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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES J. MILLER,

Appellant,

v.

PUBLIC UTILITY DISTRICT NO. 1 

OF SNOHOMISH COUNTY and 

STATE OF WASHINGTON, 

DEPARTMENT OF LABOR AND 

INDUSTRIES,

Respondents.

 No. 81676-4-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — James Miller’s worker’s compensation claim was closed after 

he rejected a substitute job offer from his employer. He appealed to the director 

of the Department of Labor and Industries on the basis that his injuries prevented 

him from performing the substitute job duties. The director determined that the 

job offer was valid because Miller did not have any restrictions that prevented 

him from performing the job. The Board of Industrial Insurance Appeals (Board) 

and the Snohomish County Superior Court subsequently affirmed this 

determination. We affirm. 

FACTS

In 2015, Miller was working for the Snohomish County Public Utilities 

District No. 1 (PUD) as a line foreman. Around August 29, he fell while working 

on power lines that had been damaged in a storm and hurt his right shoulder. 
No. 81676-4-I/2

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Miller was allowed to open an industrial injury claim for medical treatment and 

loss of earnings. As a result of his shoulder injury, Miller had permanent 

restrictions for lifting, carrying, pushing, pulling, and reaching, and therefore 

could not return to his job as a line foreman.

Miller had prior industrial injury claims, including claims for back injuries 

and skin cancer. However, at the time of his shoulder injury, those claims were 

closed. His job as a line foreman was heavy duty, and he had no work 

restrictions from any prior claims.

In September 2016, Miller visited a doctor about back pain he was 

experiencing. Miller told her that while he had had back pain on and off for the 

last 10 years, he had been in his usual state of health until May 5, 2016, when he 

developed lower back pain while standing. The doctor noted that his symptoms 

were “possibly related” to his 2010 back injury, but upon doing an X-ray found 

spinal damage which was “unlikely to be related to his strain injury.”

On September 26, 2016, PUD made a return-to-work offer to Miller for the 

job “Entry Helper – Modified,” which would require Miller to stand for several 

hours per day directing traffic. The job was approved by Miller’s doctor and an 

independent medical examination physician. Miller rejected the job, citing his 

inability to stand for extended periods of time due to his back pain. As a result of 

rejecting the job, Miller’s claim was closed and his vocational services were 

terminated.

Miller appealed to the director of the Department of Labor & Industries, 

who determined that the job offer was valid, therefore upholding the termination 
No. 81676-4-I/3

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of Miller’s claim. Miller appealed the decision to an industrial appeals judge and 

the Board of Industrial Insurance Appeals, which both upheld the decision. Miller 

then appealed to the Snohomish County Superior Court, which also affirmed the 

decision.

Miller appeals.

ANALYSIS

Miller claims that the director abused his discretion in concluding that the 

job offer was valid. Specifically, Miller contends that the director applied an 

incorrect legal standard by stating that he would not consider Miller’s prior 

injuries. Because substantial evidence supports the superior court’s finding that 

the director did in fact consider Miller’s previous injuries, we disagree.

The Industrial Insurance Act provides for injured workers to receive 

vocational rehabilitation services and benefits in order to become employable. 

RCW 51.32.095(1), (10). When an employer makes a valid return-to-work offer, 

the employee’s vocational rehabilitation services will be terminated, effective on 

the starting date of the job, “without regard to whether the worker accepts the 

return-to-work offer.” RCW 51.32.096(c). A return-to-work offer is valid if it is “for 

bona fide employment with the employer of injury, consistent with the worker’s 

documented physical and mental restrictions as provided by the worker’s health 

care provider.” RCW 51.32.096(c). A worker is employable if they have the 

ability to perform and obtain gainful employment when considering both their 

preexisting physical limitations and physical limitations caused, at least in part, by 

their industrial injury. WAC 296-19A-010(1)(a)(ii)-(iii). However, “[p]hysical . . . 
No. 81676-4-I/4

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conditions that arose after the industrial injury[ ] . . . that were not caused or 

aggravated by the industrial injury[ ] . . . are not considered in determining 

whether the worker is employable.” WAC 296-19A-010(1)(b); Nash v. Dep’t of 

Labor & Indus., 1 Wn. App. 705, 710, 462 P.2d 988 (1969). 

