                                                                            FILED
                                                                      O'1IRT OF ,APPEALS
                                                                       0
                                                                          DIVISION ?
                                                                                   I

                                                                     2013 AUG -6 AN 9=14
    IN THE COURT OF APPEALS OF THE STATE qlfyy
                                       DIVISION II                   BY
                                                                             PUTY
                                                                           DEPUTY
LOIS J.NELSON, deceased,                                          No. 42456 8 II
                                                                            - -


                             Appellant,

       V.

                                                        ORDER GRANTING MOTION
WASHINGTON STATE DEPARTMENT OF                                    TO PUBLISH
LABOR AND INDUSTRIES,




       The Department of Labor and Industries moves this court for publication of its
unpublished opinion filed on June 25, 2013. After review the records and files herein, the court
grants the motion.

       It is ORDERED that the final paragraph that reads "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 pursuant to RCW 2.6.it is so ordered." deleted.
                                        040,
                                          0                  is
       It is further.ORDERED that'the opinion is now published.



       DATED: this                           day   of          o )                        2013.

       PANEL: Van Deren, J. .
                         T.;
                          P Worswick, C. .;
                                       J Penoyar, J.

       FOR THE COURT:
                                                                                                        i 11~
                                                                                                            D
                                                                                               COURT G' APPEALS .
                                                                                                      D1V1S10q 11
                                                                                             2013 J      5    AN 9:43
    IN THE COURT OF APPEALS OF THE STATE OF W.
                                                                                                             aSP, GroN
                                              DIVISION II
                                                                                                      OEP     Y

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


                               Appellant,

       V.



WASHINGTON STATE DEPARTMENT OF                                        UNPUBLISHED OPINION
LABOR AND INDUSTRIES, .

                                        ondent.


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

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

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

    The._
       Estate_,     that Nelson_
             argues _          should                           been categorized _as permanently partially

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

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

        The superior court's unchallenged findings support its conclusion that Nelson was
 permanently totally   disabled    at   the time of her death.        Furthermore, Nelson cannot receive a

 permanent partial disability award for the
                                                      2003   injury   when the   finding of permanent total
42456 8 I1
      - -



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

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


I.      FACTUAL BACKGROUND


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

in a patio chair that then collapsed. She fell onto a cement floor,jarring her back and striking her
right ear. Her pain from the fall increased, and she took two weeks off work. When she returned
to work on July 11, her pain intensified, and.so she remained off work.
         Nelson returned to work in August, but only briefly before turning to the Department for

assistance.' On August 19,Nelson filed a claim with the Department for benefits available under
the Industrial Insurance Act•IIA).On August 27, the Department allowed the claim, paying
                              (
                                                         4
Nelson time loss benefits starting August 22 .
             -




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


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



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

August for treatment. These were the first in a long line of treatments Nelson received over the
next few years as   a   result of her fall from the   patio   chair. This fall contributed to numerous


health problems for Nelson, which compounded the effects of preexisting conditions she had.
After her fall,Nelson was diagnosed with several back problems and mental disorders, including

degenerative disc disease and depressive disorder. Her treatment for these various conditions
ranged from prescription medication like morphine and Effexor to physical therapy to placement
in an extended care facility for about a month, In addition to medical care, Nelson also received
               -
vocational services during this time, including ability to work assessments in March 2005 and
                                                         - -
July 2006.

        On August 3, 2006, only a little over'a week after moving to Las Vegas to be closer to
family, Nelsonthen 57 years olddied of a drug overdose, which included morphine,
               —               —
methadone, and cocaine. At the time of her death, Nelson was still receiving time loss benefits.
                                                                                   -
After Nelson's death, the Department issued an order dated July 3, 2007, finding Nelson
permanently totally disabled as of the day she died as a result of the injuries she sustained from
her fall in-2003.       Finding 'no qualified beneficiaries under the IIA, the Department closed
Nelson's claim without making any award for her permanent total disability.




