### FILED JULY 9, 2015 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE JOSE L. BIRRUETA, ) ) No. 32210-6-111 Respondent, ) ) v. ) ) DEPARTMENT OF LABORAND ) PUBLISHED OPINION INDUSTRIES OF THE STATE OF ) WASHINGTON ) ) Appellant. ) SIDDOWAY, C.J.

- The superior court in this case held that the Department of Labor and Industries was without authority to assess Jose Birrueta for an overpayment of time-loss benefits and to changehis marital status for compensationpurposes underRCW 51.32.240. This was because Mr. Birrueta'smarital status hadbeen determined in a 2008 notice ofdecisionbythe departmentthat hadbecome final under RCW 51.52.050. In so holding, the trial court implicitly rejected at least two decisions by the Board ofIndustrial Insurance Appeals that construedthe current version ofRCW 51.32.240 as providing authority for recovering overpayments following a final order. The department appeals. The construction ofRCW 51.32.240 urged by the department fails to readthe statute as a whole and fails inparticularto consider language added by the legislature inNo. 32210-6-111 Birrueta v. Dep'tof Labor & Indus.
1999 and 2004. The board decisions on which the department relies also fail to address that critical language and reflect no specialized analysis to which we should accord deference. We agree with the trial court's reading ofthe statute and a:ffirm. FACTS AND PROCEDURAL BACKGROUND The material facts are not in dispute. In August 2004, Jose Luis Birrueta suffered
a back injury when he fell from a ladder at work. Hewas taken to Our Lady ofLourdes Hospital, where someone completedpatient information for him on a Department of Labor and Industries claim form evidently made available to the hospital. 1 The attending emergency roomphysician completed the medical section on the same day, indicating that Mr. Birrueta suffered a strain and would miss two days ofwork as a result. The patient information section indicated that atthe time ofthe injury, Mr. Birrueta was married, that his spouse's name was Graciela, and that he had one child, Araceli. In fact, Mr. Birrueta was not married at the time he was injured. Buthe thereafter

1The form, which was addressed to the Department ofLabor and Industries' Insurance Services Division in Olympia, included the following "Instructions" at the top: MEDICAL PERSONNEL (NOTE: MEDICAL COMPLETION INSTRUCTION ON PAGE 2) Give the lastpage ofthis form to the patient before you complete your section. After you complete the medical section, send page 1to the address listed to the left. Keep page 2 and send the remainderto the patient's employer. BoardRecord, Ex. 1. 2

# I

No. 32210-6-111 Birrueta v. Dep'tof Labor & Indus.
received time-loss benefits calculated as ifhewas, resulting in largerpayments than he would have received as a single individual. Mr. Birrueta would later testity by declaration that he does not read or write in English; that the patient information included
on the claim form was not his handwriting; that the form bears his signature buthe doesn'trecall signing it; that when he was taken to the emergency room he was unconscious much ofthe time; and that during transport by ambulance to the hospital he recalls being asked whetherhe had family in the area and responding that he had a sister, Graciela, who had a daughter, Araceli. Atthe time ofhis injury, Mr. Birrueta was living in the same house with Graciela and Araceli. In September 2008, the department issued a notice ofdecision announcing its determination ofMr. Birrueta's wage for compensationpurposes. The notice ofdecision stated that the departmenttreated his marital status eligibility as "marriedwith 0 children." Board Record, Ex. 2. Itdisclosed the following additional determinations on which the wage was based: The wage for thejob ofinjury is based on reported income for the twelvemonthperiod from 0110112003 to 12/3112003 of$14,577.48 equaling $1,214.79 permonth. Additional wage for thejob ofinjury include: Health care benefits NONEpermonth Housing/Board/Fuel NONEper month Worker'stotal gross wage is $1,214.79 per month. Id.


