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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON HARDER MECHANICAL, INC., Appellant,

v. PATRICK A. TIERNEY, Respondent, DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, Defendants. No. 74845-9-1 DIVISION ONE

PUBLISHED OPINION FILED: September 19, 2016

Becker, J. — Inthis worker's compensation case, the Board of Industrial InsuranceAppeals properly classified the claimant as a full-time workerfor the purpose ofcalculating time loss compensation wages. Although the worker had experienced long periods of unemployment and had only a temporary relationship with his current employer, evidence that he occasionally did notwork jobs after accepting them does not compel reversal ofthe Board's finding that his intention was to obtain full-time work.No. 74845-9-1/2 

### Respondent PatrickTierney's union is the United Association ofPlumbers and Pipefitters Local 26 inTacoma, Washington. Tierney became ajourneyman in 1980 and worked out ofthe Local 26 union hall. The union uses a rotating 

### dispatch system to fill the demands ofcontractors in a way intended to give every memberon the list a fairopportunity to work. In this type of work, it is rare for union members to work 40-hourweeks consistently throughout an entire year. 

### Local 26 had high unemployment rates during the economic downturn that began
in 2008. 

### Tierney's union referred him to work for a temporary full-time job 

### beginning on April 6, 2012, with appellant Harder Mechanical Inc. Thejob was expected to last less than a week. While on thejob, Tierney injured his left shoulder. He filed a claim for worker's compensation withthe Department of Labor and Industries. 

### Bystatute, the amount of time loss compensation for an injury claim must be calculated on the basis of "the monthly wages the workerwas receiving from 

### all employment at the time ofinjury." RCW51.08.178(1).1 For workers like

1The formula forcalculating an injured worker's monthly wage is provided by RCW 51.08.178: 

### (1) Forthe purposes of this title, the monthly wages the worker was 

### receiving from allemployment at the time ofinjury shall be the basis upon which compensation is computed unless otherwise 

### provided specifically in the statute concerned. Incases where the worker's wages are not fixed bythe month, they shall be determined by multiplying the dailywage the worker was receiving at the time ofthe injury: 

### (a) Byfive, ifthe workerwas normallyemployed one day a week; 

### (b) By nine, ifthe workerwas normallyemployed twodays a week;No. 74845-9-1/3 

### Tierney whose wages are "not fixed bythe month," the monthly wage is 

### calculated by one of two methods. One method calculates the monthlywage as a multiple of "the daily wage the workerwas receiving at the time ofthe injury," depending on how many days a week the workerwas normally employed. RCW 51.08.178(1). This is the default method used in most cases. Dep't of Labor & 

### Indus, v. Avundes, 140Wn.2d 282, 290, 996 P.2d 593 (2000). The second 

### method is used incases where the worker's employment is exclusively seasonal in nature or where "the worker's current employment or his or her relation to his



### or her employment is essentially part-time or intermittent." RCW 51.08.178(2). When the second method is used, the total wages earned over a 12-month 

### period are divided by 12 to determine the monthly wage. RCW 51.08.178(2). Tierney was earning a good daily wage during his temporaryjob with Harder. But he had many stretches ofunemployment inthe preceding years. (c) By thirteen, ifthe workerwas normally employed three days a week; (d) Byeighteen, ifthe workerwas normally employed four days a week; (e) By twenty-two, ifthe workerwas normally employed five days a week; (f) By twenty-six, ifthe worker was normally employed six days a week; (g) By thirty, ifthe workerwas normally employed seven days a week. (2) In cases where (a) the worker's employment is exclusively seasonal in nature or (b) the worker's current employment or his or her relation to his or her employment is essentially part-time or intermittent, the monthly wage shall be determined by dividing by twelve the total wages earned, including overtime, from all employment in any twelve successive calendar months preceding the injury which fairly represent the claimant's employment pattern.No. 74845-9-1/4 

### Consequently, his monthly wage is considerably higher ifcalculated by the first method ratherthan by the second. Using the first method, the Department determined Tierney's time loss compensation under RCW 51.08.178(1). His monthly wage was calculated to be approximately $8,000 per month. Itwould have been less than halfthat amount ifthe Department had classified Tierney as an intermittent worker. Harder appealed, arguing that the second method should have been used because Tierney's relationship to his work was intermittent. After a hearing, an 

### industrial appealsjudge affirmed the Department's order in a written proposed decision and order. Harder petitioned the Board for review. The Board denied 

### Harder's petition for review, and thejudge's proposed decision and orderthereby became the decision and order ofthe Board. RCW 51.52.106. 

