      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES L. MILLER,            )                                                          ci)
                                                                                       —1
                            )                    DIVISION ONE                  •-•r•
                Respondent, )
                                                                                             -T1
                            )                    No. 76013-1-1
          v.                )                                                                      rrt
                                                                                       (111-T1
                            )                    PUBLISHED OPINION
SHOPE CONCRETE PRODUCTS CO.,)                                                                r-
                                                                                9?
                            )                                                                -;
                Defendant,  )                                                   c_n          4.44


                            )
                            )
DEPARTMENT OF LABOR AND     )
INDUSTRIES OF THE STATE OF  )
WASHINGTON,                 )
                            )
               Appellant.   )                    FILED: March 20, 2017
                            )

       DWYER, J. — The Department of Labor and Industries appeals from a

decision of the superior court reversing an order of the Board of Industrial

Insurance Appeals. The Department asserts that the superior court erred by

determining that James Miller was entitled to have the value of health care

benefits included in his wage computation. This is so, the Department contends,
                                                  1
because, at the time of Miller's injury, his employer had made no payments or

contributions toward health care benefits on Miller's behalf. The Department is

correct.

      Pursuant to the plain language of RCW 01.08.178(1), and consistent with

existing case authority, a worker's wage computation includes health care
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benefits when the worker's employer made payments or contributions toward

those benefits at the time of the injury. Miller concedes that, at the time of his

injury, his employer had made no payments or contributions toward health care

benefits on his behalf. Accordingly, we reverse the decision of the superior court

and reinstate the Board's decision.



       Miller began working for Shope Concrete Products Company on

September 10, 2012. On that day, he also began a 90-day orientation period.

Upon completion of the orientation, Shope was to provide him with health care

benefits.

       A month and a half later, Miller suffered a lower back injury at work. He

did not complete his orientation period and did   not return to work at Shope.
Because Miller never completed the orientation; Shope never paid or contributed

funds toward health care benefits on Miller's behalf.

       Miller applied to the Department of Labor and Industries for wage benefits

resulting from his injury. The Department allowed Miller's claim to go forward

and, a year later, issued a wage order calculating his wages at $3,335.20 per

month. The order did not include any amount attributable to the health care

benefits that Miller's employer would have provided him had he completed the

orientation. Miller protested the Department's Computation but the Department

affirmed its wage order. Miller then appealed the Department's order to the

Board of Industrial Insurance Appeals. The Board issued a decision and order

affirming the Department's exclusion of health Care benefits from Miller's wage



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calculation.

       Miller then appealed the Board's order to the Pierce County Superior

Court. The superior court reversed, determining that Miller's workers'

compensation wages should have included an amount attributable to health care

benefits because Shope would have provided such benefits to Miller had he

completed the orientation.

      The Department now appeals.

                                         II

                                         A

      The Department asserts that the trial court erred by ordering that Miller's

wage order be modified so as to include an amount attributable to his employer's

health care payments or contributions on his behalf. This is so, the Department

contends, because, at the time of Miller's injury, his employer had, in fact, never

made payments or contributions toward health Care benefits on Miller's behalf.

We agree.

       In workers' compensation cases, we review de novo the superior court's

conclusions of law. Rogers v. Dep't of Labor &'Indus., 151 Wn. App. 174, 180,

210 P.3d 355(2009)(quoting Watson v. Dep't of Labor & Indus., 133 Wn. App.

903, 909, 138 P.3d 177(2006)). "We may substitute our own judgment for that

of the agency regarding issues of law, but we give great weight to the agency's

interpretation of the law it administers." Dep't Of Labor & Indus. v. Allen, 100 Wn.

App. 526, 530, 997 P.2d 977(2000)(citing Dep't of Labor & Indus. v. Kantor, 94

Wn. App. 764, 772, 973 P.2d 30(1999)).



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      "If a statute's meaning is plain on its face, then we give effect to that plain

meaning as an expression of legislative intent." Hill v. Dep't of Labor & Indus.,

161 Wn. App. 286, 293, 253 P.3d 430(2011)(citing State ex rel. Citizens Against

Tolls(CAT) v. Murphy, 151 Wn.2d 226, 242, 88 P.3d 375 (2004)).

       Workers' compensation statutes are to be liberally construed and any

disagreement regarding the meaning of a Title 51 provision should be interpreted

in favor of the worker. Dep't of Labor & Indus. v. Granger, 159 Wn.2d 752, 757-

58, 153 P.3d 839(2007)(quoting RCW 51.12.010; Cockle v. Dep't of Labor &

Indus., 142 Wn.2d 801, 811, 16 P.3d 583(2001)). However,"Mules of liberal

construction cannot be used to change the meaning of a statute which in its

ordinary sense is unambiguous." Wilson v. Dep't of Labor & Indus., 6 Wn. App.

902, 906, 496 P.2d 551 (1972). Indeed,"statutes must not be construed in a

manner that renders any portion thereof meaningless or superfluous," Cockle,

142 Wn.2d at 809 (citing Stone v. Chelan County Sheriff's Dep't, 110 Wn.2d 806,

810, 756 P.2d 736 (1988)), or "in a way that would lead to a 'strained or

unrealistic interpretation." Granger, 159 Wn.2d at 757(quoting Senate

Republican Campaign Comm. v. Pub. Disclosure Comm'n, 133 Wn.2d 229, 243,

943 P.2d 1358 (1997)).

       RCW 51.08.178(1) provides:

      For the purposes of this title, the monthly wages the worker was
      receiving from all employment at the time ofinjury 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


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        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 employer's payment or contributions,
        or appropriate portions thereof, for healthcare 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.)

