# FILE,"**1~1** CLERKS OFFICE "' SUPREME COURT, aTATe OFWASIIIGTON

. DATE 

### APR 16 2015 j 

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# ~fLS· I This opinion was fl1ed for 

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### IN THE SUPREME COURT OF THE STATE OFWASHINGTON

THE BOEING COMPANY, Respondent,


### v. PATRICIA DOSS, Defendant, and STATE OF WASHINGTON, DEPARTMENT OF LABOR and INDUSTRIES, Petitioner. NO. 90304-2

ENBANC

Filed 

### APR 16 2015

STEPHENS, J.-We must decide whether a self-insured employer is entitled to second injury fund relief under RCW 51.16.120(1) for a worker's postpension medical costs. Weholdthattheplainlanguage ofthe governing statutes does not allow
a charge to the second injury fund for postpension medical treatment under RCW 51.16.120(1). Accordingly, we reverse the Court ofAppeals.The Boeing Co. v. State, Dep 't of Labor & Indus., 90304-2



### FACTS AND PROCEDURAL HISTORY The underlying facts ofthis case are undisputed. Patricia Doss filed a claim for workers' compensationwiththeDepartmentofLaborandIndustries (Department) after suffering chemical exposure during the course of employment with The Boeing Company. The exposure permanently aggravated her preexisting asthma, and she requires ongoing medical treatment as a result ofthese combined injuries. The Department determined that the combined effects of Doss's preexisting asthma and the aggravation ofthis condition during her Boeing employment rendered her permanently totally disabled. A right knee injury also contributed to Doss's preexisting disability. Due to her permanent total disability, the Department awarded Doss a pension. Pursuant to RCW 51.16.120(1), the Department granted Boeing second injury fund relief, meaning that Boeing was not required to paythe entire cost ofDoss's pension, but only the portion attributable to the workplace exposure. The remainingportion ofDoss'spensionwas coveredbythe secondinjuryfund, into which all employers pay. The Department determined that Doss was also eligible for postpension medical treatment for her asthma under RCW 51.36.010(4). It 

### directed Boeing to paythe cost ofsuch treatment. Boeing agreed to pay for the portion of the pension attributable to Doss's workplace injury but challenged the Department's order requiring it to pay for her postpension medical treatment. Boeing argued that the cost ofthis treatment should also be coveredbythe second injury fund. Boeing appealed to the Board.

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The Board affirmed the Department's order, concluding that postpension medical benefits are notpayable from the second injury fund and are properlyborneby the self-insured employer. Boeing appealed to superior court, which reversed the Board's determination and held that "Ms. Doss'[s] postpension treatment benefits are properly payable from the Second Injury Fund, and are not the responsibility of Boeing." Clerk's Papers (CP) at 60. The Court ofAppeals affirmed. Boeing Co. v. Doss, 180 Wn. App. 427, 321 P.3d 1270 (2014). The Department petitioned to this court, andwe grantedreview. Boeing Co. v. Dep 'tofLabor &Indus., 181 Wn.2d 1001, 332 P.3d 984 (2014). ANALYSIS This case presents an issue offirst impression, which turns on our interpretation ofseveral statutes underthe Industrial Insurance Act (IIA). 1. Overview ofthe Relevant Statutory Schemeunderthe IIA Under the IIA, any worker injured in the course of employment is entitled to compensation for full disability, independent ofanypreexisting condition. Tomlinson
v. Puget SoundFreight Lines, Inc., 166 Wn.2d 105, 117, 206 P.3d 657 (2009) ('"The worker is to be taken as he or she is, with all his orher preexisting frailties and bodily infirmities."' (quoting Dennis v. Dep't of Labor & Indus., 109 Wn.2d 467, 471, 745 P.2d 1295 (1987))); RCW 51.32.010 ("Each worker injured in the course of

... employment

. . . shall receive compensation."). An employer must secure such compensation by insuring "the payment of such benefits with the state fund" or by "[q]ualifying as a self-insurer." RCW 51.14.010(1), (2).

