                                                                              FILED 


                                                                       October 31, 2013 


                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 



           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )
DEPARTMENT OF LABOR AND                       )        No. 31081-7-111
INDUSTRIES,                                   )
                                              )
                     Respondent,              )
                                              )
      v.                                      )
                                              )
DONALD M. SLAUGH,                             )
                                              )
                     Appellant,               )
                                              )
LOCKHEED MARTIN HANFORD                       )        PUBLISHED OPINION
CORPORATION,                                  )
                                              )
                     Respondent.              )

       SIDDOWAY, A.C.l -     The issue in this case is one over which the Department of

Labor and Industries and the Board of Industrial Insurance Appeals disagree: Does RCW

51.36;010 provide the supervisor of industrial insurance with discretion to consider

extending life-sustaining medical and surgical treatment to workers in all cases that the

department has accepted and then closed, or only cases of permanent total disability?

       The conflicting positions of the board and the department are at issue in the case

of Donald M. Slaugh, who persuaded the board, although not the department, that the

supervisor enjoyed discretion to authorize continued treatment in his case, which was
No. 31081-7-111
Dep 'f ofLabor & Indus. v. Slaugh


closed in 2009 with an award for permanent partial disability. The department and Mr.

Slaugh's employer, Lockheed Martin Hanford Corporation, appealed the board's decision

to the Franklin County Superior Court, which construed the statute to limit the

supervisor's discretion to cases of permanent total disability.

       We conclude that the statute unambiguously has the meaning given it by the

department and affirm the trial court.

                      FACTS AND PROCEDURAL BACKGROUND

       In November 2003, the department received an application for benefits filed on

behalf of Mr. Slaugh, alleging that he injured his lungs in January 2003 while in the

course of his employment with Lockheed Martin, a self-insured employer. The claim

was allowed and Lockheed Martin was directed to pay medical and time-loss

compensation benefits to Mr. Slaugh, who was found to have occupational asthma and

restrictive airways disease. In September 2009, the department issued an order closing

the claim with time-loss compensation previously paid and an award for permanent

partial disability.

       Mr. Slaugh filed a notice of appeal and after a lengthy process involving a remand,

the department issued an order in May 2010, again stating the claim was closed with an

award for permanent partial disability. In response to Mr. Slaugh's request that the

supervisor exercise its discretion to authorize continued life-sustaining medical treatment

for his asthma, the order further stated:

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         "The law does not permit the Department to consider the discretionary
         authorization for life-sustaining treatment per the second proviso of
         RCW 51.36.010 after a claim is closed with a permanent partial disability
         award."

Clerk's Papers (CP) at 101.

         Mr. Slaugh appealed the order to the board. In 2003, the board had held in In re

Reichlin l that the second proviso in RCW 51.36.010 permits the department to consider

extending life-sustaining treatment in all closed cases. Its holding in Reichlin reversed an

earlier construction of the statute by the board and is contrary to the construction of the

statute by the department.

         In proceedings before the industrial appeals judge, both the department and

Lockheed Martin agreed that the board's decision in Reichlin was on point and would

require reversal and remand, but both argued that the board should overrule Reichlin and

return to the interpretation ofRCW 51.36.010 contained in In re Malmberg, No. 86 1236,

1987 WL 61422 (Wash. Bd. of Indus. Ins. Appeals Nov. 12, 1987). Noting that "[i]t is

not my place to overrule, disregard, or not follow Board precedent," the industrial appeals

judge reversed and remanded the department's order with direction to the supervisor to

exercise its discretion. CP at 104. The department and Lockheed Martin petitioned the




         1   No. 00 15943,2003 WL 22273065 (Wash. Bd. of Indus. Ins. Appeals July 25,
2003).

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No.31081-7-III
Dep't ofLabor & Indus. v. Slaugh


board for review. The board denied review and the proposed decision and order of the

industrial appeals judge thereby became the decision and order of the board.

       The department and Lockheed Martin appealed the board's decision to the

Franklin County Superior Court. The superior court accepted their construction ofRCW

51.36.0 I 0 and reversed the board's decision. This appeal followed.

                                     ANALYSIS

       Former RCW 51.36.010 (1986) included a lengthy paragraph (a paragraph now

codified within RCW 51.36.010(4)) that addresses how medical treatment in accepted

industrial insurance claims "shall be limited in point of duration." The paragraph consists

of three clauses, separated by semicolons. The parties dispute whether a second proviso

in the paragraph, which appears in its third clause and grants discretion to the supervisor

of industrial insurance to provide continuing life-sustaining treatment, applies to every

type of claim described in the three clauses or to only claims for permanent total

disability described in the third clause.