### 3No. 32210-6-111 Birrueta v. Dep 'tof Labor & Indus.
Atthe bottom ofthe notice was prominenttext stating, "This order becomes final 60 days from the date it is communicated to youunless you do one ofthe following: file a written request for reconsideration with the Department or file a written appeal with the Board ofIndustrial Insurance Appeals." Id. Although Mr. Birrueta initially protested the order, he eventually dismissed his appeal. After a number oftime-loss payments to Mr. Birrueta, the department found him to be totally andpermanently disabled in January 2011 and orderedhim placed on a pension. In that connection, he completed a pension benefits questionnaire that asked among other matters about his marital status at the time ofinjury. He answered that he hadbeen single. In light ofthis corrected information, the department issued an order assessing an overpayment of$100.86 for time-loss benefitspaidbetween the time itreceived the pension questionnaire and the day before Mr. Birrueta was placed onpension, treating the time-loss benefits as having beenoverpaid due to an innocent misrepresentation as to marital status. In June 2011, the department issued an order changing Mr. Birrueta's marital status for compensationpurposes from married to single, effective as ofthe time itreceivedthepension questionnaire, again because ofthe innocent misrepresentation. Mr. Birrueta appealed both orders to the Board ofIndustrial Insurance Appeals, arguing that the department lacked authority to assess an overpayment and to change his marital status because its September 2008 wage order was final and binding. An 4No. 32210-6-III Birrueta 

### v. Dep'( of Labor & Indus.
industrial appealsjudgegranted a department motion for summaryjudgment and affirmed both orders. Mr. Birrueta's petition for review was denied by the board, which adopted the industrial appealjudge'sproposed decision as its final decision and order. Mr. Birrueta appealed to the Franklin County Superior Court. Followingtrial, the court ruled that RCW 51.32.240 does not authorize the department to assess payments that are made pursuant to final adjudications as asserted overpayments, and the wage rate order establishing Mr. Birrueta's marital status was final. In its findings offact and conclusions oflaw, the court adopted several ofthe board's findings butreversed its decision, concluding that the department lacked authority to issue the assessment and marital status change orders. The department appeals. ANALYSIS PlainLanguageAnalysis RCW 51.32.240 provides in partthat [w]henever any payment ofbenefits underthis title is made because of clerical error, mistake ofidentity, innocent misrepresentation by or on behalfofthe recipientthereofmistakenly acted upon, or any other circumstance ofa similarnature, all not inducedby willful misrepresentation, the recipient thereofshall repay it. RCW 51.32.240(1)(a). Underthis "innocent errorprovision" (aterm we sometimes use
as shorthand in referringto subparagraph (l)(a)hereafter), the department is allowed to recoup the overpayment from future payments. The provision limits the time within which the department may make claim for repayment to one year. 5

# I No. 32210-6-II1 Birrueta v. Dep 't of Labor & Indus. Elsewhere, however, the statute provides that "[e]xceptas provided in subsections (3), (4), and (5) of[RCW 51.32.240], the department may only assess an overpayment of benefits because ofadjudicator error when the order upon which the overpayment is based is not yet final as provided in RCW 51.52.050 and 51.52.060." RCW 51.32.240(1)(b). Subsection (3) ofthe statute deals with a recipient's obligation to repay temporary disability benefits ifthe department later rejects his or her claim. Subsection (4) deals with a recipient's obligation to repay benefits that are paidpursuantto a department, board, or lower court determination that is reversed by a final decision on appeal. Subsection (5) deals with a recipient's obligation to repay benefits that have been induced by a recipient's "willful misrepresentation." Notably, the statute does not say "except as provided in subsections (l)(a), (3), (4), and (5)
...the department may only
assess an overpayment ...when the orderuponwhich the overpayment is based is not yet final." The department's position is that unlike subsections (3), (4), and (5) ofRCW 51.32.240, the innocent error provision does not need tobe excluded from the operation ofsubparagraph (1)(b) because the innocent errors it describes and "adjudicatorerror" are mutually exclusive. Howto construe an overpayment "because ofadjudicator error" proves to be at the heart ofthe parties' dispute. Because the department contends that innocent error addressed by subparagraph (1)(a) and adjudicator error are mutually exclusive concepts, it argues that the department may always collect overpayments 

### 6No. 32210-6-111 Birrueta v. Dep'tof Labor & Indus.
attributable to innocent error but may never collect overpayments attributable to adjudicator error. Forhis part, Mr. Birrueta contends that "adjudicator error" means any adjudication that squarely encompasses and resolves the matter at issue and is now contended to be wrong for any reason. While the department's position has some surface appeal, it cannot withstand critical orhistorical analysis. Chapter 51.52 RCW deals with industrial insurance appeals and "provides finality to decisions ofthe Department." Kingery v. Dep 't of Labor & Indus., 132 Wn.2d 162, 169,937P.2d 565 (1997). RCW 51.52.050(1) states that all department orders "shall become final within sixty days from the date the order is communicatedto theparties unless a written request for reconsideration is filed with the department
... or an appeal is filed with the board ofindustrial insurance appeals." Thus, 