The director has broad discretion to determine disputes as to whether a 

return-to-work offer is valid, thus rendering vocational services unnecessary. 

RCW 51.32.095(10); Anderson v. Weyerhaeuser Co., 116 Wn. App. 149, 155, 64 

P.3d 669 (2003), review granted and case dismissed, 150 Wn.2d 1035 (2004). 

Such a discretionary decision may be reversed only if it is manifestly 

unreasonable, based on untenable grounds, or made for untenable reasons. 

Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

In industrial insurance appeals, the Board’s decision is prima facie correct 

and the appealing party has the burden of proof. RCW 51.52.115; Ruse v. Dep’t 

of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). The superior court may 

substitute its own findings and decision for the Board’s if, based on a 

preponderance of the evidence, it finds that the Board’s decision is incorrect. 

Ruse, 138 Wn.2d at 5. In turn, we review the superior court’s findings for 

substantial evidence. Hendrickson v. Dep’t of Labor & Indus., 2 Wn. App. 2d 

343, 351, 409 P.3d 1162 (2018). Under this standard, we ask whether, viewing 

the record in the light most favorable to the party who prevailed in superior court, 

there is sufficient evidence to persuade a rational, fair-minded person that the 

findings are true. Hendrickson, 2 Wn. App. 2d at 351-52. We review the 

superior court’s conclusions of law de novo. Hendrickson, 2 Wn. App. 2d at 351.
No. 81676-4-I/5

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Miller contends that the director abused his discretion and that the 

reviewing bodies erred by affirming his decision because he applied an incorrect 

legal standard when he excluded limitations related to Miller’s lower back from 

his analysis. Miller correctly notes that the director must consider the worker as 

he is, “with all his . . . preexisting frailties and bodily infirmities.” Dennis v. Dep’t 

of Labor & Indus., 109 Wn.2d 467, 471, 745 P.2d 1295 (1987). However, the 

director correctly explained that the employer “is not required to consider 

restrictions that are not related to this claim and were not in place at the time of 

the injury.” The superior court agreed with this reasoning, noting that “[t]he 

Director focused on the fact that Mr. Miller was working a job with a ‘very heavy’ 

job classification without any formal restrictions related to his low back. There 

were no low back conditions accepted on the claim or lit up by the industrial 

injury.” The court further noted that there was “sufficient evidence to make a 

finding that any back issues or problems that would result in physical restrictions 

did not exist at the time of the injury and were not lit up or aggravated by the 

injury.” The record provides substantial evidence for the court’s determination 

that “taken as a whole,” it is clear from the director’s determination that he 

applied the correct standard.

Miller disagrees and contends that the director was not only required to 

consider preexisting formal restrictions, but any preexisting limitations, “frailties[,] 

and bodily infirmities.” Dennis, 109 Wn.2d at 471. However, the record shows 

that the director did consider the extent of Miller’s prior limitations in his 

discussion of the heavy duty nature of Miller’s job of injury. 
No. 81676-4-I/6

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Miller relies on In re Hague, No. 59 331, at 2-3 (1982) (Wash. Bd. of 

Indus. Ins. Appeals July 22, 1982), 

http://www.biia.wa.gov/DO/59331_ORD_19820722_DO.PDF, in which the Board 

determined that although Hague’s inability to work was based in part on 

conditions, such as blood pressure and stroke, that were unrelated to his 

industrial injury, the industrial injury was a significant contributing cause of his 

inability to work, and therefore, Hague qualified as a permanently totally disabled 

worker. This case not only addresses a different legal issue but is also factually 

distinguishable. In Hague, the Board noted that the worker had suffered a heart 

attack and a stroke, and had high blood pressure, all prior to the industrial injury. 

Hague, No. 59 331, at 4. It noted that these conditions worsened after the injury. 

Hague, No. 59 331, at 4. Here, the record supports a finding that Miller’s new 

back pain was unrelated to his earlier back limitations, frailties, or infirmities. 

Accordingly, Hague is not persuasive.

We affirm.

 

WE CONCUR: