           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

SUKHJIT AHLUWALIA,                      )                                                   4r)
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                                        )      No. 77018-7-1                    •••••
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                    Appellant,          )                                                    rn cP
                                        )      DIVISION ONE                       •or.•       •••-t
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DEPARTMENT OF LABOR AND                 )      UNPUBLISHED OPINION                      •••••
INDUSTRIES OF THE STATE OF              )                                                ••
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                                                                                                          1
                                        )                                                ra
WASHINGTON,
                                        )
                    Respondent.         )      FILED: November 13, 2018
                                        )
      LEACH, J. — RCW 4.84.185 allows a prevailing party in a civil action to collect

attorney fees from a nonprevailing party as a sanction for advancing a frivolous

defense. Injured worker Sukhjit Ahluwalia appeals the trial court's decision affirming a

Board of Industrial Insurance Appeals (Board) order denying Ahluwalia's request for

attorney fees against the Department of Labor and Industries (Department). Although

the industrial appeals judge found the Department's legal theory to be unpersuasive, the

trial court upheld the Board's conclusion that the Department's defense was not

frivolous. We agree and affirm.1




       1 RCW 4.84.185 applies to "any civil action." Both parties assume the statute
applies in this industrial insurance case. Because we conclude that the Department's
defense was not frivolous, we do not reach the question of whether the statute applies.
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                                         FACTS

       In December 2007, Ahluwalia injured his back while working.          He filed an

industrial injury claim with the Department. The Department allowed his claim and

provided benefits.    After undergoing multiple back surgeries, Ahluwalia's doctors

permanently restricted him from his job of injury.

       RCW 51.32.095 authorizes the Department to provide vocational rehabilitation

services when those services are "both necessary and likely to enable the injured

worker to become employable at gainful employment."           On August 28, 2012, the

Department approved Ahluwalia for vocational plan development. The Department told

Ahluwalia the procedure for disputing the decision. Ahluwalia did not dispute it, and the

Department started plan development.

       A vocational counselor determined that Ahluwalia had no transferable skills and

no opportunity to return to work with his employer.        Ahluwalia then met with his

vocational counselor to explore retraining programs.        Ahluwalia identified medical

secretary as his primary goal. He planned to attend a two-year training program at

Renton Vocational Technical School. After Ahluwalia successfully completed a pain

management program, his doctor approved a job analysis for medical secretary without

restrictions.

       On February 11, 2013, the Department sent Ahluwalia's legal representative a

completed retraining plan. Ahluwalia asked for more time to review the plan. On March

1, 2013, Ahluwalia told the Department he was declining vocational services. He also

declined to agree to the retraining plan.            The Department sent Ahluwalia a

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No. 77018-7-1/ 3



noncooperation letter. It asked him to explain his decision and warned him that if he did

not participate in vocational services, the Department would suspend his benefits.

Ahluwalia, through his legal representative, responded that he had good cause for

rejecting the proposed retraining plan because he would be 67 years old at the time of

completion and would not likely find gainful employment. Ahluwalia's response included

documents showing that his current vocational rehabilitation goals were unreasonable.

Ahluwalia's legal representative recommended that he be referred for pension benefits.

The Vocational Dispute Resolution Office (VDRO) declined to accept Ahluwalia's letter

as a dispute.

       From March 20, 2013, through November 14, 2014, the Department approved a

number of extensions of time for him to sign the retraining plan and attempted to involve

Ahluwalia in the vocational rehabilitation process.     Ahluwalia continued to decline

participation. On April 22, 2013, the Department suspended Ahluwalia's benefits for

failure to cooperate and notified him that the suspension would remain in effect until he

cooperated or the Department closed the claim. Then, the Department issued several

orders finding that Ahluwalia was not cooperative with vocational training but placed

these orders in abeyance or resumed jurisdiction of Ahluwalia's appeals of these orders.

       On October 23, 2013, the Department notified Ahluwalia that he had been

approved for plan development and set a deadline of January 21, 2014, to finalize the

plan. The Department did not tell him how to dispute this decision. The Department

later extended the plan development deadline several more times, eventually extending

the deadline to November 12, 2014.

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      Ahluwalia continued to assert that the Department was legally required to issue a

new plan development decision that included instructions for disputing the decision. On

November 15, 2013, the Department informed Ahluwalia he was not entitled to a new

formal notification as he had already agreed to participate in plan development and was

not allowed to waive vocational services. The letter stated that the October 23, 2013,

notification extended the August 28, 2012, referral for plan development. Ahluwalia

appealed this decision. On October 8, 2014, the Department affirmed its determination

that Ahluwalia was not entitled to a new plan development decision.               Ahluwalia

appealed, and on March 9, 2015, the Department affirmed its October 8, 2014, decision.

Ahluwalia appealed this decision to the Board.

      On November 18, 2014, after Ahluwalia's vocational counselor submitted a report

stating that Ahluwalia was not able to benefit from services due to noncooperation, the

Department terminated Ahluwalia from vocational services due to circumstances

unrelated to his workplace injury. Ahluwalia protested this decision to the VDRO. On

February 12, 2015, the Department again declined to refer Ahluwalia for services,

noting his failure to cooperate. Ahluwalia appealed this decision to the Board.