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If an employer insures through the state fund, the Department pays benefits directly to workers for disabilitybenefits through the accident fund and "[t]he medical aid fund covers medical treatment received by injured workers." WR Enters., Inc. v. Dep't of Labor & Indus., 147 Wn.2d 213, 217, 53 P.3d 504 (2002). Self-insured employers, on the other hand, pay directly to workers any disability and medical benefits. Johnson v. Tradewell Stores, Inc., 95 Wn.2d 739, 742, 630 P.2d 441 (1981). Self-insured employers are generally responsible for all disability and medical costs associated with their workers' compensation claims. See RCW 51.08.173 (defining "self-insurer"); WAC 296-15-330 (describing self-insured employers' authorization requirements for medical care). A worker who becomes permanently totally disabled1 from an industrial injury receives a monthly wage-replacement payment based on a percentage ofthe worker's wages. RCW 51.32.060(1). These monthly payments are generally referred to as "pensions" and are drawn from the pension reserve fund. RCW 51.44.070(1). When theDepartmentplacestheworkerofa self-insured employeronapension,theemployer must payinto the pensionreserve fund a sum equal to the estimated present cash value ofthe worker's monthlypayments. 

### I d. These monthlypayments are calculated on the basis ofan annuity, which factors rates ofmortality, disability, remarriage, and interest
as determined bythe Department. Id.

1 "Permanent total disability" is defined as "loss ofboth legs, or arms, or one leg and one arm, total loss ofeyesight, paralysis or other condition permanently incapacitating the worker from performing any work at any gainful occupation." RCW 51.08.160.
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### In most circumstances, a pensioned worker is not entitled to continued medical benefits. RCW 51.36.010(4). However, the Department may authorize medical treatment for previously accepted conditions, including life-sustaining treatment. Id. 

### This medical treatment results inpostpension medical costs, so calledbecause they are not part ofthe total cost ofthe pension reserve, which, as explained, is based on an annuitythat estimates future wage replacement benefits. 

### See RCW 51.44.070(1). When a worker's permanenttotal disability is causedbythe combined effects of
a "previous bodily disability" and a covered workplace injury or occupational disease, self-jnsured employers pay a reduced amount into the pension reserve fund. RCW 51.16.120(1). Inthese circumstances, self-insured employers payinto the reserve fund "only the accident cost which would have resulted solely from the further injury or disease, had there been no preexisting disability." Id. 

### The difference between the portion paidbythe employer and the total cost ofthe pension reserve, i.e., the portion attributed to any preexisting disability, is assessed against the second injury fund. Id. 

### Thus, the second injury fund contributes to the pension reserve fund the balance ofthe pension costs not covered bythe self-insured employer. Self-insured employers fund the second injury fund through assessments determined by the Department. WAC 296-15-221(4)(a); 

### see also RCW 51.44.040 (creating the second injury fund). These assessments are calculated, in part, by the claim costs paid by the self-insured employer, which include, but are not limited to, time loss compensation, permanent partial disability awards, medical bills, and prescriptions. WAC 296-15-221(4)(a)(ii).

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Accident costs, as described in RCW 51.16.120(1), are equal to the permanent partialdisabilitythat a workerwouldhave developedhadtheworkernot suffered from
a preexisting disability. Because the statute holds self-insured employers liable only for the accident costs "which would have resulted

. . . had there been no preexisting disability," it follows that neitherthe preexisting disability northe later disability alone could have caused the permanent total disability. RCW 51.16.120(1). Permanent partial disabilitypayments are based on a worker's loss ofbodily function, rather than
a worker's lost wages or lost earning power. RCW 51.32.080; Tomlinson, 166 Wn.2d at 110. These payment awards do not include the estimated cost ofa worker's future medical costs. See RCW 51.32.080. Permanent total disability payments, on the other hand, are "not [a] different level[ ] on the same continuum" as permanent partial disability payments, but are instead ''two separate concepts." Ellis v. Dep 't of Labor &Indus., 88 Wn.2d 844, 851, 567 P.2d 224 (1977). These disability payments serve as wage replacement benefits. RCW 51.32.060(1) (authorizing payment ofa percentage of"wages" for permanently totally disabled workers); RCW 51.44.070 (describing how monthly pension benefits for permanentlytotally disabled workers are based on an annuitythat factors mortality, disability, andremarriage); seealso 1984 Op. Att'yGen. No. 15, at 3 ("[C]ompensation fortotalpermanentdisabilityis paid solelyfor a claimant'sinabilityto carryona gainful occupation.").

