IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

JOHN T. SCOTT, DEC’D, ) No. 77862-5-I

)

Appellant,

v. )

DEPARTMENT OF LABOR & ) UNPUBLISHED OPINION

INDUSTRIES, STATE OF )

WASHINGTON, ) FILED: March 25, 2019

)

Respondent. )

VERELLEN, J. — Under RCW 51.32.050(7), every worker who becomes

eligible for permanent total disability benefits can elect one of three pension

payment options under RCW 51.32.067. Option I provides a full monthly pension

with no survivor benefits after the injured worker’s death. Options II and III provide

actuarially adjusted pension payments during the worker’s lifetime and

survivorship rights after the worker’s death.

In 1992, the Department of Labor and Industries (the Department)

determined John Scott was totally and permanently disabled and awarded him a

pension. In response to a questionnaire from the Department, John accurately

answered he did not have a spouse or dependents. John and Vera were married
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in 1994.1 After John passed away in 2015, Vera applied to the Department for

survivor benefits.

Because John and Vera were not married when his pension went into

effect, Option I was the only available option. And RCW 51.32.067 explicitly

provides Option I does not include survivor benefits. Vera does not establish the

Department had a duty to provide an election form or otherwise inform John that

Options II and III would be available to him if he got married prior to the effective

day of the pension. The trial court did not err when it determined Vera was not

entitled to survivor benefits.

Therefore, we affirm.

FACTS2

Vera is the surviving spouse of John Scott. Although John and Vera had

lived together since the 1970s, they did not marry until 1994. In 1987, John

suffered an industrial injury. On June 5, 1992, the Department determined John

was totally and permanently disabled and awarded him a pension, effective June

28, 1992. In response to a questionnaire from the Department, John accurately

answered he did not have a spouse or dependents. As a result, the Department

enrolled John in Option I under RCW 51 .32.067, a full monthly pension with no

survivor benefits after the injured worker’s death.

1 For clarity, we refer to John Scott and Vera Scott by their first names.

2 The parties do not dispute the underlying facts of this case. Both parties

cite to the “Joint Stipulated Facts and Exhibits” filed before the Board of Industrial

Appeals.

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Vera and John remained married until 2015, when John died from natural

causes, unrelated to his industrial injury. After John’s death, Vera applied to the

Department for survivor benefits. The Department denied her application because

“Mr. Scott was placed on pension effective 06/28/1992, at the time he was placed

on pension he was single and he was not eligible to elect an option under

RCW 51 .32.067; therefore, the surviving spouse is not eligible for benefits.”3

Vera appealed the Department’s decision to the Board of Industrial

Appeals. The industrial appeals judge entered a proposed summary judgment

order affirming the Department’s denial of Vera’s application for survivor benefits.

Vera petitioned for review by the full three-member Board. The Board adopted the

order of the industrial appeals judge and affirmed the Department’s denial. Vera

appealed to superior court. On November 17, 2017, the superior court adopted

the Board’s findings and affirmed the Board’s decision to grant summary

judgment.

Vera appeals.

ANALYSIS

Vera argues the trial court erred when it determined she was not entitled to

survivor benefits.

~ Certified Board Record (CBR) at 104.

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We review the decision of the trial court in an industrial insurance case, not

the decision of the Board.4 The trial court’s ruling is subject to the ordinary civil

appeal rules.5 We review summary judgment motions de novo.6 Summary

judgment is appropriate if “there is no genuine issue as to any material fact and [1

the moving party is entitled to judgment as a matter of law.”7

Under RCW 51.32.050(7), “[f]or claims filed on or after July 1, 1986, every

worker who becomes eligible for permanent total disability benefits shall elect an

option as provided in RCW 51.32.067.” RCW 51.32.067 provides three pension

payment options.8 Under Option I, “[am injured worker selecting this option shall

receive the benefits provided by RCW 51 .32.060, with no benefits being paid to

the worker’s surviving spouse, children, or others.”9 Options II and Ill provide

actuarially adjusted pension payments during the injured worker’s lifetime and

survivor benefits after the worker’s death.1° Because Options II and Ill provide

survivor benefits to an injured worker’s spouse or dependents, the availability of

~ Dillon v. Dep’t of Labor & Indus., 186 Wn. App. 1, 6, 344 P.3d 1216 (2014)

(citing Roqersv. DeID’tofLabor& Indus., 151 Wn.App. 174,179-81,210 P.3d 355

(2009); RCW 51 .52.140).