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



II.      PROCEDURAL BACKGROUND


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

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

         The Estate appealed the Department's order to the Board in October 2007, claiming that
Nelson was entitled to an award for permanent partial disability for her low back and mental

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

issued a proposed decision and order in October 2008, affirming the Department's order. The
Estate petitioned the Board for review. The Board granted the petition. The Board issued its
final decision and order in January 2009, likewise affirming the Department's order.
          The Estate appealed the Board's final order to Pierce County Superior Court in February
2009. After a bench trial, the court affirmed the Board's final order in July 2011. The Estate
timely appeals.

                                               ANALYSIS


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

          Normally, our review in a workers' compensation case is limited to examining the record
to see whether substantial evidence supports the findings of fact the superior court made after its
 de novo review of the case, and whether the superior court's conclusions of law flow from these
 findings.   Ruse   v.   Dep't of Labor & Indus.,138 Wn. d 1, 5, 977 P. d 570 (1999)quoting Young
                                                       2              2              (

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

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

                                                    El
42456 8 II
      - -



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

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

         The Estate and the Department dispute whether substantial evidence supports the superior
court's conclusion that Nelson           was    permanently totally   disabled at the time of her death. We


decline the parties' invitation to reconsider the evidence because the superior court's conclusion
that Nelson was permanently totally disabled flows directly and necessarily from unchallenged

finding of fact 1. , which states that, at 'the time of her death, "Nelson was permanently
                 8
precluded from obtaining .or performing reasonably continuous gainful employment in the
competitive labor market, as a proximate result [of]the June 29, 2003 industrial injury, when
                                                                               medical conditions. "   Clerk's
considered in     conjunction        with her ... '    preexisting disabling

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

permanently totally disabled.
U.       THE DEPARTMENT'S FINDING THAT NELSON WAS PERMANENTLY PARTIALLY DISABLED
         DOES NOT RESULT IN AN AWARD


         Both sides.agree. hat.
                         t                 Estate is not directly entitled to any benefits that flow from the

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

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

permanently partially disabled, 2)no double recovery would occur if the Department were to
                                (
pay the Estate for Nelson's permanent partial disability, and (3) timing of the Department's
                                                                 the
                                                             Estate —benefits,   contrary to the IIA's purpose.
 findings denied Nelsonand consequently her
                       —


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


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



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

right to receive a permanent partial disability award for an injury factored into the finding of that
worker's permanent total disability. See Stone, 172 Wn. App. at 258. Furthermore, the timing of
the Department's decisions here did not affect Nelson's or the Estate's eligibility for benefits.
        A.       A Finding of Permanent Total Disability Based in Part on a Particular Injury
                 Precludes an Award for a Permanent Partial Disability Based on That Same Injury

        The superior court adopted as its own the Board's finding of fact 1,which acknowledged
that after Nelson's death the Department also found Nelson permanently partially disabled as a
result of her 2003 industrial injury. The Department, however, emphasizes that it issued this

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




6 "`Permanent partial disability' means the loss of either one foot, one leg, one hand, one arm,
one eye, one or more fingers, one or more toes, any dislocation where ligaments were severed
where   repair is not complefe;
                  - "                 any other injury ksiown in surgery - be -permanent partial -
                                                                         to --
disability."RCW 51. 8.
                150.
                  0

 7 The relevant part of the Board's finding of fact 1 read:

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


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



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

was permanently totally disabled as a result of her 2003 industrial injury forecloses any award
for the permanent partial disability.

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

permanent partial disability where the injury giving rise to such a disability is factored into the
finding that the worker is permanently totally disabled. In Stone v. Department of Labor and
Industries, the Department found the worker permanently totally. disabled because of the
combined effects of a knee injury, a separate back injury, and mental health conditions. 172 Wn.
                                                                                         .

