### FILED 

### JULY 11, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE ALONSO VELIZ, Appellant,


### v. DEPARTMENT OF LABORAND INDUSTRIES, Respondent. ) ) ) ) ) ) ) ) ) ) No. 33303-5-111

UNPUBLISHED OPINION

SIDDOWAY, J.

- Alonso Veliz appeals decisions affirming a Department ofLabor and Industries' change towhathad been a final order establishing his wage for industrial insurance compensationpurposes. Thewagewasbased onMr. Veliz'sreported status, as ofthe date ofinjury, as married withthree children. WhenMr. Velizwasrequired to provide further documentation in support ofa pension, it was determinedthatwhile he viewedhimselfas married, hewas not legally married. The corrected "single" status reduced his benefits. AfterMr. Veliz appealedto this court, our Supreme Courtheld in

### Birrueta v. 

### Departmentof Labor &

### Industries, 186 Wn.2d 537, 379 P.3d 120 (2016) that the Departmentis authorizedby statuteto correct final orders thatprovetobe erroneous for aNo. 33303-5-III 

### Veliz v. Dep 't of Labor & Indus.

reason identified in RCW 51.32.240(l)(a), one being reliance on an "innocent misrepresentation by or onbehalfofthe recipient." BecauseMr. Veliz's situation is materially indistinguishable from the position ofthe benefit recipient in

### Birrueta, we affirm. BRIEF FACTS AND ANALYSIS In 2015, this court issued its decision in

### Birrueta v. Department of Labor & Industries, 188 Wn. App. 831,355 P.3d 320, 

### rev'd, 186 Wn.2d 537,379 P.3d 120 (2016), in which we addressed RCW 51.32.240(1), dealing with when the Department may require repayment ofbenefits by a recipient. Subsection (l)(a) allows the Department to recover overpayments ofbenefits on account of, among other errors, "innocent misrepresentation by or onbehalfofthe recipient thereofmistakenly acted upon," but only ifa claim for repayment is made within a year. Subsection (l)(b) generally precludes the Department from assessing an overpayment ofbenefits because of"adjudicatorerror" unless the order on which the overpayment is based is notyet final. Mr. Birrueta's marital status had been innocently misrepresentedto the Department as a result ofa miscommunicationbetweenthe Spanish-speakingMr. Birrueta and the person who filled out the English language industrial accidentreport on his behalf. 

### Birrueta, 188 Wn. App. at 833-34. The form identified Mr. Birrueta's sister, with whom he lived, as his wife; it identified her daughter, also a member ofthe 2

# I



# I
No. 33303-5-III 

### Veliz v. Dep 't

### of Labor &Indus. household, as his child. Id. at 834. Because ofhis reported marital status, he received largertime-loss payments than he would have ifsingle. 

### Id. The mistake cameto light when Mr. Birruetawas later found totally and permanently disabled, was placed on a pension, and was required toprovide further information about his marital status at the time ofthe injury. Id. at 835. Reading RCW 51.32.240(1) in conjunction with otherprovisions ofchapter 51.32 RCW, we did not construe the terms "innocentmisrepresentation" and "adjudicator error" as mutually exclusive. We held that "adjudicatorerror" was meantto address final orders, including where the adjudicator's error in a final orderwas based on a worker's "innocentmisrepresentation." Because Mr. Birrueta's wage for compensationpurposes and his underlying marital status was the subject ofa final order, we held thatthe

·Department's right to recover overpayments in the prioryearresulting from innocent misrepresentations did not apply. Our Supreme Court grantedthe Department's petition for review ofour decision and reversed, agreeing with the Department's construction ofRCW 51.32.240(1)(a) and (b). The stay that had been entered in this appeal pendingthe Supreme Court's decision in

