                                                                           FILED
                                                                        JULY 11, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




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

ALONSO VELIZ,                                 )
                                              )         No. 33303-5-111
                        Appellant,            )
                                              )
       v.                                     )
                                              )
DEPARTMENT OF LABOR AND                       )         UNPUBLISHED OPINION
INDUSTRIES,                                   )
                                              )
                        Respondent.           )

       SIDDOWAY, J. -      Alonso Veliz appeals decisions affirming a Department of Labor

and Industries' change to what had been a final order establishing his wage for industrial

insurance compensation purposes. The wage was based on Mr. Veliz's reported status, as

of the date of injury, as married with three children. When Mr. Veliz was required to

provide further documentation in support of a pension, it was determined that while he

viewed himself as married, he was not legally married. The corrected "single" status

reduced his benefits.

       After Mr. Veliz appealed to this court, our Supreme Court held in Birrueta v.

Department ofLabor & Industries, 186 Wn.2d 537, 379 P.3d 120 (2016) that the

Department is authorized by statute to correct final orders that prove to be erroneous for a
No. 33303-5-III
Veliz v. Dep 't ofLabor & Indus.


reason identified in RCW 51.32.240(l)(a), one being reliance on an "innocent

misrepresentation by or on behalf of the recipient." Because Mr. Veliz's situation is

materially indistinguishable from the position of the benefit recipient in Birrueta, we

affirm.

                              BRIEF FACTS AND ANALYSIS

          In 2015, this court issued its decision in Birrueta v. Department ofLabor &

Industries, 188 Wn. App. 831,355 P.3d 320, rev'd, 186 Wn.2d 537,379 P.3d 120 (2016),

in which we addressed RCW 51.32.240(1), dealing with when the Department may

require repayment of benefits by a recipient.

          Subsection (l)(a) allows the Department to recover overpayments of benefits on

account of, among other errors, "innocent misrepresentation by or on behalf of the

recipient thereof mistakenly acted upon," but only if a claim for repayment is made

within a year. Subsection (l)(b) generally precludes the Department from assessing an

overpayment of benefits because of "adjudicator error" unless the order on which the

overpayment is based is not yet final.

          Mr. Birrueta's marital status had been innocently misrepresented to the

Department as a result of a miscommunication between the Spanish-speaking Mr.

Birrueta and the person who filled out the English language industrial accident report on

his behalf. Birrueta, 188 Wn. App. at 833-34. The form identified Mr. Birrueta's sister,

with whom he lived, as his wife; it identified her daughter, also a member of the

                                                2
I
I   No. 33303-5-III
    Veliz v. Dep 't ofLabor & Indus.


    household, as his child. Id. at 834. Because of his reported marital status, he received

    larger time-loss payments than he would have if single. Id. The mistake came to light

    when Mr. Birrueta was later found totally and permanently disabled, was placed on a

    pension, and was required to provide further information about his marital status at the

    time of the injury. Id. at 835.

           Reading RCW 51.32.240( 1) in conjunction with other provisions of chapter 51.32

    RCW, we did not construe the terms "innocent misrepresentation" and "adjudicator

    error" as mutually exclusive. We held that "adjudicator error" was meant to address final

    orders, including where the adjudicator's error in a final order was based on a worker's

    "innocent misrepresentation." Because Mr. Birrueta's wage for compensation purposes

    and his underlying marital status was the subject of a final order, we held that the

    · Department's right to recover overpayments in the prior year resulting from innocent

    misrepresentations did not apply.

           Our Supreme Court granted the Department's petition for review of our decision

    and reversed, agreeing with the Department's construction ofRCW 51.32.240(1)(a) and

    (b). The stay that had been entered in this appeal pending the Supreme Court's decision

    in Birrueta was lifted.

