FILED 


JULY 9, 2015 


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 


JOSE L. BIRRUETA, ) 

) No. 32210-6-111 

Respondent, ) 

) 

v. ) 

) 

DEPARTMENT OF LABOR AND ) 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 change his marital status for compensation purposes under RCW 

51.32.240. This was because Mr. Birrueta's marital status had been determined in a 2008 

notice ofdecision by the department that had become final under RCW 51.52.050. In so 

holding, the trial court implicitly rejected at least two decisions by the Board of Industrial 

Insurance Appeals that construed the 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 read the 

statute as a whole and fails in particular to consider language added by the legislature in 
No. 32210-6-111 


Birrueta v. Dep't ofLabor & 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. He was taken to Our Lady ofLourdes 

Hospital, where someone completed patient information for him on a Department of 

Labor and Industries claim form evidently made available to the hospital. 1 The attending 

emergency room physician completed the medical section on the same day, indicating 

that Mr. Birrueta suffered a strain and would miss two days of work as a result. The 

patient information section indicated that at the time of the 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. But he thereafter 

1 The 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 last page of this form to the patient before you complete 

your section. After you complete the medical section, send page 1 to the 

address listed to the left. Keep page 2 and send the remainder to the 

patient's employer. 

Board Record, Ex. 1. 

2 

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No. 32210-6-111 


Birrueta v. Dep't ofLabor & Indus. 


received time-loss benefits calculated as ifhe was, resulting in larger payments 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 but he 

doesn't recall signing it; that when he was taken to the emergency room he was 

unconscious much of the time; and that during transport by ambulance to the hospital he 

recalls being asked whether he had family in the area and responding that he had a sister, 

Graciela, who had a daughter, Araceli. At the time of his injury, Mr. Birrueta was living 

in the same house with Graciela and Araceli. 

In September 2008, the department issued a notice of decision announcing its 

determination of Mr. Birrueta's wage for compensation purposes. The notice of decision 

stated that the department treated his marital status eligibility as "married with 0 

children." Board Record, Ex. 2. It disclosed the following additional determinations on 

which the wage was based: 

The wage for the job of injury is based on reported income for the twelvemonth period from 0110112003 to 12/3112003 of $14,577.48 equaling 

$1,214.79 per month. 

Additional wage for the job of injury include: 

Health care benefits NONE per month 

Housing/Board/Fuel NONE per month 

Worker's total gross wage is $1,214.79 per month. 

Id. 

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No. 32210-6-111 


Birrueta v. Dep 't ofLabor & Indus. 


At the bottom of the notice was prominent text stating, "This order becomes final 

60 days from the date it is communicated to you unless you do one of the following: file a 

written request for reconsideration with the Department or file a written appeal with the 

Board of Industrial Insurance Appeals." Id. Although Mr. Birrueta initially protested the 

order, he eventually dismissed his appeal. 

After a number of time-loss payments to Mr. Birrueta, the department found him 

to be totally and permanently disabled in January 2011 and ordered him 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 of injury. He answered that he 

had been single. 

In light of this corrected information, the department issued an order assessing an 

overpayment of$100.86 for time-loss benefits paid between the time it received the 

pension questionnaire and the day before Mr. Birrueta was placed on pension, treating the 

time-loss benefits as having been overpaid due to an innocent misrepresentation as to 

marital status. In June 2011, the department issued an order changing Mr. Birrueta's 

marital status for compensation purposes from married to single, effective as of the time 

it received the pension questionnaire, again because of the innocent misrepresentation. 

Mr. Birrueta appealed both orders to the Board of Industrial 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 

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No. 3221 0-6-III 


Birrueta v. Dep '( ofLabor & Indus. 


industrial appeals judge granted a department motion for summary judgment and 

affirmed both orders. Mr. Birrueta's petition for review was denied by the board, which 

adopted the industrial appeal judge's proposed decision as its final decision and order. 

Mr. Birrueta appealed to the Franklin County Superior Court. Following trial, 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 of fact and 

conclusions oflaw, the court adopted several ofthe board's findings but reversed its 

decision, concluding that the department lacked authority to issue the assessment and 

marital status change orders. The department appeals. 