### Birrueta was lifted. Like Mr. Birrueta, Mr. Veliz is a monolingual Spanish speaker and his industrial accident report was completedby someone else. His accident report also represented that he was married, in his case with three children, and a final order fixed his wage for 3No. 33303-5-111 Veliz v. Dep 'tof Labor &Indus. compensation purposes based on that information. He, too, was later adjudicated fully and permanently disabled and it was in that connectionthatthe Department learnedthat he was not legally married. In supplemental briefing filed in this appeal after the Supreme Court'sBirrueta decision, Mr. Veliz argues thathis case is distinguishable from Mr. Birrueta's for two
reasons. First, Mr. Veliz claims that based on cultural mores in his andhis wife's native Mexico, they believedthey were married and held themselves out as married. Forthat reason, Mr. Veliztakes the positionthat in completing Departmentpaperwork at the time ofhis injury, "he answered truthfully." Appellant's Suppl. Br. at 5. Entitlementto the pension benefit Mr. Veliz wants to retain requires thathe was "married" with three children at the time ofinjury. RCW 5l.32.060(l)(d). "Married" is not defined for purposes ofTitle 51. See chapter 51.08 RCW. "Marriage" in Washington is governed by chapter 26.04 RCW. To be married in this state, a couple mustprocure a license from a county auditor and have the marriage solemnizedwithin a prescribed period oftime. RCW 26.04.140, .180. Theperson solemnizing the ceremony is required to file a certificate with the county auditor. RCW 26.04.090. A marriage between two persons that is recognized as valid in anotherjurisdiction is valid in Washington, subject to limitedrestrictions. RCW 26.04.020(4). In Mr. Veliz's case, the Board ofIndustrial Insurance Appeals made an unchallenged finding that whenhe completed paperwork for

4No. 33303-5-111 Veliz v. Dep 'tof Labor & Indus.

a pension, Mr. Veliz admitted he was not married at the time ofhis injury. 1 Althoughthe Board found that 

### Mr. Veliz had lived with his wife since 1998, it made the unchallenged finding that they did not have a formal marriage ceremony until January 2011. To "misrepresent"has been defined as "to make an assertion or give an impression not in accord with the facts." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1445 (1993). Black's defines it, in part, as "an incorrect, unfair, or false statement; an assertion that does not accord with the facts." BLACK'S LAWDICTIONARY 1152 (10th ed. 2014). The definitions include no subjective component. In an action for fraud or negligent misrepresentation, the falsity ofa representation is an element distinct from the speaker's state ofmind. See 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL§§ 160.01, 165.01 (6th ed. 2013). Mr. Veliz's initial report that he
was married was a misrepresentation. Because it was innocent, it was covered by RCW 51.32.240(1)(a). Mr. Veliz's second argument is that the error in his case resulted from the adjudicator's "failure to secure adequate information," which is an explicit example of "adjudicator error" identified by RCW 51.32.240(1)(b). According to Mr. Veliz, the

1The Board was notpresented, nor are we, with evidence and argument that Mr. Veliz's marriage was valid where contracted and consummated and is therefore valid in Washington-an argument that an injured workerwould be free to make in light ofRCW 26.04.020(3). In re Marriage of Akan, 160 Wn. App. 48, 56-57, 248 P.3d 94 (2011). A claim based on the marriage's validity where contracted and consummated would require proofofforeign law. Id. 5No. 33303-5-111 Veliz v. Dep 't of Labor & Indus. Department should secureproofofmarriage when an injured worker initially files a claimratherthan waiting until a pension is ordered. The same argumentwas made in Mr. Birrueta's appellate briefinthis court and in his supplemental briefing to the Supreme Court, both ofwhich would have been consideredbythe high court inrendering its Birrueta decision. See Br. ofResp't, Birrueta v. Dep'tof Labor & Indus., No. 32210-6-111 (Wash. Ct. App. July 10, 2014)2 at 13-14; Resp't's Br., Birrueta v. Dep'tof Labor & Indus., No. 92215-2 (Wash. Mar. 11, 2016)3 at 14-15. TheBirrueta court held thatthe three types oferror explicitly identified as "adjudicatorerror" in RCW 51.32.240(1)(b) are the types oferrors "typically addressed
on reconsideration or direct appeal." 186 Wn.2d at 546. Itheldthat an adjudicator's '"failure to secure adequate information"' was equivalentto an adjudicator decision supported by "insufficien[t] evidence." Id. Mr. Veliz, like Mr. Birruetabeforehim, asks
us to make a normativejudgment about how much information the Department should collectbefore entering an order. ButBirrueta tells us thatthe statutory language asks only whether substantial evidence supports an adjudicator's order. Mr. Veliz's