           Like Mr. Birrueta, Mr. Veliz is a monolingual Spanish speaker and his industrial

    accident report was completed by someone else. His accident report also represented that

    he was married, in his case with three children, and a final order fixed his wage for

                                                 3
No. 33303-5-111
Veliz v. Dep 't ofLabor & Indus.


compensation purposes based on that information. He, too, was later adjudicated fully

and permanently disabled and it was in that connection that the Department learned that

he was not legally married.

       In supplemental briefing filed in this appeal after the Supreme Court's Birrueta

decision, Mr. Veliz argues that his case is distinguishable from Mr. Birrueta's for two

reasons. First, Mr. Veliz claims that based on cultural mores in his and his wife's native

Mexico, they believed they were married and held themselves out as married. For that

reason, Mr. Veliz takes the position that in completing Department paperwork at the time

of his injury, "he answered truthfully." Appellant's Suppl. Br. at 5.

       Entitlement to the pension benefit Mr. Veliz wants to retain requires that he was

"married" with three children at the time of injury. RCW 5 l.32.060(l)(d). "Married" is

not defined for purposes of Title 51. See chapter 51.08 RCW. "Marriage" in Washington

is governed by chapter 26.04 RCW. To be married in this state, a couple must procure a

license from a county auditor and have the marriage solemnized within a prescribed

period of time. RCW 26.04.140, .180. The person solemnizing the ceremony is required

to file a certificate with the county auditor. RCW 26.04.090. A marriage between two

persons that is recognized as valid in another jurisdiction is valid in Washington, subject

to limited restrictions. RCW 26.04.020(4). In Mr. Veliz's case, the Board of Industrial

Insurance Appeals made an unchallenged finding that when he completed paperwork for




                                             4
No. 33303-5-111
Veliz v. Dep 't ofLabor & Indus.


a pension, Mr. Veliz admitted he was not married at the time of his injury. 1 Although the

Board found that Mr. Veliz had lived with his wife since 1998, it made the unchallenged

finding that they did not have a formal marriage ceremony until January 2011.

       To "misrepresent" has been defined as "to make an assertion or give an impression

not in accord with the facts." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

1445 (1993). Black's defines it, in part, as "an incorrect, unfair, or false statement; an

assertion that does not accord with the facts." BLACK'S LAW DICTIONARY 1152 (10th ed.

2014). The definitions include no subjective component. In an action for fraud or

negligent misrepresentation, the falsity of a representation is an element distinct from the

speaker's state of mind. See 6A WASHING TON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CIVIL§§ 160.01, 165.01 (6th ed. 2013). Mr. Veliz's initial report that he

was married was a misrepresentation. Because it was innocent, it was covered by RCW

51.32.240(1 )(a).

       Mr. Veliz's second argument is that the error in his case resulted from the

adjudicator's "failure to secure adequate information," which is an explicit example of

"adjudicator error" identified by RCW 51.32.240(1 )(b ). According to Mr. Veliz, the


       1
        The Board was not presented, nor are we, with evidence and argument that Mr.
Veliz's marriage was valid where contracted and consummated and is therefore valid in
Washington-an argument that an injured worker would be free to make in light ofRCW
26.04.020(3). In re Marriage ofAkan, 160 Wn. App. 48, 56-57, 248 P.3d 94 (2011). A
claim based on the marriage's validity where contracted and consummated would require
proof of foreign law. Id.

                                              5
No. 33303-5-111
Veliz v. Dep 't ofLabor & Indus.


Department should secure proof of marriage when an injured worker initially files a

claim rather than waiting until a pension is ordered.

       The same argument was made in Mr. Birrueta's appellate brief in this court and in

his supplemental briefing to the Supreme Court, both of which would have been

considered by the high court in rendering its Birrueta decision. See Br. of Resp't,

Birrueta v. Dep't ofLabor & Indus., No. 32210-6-111 (Wash. Ct. App. July 10, 2014) 2 at

13-14; Resp't's Br., Birrueta v. Dep't of Labor & Indus., No. 92215-2 (Wash. Mar. 11,

2016) 3 at 14-15.