ANALYSIS 

Plain Language Analysis 

RCW 51.3 2.240 provides in part that 

[w]henever any payment of benefits under this title is made because of 

clerical error, mistake ofidentity, innocent misrepresentation by or on 

behalf ofthe recipient thereof mistakenly acted upon, or any other 

circumstance of a similar nature, all not induced by willful 

misrepresentation, the recipient thereof shall repay it. 

RCW 51.32.240(1)(a). Under this "innocent error provision" (a term we sometimes use 

as shorthand in referring to 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 

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No. 32210-6-II1 

Birrueta v. Dep 't ofLabor & Indus. 

Elsewhere, however, the statute provides that "[e]xcept as provided in subsections 

(3), (4), and (5) of [RCW 51.32.240], the department may only assess an overpayment of 

benefits because of adjudicator 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) of the 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 paid pursuant to 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 order upon which 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 to be excluded from the operation 

of subparagraph (1 )(b) because the innocent errors it describes and "adjudicator error" are 

mutually exclusive. How to construe an overpayment "because of adjudicator 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 

6 

No. 32210-6-111 

Birrueta v. Dep't ofLabor & Indus. 

attributable to innocent error but may never collect overpayments attributable to 

adjudicator error. For his 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 or historical analysis. 

Chapter 51.52 RCW deals with industrial insurance appeals and "provides finality 

to decisions ofthe Department." Kingery v. Dep 't ofLabor & Indus., 132 Wn.2d 162, 

169,937 P.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 communicated to the parties 

unless a written request for reconsideration is filed with the department ... or an appeal 


is filed with the board of industrial insurance appeals." Thus, "[0]nce the 60-day appeal 


. period expires and the order becomes final, it cannot be appealed." Leuluaialii v. Dep't of 


Labor & Indus., 169 Wn. App. 672, 678,279 P.3d 515 (2012) (citing Shafer v. Dep't of 


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 in judgment." RCW 51.32.240(2)(b) 

(emphasis added). In construing a statute, the word "includes" is a term of enlargement. 

Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349,359,20 P.3d 921 (2001). 

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No. 32210-6-111 


Birrueta v. Dep't ofLabor & Indus. 


Elsewhere, the statute uses the parallel term "erroneous adjudication" in a context that 

clearly means erroneous for any reason: 

Whenever any payment of benefits under this title has been made pursuant 

to an adjudication by the department or by order of the board or any court 

and timely appeal therefrom has been made where the final decision is that 

any such payment was made pursuant to an erroneous adjudication, the 

recipient thereof shall 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. If a decision induced by a recipient's willful representation is 

adjudicator error, then how can a decision induced by a recipient's innocent 

representation not be? 

Because the same words used in the same statute should be interpreted alike, 

"includes" is a term of enlargement, and the common meaning of "adjudicator error" is 

any error by an adjudicator, "adjudicator error" is reasonably construed to include an 

adjudicator's clerical error, his or her mistake of identity, or his or her reliance on an 

innocent misrepresentation. There is no basis for the department's treatment ofthe 

concepts of adjudicator 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 pursuant to an 

order reversed on appeal, or benefits induced by a willful misrepresentation, "the 

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No. 32210-6-III 


Birrueta v. Dep't ofLabor & Indus. 


department may only assess an overpayment of benefits because of adjudicator error"­

even innocent 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." 

Legislative History 

Legislative history further supports this plain reading of the statute. 

In 1994, the Washington Supreme Court decided Marley v. Department ofLabor 

and Industries, 125 Wn.2d 533, 886 P.2d 189, a seminal decision on the finality of the 

department's orders. The department had issued an order that Beverly Marley was not 

eligible for payments as a beneficiary following her husband's death, based on her 

admission that while her husband had been paid child support up to the time of his 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 of law as to her eligibility. 