### Harder appealed the Board's decision to superior court. The superior
court conducted a bench trial on the evidence ofthe certified board record. The 

### superiorcourt confirmed the decision ofthe Board. The superiorcourt's decision is before this court on appeal. 

### The work of a pipefitterdispatched from a union hall is by nature often 

### accompanied by periods ofunemployment and typically involves temporary relationships with a numberofemployers as the worker moves from one project to the next. But when work is available, it is typically full-time and well-paid. The 

### parties agree thatTierney's "currentemployment" as a pipefitterwas not 

### essentially intermittent. The question here iswhetherTierney's relation to hisNo. 74845-9-1/5 

### employmentwas intermittent, RCW51.08.178(2)(b), requiring use of the second method ofcalculation. 

### Indetermining whethera worker's relation to his employment is 

### intermittent, allrelevantfactors must be considered, including the worker's intent, the nature of the work, relation with the currentemployer, and the worker's work history. Avundes. 140 Wn.2d at 290. 

### The Board's analysis ofTierney's relationship to his work was influenced by its previous opinion, In re Pino. Nos. 91 5072 &92 5878, 1994WL 144956 

### (Wash. Bd. ofIndus. Ins. Appeals Feb. 2, 1994), cited favorably inAvundes, 140 Wn.2d at 287. In Pino, the Board concluded the work of a pipefitter should be 

### viewed as full-time work even though itgenerally involves moving from job to job with periods of nonwork in between. Pino, like Tierney, was a union member pipefitterwho would be dispatched to a particularjob by his union hall and would work an indefinite period ranging from a day to several months. He would then return to the union hall, place his name on the dispatch list, and wait for his next assignment. Pino

was injured on thejob after a two-and-a-halfyear period of unemployment due to

a previous injury. Inthe six years before the injury, Pino had worked an average of seven and a half months peryear. Despite Pino's temporary relationship with his employers and significant gaps in work history, the Board held that Pino's relation to employmentwas not part-time or intermittent and his wages were properly calculated pursuant to RCW 51.08.178(1). The Board concluded that Tierney's situation was similar.No. 74845-9-1/6 

### The Board noted [inPinol thatthe worker's intentto work full-time should be considered but thatwas not the only thing to be considered when determining the workers' relationship to the work, 

### and in Mr. Pino's case, even though there were long prior periods ofunemployment, the Board determined thatthe Department could not speculate that a worker willnot have work available continuously inthe future. Mr. Pino was out ofwork for a while due to a prior industrial injury, and although Mr.Tierney's name was continuously on the unionjob list for dispatch, he too was unavailable for a while when he was in jail. He testified he intended to work when local work was available although there were a few othertimes when he was unable to dojobs thatwere available due to illness or transportation problems. He also offered a reasonable explanation for not always takingjobs that required traveling. Therefore, just like Mr. Pino, Mr. Tierney's relationship to his pipefitterwork was not essentially intermittent or part-time. Thus subsection (1) above must be used inthis case too. The Board's decision presents a comprehensive summary and analysis of the evidence presented atthe hearing, followed by specific findings covering the Avundes factors. The Board concluded, "Mr. Tierney was a full-time worker and his wages were correctly set by the Department using RCW 51.08.178(1)." The superior court reached the same conclusion. At Harder's insistence, the superior court entered its own findings offact. The court's findings were similarto the Board's findings although somewhat abbreviated. Harder contends the superior court's legal analysis was necessarily flawed because the court failed to make sufficientfindings offact concerning the Avundes factors. This argument misunderstands the respective roles ofthe Board and the superior court. When reviewing a decision ofthe Board, the superior court presumes the correctness ofthe Board's decision. RCW 51.52.115; Dep't ofLabor & Indus, v. Rowley, 185Wn.2d 186, Tf 31, P.3d (2016). Ifthe superiorcourtNo. 74845-9-1/7 

### decides that the Board "has acted within its power and has correctly construed the law and found the facts," the superior court confirms the Board's decision in its entirety. 