       The Birrueta court held that the three types of error explicitly identified as

"adjudicator error" in RCW 51.32.240( 1)(b) are the types of errors "typically addressed

on reconsideration or direct appeal." 186 Wn.2d at 546. It held that an adjudicator's

'" failure to secure adequate information"' was equivalent to an adjudicator decision

supported by "insufficien[t] evidence." Id. Mr. Veliz, like Mr. Birrueta before him, asks

us to make a normative judgment about how much information the Department should

collect before entering an order. But Birrueta tells us that the statutory language asks

only whether substantial evidence supports an adjudicator's order. Mr. Veliz's


       2
          http://www.courts.wa.gov/content/Briefs/A03/322106%20Respondent.pdf
[https ://perma.cc/HY46-HUJK].
       3
      http://www.courts.wa.gov/content/Briefs/A08/92215-2%20Supp%20Briet'1;-fi20-
%20Resp. pdf [https ://perma.ccN3 6C-2A6C].



                                              6
No. 33303-5-III
Veliz v. Dep 't ofLabor & Indus.


representation in his industrial accident report that he was married was substantial

evidence. The adjudicator did not err.

       Because Mr. Veliz has not established a right to relief, he is not entitled to an

award of attorney fees on appeal. See RAP 18.1; RCW 51.52.130(1).

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                  Siddoway, J.

I CONCUR:




Pennell, J.




                                              7
                                      No. 33303-5-III

       FEARING, C.J. (dissenting) -   I dissent. Because RCW 51.32.060(1 )( d) does not

define "marriage," I would hold that a worker, who reasonably considers himself

married, to be married under the workers compensation statute such as to afford marriage

benefits for disability. Therefore, this court should not entitle the Department of Labor &

Industries (DLI) to reduce benefits or seek recoupment of benefits on the basis of a

misrepresentation by Alonso Veliz.

       Alonso Veliz was born in Mexico. Veliz does not read, write, or speak English.

We do not know when he entered the United States. While still residing in Mexico in

1998, Veliz began cohabiting with Marisol Vallarta Martinez. Since 1998, the pair have

lived as husband and wife and represented themselves, in both Mexico and the United

States, to be married. At the time of Veliz's injury, the couple had three children.

      Due to Mexican cultural norms, Alonso Veliz deems himself married to Marisol

Vallarta Martinez. Vallarta deems herself married to Veliz. This method of marrying is

common in Mexico where some couples cannot afford to marry and some individuals do

not consider a "piece of paper" to hold any significance in regard to marriage. Report of

Proceedings at 49.
No. 33303-5-III (dissent)
Veliz v. Department of Labor & Industries


       In 2007, Alonso Veliz suffered a knee injury while working in the warehouse of

Pasco's 3 Rivers Potato Services. Pasco's Lourdes Medical Center treated Veliz for his

injuries. During Veliz's visit to the hospital, someone completed patient information for

him on a DLI workers compensation claim form probably available through the hospital.

Veliz experienced intense pain, while in the hospital, due to his injuries. Veliz

encountered difficulty answering questions on the form. Whomever completed the form

marked that Veliz was married.

       In January 2008, DLI issued a notice of decision announcing its determination of

Alonso Veliz's wage for workers compensation purposes. The notice read that DLI

treated his marital status eligibility as "married with 3 children." Clerk's Papers at 117.

DLI paid time-loss benefits to Alonso Veliz calculated as if Veliz was married, which

resulted in larger payments than he would have garnered as a single individual.

       On January 25, 2011, Alonso Veliz and Marisol Vallarta Martinez legally married

in Pasco. The couple married at the advice of their lawyer.

       In 2011, DLI adjudged Alonso Veliz to be permanently and totally disabled and

ordered him placed on a pension beginning October 7, 2009. When completing pension

paperwork, Veliz informed DLI that he was not legally married at the time of his work

injury. In light of this new information, DLI, on August 8, 2011, issued an order

changing Veliz's marital status for compensation purposes from married to single.