As of 1994, RCW 51.32.240 was similar to its present form in providing for 

repayment to the department of benefits overpaid because of clerical error, mistake of 

identity, or innocent mistake; temporary benefits advanced on a claim that was later 

denied; and benefits paid pursuant to an order reversed on appeal. It was unlike the 

present statute in that benefits were required to be repaid if overpayment was induced by 

"fraud" and it made no mention of finality or adjudicator error. Most importantly for the 

issues in Marley, it included no provision under which a recipient could recover benefits 

9 

No. 3221O-6-III 

Birrueta v. Dep't ofLabor & 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 ofLabor 

and Industries, 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 matter jurisdiction." Marley, 125 

Wn.2d at 542. It explained that 

[e]ven assuming Mrs. Marley's argument has merit, she has only proved 

that the Department made an error, not that it ruled without jurisdiction. 

Whether right or wrong, the Department clearly had the authority to decide 

whether Mrs. Marley was living in a state of abandonment [as defined 

under the Act]. 

Id. at 543 (footnote omitted). 

It was in response to the decision in Marley that legislators proposed the adoption 

ofwhat became 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 of clerical error ... the 

recipient thereof shall be entitled to benefits 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 

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No. 3221O-6-III 


Birrueta v. Dep't ofLabor & Indus. 


beneficiary's burden to timely appeal an underpayment, mentioned Marley, and 

summarized the proposed legislation as follows: 

If industrial insurance benefits are withheld because of clerical error, 

mistaken identity, innocent misrepresentation, or other similar 

circumstances, the recipient is entitled to the benefits underpaid. The claim 

for these benefits must be made within one year of the underpayment or it 

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 & Labor took action on the bill on February 

24 and 25, 1999. At the committee meeting on February 24, Douglas Connell, the 

assistant director of insurance services for the department, appeared and explained that 

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 of the terms that we're dealing with" and "put some parameters 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 or underpayments 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 of the changes 

was extremely general, he provided the following answer to a question posed by 

Representative Conway: 

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No. 3221O-6-III 


Birrueta v. Dep 't ofLabor & Indus. 


Q. Being around these worker comp benefits ... time-loss 

benefits, and ... I would assume this also would ... Does this apply to the 

PPD awards as well? Is that ... 

A. The proposal that we have would apply only to the payment 

oftemporary total disability or time-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 appear to have been addressed by amendments 

introducing the "adjudicator error" limitation. As amended, what became Engrossed 

House Bill 1894 added a new section to the statute to address underpayments rather than 

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 of benefits because of adjudicator 

error. "Adjudicator error" 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 of requests for increased benefits from recipients alleging 

that some staff member, witness, or information provider once made a clerical error, 

mistake of identity, or innocent misrepresentation. The "adjudicator error" limitation 

placed an important limit on reopening department determinations. 

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No. 32210-6-111 


Birrueta v. Dep't ofLabor & 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 underpayment provisions 

of RCW 51.3 2.240 were to allow the department to recover overpayments induced by a 

recipient's willful misrepresentation rather than fraud, and to increase parity between the 

department's right to recover overpayments and a worker's right to recover 

underpayments. It did so by adding a limitation for adjudicator error to the department's 

rights under RCW 51.32.240(1). 

Perhaps because it would make subsection (1) quite long, and perhaps to parallel 

subsection (2), the amendment to subsection (1) was broken into subparagraphs for the 

first time, including the adjudicator error limitation in new 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 of overpayment recovery to nonfinal orders does not 

apply to (1)(a), the legislature's House Bill Report on Engrossed Substitute House Bill 

3188 recognizes no distinction and characterizes the limitation to non final orders as 

applying to innocent error. The House Bill Report's summary of the bill described the 

adjudicator error changes as follows: 

Ifbenefits are overpaid because ofadjudicator error, the Department may 

only assess an overpayment when the order on which the overpayment is 

based is not yetfinaI, unless the overpayment relates to an order rejecting 

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No. 32210-6-III 


Birrueta v. Dep't ofLabor & Indus. 


the claim, results from a final appeal ofa Department or Board of 

Industrial Appeals order, or has been induced by willful misrepresentation. 

If benefits fail to be paid because of adjudicator 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. ON ENGROSSED SUBSTITUTE H.B. 3188, at 4, 58th Leg., Reg. Sess., (Wash. 

2004 ) (emphasis added). 