### In all court proceedings under or pursuant to this title the findings and decision ofthe board shall be prima facie correct and the burden ofproofshall be upon the party attacking the same. Ifthe court shall determine that the board has acted within its power and has correctly construed the law and found the facts, the decision of the board shall be confirmed; otherwise, it shall be reversed or modified. 

### RCW 51.52.115. When the Board's decision is confirmed, it is unnecessary for the superior court to make its own findings. The superior court can make its own 

### findings or reach a different result only ifthejudge finds by a preponderance of the evidence that the Board's findings and decision are erroneous. Gorre v. City ofTacoma, 184 Wn.2d 30, 36, 357 P.3d 625 (2015). InTierney's case, the superior court did not find thatthe Board's findings and decision were erroneous. At the conclusion of a bench trial, the superior courtjudge said, "I affirm the decision ofthe Administrative Law Judge and the Board.

. . . The decision is affirmed." Harder's attorney pressed for clarification, 

### and thejudge reiterated thatthere was no basis to change the Board's decision. [HARDER'S ATTORNEY]: Is the court specifically saying that Mr.Tierney made himselfavailable at all times? THE COURT: His relation to his employment was full-time 

### employment. Ithink that's whatthe evidence showed to the Board. Ibelieve that the record supports the finding ofthe Board. All I'm 

### finding is, this supports their position legally and factually. Ihave no basis to change it. The court's conclusion of law 7 states, "The Decision and Order ofthe Board of 

### Industrial Insurance Appeals dated March 31, 2014, is correct and is affirmed."No. 74845-9-1/8 Thus, it is clearthat the superior court confirmed the Board's decision both legally and factually. 

### Because the court did not find the Board's decision to be erroneous inany respect or in need ofmodification, itwas unnecessary for the superior courtto 

### enter its own findings of fact. Those it did enterwere superfluous. It would have sufficed for the court simply to enter an order stating that the decision ofthe Board was confirmed. Therefore, we reject Harder's position that our review of the superior court's decision is focused upon and constrained by the superior court's findings. In a case ofthis type, the appellate court examines the record "'to see whether substantial evidence supports the findings made afterthe superior court's de novo review, and whether the court's conclusions oflaw flow from the 

### findings.'" Ruse v. Dep't ofLabor &Indus., 138 Wn.2d 1, 5-6, 977 P.2d 570 (1999) (quoting Young v. Dep't of Labor &Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996)), quoted in Gorre, 184 Wn.2d at 36. When the superior court 

### concludes the Board's findings and decision are erroneous, the findings we review for substantial evidence are those made by the court. Watson v. Dep't of Labor& Indus.. 133 Wn. App. 903, 909, 138 P.3d 177 (2006). But when the 

### superiorcourt confirms the Board's findings and decision, the Board's findings survive and provide the basis for substantial evidence review by the appellate 

### court. Here, because the superiorcourt confirmed the decision ofthe Board, our 

### review—like the superior court's—examines the legal and factual sufficiency of
the Board's decision.No. 74845-9-1/9 

### The Board found thatTierney's intentwas to obtain full-time work from his union, while recognizing there were long intervals between assignments when he did not work at all. Although he intended to obtain work full-time from the labor union, Mr. Tierney's work history, beginning in 2007 up until his April 11, 2012 industrial injury, consisted of alternating periods of employment and unemployment, and inthe year priorto the injury his periods ofemployment included April 13, 2011 through May 12, 2011; June 1, 2011; March 14, 2012 through March 27, 2012; and April 6, 2012 through the date of injury. He was incarcerated from September 2011 to January 2012. Atthe hearing before the industrial appealsjudge, Tierney testified that in 