App. at 259. 'The worker argued that he should have received a permanent partial disability
award for the knee injury despite this injury being a contributor to the permanent total disability
finding. Stone, 172 Wn. App.at 259 60. The court disagreed, holding that the worker could not
                                   -
receive the permanent partial disability award when his permanent total disability was based in
part on that knee injury. Stone, 172 Wn.App. at 271.
        The   same   situation exists here.   The Department found .Nelson permanently totally

disabled "as a proximate result of the June 29, 2003.industrial injury, when considered in
conjunction with her ...    preexisting disabling medical conditions." CP at 131. Nonetheless,
Nelson's Estate argues that it should receive an award for the permanent partial disability that
 was predicated on this same 2003 injury. But, given Stone's,
                                                            holding;the Estate cannot receive


 9 The order notes that it was mailed only to Nelson's employer, not to Nelson or her Estate.
 Therefore, the order could have been final only with respect to the employerthe order states
                                                                              —
 that It]is order becomes final 60 days from the date it is communicated to you [Nelson's
         h
 employer only] unless you do one of the following: File a written request for reconsideration
 with the Department or file a written appeal with the Board of Industrial Insurance Appeals."
 Administrative Record Ex. 2.
                                                  7
 42456 8 II
       - -



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

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

 partial disability is even available here,we do not need to address the issue of double recovery.
          B.     The Timing of the Department's Findings Did Not Deny Nelson or Her Estate
                 Benefits to Which They Are Entitled Under the IIA

          The Estate insists that, contrary to the IIA's purpose of benefitting injured workers, the
 timing of the Department's orders finding Nelson permanently disabled disadvantaged Nelson,
 and thus her Estate. But beyond allusions to the IIA's broad purposes, the Estate makes no legal

 argument why the.Department could not posthumously make these findings; the Estate fails to
 specify any improper delay except to say that there is "no explanation" of the Department's
 failure to determine Nelson's type of permanent disability between June 2005 and August 2006.
 Br. of   Appellant    at-17.   Moreover, nothing in the timing of the Department's actions appears
 untoward.


          First, Nelson's receipt of time loss benefits for her temporary total disability right up to
                                           -
   death precluded
her_                      an   earlier      of permanent disability_.See Franks v Dept ofLabor &

 Indus. 35 Wn.2d 763, 767, 215 P. d 416 (1950) A]
                                2              ( "[ claimant cannot at one and the same time
 be classified   as   temporarily totally disabled   and   permanently partially   disabled. ").   Second, had

 Nelson wanted the Department to determine during this period whether she was permanently
  disabled, she could have made that request           at any    time.   See RCW      51. 2. Third,
                                                                                      055(
                                                                                         2
                                                                                         3 ).

  vocational counselor Amanda Boley was making her final assessment for the Department that
  Nelson was permanently totally disabled during the same month Nelson died, but Boley did not
  learn of Nelson's death until nearly two years later, only days before she testified in this case.


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




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

per          by the "what if'scenarios the Estate advances where we are told that Nelson or the
Estate would have received benefits if the timing of events had differed. In actuality, consistent

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

beneficiaries as defined under the IIA, the'epartment' permanent total disability finding here
                                        s  D                                              -

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

up beneficiaries or change t-he events of the past so that, under the law, additional compensation
appears.     We can only .determine whether the Department acted properly in the actual
circumstances, and we conclude that it did.

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

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

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

temporary total disability benefits that remain to be paid, much less argue why they should be
paid. "We do not consider assignments of error unsupported by argument or authority."Angelo
v. Angelo, 142 Wn. App. 622, 628 n. , 175 P. d 1096 ( 2008) citing RAP 10. (
                                  3        3                (          a)(
                                                                         6)).
                                                                         3
Therefore, we do not consider this issue.

 IV.      ATTORNEY FEES


          Finally, the Estate assigns error to the trial court's award of 200 in attorney fees to the
                                                                          $
 Department. But the Estate does not advance any argument why this was error, and so we do not
 consider it. RAP 10. ( Estate also requests attorney fees under RCW 51. 2.in the
                  a)( The
                    6).
                    3                                                130
                                                                       5


                                                    E
42456 8 II
      - -



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

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


        A majority of the panel having determined that.this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2:6.it is so ordered.
  0




We concur:




    1

        Van Deren, J. .
                   TP




          orswick, C




                                               10