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### 2. The Second Injury Fund Does Not Cover Medical Costs under RCW 51.16.120(1) The second injury fund was established to promote the hiring and retention of disabled workers by "providing that the employer hiring the disabled worker will not beliable for a greaterdisabilitythanwhat actuallyresults from alateraccident." Crown, Cork & Seal v. Smith, 

### 171 Wn.2d 866, 873, 259 P.3d 151 (2011). RCW 51.44.040(1) provides that the second injury fund "shall be used only for the purpose ofdefraying charges against it as provided inRCW 51.16.120 [distribution offurther accident cost] and 51.32.250 Uob modification costs]." The job modification benefits established under RCW 51.32.250 are not at issue here. Therefore, RCW 51.16.120, entitled "Distribution offurther accident cost," is the statute, if any, that confers the second injuryreliefrequestedbyBoeing. (Boldface omitted.) There are three types of costs authorized under RCW 51.16.120. RCW 51.16.120(1) relates to workers with preexisting disabilities, subsection (4) relates to the "preferred worker" program, and subsection (5) relates to hiring workers with developmental disabilities. Because onlyRCW 51.16.120(1) is at issue here, the other two subsections will be discussed onlybriefly. RCW 51.16.120(4) allows the Department to reduce or eliminate charges to an employer when a worker who was previously injured and unemployed is hired and suffers a new injury. This is known as the "preferredworker"program. WAC 296-16- 110,-150. RCW 51.16.120(5) is similarto the preferred workerprogrambut applies to

-7-The Boeing Co. v. State, Dep 't of Labor &Indus., 90304-2



### the employment ofdevelopmentally disabled workers. These subsections do not apply to this case because Doss is neither apreferred worker nor a developmentally disabled worker. This case concerns only RCW 51.16.120(1). The statute promotes the goals established for the second injury fund by limiting a subsequent employer's liability for permanenttotal disabilitybenefits inthe eventthat aworkerwith apreexisting disability suffers a new workplace injury. Jussila v. Dep 't of Labor & Indus., 

### 59 Wn.2d 772, 777-78, 370 P.2d 582 (1962). In this circumstance, a self-insured employerpays into the pension reserve fund "only the accident cost which would have resulted solely from the further injury or disease, had there been no preexisting disability." RCW 51.16.120(1). As noted, permanentlytotally disabledworkers receive monthlypension payments from the pension reserve fund. When a worker's permanent total disability is caused, inpart, byapreexisting injury, this statuterequires self-insured employers to pay into the pension reserve fund onlythe accident cost that resulted from a workplace
Ill



### JUry.The statute reads, in relevantpart: [A] self-insured employer shall pay directly into the reserve fund only the accident cost which would have resulted solely from the further injury or disease, had there been no preexisting disability, and which accident cost shall be based upon an evaluation ofthe disability by medical experts. The difference between the charge thus assessed to such employer at the time of the further injury or disease and the total cost ofthe pensionreserve shall be assessed against the second injury fund. 

### RCW 51.16.120(1) (emphasis added). As mentioned earlier, accident costs described in the statute are equal to permanent partial 

### disability that a worker would have

-8-The Boeing Co. v. State, Dep 't of Labor & Indus., 90304-2

developedhadthe workernothad apreexisting disability. Permanent

### partial disability benefits serve as wage replacement benefits and do not consider or anticipate postpension medical costs. The statute does not relieve Boeing ofits duty to pay for medical costs. Boeing's plain language argument focuses on the terms "only'' and "solely" in RCW 51.16.120(1). Boeing argues that self-insured employers pay "only'' accident costs arising "solely'' from the workplace accident, to the exclusion of any other payments. Suppl. Br. of Resp't at 8-9. This statutory provision takes precedence, Boeing says, over the general requirement that self-insured employers cover a claimant's ongoing treatment costs. 