### "[0]nce the 60-day appeal

.period expires and the order becomes final, it cannot be appealed." Leuluaialii v. Dep'tof Labor & Indus., 169 Wn. App. 672, 678,279 P.3d 515 (2012) (citingShafer v. Dep'tof Labor & Indus., 166 Wn.2d 710,717,213 P.3d 591 (2009)). RCW 51.52.050(1) makes
no reference to RCW 51.32.240. As a limitation on setting aside final orders, "adjudicator error" is broadly defined by RCW 51.32.240; it "includes the failure to consider information in the claim file, failure to secure adequate information, or an error injudgment." RCW 51.32.240(2)(b) (emphasis added). In construing a statute, the word "includes" is a term ofenlargement. Brown v. ScottPaper Worldwide Co., 143 Wn.2d 349,359,20P.3d 921 (2001). 

### 7No. 32210-6-111 Birrueta 

### v. Dep'tof Labor & Indus. Elsewhere, the statute uses theparallel term "erroneous adjudication" in a contextthat clearly means erroneous for any reason: Whenever any payment ofbenefits under this title has been made pursuant to an adjudication by the department or by order ofthe board or any court and timely appeal therefrom has been made where the final decision is that any such payment was madepursuantto an erroneous adjudication, the recipientthereofshall repay it. RCW 51.32.240(4) (emphasis added). And by explicitly providing that the department
can assess overpayments under subsection (5) following a final order, RCW 51.32.240(1)(b) treats a decision induced by a recipient's willful misrepresentation of facts as adjudicator error. Ifa decision induced by a recipient's willful representation is adjudicator error, thenhow can a decision induced by a recipient's innocent representation not be? Becausethe same words used in the same statute should be interpreted alike, "includes" is a term ofenlargement, and the commonmeaning of"adjudicatorerror" is any error by an adjudicator, "adjudicatorerror" is reasonably construedto include an adjudicator's clerical error, his or her mistake ofidentity, orhis or herreliance on an innocent misrepresentation. There is no basis for the department's treatment ofthe concepts ofadjudicator error and subsection (1)(a)'s categories ofinnocent error as mutually exclusive. As a result, RCW 51.32.240(1 )(b) plainly provides that apart from temporary benefits advanced on a claim that is later denied, benefits paid pursuantto an orderreversed on appeal, orbenefits induced by a willful misrepresentation, "the 8No. 32210-6-III Birrueta 

### v. Dep'tof Labor & Indus. department may only assess an overpayment ofbenefits because ofadjudicator error"­
even innocent error-"whenthe order upon which the overpayment is based is not yet final as provided in RCW 51.52.050 and 51.52.060." Legislative History Legislative history further supports this plainreading ofthe statute. In 1994, the Washington Supreme Court decidedMarley v. Departmentof Labor andIndustries, 125 Wn.2d 533, 886 P.2d 189, a seminal decision on the finality ofthe department's orders. The department had issued an orderthat Beverly Marley was not eligible for payments as a beneficiary following her husband's death, based on her admission that while her husband hadbeenpaid child support up to the time ofhis death, he and she had lived separately for over 10 years. Id. at 535. She did not appeal the agency's order, which therefore became final after 60 days. Id. at 536. She challenged it six years later on the grounds that it contained an error oflaw as to her eligibility. As of 1994, RCW 51.32.240 was similar to its present form in providing for repayment to the department ofbenefits overpaid because ofclerical error, mistake of identity, or innocent mistake; temporary benefits advanced on a claim that was later denied; and benefits paidpursuantto an order reversed on appeal. It was unlike the present statute in that benefits were required tobe repaid ifoverpaymentwas induced by "fraud" and itmade no mention offinality or adjudicator error. Most importantly for the issues inMarley, it included no provision under which arecipient could recover benefits 9No. 3221O-6-III Birrueta v. Dep'tof Labor & Indus.
that had been underpaid. Former RCW 51.32.240(1)-(4) (1991). Rather than rely on the statute, then, Ms. Marley relied on this court's decision in Fairley v. Department of Labor andIndustries, 29 Wn. App. 477, 481, 627 P.2d 961 (1981), which held that a department's order misconstruing the Industrial Insurance Act, Title 51 RCW, was void and did not require that an appeal be taken. Marley overruled Fairley, holding that "[a]n order from the Department is void only when the Department lacks personal or subject matterjurisdiction." Marley, 125 Wn.2d at 542. It explainedthat [e]ven assuming Mrs. Marley's argument has merit, she has only proved thatthe Department made an error, notthat 

### itruled withoutjurisdiction. Whetherright or wrong, the Department clearly had the authority to decide whether Mrs. Marley was living in a state ofabandonment [as defined under the Act]. 

