FILED

O'01IRT OF ,APPEALS

DIVISION ?I

2013 AUG -6 AN 9= 14

IN THE COURT OF APPEALS OF THE STATE qlfyy

DIVISION II BY

DEPUTY PUTY

LOIS J. NELSON, deceased, No. 42456 -8 -II

Appellant,

V.

WASHINGTON STATE DEPARTMENT OF

LABOR AND INDUSTRIES,

ORDER GRANTING MOTION

TO PUBLISH

The Department of Labor and Industries moves this court for publication of its

unpublished opinion filed on June 25, 2013. After review the records and files herein, the court

grants the motion.

It is ORDERED that the final paragraph that reads "A majority of the panel having

determined that this opinion will not be printed in the Washington Appellate Reports, but will be

filed for public record pursuant to RCW 2. 040, 06.it is so ordered." is deleted.

It is further. ORDERED that'the opinion isnow published.

DATED: this day of o ) 2013.

PANEL: Van Deren, J.T.; PWorswick, C.J.; Penoyar, J.

FOR THE COURT:
IN THE COURT OF APPEALS OF THE STATE OF W.

DIVISION II

LOIS J. NELSON, deceased,

Appellant,

V.

WASHINGTON STATE DEPARTMENT OF

LABOR AND INDUSTRIES, .

No. 42456 -8 -II

i11~D

COURT G' APPEALS . D1V1S10q 11

2013 J 5 AN 9: 43

aSP, GroN

OEP Y

UNPUBLISHED OPINION

ondent.

PENOYAR, J. — Lois Nelson was injured on the job in 2003. Between the time of her

injury and her unrelated death in 2006, she received medical and vocational services and some

time -loss benefits for temporary total disability. After she died, the Washington State

Department of Labor and Industries (Department) closed her claim in an order that categorized

her as permanently totally disabled. This prevented any award to Nelson's estate (Estate) for her

disability.

The._Estate_, argues _that Nelson_ should been categorized _ categorized as permanently partially

disabled, entitling the Estate to an award. Having been unsuccessful in appeals before the

Department, the Board of Industrial Insurance Appeals (Board), and the superior court, the Estate

now appeals to this court. The Estate argues that the superior court erred by concluding that (1)

Nelson was permanently totally disabled at the time of her death, (2) Nelson was not entitled to

any benefits' for permanent partial disability, and (3) Nelson was not owed any unpaid benefits

for temporary total disability.

The superior court's unchallenged findings support its conclusion that Nelson was

permanently totally disabled at the time of her death. Furthermore, Nelson cannot receive a

permanent partial disability award for the 2003 injury when the finding of permanent total
42456 -8 -I1

disability was based in part on this injury. Finally, the Estate has failed to identify which

temporary total disability benefits were unpaid and owed to Nelson. As a result, we affirm.

FACTS

I. FACTUAL BACKGROUND

On June 29, 2003, while on duty as a personal support counselor, Lois Nelson sat down

in a patio chair that then collapsed. She fell onto a cement floor, jarring her back and striking her

right ear. Her pain from the fall increased, and she took two weeks offwork. When she returned

to work on July 11, her pain intensified, and. so she remained offwork.

Nelson returned to work in August, but only briefly before turning to the Department for

assistance.' On August 19, Nelson filed a claim with the Department for benefits available under

the Industrial Insurance Act• (IIA). On August 27, the Department allowed the claim, paying

Nelson time -loss benefits starting August 22 . 4

The record does not clearly delineate Nelson's work history between her fall in 2003 and

aer' ri - deatE' To begin with; Dr:'H: Richard - Johnson -- on- - exarnination direct -- that---

Nelson's employer disciplined her on August 10, 2003, for falling asleep on the job (an effect of

the Vicodin that Nelson was taking at the time). On cross - examination, however, Johnson

confirmed that Nelson had been fired for sleeping on the job. Yet Johnson also testified on direct

that Nelson returned to work on September 7, 2003. Johnson does not clarify when Nelson was

fired or to which job she returned in September.

The reasonable assumption seems to be that Nelson was unemployed for most of the

period between her fall and her death. The record shows that Nelson received time -loss benefits

for large portions of that period, meaning that the Department would have considered her

temporarily totally disabled and thus incapable of any gainful, full -time employment. See RCW

51. 090. 32 Furthermore, scattered throughout the record are statements by both medical and

vocational professionals, and Nelson herself, regarding matters like .Nelson remaining off or

returning to work that implied Nelson was not working.