### !d. Therefore, Boeing maintains that the second injury fund must cover anypostpension medical costs. The Department counters that Boeing reads the statute out ofcontext. Because the statute pertains to accident costs, i.e., pensions, it does not relieve a self-insured employer ofits separate obligation to payfor ongoing medical costs where authorized. Moreover, no other statute relieves Boeing of that responsibility, and the Court of Appeals improperlyconcludedthat RCW 51.16.120(1) provides suchrelief. 

### Doss, 180 Wn. App. at 437. We conclude the Department has the better argument. RCW 51.16.120(1) addresses only accident costs, not medical costs. The statute authorizes "charge[s]" against the second injury fund for the difference between "the total cost ofthe pension reserve" andthe "accidentcost" attributedto theworkplaceinjury. RCW51.16.120(1). Thus, a self-insured employer is responsible for paying into the pension reserve fund

-9-The Boeing Co. v. State, Dep 't of Labor & Indus., 90304-2



### only a portion of the accident cost. The remaining portion of the accident cost is charged to the second injury fund and transferred into the pension reserve fund. This amount does not include medical treatment costs because "accident costs" estimates future wage replacements, not medical treatment. See 

### RCW 51.44.070(1). Becausethe secondinjuryfund is limitedto accident costs, Boeing is notentitled to second injury fund relief for medical costs under RCW 51.16.120(1). RCW 51.44.040, which expressly limits charges to the second injury fund to two statutes, does not discuss medical costs at all. The relevant statute, RCW 51.16.120(1), also does not consider medical costs. There is simply no statute that supports Boeing's position that medical treatment costs must be paid from the second injury fund, and neither RCW 51.44.040 nor RCW 51.16.120(1) relieve Boeing ofits duty as a selfinsured employerto cover all costs associated with a worker's claim. When a self-insured employer receives relief under RCW 51.16.120(1), the portion not paid by the employer is transferred from the second injury fund into the pension reserve fund, which provides a monthly pension to workers. These monthly pensionpayments do not consideroranticipatepostpensionmedical treatment. Instead, thepensionis basedon an annuitythat factors "rates ofmortality, disability, remarriage, and interest." RCW 51.44.070(1). Whenpostpensionmedical costs are grantedto state fund workers, funds are not transferred from the second injury fund into the pension reserve fund. Postpension medical benefits are awarded, at the discretion of the Department, after 

### a worker receives a pension. RCW 51.36.010(4). Thus, medical costs are not among the costs


### -10-The Boeing Co. v. State, Dep 't of Labor & Indus., 90304-2

factored into the pensionreserve fund. Instead, the medical aid fund bears the medical costs. See WR Enters., 147 Wn.2d at 217. This distinction highlights that the pension
reserve fund is not intended to covermedical costs under RCW 51.16.120(1). The Court of Appeals' and Boeing's reliance on the word "only" in RCW 51.16.120(1) is misplaced. A complete reading ofRCW 51.16.120(1) shows that the
use oftheterm "only'' is inreference to the fact that self-insured employers do notbear theburden ofpaying the totalcost ofthepension. Instead, self-insured employers must pay "only" the portion ofthe accident cost attributed to the workplace injury. RCW 51.16.120(1). The context ofthe entire statute contemplates the differencebetweenthe total cost ofthe pension and a portion ofthat cost. The word "only" does not relieve Boeing ofany ofits otherresponsibilities as a self-insured employer. Boeing argues the second injury fund "was not established solely for paying pension payments" and draws parallels to other programs that receive second injury fund relieffor medical costs. Suppl. Br. ofResp't at 19-20. However, this argument is not persuasive because, unlike the other programs, RCW 51.16.120(1) is the only subsection that expressly restricts second injury fund reliefto "accident costs." Under the '"preferred worker"' program, self-insured employers receive second injury fund relieffor 

### "all benefits" under a new claim, which includes accident and medical costs. WAC 296-16-150(2) (emphasis added); see also WAC 296-16-150(1)(a) (State fund employers "[ d]o not pay accident fund and medical aid fund premiums