### Id. at 543 (footnote omitted). Itwas in response to the decision in Marley that legislators proposedthe adoption ofwhatbecame current subsection (2) ofRCW 51.32.240 in 1999. As originally proposed, House Bill 1894 would have simply modified former RCW 51.32.240(1) to include underpayments as well as overpayments by providing, e.g., "Whenever any payment ofbenefits under this title is
...withheld because ofclerical error ...the recipient thereofshall be entitled tobenefits underpaid, or shall repay...." H.B. 1894, at 1, 56th Leg., Reg. Sess. (Wash. 1999). The House Bill Analysis described the disparity under then-current law between the department's right to recover overpayments and a 10No. 3221O-6-III 

### Birrueta v. 

### Dep'tof Labor & 

### Indus. beneficiary's burden to timely appeal an underpayment, mentioned

### Marley, and summarized theproposed legislation as follows: Ifindustrial insurance benefits are withheld because ofclerical error, mistaken identity, innocent misrepresentation, orother similar circumstances, the recipient is entitled to the benefits underpaid. The claim for these benefits must be made within one year ofthe underpayment orit is deemed waived. H.B. ANALYSIS ON H.B. 1894, at 2, 56th Leg., Reg. Sess. (Wash. 1999). In its originally proposed form, the bill made no exception for adjudicator error. The House Committee on Commerce & Labortook action on the bill on February 24 and 25, 1999. At the committee meeting on February 24, Douglas Connell, the assistant director ofinsurance services for the department, appeared and explainedthat based on the department's concerns with the way the bill was then written, the department had prepared and had circulated, that morning, a revised version, to "define
some ofthe terms that we're dealing with" and "put someparameters around it." Hr'g on H.B. 1894 Before the H. Commerce and Labor Comm., 56th Leg., Reg. Sess. (Feb. 24, 1999) at 5 min., 37 sec. through 5 min., 50 sec., 

### available at http://www.digitalarchives.wa.gov
. He described the objective as being "so it is clear as to when the overpayment orunderpayments can take place." Hr'g on H.B. 1894, 

### supra, at 6 min. 12 sec. through 6 min., 18 sec. While Mr. Connell's explanation ofthe changes
was extremely general, heprovidedthe following answer to a question posedby Representative Conway: 11No. 3221O-6-III Birrueta v. Dep 't of Labor & Indus. Q. Being around these worker comp benefits
... time-loss benefits, and
...I would assume this also would
...Does this apply tothe PPD awards as well? Is that
... A. The proposal that wehave would apply only tothepayment oftemporary total disability ortime-loss
... Q. Time-loss benefits. Hr'g on H.B. 1894, supra, at 7 min., 22 sec. through 7 min., 46 sec. The department's concerns appearto have been addressed by amendments introducingthe "adjudicator error" limitation. As amended, what became Engrossed House Bill 1894 added a new section to the statute to address underpayments ratherthan incorporate provision for them in RCW 51.32.240(1). The new section largely paralleled RCW 51.32.240(1)'s provision for recovering overpayments but also included the following unique limitation now codified at RCW 51.32.240(2)(b): The recipient may not seek an adjustment ofbenefits because ofadjudicator error. "Adjudicatorerror" includes the failure to consider information in the claim file, failure to secure adequate information, or an error in judgment. ENGROSSED H.B. 1894, at 2, 56th Leg., Reg. Sess. (Wash. 1999). The limitation likely reflected the department's concern that the new section could open the door to an onslaught ofrequests for increased benefits from recipients alleging that some staffmember, witness, or information provider once made a clerical error, mistake ofidentity, or innocent misrepresentation. The "adjudicator error" limitation placed an important limit on reopening department determinations.