### the five years before his injury, he always had his name on the union dispatch list waiting for work whenever he was not actually working. Tierney increased his 

### ability to getjobs by signing the dispatch list to work as eithera pipefitteror plumber in all geographical zones covered by Local 26. He testified that he 

### always kept his cell phone with him during the hours the union dispatchermight 

### call with a job. He said he rarely missed a call fromthe union dispatcher, and if he did, he would call right back. 

### The record indicates thatTierney was unemployed about 31 ofthe 42 

### months before his injury. Dispatch records showed that inthe 5 years before his injury, Tierney accepted around 19jobs from the dispatcher. Tierney did not actually work six ofthesejobs. Once, itturned out that having validcar insurance was one ofthe requirements for getting onto thejob site, and Tierney 

### had not paid his carinsurance. Once, he was rejected by the employer. On two occasions, he did not reportto thejob on the date and time specified. Tierney 

### did not specificallyrememberwhy he did not report but said he probably got sickNo. 74845-9-1/10 or his carwould not start. And on two other occasions, he turned thejob back in, that is, he notified the dispatcher at least 12 hours before the starttime that he could not work thejob. Tierney recalled that inAugust 2011, he turned a job back in because he had a knee injury. Tierney also missed some dispatch calls when he was in jail for several months at the end of2011. Having considered the gaps inTierney's work history and the evidence that he did not always acceptwork when itwas available, the Board nevertheless 

### found thatTierney intended to work full time. Harder contends the law and the facts "dictate a different outcome, as Mr.Tierney's actions speak louderthan his words." In Harder's view, Tierney showed a lack of intentto workfulltime by 

### passing up many opportunities for work. Harder cites the Board's remark in Pino: "Insome cases a worker's stated intent may be completely undercut by a 

### historical pattern or other actions that discredit the stated intent." Pino, 1994 WL 144956, at *5. The Board looked at the evidence that Harder relies on and saw it in a 

### differentlight. The Boardaccepted as reasonable Tierney's explanations that illness ortransportation problems made himunable to worksome of the jobs he had accepted. While the inference that Tierney intended to work only 

### occasionally may have been available, the Board did not draw that inference. The Board's view ofthe evidence was not irrational. Cartrouble, health 

### problems, incarceration, and lack of car insurance do not necessarily signify a lack of intent to work. Tierney put himself on the dispatch list for plumbingas 

### well as pipefitting and checked inas available in seven geographic zones,

10No. 74845-9-1/11 actions that manifest an intent to work as much as possible. During recentyears, the availability ofwork in construction had been curtailed by the severe economic downturn; Tierney was notthe only union memberfor whomjob assignments

were scarce during that time. On this record, we cannot say the Board's finding that Tierney intended to work fulltime was unsupported by substantial evidence. See Watson, 133 Wn. App. at 909 (substantial evidence willsupport a finding when the evidence inthe record is sufficientto persuade a rational, fair-minded person that the finding is true). Our Supreme Court has explained that "the proper analytical focus is on 

### lost earning capacity. Avundes, 140 Wn.2d at 289-90. See also Watson, 133 

### Wn. App. at 915-16 (legislature's intentwas to reflect a worker's earning capacity ratherthan his yearly salary). Despite Tierney's periods ofunemployment, he had the capacity to find full-time work, and substantial evidence supports the Board's finding that he intended to do so. Itwas not inconsistentwiththe law and the facts for the Board to conclude thatTierney's lost earning capacity is best reflected by full-time wages. 

### The Board's decision thatTierney's wage is to be calculated underthe 

### default provision, RCW51.08.171(1), was prima facie correct. The burden of proofwas on Harderas the party challenging the Board's findings and decision. See RCW 51.52.115. Harder did not meet that burden. The Board considered 

### the Avundes factors, made findings supported by the evidence, and concluded 

### Tierney's relationship to his employmentwas not intermittent. The superiorcourt did not err by confirming the Board's decision.

11No. 74845-9-1/12

Affirmed.

WE CONCUR: 

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