        A plain reading of this provision reveals that a wage computation includes

health care benefits when, at the time of the worker's injury, the employer was

paying or contributing toward that worker's health care benefits.

        This interpretation is consistent with our Supreme Court's decisions in

Cockle, 142 Wn.2d 801, and Granger, 159 Wn.2d 752, both of which interpreted

former RCW 51.08.178(1)(1988), and both of which analyzed whether wages, as

defined in the 1988 statute, included health care benefits.1 This issue came

before our Supreme Court because the 1988 statute's language, unlike that of

the current statute, did not contain the "health care benefit[]" or "payment or

contributions" language. Rather, the provision defined "wages," in pertinent part,

as "the reasonable value of board, housing, fuel, or other consideration of like

nature received from the employer as part of the contract of hire." Former RCW

51.08.178(1).




          'Although it does not impact our analysis, the tiMing between the legislative history of
the bill to amend former RCW 51.08.178(1), our decision in Granger, 130 Wn. App. 489, 123 P.3d
858(2005), and our Supreme Court's decision in Granger, 159 Wn.2d 752, bears mentioning.
          We issued our decision in Granger in October 2005. 130 Wn. App. 489. The bill to
amend former RCW 51.08.178(1) was presented to our state legislature in February 2007.
SUBSTITUTE H.B. 1244, 60th Leg., Reg. Sess.(Wash. 2007).
          One month later, in March 2007, our Supreme Court issued its decision in Granger. 159
Wn.2d 752. One month after that, the bill was passed by our House and Senate. SUBSTITUTE
H.B. 1244. Three months later, in July 2007, the bill became effective. SUBSTITUTE H.B. 1244.


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       In Cockle, our Supreme Court determined that a worker's "wages"

pursuant to former RCW 51.08.178(1) included en employer's health care

premium payments to the worker at the time of injury. Specifically, the court

ruled that "[t]he value of such premiums should have been included in the RCW

51.08.178 basis used to calculate [the] workers' compensation payments."

Cockle, 142 Wn.2d at 823.

       In Granger, our Supreme Court determined that funds that an employer

had paid into a trust for a worker's health care benefits constituted "wages,"

notwithstanding that, at the time of injury, the worker was not yet eligible to

receive the health care coverage. Granger's employer had paid $2.15 into a

health care benefit trust fund on a worker's behalf for every hour worked. To

receive health care coverage for the month, however, the worker had to have

logged 120 hours the month beforehand. Granger became injured on the jobsite

after having logged only 64 of the 120 hours required for coverage.

Consequently, Granger's employer had paid corresponding amounts to his health

care benefit trust but did not provide him with health care coverage for the

following month. Granger sought workers' compensation for his injury. Granger,

159 Wn.2d at 756. In computing his wages, the Department did not include the

health care benefit trust payments because, notwithstanding the trust funds set

aside, Granger was not actually receiving health care coverage at the time of his

injury. Granger, 159 Wn.2d at 756-57.

       Our Supreme Court reversed, instructing that "the proper focus under

RCW 51.08.178's 'receiving at the time of injury' language is on the payment



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made for the benefit and not on eligibility for coverage itself." Granger, 159

Wn.2d at 766-67. Because his employer was making payments toward his

health care benefits at the time of his injury, the court concluded, Granger's wage

calculation properly included an amount attributable to those health care benefits.

Granger, 159 Wn.2d at 765.

         Here, Miller concedes that Shope was not paying or contributing to health

care benefits on his behalf at the time he was injured.

        It is thus clear that Miller is not entitled to have an amount attributable to

employer-provided health care benefits included in his wage computation. For

such a contention to be warranted, RCW 51.08.178(1) plainly requires that an

employer be making payment or contributions toward the worker's health care

benefits at the time of injury. Indeed, case authority has never held that a worker

in the circumstances here presented is entitled to have a value attributable to

health care benefits included in the wage computation. At the time of Miller's

injury, Shope was neither paying for his health Care coverage premiums, Cockle,

142 Wn.2d 801, nor making payments into a trust fund for his health care

benefits, Granger, 159 Wn.2d 752. Thus, the superior court erred by ruling that

Miller is entitled to a wage computation that includes a value attributable to

employer-provided health care benefits.2


        2 Miller requests that we extend Cockle and Granger—and, by necessity, reinterpret
RCW 51.08.178(1)—to conclude that he is entitled to have the value of health care benefits
included in his wage computation, notwithstanding the absence of payment or contribution by his
employer. We decline to do so. The language of RCW 51.08.178(1) is clear. We will not
"change the meaning of a statute which in its ordinary sense is unambiguous." Wilson,6 Wn.
App. at 906.
         Miller next asserts that he is entitled to have the value of health care benefits included in
his wage computation because the benefits constitute "other consideration of like nature received
from the employer as part of the contract of hire." RCW 51.08.178(1). Alternatively, Miller


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        The Department requests that we reverse the superior court's award of

costs and attorney fees to Miller. Because the superior court erred by

determining that Miller prevailed in his suit against the Board, the Department's

request is granted. Similarly, Miller's request for an award of attorney fees on

appeal is denied.

        Reversed.




We concur:



--1;;;(./
        1
        4•2. I




contends that the focus regarding his wage computation should be on his lost earning capacity,
rather than whether his employer was making payments or contributions toward his health care
benefits.
         As to both contentions, we disagree. Miller's interpretations would effectively excise the
"payment or contributions" language from ROW 51.08.178(1). Removing this language would be
contrary to the legislature's clearly expressed intent. Cockle, 142 Wn.2d at 809; Wilson,6 Wn.
App. at 906.


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