       In an industrial insurance appeal we review the superior court's decision, not that

of the agency. RCW 51.52.110. We review whether substantial evidence supports the

trial court's factual findings and then review, de novo, whether the court's conclusions of

law flow from the findings. Cantu v. Dep't ofLabor & Indus., 168 Wn. App. 14,21,277

P.3d 685 (2012) (citing Ruse v. Dep't ofLabor & Indus., 138 Wn.2d 1,5,977 P.2d 570

(1999)). In this case, the trial court's findings were limited to the procedural history of

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t

I
J    No. 31081-7-111
     Dep't ofLabor & Indus. v. Slaugh


     Mr. Slaugh's claim, which is undisputed. Because the only question on appeal is a

     question of statutory construction, an issue of law, our review is de novo. Ramo v. Dep't

     ofLabor & Indus., 92 Wn. App. 348,353,962 P.2d 844 (1998).

            We interpret statutes to give effect to the legislature's intent. City ofSpokane v.

     Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006). Ifa statute's meaning is

     plain on its face, then the court will give effect to that plain meaning as an expression of

     legislative intent. State ex rei. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 242, 88

     P.3d 375 (2004). Plain meaning is discerned not only from the provision in question but

     also from closely related statutes and the underlying legislative purposes. Id. If a statute

     is ambiguous then this court may resort to additional cannons of statutory construction or

     legislative history. Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d I, 12, 43

     P.3d 4 (2002).

            Ifwe reformat the language in RCW 51.36.010 that is at issue to separate the

     clauses where semicolons appear and to highlight the proviso at issue, 2 it provides:

            In all accepted claims, treatment shall be limited in point of duration as
            follows:
                    In the case of permanent partial disability, not to extend beyond the
            date when compensation shall be awarded him or her, except when the


             2 Mr. Slaugh has continuously objected to the department's and Lockheed
     Martin's tendency to reformat the relevant portion of the statute in this fashion. His
     objection would be reasonable if it changed the meaning of the statute. By breaking the
     statute into the clauses signaled by its punctuation, however, we do not change its
     meaning, we only make it easier to follow our textual analysis.

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No.31081-7-III
Dep't ofLabor & Indus. v. Slaugh


      worker returned to work before permanent partial disability award is made,
      in such case not to extend beyond the time when monthly allowances to
      him or her shall cease;
              in case of temporary disability not to extend beyond the time when
      monthly allowances to him or her shall cease: PROVIDED, That after any
      injured worker has returned to his or her work his or her medical and
      surgical treatment may be continued if, and so long as, such continuation is
      deemed necessary by the supervisor or industrial insurance to be necessary
      to his or her more complete recovery;
              in case of a permanent total disability not to extend beyond the date
      on which a lump sum settlement is made with him or her or he or she is
      placed upon the permanent pension roll: PROVIDED, HOWEVER, That
      the supervisor ofindustrial insurance, solely in his or her discretion, may
      authorize continued medical and surgical treatment for conditions
      previously accepted by the department when such medical and surgical
      treatment is deemed necessary by the supervisor ofindustrial insurance to
      protect such worker's life or provide for the administration ofmedical and
      therapeutic measures including payment ofprescription medications.

(Emphasis added.)

       This second, highlighted proviso was relied upon by Mr. Slaugh to request that the

supervisor of industrial insurance exercise its discretion to extend life-sustaining medical

and surgical treatment to him despite the order closing his claim.

       Before an allowance can properly be made for a permanent partial disability, as

was made for Mr. Slaugh in 2009, the condition of the worker must have reached a

"fixed" state, meaning there is no further medical treatment that is likely to further

improve his or her condition. State ex rei. Stone v. Olinger, 6 Wn.2d 643, 647, 108 P.2d

630 (1940); Miller v. Dep't ofLabor & Indus., 200 Wash. 674, 680,94 P.2d 764 (1939).