12No. 32210-6-111 Birrueta 

### v. Dep'tof Labor &Indus. Finally, amendments to RCW 51.32.240 in 2004 added clarity to the relationship between adjudicator error and finality. Several amendments to the Industrial Insurance Act were made by Engrossed Substitute House Bill 3188, passed by the legislature in 2004. The two principal amendments to the overpayment and underpaymentprovisions ofRCW 51.32.240 were to allowthe department to recover overpayments induced by a recipient's willful misrepresentationratherthan fraud, and to increase paritybetweenthe department's right to recover overpayments and a worker's righttorecover underpayments. Itdid so by adding a limitation for adjudicator errorto the department's rights underRCW 51.32.240(1). Perhaps because it would make subsection (1) quite long, and perhaps toparallel subsection (2), the amendment to subsection (1) was broken into subparagraphs for the first time, includingthe adjudicator errorlimitation innew subparagraph (b). Contrary to the department's argument that subparagraphs (1)(a) and (1)(b) address different matters and that (1)(b)'s general limitation ofoverpaymentrecovery to nonfinal orders does not apply to (1)(a), the legislature's House Bill Report onEngrossed Substitute House Bill 3188 recognizes no distinction and characterizes the limitationto nonfinal orders as applying to innocent error. The House Bill Report's summary ofthe bill described the adjudicatorerror changes as follows: 

## If benefits are overpaidbecause of adjudicator error, the Departmentmay only assess an overpaymentwhen the order on which the overpayment is basedis notyetfinaI, unless the overpaymentrelates to an order rejecting 13No. 32210-6-III Birrueta 

### v. Dep'tof Labor & Indus.
the claim, results from a final appeal of a Department orBoardof IndustrialAppeals order, orhas been inducedbywillfulmisrepresentation. Ifbenefits fail to be paid because ofadjudicator error, the claimant must address the adjustment by filing a written request for reconsideration or an appeal within the statutory sixty-day appeal period. 

### H.B. REp. ONENGROSSED SUBSTITUTE 

### H.B. 3188, at 4, 58thLeg., Reg. Sess., (Wash. 2004) (emphasis added). This legislative history, like the plain language ofRCW 51.32.240, demonstrates the legislature's intentthat only nonfinal orders are subject to a claim that benefits were underpaid or overpaid as a result ofclerical errors, mistake ofidentity, or innocent misrepresentation. BoardDecisions We finally tumto decisions ofthe Board ofIndustrial Insurance Appeals brought to our attention by the parties, at least two ofwhich conflict with our construction ofthe statute. This court will accord "deference to an agency interpretation ofthe law where the agency has specialized expertise in dealing with such issues." City of Redmondv. Cent. PugetSound Growth Mgmt. Hr'gs Bd., 136 Wn.2d 38, 46,959 P.2d 1091 (1998); Doty

### v. Town ofS. Prairie, 155 Wn.2d 527,537, 120 P.3d 941 (2005) (a board's interpretation ofthe Industrial Insurance Act is not binding on this court, but "is entitled to great deference") (quoting Weyerhaeuser Co. v. Tri, 117 Wn.2d 128, 138,814P.2d 629 (1991». Nonetheless, this court is "notbound by an agency's interpretation ofa statute." Redmond, 136 Wn.2d at 46. "The Department's interpretation ofthe [Industrial 14No. 3221O-6-III Birrueta 

### v. Dep'tof Labor & Indus.
Insurance Act] is subject to de novo review." Shafer v. Dep'tof Labor & Indus., 166 Wn.2d at 715. The board reached the opposite conclusion to our own in both In re Veliz, No. 11 20348, 2013 

### WL 3185978 (Wash. Bd. Indus. Ins. Appeals Mar. 4, 2013) andIn re Johnson, No. 12 15248,2013 

### WL 3636375 (Wash. Bd. Indus. Ins. Appeals April 11, 2013). The facts in both cases were materially identical to those presentedhere. In both cases, the department issued orders establishing the workers' compensation rate based on the workers' representations that they were married at the time oftheir injury. Upon later learningthat the information about their marital status at the time ofinjury was incorrect, the department in both cases issued orders changing the workers' status to single for wage calculation purposes. Despite earlier entered wage determination orders that had become final, the board held in both cases that the department had authority under RCW 51.32.240(1) to change a worker's marital status that hadbeen based on an innocent misrepresentation.2 In Veliz, the board stated that 