2

Title 51 RCW.

3 Time -loss benefits are paid to workers who are temporarily but totally disabled because of an

industrial injury to compensate them for their lost earning power. See RCW 51. 090. 32

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42456 -8 -II

Nelson. visited Community Health Care in July and Fife MultiCare Healthworks in

August for treatment. These were the first in a long line of treatments Nelson received over the

next few years as a result of her fall from the patio chair. This fall contributed to numerous

health problems for Nelson, which compounded the effects of preexisting conditions she had.

After her fall, Nelson was diagnosed with several back problems and mental disorders, including

degenerative disc disease and depressive disorder. Her treatment for these various conditions

ranged from prescription medication like morphine and Effexor to physical therapy to placement

in an extended -care facility for about a month, In addition to medical care, Nelson also received

vocational services during this time, including ability -to -work assessments in March 2005 and

July 2006.

On August 3, 2006, only a little over'a week after moving to Las Vegas to be closer to

family, Nelson —then 57 years old —died of a drug overdose, which included morphine,

methadone, and cocaine. At the time of her death, Nelson was still receiving time -loss benefits.

After Nelson's death, the Department issued an order dated July 3, 2007, finding Nelson

permanently totally disabled as of the day she died as a result of the injuries she sustained from

her fall in- 2003. Finding 'no qualified beneficiaries under the IIA, the Department closed

Nelson'sclaim without making any award for her permanent total disability.

4 This was not Nelson'sfirst claim with -the Department. On April 28, 2001, Nelson suffered

injuries to her neck, left arm, and low back when a tall man had a seizure and fell on her while

she was accompanying a client at a bank. Nelson opened a claim for industrial - injury benefits

with the Department, receiving medical treatment and some time -loss benefits. Eventually, after

an independent medical evaluation of Nelson, two doctors released her to return to work without

restriction, and the Department closed her claim in February 2002. Nelson, applied to reopen this

claim in May 2004 on grounds that the condition had worsened, but the Department denied the

application.

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42456 -8 -II

II. PROCEDURAL BACKGROUND

In August 2007, the Estate requested that the Department reconsider its order finding

Nelson permanently totally disabled at the time of her death. But the Department affirmed the

order days later.

The Estate appealed the Department's order to the Board in October 2007, claiming that

Nelson was entitled to an award for permanent partial disability for her low back and mental

health conditions. The Board granted the appeal. After a hearing, an industrial appeals judge

issued a proposed decision and order in October 2008, affirming the Department's order. The

Estate petitioned the Board for review. The Board granted the petition. The Board issued its

final decision and order in January 2009, likewise affirming the Department'sorder.

The Estate appealed the Board'sfinal order to Pierce County Superior Court in February

2009. After a bench trial, the court affirmed the Board's final order in July 2011. The Estate

timely appeals.

ANALYSIS

I. THE TRIAL COURT'S CONCLUSION•THAT NELSON WAS PERMANENTLY TOTALLY

DISABLED FLOWS FROM ITS UNCHALLENGED FINDINGS

Normally, our review in a workers' compensation case is limited to examining the record

to see whether substantial evidence supports the findings of fact the superior court made after its

de novo review of the case, and whether the superior court's conclusions of law flow from these

findings. Ruse v. Dep'tofLabor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999) (quoting Young

v. Dep'tofLabor & Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996)). But the Estate has not

assigned any error to the trial court's findings of fact, making them verities on appeal: Stone v.

Dep'tofLabor & Indus., 172 Wn. App. 256, 260, 289 P.3d 720 (2012). Thus, our review here is

El
42456 -8 -II

limited to 'a de novo review of whether the superior court's conclusions flow from its findings.

Rogers v. Dep'tofLabor & Indus., 151 Wn. App. 174, 180, 210 P.3d 355 (2009).