... during the 'preferred worker' certification period."). Such broad regulatory coverage is allowed under the "preferred worker" program because, unlike RCW 51.16.120(1), the statute
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### 90304-2

authorizing the "preferred worker" program is not limited to accident costs. See RCW 51.16.120(4). RCW 51.16.120(1), however, does not include such broad language. While these programs may effectuate similar policies as expressed by the legislature, the statute in question before us, RCW 51.16.120(1), is the only ofsuch statutes that is restricted to "accident costs." Regulations implementing the statute also support the interpretation that the second injury fund covers only pension costs and not medical costs under RCW 51.16.120(1). WAC 296-15-225 describes the assessments self-insured employers pay into fund the secondinjuryfund. Theregulation says, "The [secondinjury] fund is used to relieve employers' costs related topensions that result from the combined effects of the industrial injury and another prior injury [authorized under RCW 51.16.120(1)], preferred worker claims [authorized under RCW 51.16.120(4)], andjob modifications [authorized under RCW 51.32.250]." (Emphasis added.) The regulation supports the plain language of RCW 51.16.120(1) that the second injury fund relieves only employers' "costs related to pensions" that arise from RCW 51.16.120(1), and nothing
more. WAC 296-15-225(1). 3. We Reject Boeing's BroadAppeal to "Fairness" in Light ofthe Clear Statutory Language Boeing argues, and the Court of Appeals agreed, that charging Boeing for postpension medical costs is unfair for two reasons. First, Boing argues that medical costs are, inpart, a factor indetermining its second injuryfund assessments. So, Boeing says, denying it second injury fund relief for medical costs constitutes a double



### -12-The Boeing Co. v. State, Dep 't of Labor & Indus., 90304-2

assessment. Second, Boeing argues that the Department's interpretation places a greater financial burden on self-insured employers than on state fund employers because the experience rating ofstate fund employers is not charged for postpension medical costs.


### a. DoubleAssessment Employerspayinto the secondinjuryfund assessments in "proportion"to claims paid from the second injury fund onbehalfofthe self-insured employer and "the total
sum ofpayments from the fund." RCW 51.44.040(3)(a)(i). The Court ofAppeals found that requiring Boeing to pay for postpension medical costs constitutes a "double assessment" on Boeing and a "windfall" for the Department. 

### Doss, 180 Wn. App. at 435. The courtreasoned thatBoeing's assessments to the second injury fund are based
on its total claim costs, which includes payments for medical treatment. 

### !d. While the court is correct that the assessments maybe based, in part, on medical costs, requiring self-insured employers to pay for postpension medical costs does not constitute an unfair double assessment. WAC 296-15-221(4), provides: Each self-insurer must submit: (a) Complete and accurate quarterly reports summarizing worker hours and claim costs paid the previous quarter
.... This report is the basis for determining the administrative, second injury fund, supplemental pension, asbestosis and insolvency trust assessments. ... (ii) Claim costs include, but are not limited to: (A) Time loss compensation. Include the amount of time loss the worker would have been entitled to ifkept on full salary. (B) Permanentpartial disability (PPD) awards. (C) Medical bills. (D) Prescriptions.

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(E) Medical appliances. (F) Independent medical examinations and/or consultations. (G) Loss ofearning power. (H) Travel expenses for treatment or rehabilitation. (I) Vocational rehabilitation expenses. (J) Penalties paid to injured workers. (K) Interest on board orders. (Emphasis added.) As the Department notes, this regulation is nothelpful to determine the scope ofcoverage under RCW 51.16.120(1) since the assessments are based on several types ofclaim costs that are not covered bythe second injury fund. Suppl. Br. ofDep'tofLabor& Indus. at 16. As discussedearlier, RCW51.44.040 expresslylimits charges to the second injury fund forjob modification costs and distribution offurther accident costs. Secondinjury fund reliefunderRCW51.16.120(1) is granted only after
a worker's claim has been closed and the worker hasbeenplaced on a pension. Two ofthe costs that are included inthe calculation are temporarytotal disability payments and vocational payments, and although they are included in the calculation for assessments, these costs occurwhilethe claimis open. See RCW51.32.095(1) (The purpose of vocational rehabilitation is "to make the worker employable."), .099 (describing temporary disability compensation for workers participating in vocational rehabilitation). This is further evidenced by the temporary and vocational nature of these services, which aim to reintegrate injured workers into the workforce. Second injury reliefunder RCW 51.16.120(1), however, relieves self-insured employers ofa portion of the accident cost for permanently totally disabled workers who receive pensions for future wage replacements. We cannotreasonablyinferthat costs that may