      The Board consolidated the two appeals. The parties agreed to proceed on

stipulated facts and briefing. The industrial appeals judge concluded that Ahluwalia had

failed to cooperate with vocational services but that he had good cause "given the

narrow circumstances presented in these appeals."         The industrial appeals judge

reasoned that the Department's decision forced Ahluwalia to make a "Hobb[e]sian

choice" of participating in a vocational program that he believed was obsolete or, if he

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lost on appeal, to lose his pension. So the judge reversed the Department's March 9,

2015, decision and remanded to the Department to provide further benefits "in

accordance with the law and the facts." The judge also reversed the Department's

February 12, 2015, determination, finding that the Department abused its discretion by

not issuing a disputable order before forcing Ahluwalia to proceed with the disputed

plan. The Department did not file a petition for review, and the Board adopted the

judge's proposed decision and order.

      Ahluwalia then asked for attorney fees pursuant to RCW 4.84.185 as a sanction

against the Department for advancing a frivolous defense. The Board denied this

request. The Board reasoned that although the industrial insurance judge found the

Department's legal theory unpersuasive and that the Department abused its discretion

by not issuing a disputable order, Ahluwalia had not shown that the Department's

position was untenable. The Board also noted that the industrial insurance judge

upheld the Board's determination that Ahluwalia had not cooperated with vocational

services. After the Board denied Ahluwalia's motion for reconsideration, Ahluwalia

appealed to superior court. The parties stipulated that the issue could be resolved by

summary judgment without need for further proceedings.

      On April 18, 2017, the superior court affirmed the Board's decision denying

Ahluwalia's attorney fees request, finding that the Department's defense was not

frivolous or untenable.   The superior court later denied Ahluwalia's motion for

reconsideration. Ahluwalia appealed.



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                                         ANALYSIS

       Ahluwalia contends that the superior court should have granted his request for

attorney fees. RCW 4.84.185 authorizes a court to award reasonable attorney fees

against a nonprevailing party for advancing an action or defense that is frivolous and

without reasonable cause. "An appeal is frivolous if there are no debatable issues on

which reasonable minds can differ and is so totally devoid of merit that there was no

reasonable possibility of reversal."2 The action must be frivolous in its entirety to

support a fee award to the prevailing party.3 We review a trial court's decision to award

or deny attorney fees under RCW 4.84.185 for abuse of discretion.4 "A court abuses its

discretion when its decision is manifestly unreasonable or based on untenable

grounds."5

       Ahluwalia points to the industrial insurance judge's finding that it was manifestly

unreasonable for the Department to force him to choose between participating in a

vocational program that he reasonably believed was obsolete or, if he lost on appeal, to

lose his pension. The industrial insurance judge also found that the Department abused

its discretion in failing to require its staff to issue a disputable or appealable order before

compelling Ahluwalia to proceed with the disputed plan. Ahluwalia contends that the




       2   Dave Johnson Ins., Inc. v. Wright, 167 Wn. App. 758, 787, 275 P.3d 339
(2012).
       3 Biggsv. Vail, 119 Wn.2d 129, 136, 830 P.2d 350(1992).
       4Hanna v. Margitan, 193 Wn. App. 596, 612, 373 P.3d 300 (2016).
      5 Protect the Peninsula's Future v. City of Port Angeles, 175 Wn. App. 201, 218,
304 P.3d 914(2013).

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Department's defense was frivolous because it cannot be supported by any rational

argument on the law or facts.

      The Department's theory of defense was that it acted reasonably in finding

Ahluwalia noncooperative and suspending            his benefits because he stopped

participating in plan services after failing to dispute the plan within 15 days of the August

28, 2012, notice of plan commencement. The Department argued that Ahluwalia

remained in the plan development phase throughout this procedurally complex process

until the Department terminated services for failure to cooperate. The Department

contended that the October 23, 2013, plan development approval letter merely

continued the Department's earlier approval of Ahluwalia's eligibility for vocational

services. It was not a new formal referral requiring a letter containing protest language.

In addition, the Department's March 6, 2013, order closing vocational services did not

mandate a new formal referral because the Department later issued a superseding

order specifying that services were suspended. The Department thus contends that it

was not frivolous to argue that Ahluwalia failed to show good cause for failing to

cooperate because his dispute was untimely and he had no right to self-initiate a

disruption to the vocational process.

       Although the industrial insurance judge ruled in Ahluwalia's favor based on this

case's narrow circumstances, we disagree that the Department had no basis for

defending its decision to suspend benefits after Ahluwalia stopped participating in the




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vocational plan development process.6 The Department's theory of defense hinged

primarily on its assertion that Ahluwalia remained in the plan development phase

throughout the proceedings. Given the convoluted procedural posture in this case, it

was not unreasonable for the Department to assert this defense while seeking clarity

from the industrial appeals judge.

       The Department's litigation defense is not frivolous merely because the Board

rejects it.7 Also, Washington's Industrial Insurance Ace does not provide for an award

of attorney fees at the Board level to contest the Department's discretionary decisions.

Prevailing claimants may not use RCW 4.84.185 to shift their litigation expenses to the

Department.

       The trial court did not abuse its discretion by denying Ahluwalia's request for

attorney fees against the Department for advancing a frivolous defense.

       Affirmed.




WE CONCUR:



                                                     k2L24_
       6We also note that the industrial insurance judge agreed with the Department's
conclusion that Ahluwalia had not cooperated with services. Thus, the entirety of the
Department's defense cannot be deemed frivolous.
      7 See Mass. Mut. Life Ins. Co. v. Dep't of Labor & Indus., 51 Wn. App. 159, 165-
66, 752 P.2d 381 (1988) (affirming trial court's decision to reject prevailing party's
motion for fees for a frivolous appeal).
      8 Title 51 RCW.

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