The purpose of determining the disability and the rate at which it will be compensated in


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No. 31081-7-III
Dep't 0/Labor & Indus. v. Slaugh


the first instance is to close the claim. Olinger,6 Wn.2d at 648. The worker may later

apply to reopen the claim, but in that event the worker must show that the industrially

related disability has been aggravated and that the aggravation was proximately caused

by the industrial injury. RCW 51.32.160; Wilber v. Dep't o/Labor & Indus., 61 Wn.2d

439,444,378 P.2d 684 (1963).

       In Reichlin, the board was persuaded that RCW 51.36.010 provides a worker

whose claim has been closed with a finding of permanent partial disability with a second

avenue to further treatment: the discretion of the supervisor provided for by the

concluding proviso of that section. The board reasoned:

      The section ofthe statute that is material to this case is the final proviso that
      states the supervisor of industrial insurance, in his sole discretion, may
      authorize continued medical and surgical treatment for accepted conditions
      to protect the worker's life or to provide for the administration of medical
      and therapeutic measures ... that are necessary to alleviate continuing pain.
      As stated in the Malmberg concurrence and in the claimant's Petition for
      Review, that proviso follows the discussion of treatment for both PPD
      [permanent partial disability] and TPD [total permanent disability] workers.
      There is no distinction made in the proviso. Although the more typical
      course for a worker whose claim has been closed would be to apply to
      reopen for further treatment ifthe condition has worsened, given the nature
      of certain illnesses like asthma, that can be life threatening or with acute
      temporary flare-ups, that process is not of much benefit.
              The rules of statutory construction dictate that absent some obvious
      ambiguity, the words of the statute must be given their plain meaning. This
      statute read as a whole does not limit the discretion to provide continued
      treatment to TPD cases. That interpretation is also contrary to the plain
      statutory language and is contrary to the principle that any doubt, though
      we do not believe that there is really any doubt here, should be resolved in
      favor of the worker. We note that under certain circumstances, the
      Department does provide continued treatment in PPD cases-for example,

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No. 31 081-7-III
Dep't ofLabor & Indus. v. Slaugh


       prostheses or hearing aids and what is associated with providing them. All
       that is sought here is that the Director exercises his discretion, and finds
       that RCW 51.36.010 provides for that relief. We reverse the order and
       letters under appeal and remand this matter for the Director to exercise his
       discretion.

2003 WL 22273065, at *3-4.

       To discern the plain meaning of the statutory language, we employ traditional

rules of grammar. State v. Bunker, 169 Wn.2d 571,578,238 P.3d 487 (2010). Applying

grammatical rules is therefore a first step in determining whether a statute has a plain

meaning, unlike rules of statutory construction that we tum to only if a statute is

ambiguous.

       The language at issue is punctuated in a methodical way, to contain three clauses

separated by semicolons. A semicolon is used to show a "stronger separation between the

parts of a sentence than does a comma." MADELINE SEMMELMEYER & DONALD O.

BOLANDER, THE NEW WEBSTER'S GRAMMAR GUIDE 235 (Berkeley ed. 1991). It is used to

"separate phrases, clauses, or enumerations, of almost equal importance, especially when

such phrases or clauses contain commas within themselves." LOIS IRENE HUTCHINSON,

STANDARD HANDBOOK FOR SECRETARIES 239 (8th ed. 1979). The Washington Code

Reviser's style manual provides that "[a] semicolon is not used where a comma will

suffice, but is to be used to separate phrases already containing commas." STATUTE LAW

COMM., OFFICE OF THE CODE REVISER, BILL DRAFTING GUIDE 2013, pt. IV(l)(b),

available at http://www .leg. wa.gov/CodeReviserlPages/bill_drafting_guide.aspx#part4.

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No. 31081-7-111
Dep 't ofLabor & Indus. v. Slaugh


The same directive was contained in the Bill Drafting Guide in use in the 1965 legislative

session, which is when the proviso at issue was enacted. STATUTE LAWCOMM., OFFICE OF

THE CODE REVISER, REVISED BILL DRAFTING GUIDE FOR USE IN THE 1965 LEGISLATIVE

SESSION, pt. 11(4), at 15 (Dec. 1, 1964); see LAWS OF 1965, 1st Ex. Sess., ch. 166, § 2.

       The structure of the three clauses of the statute is parallel. The first clause begins

"[i]n the case of permanent partial disability" and proceeds to dictate a duration. The

second begins "in case of temporary disability" and proceeds to dictate a different

duration-in this case, subject to the first proviso in the paragraph, introduced by a colon.