2 http://www.courts.wa.gov/content/Briefs/A03/322106%20Respondent.pdf [https://perma.cc/HY 46-HUJK]. 3 http://www.courts.wa.gov/content/Briefs/ A08/92215-2%20Supp%20Briet'1;-fi20- %20Resp.pdf [https://perma.ccN36C-2A6C].

6No. 33303-5-III Veliz v. Dep 'tof Labor & Indus. representation in his industrial accident report that he was married was substantial evidence. The adjudicator did not err. Because Mr. Velizhas not established a rightto relief, he is not entitled to an award ofattorney fees on appeal. See RAP 18.1; RCW 51.52.130(1). Affirmed. A majority ofthe panel has determined this opinion will not be printed inthe Washington Appellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040.
Siddoway, J. I CONCUR:

Pennell, J.

7No. 33303-5-III FEARING, C.J. (dissenting)

- I dissent. Because RCW 51.32.060(1)(d) does not define "marriage," I would hold that a worker, who reasonably considers himself married, to be married underthe workers compensation statute such as to afford marriage benefits for disability. Therefore, this court should not entitle the Department ofLabor & Industries (DLI) to reduce benefits or seek recoupment ofbenefits on the basis ofa misrepresentation by Alonso Veliz. Alonso Veliz was born in Mexico. Veliz does not read, write, or speakEnglish. We do not know when he entered the United States. While still residing in Mexico in 1998, Veliz began cohabiting with Marisol Vallarta Martinez. Since 1998, the pair have lived as husband and wife and represented themselves, in both Mexico and the United States, to be married. Atthe time ofVeliz's injury, the couple had three children. Due to Mexican cultural norms, Alonso Veliz deems himselfmarried to Marisol Vallarta Martinez. Vallarta deems herselfmarried to Veliz. This method ofmarrying is
common in Mexico where some couples cannot afford to marry and some individuals do not consider a "piece ofpaper" to hold any significance in regard to marriage. Report of Proceedings at 49.No. 33303-5-III (dissent) Veliz v. Department of Labor &Industries
In 2007, Alonso Veliz suffered a knee injury while working in the warehouse of Pasco's 3 Rivers Potato Services. Pasco's Lourdes Medical Centertreated Veliz for his injuries. During Veliz's visitto the hospital, someone completedpatient information for him on a DLI workers compensation claim form probably available through the hospital. Veliz experienced intense pain, while in the hospital, due to his injuries. Veliz encountered difficulty answering questions onthe form. Whomever completed the form marked that Veliz was married. In January 2008, DLI issued a notice ofdecision announcing its determination of Alonso Veliz's wage for workers compensationpurposes. The notice read that DLI treated his marital status eligibility as "marriedwith 3 children." Clerk's Papers at 117. DLIpaid time-loss benefits to Alonso Veliz calculated as ifVeliz was married, which resulted in largerpayments than he would have garnered as a single individual. On January 25, 2011, Alonso Veliz and Marisol Vallarta Martinez legally married in Pasco. The couple married at the advice oftheir lawyer. In 2011, DLI adjudged Alonso Veliz to be permanently and totally disabled and ordered him placed on a pensionbeginning October7, 2009. When completing pension paperwork, Veliz informed DLI that he was not legally married at the time ofhis work injury. In light ofthis new information, DLI, on August 8, 2011, issued an order changing Veliz's marital status for compensationpurposes from married to single.