                                             2
No. 33303-5-111 (dissent)
Veliz v. Department of Labor & Industries


       RCW 51.32.060 controls, in part, the amount of payment that DLI pays an injured

worker who suffers a permanent total disability. The statute read in relevant part:

              ( 1) When the supervisor of industrial insurance shall determine that
       permanent total disability results from the injury, the worker shall receive
       monthly during the period of such disability:
              (a) If married at the time of injury, sixty-five percent of his or her
       wages.
              (b) If married with one child at the time of injury, sixty-seven
       percent of his or her wages.
              (c) If married with two children at the time of injury, sixty-nine
       percent of his or her wages.
              (d) If married with three children at the time of injury, seventy-one
       percent of his or her wages.
              (e) If married with four children at the time of injury, seventy-three
       percent of his or her wages.
              (f) If married with five or more children at the time of injury,
       seventy-five percent of his or her wages.
              (g) If unmarried at the time of the injury, sixty percent of his or her
       wages.


RCW 51.32.060(l)(a)-(g) (emphasis added). Chapter 51.08 RCW contains numerous

definitions, but none for "marriage" or "married."

       Ultimately, in resolving a question of statutory construction, this court will adopt

the interpretation which best advances the legislative purpose. Citizens Alliance for

Property Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 437, 359 P.3d 753

(2015). RCW 51.32.060's increase in benefits for a married person permits a worker

who maintains a family to afford to care for the family. That purpose applies to the

relationship between Alonso Veliz and Marisol Vallarta Martinez.




                                              3
No. 33303-5-111 (dissent)
Veliz v. Department of Labor & Industries


       As noted by the majority, the Washington Legislature requires a solemnized "civil

contract" in order for a marriage to be valid. RCW 26.04.010(1 ), .050, .120, .130; In re

Marriage of Pennington, 142 Wn.2d 592, 599-600, 14 P.3d 764 (2000); Roe v. Ludtke

Trucking, Inc., 46 Wn. App. 816, 819, 732 P.2d 1021 (1987). Common law marriage is

not recognized under Washington law. In re Marriage ofPennington, 142 Wn.2d at 600;

Peffley-Warner v. Bowen, 113 Wn.2d 243,249, 778 P.2d 1022 (1989). Nevertheless, a

common law marriage valid in the state where contracted and consummated is recognized

as a valid marriage in this state. Peffley-Warner v. Bowen, 113 Wn.2d at 249; In re

Welfare of Warren, 40 Wn.2d 342,344,243 P.2d 632 (1952). A common law marriage

is one without formal solemnization. Peffley-Warner v. Bowen, 113 Wn.2d at 249. Such

a marriage arises based on an actual and mutual agreement to enter into a matrimonial

relation, between parties capable in law of making such a contract, consummated by their

assumption openly of marital duties and obligations. Peffley-Warner v. Bowen, 113

Wn.2d at 249-50.

       DLI fails to recognize that Alonso Veliz and Marisol Vallarta Martinez

cohabitated, treated each other as spouses, held themselves out as married, and bore

children as if married in Mexico. I recognize that, in litigation, a party asking the court to

apply foreign law bears the burden to present the foreign law to the court. Nevertheless,

since Washington recognizes common law marriages first established in another state,

DLI should have, before revoking Veliz's marital benefit, investigated whether Veliz and


                                              4
No. 33303-5-III (dissent)
Veliz v. Department of Labor & Industries


Vallarta would be considered married under the law of the Mexican state where the

couple cohabited.

       Actually, Mexican jurisdictions do not speak in terms of common law wives or

common law marriage. Mexico is a code nation and does not recognize the common law.