The Estate and the Department dispute whether substantial evidence supports the superior

court's conclusion that Nelson was permanently totally disabled at the time of her death. We

decline the parties' invitation to reconsider the evidence because the superior court's conclusion

that Nelson was permanently totally disabled flows directly and necessarily from unchallenged

finding of fact 1.8, which states that, at 'the time of her death, "Nelson was permanently

precluded from obtaining . or performing reasonably continuous gainful employment in the

competitive labor market, as a proximate result [of] the June 29, 2003 industrial injury, when

considered in conjunction with her ... ' preexisting disabling medical conditions. " Clerk's

Papers ( CP) at 131. Therefore, we affirm the trial court's conclusion that Nelson was

permanently totally disabled.

U. THE DEPARTMENT'SFINDING THAT NELSON WAS PERMANENTLY PARTIALLY DISABLED

DOES NOT RESULT IN AN AWARD

Bothsides. agree.that. Estate is not directly entitled to any benefits that flow from the

conclusion that Nelson was permanently totally disabled. But the Estate argues that other

circumstances in this case support an award: (1) The Department also found Nelson to be.

permanently partially disabled, (2) no double recovery would occur if the Department were to

pay the Estate for Nelson's permanent partial disability, and (3) the timing of the Department's

findings denied Nelson —and consequently her Estate — benefits, contrary to the IIA's purpose.

Even assuming the finding of permanent partial disability applied to. Nelson as a worker under

5 "`Permanent total disability' means loss of both legs, or arms, or one leg and one arm, total loss

of eyesight, paralysis or other condition permanently incapacitating the worker from performing

any work at any.gainful occupation." RCW 51. 160 ( 08.emphasis added).

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the IIA, the Estate's claims fail because a worker who is permanently totally disabled has no

right to receive a permanent partial disability award for an injury factored into the finding of that

worker's permanent total disability. See Stone, 172 Wn. App. at 258. Furthermore, the timing of

the Department'sdecisions here did not affect Nelson'sor the Estate's eligibility for benefits.

A. A Finding ofPermanent Total Disability Based in Part on a Particular Injury

Precludes an Award for a Permanent Partial Disability Based on That Same Injury

The superior court adopted as its own the Board'sfinding of fact 1, which acknowledged

that after Nelson's death the Department also found Nelson permanently partially disabled as a

result of her 2003 industrial injury. The Department, however, emphasizes that it issued this

finding only for calculating Nelson's employer'sinsurance costs. The Department did not send

the order detailing this finding to Nelson or her Estate; thus, the finding was not final with

6 "`Permanent partial disability' means the loss of either one foot, one leg, one hand, one arm,

one eye, one or more fingers, one or more toes, any dislocation where ligaments were severed

where repairis - not "complefe; any other injury ksiown in surgery - to -- be - permanent partial -

disability." RCW 51. 150. 08

7 The relevant part of the Board'sfinding of fact 1 read:

On July 5, 2007, the Department determined that the worker had been placed on a

pension; permanent and total disability resulted because the injury or disease was

superimposed - on prior disabling conditions; the permanent partial disability

resulting from this injury was a Category 2 lumbosacral impairment, $7, 81; 455.

the employer'scost experience would be charged with that sum; and the balance

ofthe pension reserve would be charged against the Second Injury Fund.

CP at 3

8 The Department explains that it issued this order as a technicality because'itwas required under

RCW 51. 120 " 16.to follow the second - injury fund statute and calculate her level of pre - existing

disability for the sole purpose of addressing the employer's experience rating" for purposes of

determining the employer'sindustrial insurance premiums. Br. of Resp'tat 37.

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42456 -8 -II

respect to Nelson or her Estate. Even assuming, however, that this finding of permanent partial

disability applied to Nelson under the IIA for purposes of compensation, the finding that Nelson

was permanently totally disabled as a result of her 2003 industrial injury forecloses any award

for the permanent partial disability.

Division One recently considered whether a worker may receive an award for a

permanent partial disability where the injury giving rise to such a disability is factored into the

finding that the worker is permanently totally disabled. In Stone v. Department ofLabor and

Industries, the Department found the worker permanently totally. disabled because of the

combined effects of a knee injury, a separate back injury, and mental health conditions. .172 Wn.

App. at 259. 'The worker argued that he should have received a permanent partial disability

award for the knee injury despite this injury being a contributor to the permanent total disability

finding. Stone, 172 Wn. App. at 259 -60. The court disagreed, holding that the worker could not

receive the permanent partial disability award when his permanent total disability was based in

part on that knee injury. Stone, 172 Wn. App. at 271.