~ RCW 51.52.140.

6 State Dep’t of Labor and lndus. v. Freeman, 87 Wn. App. 90, 93, 940 P.2d

304 (1997).

~ CR 56(c).

8 RCW5I.32.067(1).

~ RCW 51.32.067(1)(a).

10 RCW 51.32.067(1)(b-c).

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these options necessarily depends on an injured worker having a spouse or

dependents.

After the Department awarded John a pension on June 5, 1992 and before

the pension became effective on June 28, 1992, John accurately declared he did

not have a spouse or dependents. As a result, the Department enrolled him in

Option I, the only available option to an injured worker with no spouse or

dependents. ROW 51.32.067 explicitly provides that Option I does not include

survivor benefits.

Vera argues the Department had a duty to provide an election form or

otherwise inform John that Options II and Ill would be available to him if he got

married prior to the effective day of the pension. She relies on the Department’s

general authority to “[e}xercise all the powers and perform all the duties prescribed

by law with respect to the administration of workers’ compensation and medical

aid in this state.”11 But she fails to provide any statutory authority imposing such a

duty on the Department.

Vera also relies on the principle of liberal construction. Although we resolve

doubts in favor of the worker when construing chapter 51 .32 ROW, the liberal

construction doctrine applies only when a court must construe an ambiguous

statute.12 Vera does not argue either ROW 51.32.050(7) or 51.32.067 is

~ ROW 43.22.030(1).

12 Raum v. City of Bellevue, 171 Wn. App. 124, 155, n.28, 286 P.3d 695

(2012).

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ambiguous. And in State Department of Labor & Industries v. Freeman, Division

Three of this court determined “[t]he language of RCW 51.32.050(7) and RCW

51 .32.067 is clear and unambiguous.”13 14

Vera fails to establish the Department has a duty to counsel an injured

worker about the effect of marriage prior to the effective date of the pension. Vera

also fails to establish the Department has a duty to provide an election form to an

injured worker when that worker has only one option available. At oral argument,

Vera focused on the provision in RCW 51.32.050(7) that the worker “shall elect an

option” and the provisions in the Insurance Services Policy Manual that “[tjhe

department will provide eligible injured workers with pension option information”

and “[ajn injured worker. . . must select a pension option.”15 But the premise

underlying these provisions is that the injured worker has multiple options

available. If a claimant has no spouse or dependents at the time the pension

becomes effective, there is no election for the claimant to make. And there is no

authority that the Department, rather than the claimant or claimant’s counsel,16

must contemplate the potential for a change in that status in the few weeks before

the effective date of the pension.

13 87 Wn. App. 90, 940 P.2d 304 (1997).

14k1.at97.

15 CBR at 111.

16 See CBR at 25 (John was represented by counsel when he was awarded

his pension in 1992).

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It is undisputed that John and Vera were not married on or before the

effective date of John’s pension and that John had no dependents. Option I was

the only “option.” The Department was not required to engage in any counseling

about potential changes in John’s status before the effective date of his pension.

Vera asks this court to retroactively change her husband’s enrollment to

Option II and award her survivor benefits. RCW 51.32.067 provides that an

injured worker may switch from Options II or Ill to Option I if the worker’s spouse

dies or the worker and the spouse enter into a dissolution of marriage.17 But

RCW 51.32.067 does not provide any authority for a change from Option I to

Options II or III.

We conclude the trial court did not err when it determined Vera was not

entitled to survivor benefits.

Therefore, we affirm.

WE CONCUR:

17 RCW 51 .32.067(3)-(4).