Instead, many Mexican jurisdictions acknowledge Mexican couples that live as husband

and wife as being in a concubinage relationship that creates rights similar to rights

attended to marriage. Jorge A. Vargas, Concubines under Mexican Law; with a

Comparative Overview a/Canada, France, Germany, England and Spain, 12 Sw. J.L. &

TRADE AM. 45, 48 (2005). DLI's legal position fails to respect Mexico's culture, despite

thousands of eastern Washington residents being of Mexican descent. Although not all

Hispanics are of Mexican origin, Veliz's home town is predominantly Hispanic.

       Wholly unrelated to either common law or state licensed marriage, Washington

courts have recognized the existence of meretricious relationships now known as

committed intimate relationships. In re Marriage of Pennington, 142 Wn.2d at 600;

Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). The State Supreme

Court characterizes a committed intimate relationship as a "stable, marital-like

relationship where both parties cohabit with knowledge that a lawful marriage between

them does not exist." Connell v. Francisco, 127 Wn.2d at 346. A court examines five

relevant factors when reviewing whether a committed intimate relationship exists:

continuous cohabitation, duration of the relationship, purpose of the relationship, pooling


                                             5
No. 33303-5-111 (dissent)
Veliz v. Department of Labor & Industries


of resources and services for joint projects, and the intent of the parties. Connell v.

Francisco, 127 Wn.2d at 346; In re Marriage ofLindsey, 101 Wn.2d 299, 304-05, 678

P.2d 328 (1984). A relationship need not be "long-term" to be characterized as a

committed intimate relationship. In re Marriage ofLindsey, 101 Wn.2d at 304-05.

       Although a "committed intimate relationship" is not the same as a "marriage," the

courts treat the parties' property similarly to the treatment of property owned by spouses.

In re Marriage ofPennington, 142 Wn.2d at 601; Connell v. Francisco, 127 Wn.2d at

349. Upon the ending of the relationship, the court shall order a just and equitable

distribution of property. In re Marriage of Lindsey, 101 Wn.2d at 304. If a court can

impose marital property rules upon the ending of a committed intimate relationship when

the parties know themselves not to be married, the court should consider a couple who

judges themselves husband and wife and treat each other as husband and wife to be in a

marital relationship for purposes of workers compensation benefits.

       A decision of limited precedence is Knoll v. Knoll, 104 Wash. 110, 176 P. 22

(1918). Frances Knoll sought a divorce from Henry Coles. She appeared in court, on

April 17, 1899, and the trial court orally granted a marital dissolution. Nevertheless, the

court did not sign the divorce decree until October 8, 1906. In the meantime, Frances

Knoll, on June 14, 1899, married Joseph Knoll in Canada. The parties could not marry in

Washington State, because Washington prohibited a divorcee from remarrying within six

months of the divorce. Canada lacked this proscription. Frances Knoll believed she


                                              6
No. 33303-5-111 (dissent)
Veliz v. Department of Labor & Industries


could marry in Canada because she was unaware of the trial court's failure to sign a

divorce decree. The Supreme Court held that the marriage, celebrated in Canada, was

void in Washington. Nevertheless, the court held that the lower court may, in an action

brought for annulment of the marriage, treat the relation as a partnership as to all property

acquired by the joint effort of the parties. A broad reading of Knoll suggests that a

nonexistent legal marriage may be treated as a marriage when the parties in good faith

believe themselves to be betrothed.

       At the least, I would remand this appeal to DLI to conduct a hearing as to whether

Alonso Veliz and Marisol Vallarta Martinez cohabited in a Mexican state that recognized

concubinage. But a remand is not needed because of Veliz's unchallenged good faith

belief of his marital status.