The same situation exists here. The Department found .Nelson permanently totally

disabled "as a proximate result of the June 29, 2003. industrial injury, when considered in

conjunction with her ... preexisting disabling medical conditions." CP at 131. Nonetheless,

Nelson's Estate argues that it should receive an award for the permanent partial disability that

was predicated on this same 2003 injury. But, given Stone's, holding; the Estate cannot receive

9 The order notes that it was mailed only to Nelson's employer, not to Nelson or her Estate.

Therefore, the order could have been final only with respect to the employer —the order states

that It]his order becomes final 60 days from the date it is communicated to you [Nelson's

employer only] 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."

Administrative Record Ex. 2.

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this award because the injury on which it would be based also forms part of the basis for the

finding that Nelson was permanently totally. disabled. Because no award for the permanent

partial disability is even available here, we do not need to address the issue of double recovery.

B. The Timing of the Department'sFindings Did Not Deny Nelson or Her Estate

Benefits to Which They Are Entitled Under the IIA

The Estate insists that, contrary to the IIA's purpose of benefitting injured workers, the

timing of the Department's orders finding Nelson permanently disabled disadvantaged Nelson,

and thus her Estate. But beyond allusions to the IIA's broad purposes, the Estate makes no legal

argument why the. Department could not posthumously make these findings; the Estate fails to

specify any improper delay except to say that there is "no explanation" of the Department's

failure to determine Nelson'stype of permanent disability between June 2005 and August 2006.

Br. of Appellant at- 17. Moreover, nothing in the timing of the Department's actions appears

untoward.

First, Nelson'sreceipt of time -loss benefits for her temporary total disability right up to

her_death precluded an earlier of permanent disability_. See Franks v Dept ofLabor &

Indus. 35 Wn.2d 763, 767, 215 P.2d 416 (1950) ( "[ A] claimant cannot at one and the same time

be classified as temporarily totally disabled and permanently partially disabled. "). Second, had

Nelson wanted the Department to determine during this period whether she was permanently

disabled, she could have made that request at any time. See RCW 51. 055(32. 2). Third,

vocational counselor Amanda Boley was making her final assessment for the Department that

Nelson was permanently totally disabled during the same month Nelson died, but Boley did not

learn of Nelson's death until nearly two years later, only days before she testified in this case.

to See RCW 51. 010. 12

E
42456 -8 -II

We see nothing suspicious in the timing of the Department's actions. And we are not

per by the "what if' scenarios the Estate advances where we are told that Nelson or the

Estate would have received benefits ifthe timing of events had differed. In actuality, consistent

with the IIA's purpose of benefitting injured workers, the Department provided Nelson with

medical and time -loss benefits after her injury in 2003. Furthermore, had . Nelson had

beneficiaries as defined under the IIA, the' sDepartment' permanent total disability finding - here

would have resulted in compensation, and these arguments would vanish. But we cannot conjure

up beneficiaries or change -the events of the past so that, under the law, additional compensation

appears. We can only .determine whether the Department acted properly in the actual

circumstances, and we conclude that it did.

III. THE ESTATE DID NOT ADDRESS UNPAID TEMPORARY TOTAL DISABILITY BENEFITS,

The Estate also assigns error, to the trial court's conclusion that, in addition to there being

no unpaid permanent partial disability benefits owed to Nelson, there were no unpaid temporary

total disability benefits owed either. But in its briefing, the Estate does not identify the

temporary total disability benefits that remain to be paid, much less argue why they should be

paid. "We do not consider assignments of error unsupported by argument or authority." Angelo

v. Angelo, 142 Wn. App. 622, 628 n.3, 175 P.3d 1096 ( 2008) (citing RAP 10. a)(3( 6)).

Therefore, we do not consider this issue.

IV. ATTORNEY FEES

Finally, the Estate assigns error to the trial court's award of $200 in attorney fees to the

Department. But the Estate does not advance any argument why this was error, and so we do not

consider it. RAP 10. a)(3( 6). The Estate also requests attorney fees under RCW 51. 13052.in the

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event we reverse or modify the superior court's order, or grant additional relief. Because we

have not done so, we do not award the Estate those fees.

Affirmed.

A majority of the panel having determined that. this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2: 040, 06.it is so ordered.

We concur:

1

Van Deren, J.TP.

orswick, C

10