### "[0]nce [a] misrepresentation has been established,

2 One member ofthe board filed a dissent in Veliz. He disagreed that the department could use RCW 51.32.240 to avoid the resjudicata effect ofits wage order in light ofthe Washington Supreme Court's rulings in Marley 

### v. Dep 't of Labor & Indus., 125 Wn.2d 533 andKingery, 132 Wn.2d 162 (plurality opinion). Veliz, 2013 WL 3185978, at *4. 15No. 32210-6-111 Birrueta v. Dep 't of Labor & Indus.
RCW 51.32.240(I) provides relieffrom the resjudicata application ofan otherwise final determination and allows the Department to recoup benefits that had been overpaid." Veliz, 2013 WL 3185978, at *2. That would be true ifsubsection (1) was all thatthe statute had to say on the subject. ButRCW 51.32.240(2) limits the department's right of recoupment to overpayments made under nonfinal orders, except as providedby RCW 51.32.240(3), (4), and (5). Veliz fails to address that limitation. InJohnson, the board cited an earlierJohnson decision, In re Teresa M Johnson, No. 853229, 1987 WL 61380 (Wash. Bd. Indus. Ins. Appeals Aug. 26, 1987), for its reasoningthat "the overpayment statute would be rendered meaningless ifthe principle of
resjudicatapreventedthe Department from correcting an inaccurate rate ofcompensation after sixty days had elapsed." LloydD. Johnson, 2013 WL 3636375, at *2. But in Teresa M Johnson, the department had not yet adjudicated Ms. Johnson's wage rate at the time it sought to recover overpayments, it had simplypaid time-loss compensation on
an unexplained basis that it later determined to be inaccurate. Unlike the order in this case, which laid outthe basis on which the departmentwould calculate Mr. Birrueta's wage for compensation purposes, a mere payment order does not adjudicatethe basis of the wage rate. In Somsak v. Criton Technologies/Heath Teena, Inc., 113 Wn. App. 84, 92, 52 P.3d 43 (2002), this court held that an unappealed department order is resjudicata "as to the issues encompassed within the terms ofthe order, absent fraud." Itheld that

16No. 32210-6-III Birrueta v. Dep 't of Labor & Indus.
the factual basis for a wage rate is not encompassed within the terms ofapayment order that does not disclose that factual basis.3 We agree that ifthe department could not recover overpayments made under nonfinal orders that did not adjudicate facts a recipient was required to appeal, then RCW 5l.32.240(1) wouldbe rendered meaningless. Butbecause it is only final orders adjudicatingthe claimed error that are excluded from the rightto recoup overpayments, subsection (1) is not rendered meaningless at all. The board's decision in In reAnita Bordua, No. 93 1851, 1994 WL 364993 (Wash. Bd. Indus. Ins. Appeals May 2,1994) is also distinguishable as involving a nonfinal order that was legitimately subjectto recoupment for overpayment. While the board has expertise in dealing with workmen's compensation matters, its decisions in Veliz and LloydD. Johnson are not entitled to deference where they fail to considerRCW 51.32.240 in its entirety and fail to make a distinction between final orders adjudicating a matter, on the one hand, and nonfinal orders or orders that do not adjudicate that matter, on the other.

3 Notably, while rejecting Ms. Johnson's appeal because her wage rate had not been adjudicated by a final order, the board's decision observed, "Hadthe issue ofthe basis ofthe time-loss compensationrate been squarely before the Department in any of the orders issued prior to August 1985, there might have been some merit to Ms. Johnson's contention." Johnson, 1987 WL 61380, at *2. 17No. 32210-6-111 Birrueta v. Dep'tof Labor & Indus. AttorneyFees Mr. Birruetarequests attorney fees and costs under RAP 18.1 and RCW 51.52.130. RAP 18.1 pennits recovery ofreasonable attorney fees orexpenses on review ifapplicable law grants that right. RCW 51.52.130 provides, in relevant part: If, on appeal to the superior or appellate court from the decision and order ofthe board
... a party otherthan the worker orbeneficiary is the appealing party and the worker's or beneficiary's right to reliefis sustained, a reasonable fee for the services oftheworker's orbeneficiary's attorney shall be fixed bythe court. Since the department was the appealing party and Mr. Birrueta'sright to reliefis sustained, his request for attorney fees is granted, subject to compliance with RAP 18.l(d). Affinned.

WE CONCUR:
Lawrence-Berrey, J.

18