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### beusedto calculate secondinjury fund assessments are necessarily covered

### costs under the second injury fund. Further, the other claim costs that form the basis for fund assessments are not used exclusivelyfor secondinjuryfund assessments. WAC 296-15-221( 4)(a) indicates that the Department uses the different claim costs to determine assessments for "administrative, second injury fund, supplemental pension, asbestosis and insolvency trust assessments." Administrative and asbestosis assessments, for example, may factor claim costs and may cover costs not relevant to or covered by the second injury fund. We conclude that self-insured employers are not entitled to second injury relieffor medical costs under RCW 51.16.120(1)justbecause medical costs maybe considered, inpart, for second injury fund assessments. b. ComparingSelf-InsuredandState FundEmployers 

### The Court ofAppeals found that denying self-insured employers second injury fund relieffor postpension medical costs imposes "a greater financial burden on selfinsured employers" than on state fund employers. Doss, 

### 180 Wn. App. at 437. The court reasoned that when state fund employers receive second injury fund relief, they
are "entitledto have the pensionpaid from the second injury fund without any charges to the employer's account and without any effect onthe employer's experiencerating." 

### !d. The court concluded that state fund employers receive second injury fund relieffor postpension medical costs, which '"spread[s the cost] to all state fund employers and employees,'" while self-insured employers bear the medical costs themselves. 

### !d.
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However, the court's interpretation is incorrect. As the Department notes, postpension medical costs mayindeed affect the experience rating ofa state fund employer. 

### Itis important to first highlight that self-insured employers, bychoosing to selfinsure, do not necessarily experience the same treatment and procedures as state fund employers. So, we questionthepremisethat statefund and self-insuredemployers must be treated equally. Employers that choose to self-insure handle their own claims, reducing costs and expediting claims. In so choosing, however, self-insured employers opt to stand in the shoes of the Department, unlike state fund employers, who pay premiums to the Department and rely onthe Department to process andpay claims. Just as for self-insured employers, the second injury fund shields state fund employers-byway oftheir experience rating-from accident costs that are attributed to workplace injuries. See RCW 51.16.120(1). And just as with self-insured employers, state fund employers are not entitled to second injuryrelieffor postpension medical costs under RCW 51.16.120(1). Contrary to Boeing's contention, postpension medical costs may affect a state fund employer's experience rating. A state fund employer's experience rating is adjusted by an experience factor, which considers recent claims and losses, including medical costs. WAC 296-17-855, -850. A worker's claim will affect an employer's rating when it occurs during the "experienceperiod," whichmayvarybetweenthree to four years afterthe date ofinjury or occupational disease. See WAC 296-17-850(2),

- 855, -870. Medical costs incurred during this period will affect the experience factor ofa statefund employer. Thus, postpensionmedical costs authorizedduring thisperiod


### -16-The Boeing Co. v. State, Dep 't of Labor & Indus., 90304-2

affect the employer's experience rating. But, any medical costs incurred after a final valuationofa claimdo notaffectthe employer's experiencerating. So, these areinstead chargedto the medical aid fund, wherethe costis spreadto all state fund employers and workers. WAC 296-17-850(2), -855, -870. Consideringthis framework, there does not appearto beanunfairgreaterburden
on self-insured employers. Postpensionmedical costsmaybechargedto theexperience rating ofstate fund employers ifthe pension is granted before the three- to four-year valuation period. Even ifthe pension is granted after the final valuation period, the postpension medical cost is still charged to the medical aid fund, where the cost is spread among all state fund participants. This is not an option for Boeing. In deciding to forgo participation in the state fund, Boeing opted out of certain procedures but received the potential cost savings of administering its own claims. Self-insured employers are more aptly compared to the Department, in that they stand in the Department's shoes in administering their own claims and paying workers' compensationbenefits directly. CONCLUSION We reverse the Court ofAppeals. The plain language ofRCW 51.44.040 and RCW51.16.120 indicates that the second injury fund is notintendedto relieve Boeing from paying Doss'spostpension medical costs underRCW 51.16.120(1).

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### WE CONCUR:


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