"A colon may introduce a summing up, an illustration, quotation, or enumeration, for

which the previous words in the sentence have prepared the reader." HUTCHINSON,

supra, at 241. In Stuart v. East Valley Consolidated School District No. 361, 61 Wn.2d

571, 575, 379 P.2d 369 (1963), the court differentiated the use of a colon, which one

could contend introduced matter that was explanatory of the phrase that preceded it and

therefore restrictive, from the use of a semicolon, indicating that matter that follows is not

restrictive, but supplementary. The Washington Code Reviser's guide describes a colon

as being used "to introduce a list or a proviso." BILL DRAFTING GUIDE 2013, pt.

IV(1)(e). Indeed, while the Code Reviser's guide discourages the use of provisos, it

states that "[i]fused, the proviso should be preceded by a colon." See id. at pt. IV(1)(d).




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      No. 31081-7-111
      Dep 't ofLabor & Indus. v. Slaugh


             The third clause begins "in case of a permanent total disability" and proceeds to

      dictate a third, distinct, duration, subject to the proviso that is at issue; this second proviso

      is again introduced by a colon.

             This methodical, parallel structure of the paragraph is solid textual support for the

      department's and Lockheed Martin's position that each clause is addressing limits on the

      duration of treatment for a different category of disability. Cf State v. Haye, 72 Wn.2d

!.	   461,468 n.1, 433 P.2d 884 (1967) (suggesting that the reason for punctuating different

      matters differently in a constitutional provision may have been due to the differing nature

      of the matters). An act should be read as punctuated unless there is some reason to do

      otherwise. 2A NORMAN 1. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 47:15,

      at 264 (6th ed. 2000).

             While "the meaning of a statute will typically heed the commands of its

      punctuation ... a purported plain-meaning analysis based only on punctuation is

      necessarily incomplete and runs the risk of distorting a statute's true meaning."     u.s.
      Nat 'I Bank ofOr. v. Indep. Ins. Agents ofAm., Inc., 508 U.S. 439, 454, 113 S. Ct. 2173,

      124 L. Ed. 2d 402 (1993). Beyond the punctuation, the department and Lockheed Martin

      rely on the last antecedent rule, a grammatical rule commonly applied in discerning the

      meaning ofa statute. Bunker, 169 Wn.2d at 578. The last antecedent rule provides that

      "unless a contrary intention appears in the statute, qualifying words and phrases refer to

      the last antecedent." In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 781, 903 P.2d

                                                     10 

No. 31081-7-II1
Dep 't ofLabor & Indus. v. Slaugh


443 (1995). The rule disfavors an interpretation that would have words "leaping across

stretches of text, defying the laws of both gravity and grammar." Flowers v. Carville,

310 F.3d 1118, 1124 (9th Cir. 2002). The department and Lockheed Martin argue that

applying the last antecedent rule compels the conclusion that the proviso at issue qualifies

only the third clause, dictating the duration of treatment of workers determined to have a

permanent total disability.

       Mr. Slaugh responds that a corollary to the last antecedent rule is that "the

presence of a comma before the qualifying phrase is evidence that the qualifier is

intended to apply to all antecedents instead of only the immediately preceding one." Br.

of Appellant at 13 (citing Judson v. Associated Meats & Seafoods, 32 Wn. App. 794, 801,

651 P.2d 222 (1982». But in Judson, and in the usual case, the antecedents are

themselves separated by commas, not semicolons, thereby signifying that the qualifying

phrase might have as close a relation to the first preceding antecedent as it has with the

last. At least one court has concluded that where a semicolon is used to separate two

antecedent phrases, the application of the modifying phrase to those antecedents is

affected, with the semicolon interpreted as separating that phrase from a subsequent

modifying phrase. Morella v. Grand Union/New Jersey Self-Insurers Guar. Ass 'n, 391

N.J. Super. 231, 241, 917 A.2d 826 (2007), aff'd, 193 N.J. 350, 939 A.2d 226 (2008).

We agree.