This legislative history, like the plain language ofRCW 51.32.240, demonstrates 

the legislature's intent that only nonfinal orders are subject to a claim that benefits were 

underpaid or overpaid as a result of clerical errors, mistake of identity, or innocent 

misrepresentation. 

Board Decisions 

We finally tum to decisions ofthe Board of Industrial Insurance Appeals brought 

to our attention by the parties, at least two ofwhich conflict with our construction of the 

statute. This court will accord "deference to an agency interpretation of the law where 

the agency has specialized expertise in dealing with such issues." City ofRedmond v. 

Cent. Puget Sound 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, 138,814 P.2d 

629 (1991». Nonetheless, this court is "not bound by an agency's interpretation ofa 

statute." Redmond, 136 Wn.2d at 46. "The Department's interpretation of the [Industrial 

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No. 3221O-6-III 


Birrueta v. Dep't ofLabor & Indus. 


Insurance Act] is subject to de novo review." Shafer v. Dep't ofLabor & 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) and In 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 presented here. 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 

learning that the information about their marital status at the time of injury 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 had been based on an innocent 

misrepresentation.2 

In Veliz, the board stated that "[0]nce [ a] misrepresentation has been established, 

2 One member of the board filed a dissent in Veliz. He disagreed that the 

department could use RCW 51.32.240 to avoid the res judicata effect of its wage order in 

light of the Washington Supreme Court's rulings in Marley v. Dep 't ofLabor & Indus., 

125 Wn.2d 533 and Kingery, 132 Wn.2d 162 (plurality opinion). Veliz, 2013 WL 

3185978, at *4. 

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No. 32210-6-111 


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RCW 51.32.240( I) provides relief from the res judicata application of an 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 that the 

statute had to say on the subject. But RCW 51.32.240(2) limits the department's right of 

recoupment to overpayments made under nonfinal orders, except as provided by RCW 

51.32.240(3), (4), and (5). Veliz fails to address that limitation. 

In Johnson, the board cited an earlier Johnson decision, In re Teresa M Johnson, 

No. 853229, 1987 WL 61380 (Wash. Bd. Indus. Ins. Appeals Aug. 26, 1987), for its 

reasoning that "the overpayment statute would be rendered meaningless ifthe principle of 

res judicata prevented the Department from correcting an inaccurate rate of compensation 

after sixty days had elapsed." Lloyd D. 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 simply paid time-loss compensation on 

an unexplained basis that it later determined to be inaccurate. Unlike the order in this 

case, which laid out the basis on which the department would calculate Mr. Birrueta's 

wage for compensation purposes, a mere payment order does not adjudicate the 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 res judicata 

"as to the issues encompassed within the terms of the order, absent fraud." It held that 

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No. 32210-6-III 


Birrueta v. Dep 't ofLabor & Indus. 


the factual basis for a wage rate is not encompassed within the terms of a payment order 

that does not disclose that factual basis.3 

We agree that if the 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) would be rendered meaningless. But because it is only final orders 

adjudicating the claimed error that are excluded from the right to recoup overpayments, 

subsection (1) is not rendered meaningless at all. The board's decision in In re Anita 

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 subject to 

recoupment for overpayment. 

While the board has expertise in dealing with workmen's compensation matters, 

its decisions in Veliz and Lloyd D. Johnson are not entitled to deference where they fail to 

consider RCW 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, "Had the issue of the 

basis of the time-loss compensation rate 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. 

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Attorney Fees 

Mr. Birrueta requests attorney fees and costs under RAP 18.1 and RCW 

51.52.130. RAP 18.1 pennits recovery ofreasonable attorney fees or expenses on review 

if applicable 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 other than the worker or beneficiary is the 

appealing party and the worker's or beneficiary's right to relief is sustained, 

a reasonable fee for the services ofthe worker's or beneficiary's attorney 

shall be fixed by the court. 

Since the department was the appealing party and Mr. Birrueta's right to relief is 

sustained, his request for attorney fees is granted, subject to compliance with RAP 

18.l(d). 

Affinned. 

WE CONCUR: 


Lawrence-Berrey, J. 

18