       At least one foreign decision supports DLI's position that the department need not

pay marital benefits unless the injured party is married in conformance with Washington

law. Ranney v. Whitewater Engineering, 122 P.3d 214 (Alaska 2005). Nevertheless,

numerous foreign cases support my dissent. Spitz v. T.O. Haas Tire Co., 283 Neb. 811,

815 N.W.2d 524 (2012); In re Death of Hyde, 2011 OK 31,255 P.3d 411; West v.

Barton-Ma/ow Co., 394 Mich. 334,230 N.W.2d 545 (1975); Brennfleck v. Workmen's

Compensation Appeals Board, 265 Cal. App. 2d 738, 71 Cal. Rptr. 525 (1968); Jackson

v. State Compensation Commissioner, 106 W. Va. 374, 145 S.E. 753 (1928). All the

decisions involve death benefits but still determine whether a common law wife or a wife


                                             7
No. 33303-5-111 (dissent)
Veliz v. Department of Labor & Industries


in a committed intimate relationship with the decedent may recover marital workers

compensation benefits.

       Brennfleck v. Workmen's Compensation Appeals Board, 265 Cal. App. 2d 738, 71

Cal. Rptr. 525 (1968), contains a factual situation similar to Knoll v. Knoll. Isabelle

Brennfleck journeyed to Mexico to marry Carl Brennfleck. Both were California

residents. Carl's former wife had recently obtained an interlocutory divorce decree in

California, but the dissolution court failed to enter the final decree until four years after

the Mexican marriage ceremony. Carl died two years after entry of the final decree from

a work accident. Isabelle sought workers compensation death benefits as the surviving

spouse of Carl. Carl and Isabelle had lived together as husband and wife for seven years.

The California appeals court reversed the compensation board's denial of benefits and

directed the board to either grant Isabelle benefits or conduct a factual hearing into the

good faith belief of Isabelle as to the validity of her marriage.

       In In re Death of Hyde, 2011 OK 31,255 P.3d 411, Oklahoma law required a

surviving spouse to be legally married to the worker at the time of the worker's death in

order for the spouse to gamer death benefits. The court held that a common law wife was

entitled to benefits.

       In Jackson v. State Compensation Commissioner, 106 W. Va. 374, 145 S.E. 753

(1928), Allen Jackson and Margaret Lemon were married in Alabama in 1917. In 1924,

Lemon left Jackson and instituted a divorce action. The couple later reconciled and


                                               8
No. 33303-5-111 (dissent)
Veliz v. Department of Labor & Industries


reassumed a marital liaison, but the Alabama court entered a divorce decree nonetheless.

Lemon claimed no knowledge of the entry of the decree. In 1927, the couple moved to

West Virginia. Shortly thereafter, Jackson died from an industrial accident. The state

compensation commissioner denied Lemon any death benefits, in part, because West

Virginia did not recognize common law marriage. The state Supreme Court reversed and

remanded with directions for the commissioner to investigate whether Alabama would

have recognized the couple as married under common law.

       In Spitz v. TO. Haas Tire Co., 283 Neb. 811, 815 N.W.2d 524 (2012), the

Nebraska high court denied Christy Spitz death benefits under Nebraska's workers

compensation law. Spitz contended that she and the decedent engaged in a common law

marriage. Nebraska rejected common law marriage, but Colorado, where the couple

previously cohabitated, recognized this form of marriage. The Nebraska court may have

granted Spitz benefits if she established that she lived with the decedent in common law

marriage under Colorado law, but Spitz failed to establish the elements of a common law

marnage.

       West v. Barton-Ma/ow Co., 394 Mich. 334, 230 N.W.2d 545 (1975), presents the

strongest support for this dissent. The Michigan workers compensation law did not

afford death benefits to one unless the survivor was dependent and in a family

relationship with the decedent. A family member included a "widow." Former MICH.

STAT. ANN.§ 17.237(331) (1969). Clarence and Azalee West lived together as husband


                                            9
No. 33303-5-111 (dissent)
Veliz v. Department of Labor & Industries


and wife for thirteen years before Clarence's death as a result of a work injury. Clarence

garnered the only income, while Azalee cared for the household. The couple never wed.

The Michigan Supreme Court granted Azalee death benefits. The court recognized the

malleable concept of family. The court desired a couple who lived as husband and wife

to be treated as husband and wife under the law.




                                             Fearing~)




                                            10
