### 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### ) UNPUBLISHED OPINION INDUSTRIES, STATE OF 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), everyworkerwho becomes eligible for permanenttotal disability benefits can elect one ofthree pension payment options under RCW 51.32.067. Option I provides a full monthly pension with no survivor benefits afterthe injured worker’s death. Options II and III provide actuarially adjusted pension payments during the worker’s lifetime and survivorship rights afterthe worker’s death. In 1992, the Department of Laborand Industries (the Department) determined John Scottwas totally and permanentlydisabled and awarded him a pension. In response to a questionnaire from the Department, John accurately answered he did not have a spouse ordependents. John and Verawere marriedNo. 77862-5-1/2

in 1994.1 AfterJohn passed away in 2015, Vera applied to the Departmentfor survivor benefits. Because John and Verawere 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 dutyto provide an election form orotherwise inform John that Options II and III would be available to him if he got married priorto the effective day ofthe pension. The trial court did not errwhen it determined Vera was not entitled to survivor benefits. Therefore, we affirm. FACTS2 Vera isthe surviving spouse ofJohn Scott. Although John and Vera had lived togethersince 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 permanentlydisabled 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 ordependents. As a result, the Department enrolled John in Option I under RCW51 .32.067, afull monthly pension with no survivor benefits afterthe injured worker’s death.

1 Forclarity, we referto John Scott and Vera Scott bytheirfirst names. 2 The parties do not dispute the underlying facts ofthis case. Both parties cite to the “Joint Stipulated Facts and Exhibits” filed beforethe 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. AfterJohn’s death, Vera applied to the Departmentforsurvivor benefits. The Department denied herapplication because “Mr. Scottwas placed on pension effective 06/28/1992, atthe time he was placed
on pension he was single and he was not eligibleto elect an option under RCW51 .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 appealsjudge entered a proposed summaryjudgment orderaffirming the Department’s denial ofVera’s application forsurvivor benefits. Vera petitioned for review bythe full three-member Board. The Board adopted the orderofthe industrial appealsjudge and affirmed the Department’s denial. Vera appealed to superior court. On November 17, 2017, the superior court adopted the Board’sfindings 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.

3No. 77862-5-1/4

We reviewthe decision ofthe trial court in an industrial insurance case, not the decision ofthe Board.4 The trial court’s ruling is subjectto the ordinary civil appeal rules.5 We reviewsummaryjudgment 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 tojudgment as a matterof law.”7 Under RCW 51.32.050(7), “[f]orclaimsfiled on or afterJuly 1, 1986, every workerwho becomes eligible for permanenttotal 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 workerselecting this option shall receive the benefits provided by RCW51 .32.060, with no benefits being paid to the worker’s surviving spouse, children, orothers.”9 Options II and Ill provide actuarially adjusted pension payments during the injured worker’s lifetime and survivor benefits afterthe worker’s death.1° Because Options II and Ill provide survivor benefits to an injured worker’s spouse ordependents, 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); RCW51 .52.140).

~ RCW 51.52.140. 6 State Dep’t of Laborand lndus. v. Freeman, 87Wn. 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. Afterthe 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 ordependents. As a result, the Department enrolled him in Option I, the only available option to an injured workerwith no spouse or dependents. ROW 51.32.067 explicitly provides that Option I does not include survivor benefits. Vera argues the Department had a dutyto provide an election form or otherwise inform John that Options II and Ill would be available to him if he got married priorto the effective day ofthe pension. She relies on the Department’s general authorityto “[e}xercise all the powers and perform all the duties prescribed by lawwith respectto the administration ofworkers’ 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 ofthe workerwhen construing chapter51 .32 ROW, the liberal construction doctrine applies onlywhen a court must construe an ambiguous statute.12 Vera does not argue either ROW 51.32.050(7) or51.32.067 is

~ ROW43.22.030(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 ofthis court determined “[t]he language of RCW 51.32.050(7) and RCW 51 .32.067 is clearand unambiguous.”13 14 Vera fails to establish the Department has a dutyto counsel an injured workerabout the effect of marriage priorto the effective date ofthe pension. Vera also fails to establish the Department has a dutyto provide an election form to an injured workerwhen thatworker has only one option available. At oral argument, Vera focused on the provision in RCW 51.32.050(7) thatthe worker“shall elect an option” and the provisions in the Insurance Services Policy Manual that “[tjhe departmentwill provide eligible injured workers with pension option information” and “[ajn injured worker.

. . must select a pension option.”15 Butthe premise underlying these provisions is thatthe injured worker has multiple options available. Ifa claimant has no spouse ordependents atthe time the pension becomes effective, there is no election forthe claimantto make. And there is no authoritythatthe Department, ratherthan the claimant or claimant’s counsel,16 must contemplate the potential fora change in that status in the fewweeks before the effective date ofthe pension.

13 87Wn. 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 thatJohn and Vera were not married on or before the effective date ofJohn’s pension and thatJohn had no dependents. Option I was the only “option.” The Departmentwas not required to engage in any counseling about potential changes in John’s status before the effective date of his pension. Vera asks this courtto retroactively change her husband’s enrollmentto Option II and award hersurvivor benefits. RCW51.32.067 provides that an injured worker mayswitch from Options II or Ill to Option I ifthe worker’s spouse dies orthe workerand the spouse enter into a dissolution of marriage.17 But RCW 51.32.067 does not provide any authorityfora change from Option I to Options II or III. We conclude the trial court did not errwhen it determined Vera was not entitled to survivor benefits. Therefore, we affirm.

WE CONCUR:

17 RCW51 .32.067(3)-(4).