2No. 33303-5-111 (dissent) Veliz v. Departmentof Labor &Industries
RCW 51.32.060 controls, in part, the amount ofpaymentthat DLIpays an injured worker who suffers a permanenttotal disability. The statute read in relevantpart: (1) When the supervisor ofindustrial insurance shall determine that permanent total disability results from the injury, the worker shall receive monthly during the period ofsuch disability: (a) Ifmarried at the time ofinjury, sixty-five percent ofhis orher wages.(b) Ifmarried with one child at the time ofinjury, sixty-seven percent ofhis orher wages. (c) Ifmarried with two children at the time ofinjury, sixty-nine percent ofhis orherwages. (d) 

## If marriedwith three children at the time of injury, seventy-one percent ofhis or her wages. (e) Ifmarried with four children at the time ofinjury, seventy-three percent ofhis or her wages. (f) Ifmarried with five or more children at the time ofinjury, seventy-five percent ofhis orherwages. (g) 

## If unmarriedat the time of the injury, sixtypercentof his or her wages. RCW 51.32.060(l)(a)-(g) (emphasis added). Chapter 51.08 RCW contains numerous definitions, but none for "marriage" or "married." Ultimately, in resolving a question ofstatutory construction, this court will adopt the interpretation which best advances the legislative purpose. CitizensAlliance for PropertyRightsLegalFundv. San Juan County, 184 Wn.2d 428, 437, 359 P.3d 753 (2015). RCW 51.32.060's increase in benefits for a married person permits a worker who maintains a family to afford to care for the family. Thatpurpose applies to the relationship betweenAlonso Veliz and Marisol Vallarta Martinez.

3

### No. 33303-5-111 (dissent) Veliz v. Departmentof Labor & Industries


### As noted by the majority, the Washington Legislature requires a solemnized "civil contract" in order for a marriage to be valid. RCW 26.04.010(1), .050, .120, .130; In re Marriage of Pennington, 

### 142 Wn.2d 592, 599-600, 14 P.3d 764 (2000); Roe v. Ludtke Trucking, Inc., 

### 46 Wn. App. 816, 819, 732 P.2d 1021 (1987). Common law marriage is not recognized under Washington law. In re Marriage of Pennington, 

### 142 Wn.2d at 600; Peffley-Warner v. Bowen, 

### 113 Wn.2d 243,249, 778 P.2d 1022 (1989). Nevertheless, a
common law marriage valid in the state where contracted and consummated is recognized
as a valid marriage in this state. Peffley-Warner v. Bowen, 

### 113 Wn.2d at 249; In re Welfare ofWarren, 

### 40 Wn.2d 342,344,243 P.2d 632 (1952). A common law marriage is one without formal solemnization. Peffley-Warner v. Bowen, 

### 113 Wn.2d at 249. Such
a marriage arises based on an actual and mutual agreement to enter into a matrimonial relation, between parties capable in law ofmaking such a contract, consummated by their assumption openly ofmarital duties and obligations. Peffley-Warner v. Bowen, 

### 113 Wn.2d at 249-50. DLI fails to recognize that Alonso Veliz and Marisol Vallarta Martinez cohabitated, treated each other as spouses, held themselves out as married, and bore children as ifmarried in Mexico. Irecognize that, in litigation, a party asking the court to apply foreign law bears the burden to presentthe foreign law to the court. Nevertheless, since Washington recognizes common law marriages first established in another state, DLI should have, before revoking Veliz's marital benefit, investigated whether Veliz and
4No. 33303-5-III (dissent) 

### Veliz v. Department of Labor &

### Industries
Vallarta would be considered married underthe law ofthe Mexican state where the couple cohabited. Actually, Mexicanjurisdictions do not speak in terms ofcommon law wives or
common law marriage. Mexico is a code nation and does not recognize the common law. Instead, many Mexicanjurisdictions acknowledge Mexican couples that live as husband and wife as being in a concubinage relationship that creates rights similarto rights attended to marriage. Jorge A. Vargas, 

### Concubines underMexican Law; with a Comparative Overview a/Canada, France, Germany, EnglandandSpain, 12 

### Sw. J.L. & TRADE AM. 45, 48 (2005). DLI's legal position fails to respect Mexico's culture, despite thousands ofeastern Washington residents being ofMexican descent. Although not all Hispanics are ofMexican origin, Veliz's home town is predominantly Hispanic. Wholly unrelated to either common law or state licensed marriage, Washington courts have recognized the existence ofmeretricious relationships now known as committed intimate relationships. 