                                             11 

No. 31081-7-111
Dep 't ofLabor & Indus. v. Slaugh


       Mr. Slaugh also argues that the last antecedent rule is not to be applied inflexibly

or taken as always binding. See State v. Wofford, 148 Wn. App. 870, 882, 201 P.3d 389

(2009). Courts do not apply the rule "if other factors, such as context and language in

related statutes, indicate contrary legislative intent or if applying the rule would result in

an absurd or nonsensical interpretation." Bunker, 169 Wn.2d at 578. Mr. Slaugh

attaches importance to language and format differences between the first proviso in

RCW 5 1.36.0 1O-introduced by "PROVIDED"-and the second-introduced by

"PROVIDED, HOWEVER"-as connoting a greater break and therefore an indication

that the legislature intended the second proviso to apply to all antecedent clauses

preceding it. Reply Br. of Appellant at 3. He cites no authority, legal or grammatical, for

the distinction, and we see no difference.

       He finally argues that given the fundamental purpose of the Industrial Insurance

Act, Title 51 RCW, to benefit workers, the most reasonable reading of the proviso is to

give the supervisor discretion to provide all workers with any necessary life-sustaining

medical treatment and monitoring, since permanently partially disabled workers like Mr.

Slaugh, while eligible to apply to reopen a claim, can encounter substantial delay. Br. of

Appellant at 14. As pointed out by the department and Lockheed Martin, however,

neither process for obtaining further treatment provides an explicit guarantee of timely

care and a worker applying to reopen a claim may obtain immediate life-sustaining

treatment. Department regulations provide that if a worker applies to reopen a claim,

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No.31081-7-III
Dep't ofLabor & Indus. v. Slaugh


"[n]ecessary treatment should not be deferred pending a department or self-insurer 


adjudication decision," although if reopening is denied, the treatment costs will become 


the financial responsibility of the worker. 


WAC 296-20-097. 


       Nothing in the context or language of Title 51 RCW indicates that the legislature

did not intend for the proviso to apply only to the last antecedent, and applying the last

antecedent rule does not lead to absurd or strained consequences. It is appropriately

applied here.

       Finally, Mr. Slaugh argues that (1) we must surely accept the board's construction

of the statute in Reichlin as a reasonable one; (2) a statute is ambiguous when it is

susceptible to two or more reasonable interpretations, see, e.g., State v. Gonzalez, 168

Wn.2d 256,263,226 P.3d 131 (2010); and (3) any ambiguity in the Industrial Insurance

Act must be resolved in favor of the injured worker, see Harry v. Buse Timber & Sales,

Inc., 166 Wn.2d 1,201 P.3d 1011 (2009); see also RCW 51.12.010 (announcing a policy

of liberal construction). We need not and do not accept the board's construction of the

statute in Reichlin as reasonable, however.

       We interpret the meaning of statutes de novo and may substitute our interpretation

of the law for that of the agency. Port ofSeattle v. Pollution Control Hearings Bd., 151

Wn.2d 568, 593, 90 P.3d 659 (2004). Where a statute is within an agency's special

expertise, we accord the agency's interpretation great weight, provided that the statute is

                                                13 

No. 31081-7-111
Dep 't a/Labor & Indus. v. Slaugh


ambiguous. Id. "Absent ambiguity, however, there is no need for the agency's expertise

in construing the statute." Waste Mgmt. a/Seattle, Inc. v. Uti/so & Transp. Comm 'n, 123

Wn.2d 621,628,869 P.2d 1034 (1994). The rule of liberal construction likewise does

not apply where we find no ambiguity. Harris        V.   Dep 't a/Labor & Indus., 120 Wn.2d

461,474,843 P.2d 1056 (1993).

       As the department points out, if we found RCW 51.36.010 to be ambiguous, it

would be the department's interpretation to which we would be required to defer, not the

board's, because the department is the executive agency that is charged with

administering the statute. See Port a/Seattle, 151 Wn.2d at 594. The department has

demonstrated, including through a 1978 legal opinion from the attorney general's office,

that it has been the department's longstanding interpretation of the provisos added to

RCW 51.36.010 that the second proviso modifies only the clause addressing permanent

total disability.

        We find no ambiguity, however. With clear language and a clear structure the

legislature has, in RCW 51.36.010, established separate and distinct provisions for the

duration of treatment in the case of the three separate types of disability: permanent

partial, temporary, and permanent total. The final proviso granting discretion to the




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No. 31081-7-111
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supervisor to authorize continued life-sustaining treatment plainly applies only in case of

a permanent total disability.

       Affirmed.




                                                    ~I
                                              Siddoway, A.C.J.
                                                                                 o
WE CONCUR:



Brown, 1.



Kulik, J.




                                             15 

