with current health care best practices." The

Department defines "proper and necessary" medical services as follows:

             [(2)](a) Reflective of accepted standards of good practice, within
      the scope of practice of the provider's license or certification;
             (b) Curative or rehabilitative. Care must be of a type to cure the
      effects of a work-related injury or illness, or it must be rehabilitative.
      Curative treatment produces permanent changes, which eliminate or
      lessen the clinical effects of an accepted condition. Rehabilitative
      treatment allows an injured or ill worker to regain functional activity in the



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No. 77737-8-1/18

       presence of an interfering accepted condition. Curative and rehabilitative
       care produce long-term changes;
             (c) Not delivered primarily for the convenience of the claimant, the
       claimant's attending doctor, or any other provider; and
             (d) Provided at the least cost and in the least intensive setting of
       care consistent with the other provisions of this definition.

WAC 296-20-01002.15

       The unambiguous purpose of RCW 51.36.010 is to establish a network to

provide "high quality medical treatment" of injured workers. The amendment to WAC

296-14-400 conflicts with the right of a worker to submit an application to reopen for

aggravation and meet the burden to present medical testimony to prove some objective

worsening. The amendment impermissibly limits the right of an injured worker to submit

an application to reopen for aggravation with medical documentation only from a

Department network provider.

       We conclude the Department exceeded its authority by amending WAC 296-14-

400 to limit a worker to submit medical documentation from only a network doctor in




        15 We note the rule also states, "A formal application occurs when the worker and doctor
complete and file the application for reopening provided by the department." WAC 296-14-400. The
Department defines "doctor" as follows:
        For these rules, means a person licensed to independently practice one or more of the
        following professions: Medicine and surgery; osteopathic medicine and surgery;
        chiropractic; naturopathic physician; podiatry; dentistry; optometry. An attending doctor is
        a treating doctor.
WAC 296-20-01002. In accord with case law, the Department's application to reopen requires the doctor
to provide objective findings of worsening. See WAC 296-14-400.


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No. 77737-8-1/19

support of an application to reopen a claim for aggravation under the 11A. We hold the

amendment to WAC 296-14-400 is invalid and reverse the declaratory judgment order.16




WE CONCUR:




       16Ma'ae requests statutory attorney fees and costs under RCW 4.84.010 and .030. Upon
compliance with RAP 18.1, we award Ma'ae statutory attorney fees and costs as the prevailing party.


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