### In re Marriage of Pennington, 142 Wn.2d at 600; 

### Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). The State Supreme Court characterizes a committed intimate relationship as a "stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist." 

### Connellv. Francisco, 127 Wn.2d at 346. A court examines five relevant factors when reviewing whether a committed intimate relationship exists: continuous cohabitation, duration ofthe relationship, purpose ofthe relationship, pooling


### 5

### No. 33303-5-111 (dissent) Veliz v. Department of Labor &Industries
ofresources and services forjointprojects, and the intent ofthe parties. Connell v. Francisco, 127 Wn.2d at 346; In re Marriage of Lindsey, 101 Wn.2d 299, 304-05, 678 P.2d 328 (1984). A relationship need not be "long-term"to be characterized as a committed intimate relationship. In re Marriage of Lindsey, 101 Wn.2d at 304-05. Although a "committed intimate relationship" is not the same as a "marriage,"the courts treat the parties' property similarly to the treatment ofproperty owned by spouses. In re Marriage of Pennington, 142 Wn.2d at 601; Connell v. Francisco, 127 Wn.2d at 349. Upon the ending ofthe relationship, the court shall order ajust and equitable distribution ofproperty. In re Marriage of Lindsey, 101 Wn.2d at 304. Ifa court can impose marital property rules upon the ending ofa committed intimate relationship when the parties know themselves not to be married, the court should consider a couple who judges themselves husband and wife and treat each other as husband and wife to be in a marital relationship for purposes ofworkers compensation benefits. A decision oflimitedprecedence is Knoll v. Knoll, 104 Wash. 110, 176 P. 22 (1918). Frances Knoll sought a divorce from Henry Coles. She appeared in court, on April 17, 1899, and the trial court orally granted a marital dissolution. Nevertheless, the court did not sign the divorce decree until October 8, 1906. In the meantime, Frances Knoll, on June 14, 1899, married Joseph Knoll in Canada. The parties could not marry in Washington State, because Washington prohibited a divorcee from remarrying within six months ofthe divorce. Canada lacked this proscription. Frances Knoll believed she
6No. 33303-5-111 (dissent) Veliz v. Departmentof Labor &Industries
could marry in Canadabecause she was unaware ofthe trial court's failure to sign a divorce decree. The Supreme Courtheld that the marriage, celebrated in Canada, was void in Washington. Nevertheless, the court held thatthe lower court may, in an action brought for annulment ofthe marriage, treat the relation as a partnership as to all property acquired by thejoint effort oftheparties. A broad reading ofKnoll suggests that a nonexistent legal marriage may be treated as a marriage whenthe parties in good faith believe themselves tobe betrothed. Atthe least, I would remand this appeal to DLI to conduct a hearing as to whether Alonso Veliz and Marisol Vallarta Martinez cohabited in a Mexican state that recognized concubinage. But a remand is not needed because ofVeliz's unchallenged good faith beliefofhis marital status. At least one foreign decision supports DLI's positionthatthe departmentneed not pay marital benefits unless the injuredparty is married in conformance with Washington law. Ranney v. Whitewater Engineering, 122 P.3d 214 (Alaska 2005). Nevertheless,
numerous foreign cases support my dissent. Spitz v. T.O. Haas Tire Co., 283 Neb. 811, 815 N.W.2d 524 (2012); In re Death of Hyde, 2011 OK 31,255 P.3d 411; West v. Barton-Ma/ow Co., 394 Mich. 334,230 N.W.2d 545 (1975); Brennfleckv. Workmen's CompensationAppealsBoard, 265 Cal. App. 2d 738, 71 Cal. Rptr. 525 (1968); Jackson
v. State Compensation Commissioner, 106 W. Va. 374, 145 S.E. 753 (1928). All the decisions involve death benefits but still determine whether a common law wife or a wife
7

### No. 33303-5-111 (dissent) Veliz v. Departmentof Labor &Industries


### in a committed intimate relationship with the decedent may recover marital workers compensation benefits. Brennfleckv. Workmen's CompensationAppealsBoard, 

### 265 Cal. App. 2d 738, 71 Cal. Rptr. 525 (1968), contains a factual situation similarto Knollv. Knoll. 

### Isabelle Brennfleckjourneyedto Mexico to marry Carl Brennfleck. Both were California residents. Carl's former wife had recently obtained an interlocutory divorce decree in California, but the dissolution court failed to enter the final decree until four years after the Mexican marriage ceremony. Carl died two years after entry ofthe final decree from
a work accident. Isabelle sought workers compensation death benefits as the surviving spouse ofCarl. Carl and Isabelle had lived together as husband and wife for seven years. The California appeals court reversed the compensation board's denial ofbenefits and directed the board to either grant Isabelle benefits or conduct a factual hearing into the good faith beliefofIsabelle as to the validity ofher marriage. In In re Death of Hyde, 

### 2011 OK 31,255 P.3d 411, Oklahoma law required a surviving spouse to be legally married to the worker at the time ofthe worker's death in order for the spouse to gamer death benefits. The courtheld that a common law wife was entitled to benefits. In Jackson v. State Compensation Commissioner, 

### 106 W. Va. 374, 145 S.E. 753 (1928), Allen Jackson and Margaret Lemon were married in Alabama in 1917. In 1924, Lemon left Jackson and instituted a divorce action. The couple later reconciled and
8

### No. 33303-5-111 (dissent) Veliz v. Department of Labor &Industries


### reassumed a marital liaison, but the Alabama court entered a divorce decree nonetheless. Lemon claimed no knowledge ofthe entry ofthe decree. In 1927, the couple moved to West Virginia. Shortly thereafter, Jackson died from an industrial accident. The state compensation commissioner denied Lemon any death benefits, in part, because West Virginia did not recognize common law marriage. The state Supreme Courtreversed and remanded with directions for the commissionerto investigate whether Alabama would have recognized the couple as married under common law. In Spitz v. TO. Haas Tire Co., 

### 283 Neb. 811, 815 N.W.2d 524 (2012), the Nebraska high court denied Christy Spitz death benefits under Nebraska's workers compensation law. Spitz contended that she and the decedent engaged in a common law marriage. Nebraska rejected common law marriage, but Colorado, where the couple previously cohabitated, recognized this form ofmarriage. The Nebraska court may have granted Spitz benefits ifshe established that she lived with the decedent in common law marriage under Colorado law, but Spitz failed to establish the elements ofa common law marnage. West v. Barton-Ma/ow Co., 

### 394 Mich. 334, 230 N.W.2d 545 (1975), presents the strongest support for this dissent. The Michigan workers compensation law did not afford death benefits to one unless the survivor was dependent and in a family relationship with the decedent. A family member included a "widow." Former MICH. STAT. ANN.§ 17.237(331) (1969). Clarence and Azalee West lived together as husband
9

### No. 33303-5-111 (dissent) Veliz 

### v. Departmentof Labor & Industries


### and wife for thirteen years before Clarence's death as a result ofa work injury. Clarence garnered the only income, while Azalee cared for the household. The couple never wed. The Michigan Supreme Court granted Azalee death benefits. The court recognized the malleable concept offamily. The court desired a couple who lived as husband and wife to be treated as husband and wife under the law.

Fearing~)

10