INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON LEE RICHARDSON, Appellant,

v. STATE OF WASHINGTON, DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. 

### Becker, J. - Lee Richardson claims that the Department of Labor and 

### Industries incorrectly calculated the amount of herthird-party recovery and 

### improperly suspended hertime lossbenefits aftershe sustained anon-the-job N) £=} 

### injury. Becausethetrial courtproperlygranted summaryjudgmentdismissal of£ her claims based on resjudicata, we affirm. No. 68825-1-1 DIVISION ONE
UNPUBLISHED OPINION FILED: September 16, 2013

FACTS 

### On August 17, 1995, LeeRichardson was injured whiletraveling on businessfor her employer when she slipped and fell at a Red Lion Inn. She 

### applied for and began receiving workers compensation benefitsfrom the 

### DepartmentofLaborand Industries. Richardson alsofiled suitagainst the Red -a

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com;-:No. 68825-1-1/2 Lion Inn for the initial injuryand against hertreating physician for medical malpractice. Under RCW 51.24.060, an injured worker's recovery from a third party is 

### subjectto the Department's right to reimbursementfor any payments the Department has already made on the worker's behalf. The statute mandates the method of calculating the distribution ofthe third-party recovery as follows: (1) 

### attorney fees and costs are deducted from the gross recovery, (2) the claimant receives 25 percentof the balance of the award, (3) the Departmentand the 

### employer are reimbursed for benefits paid to the claimant, and (4) the remaining balance is then disbursed to the claimant. RCW 51.24.060(1 )(a)-(d). This 

### remaining balance is subjecttofuture offsetofpayments bytheDepartment.1 RCW 51.24.060(1 )(e). Richardson settled the malpractice claim for $1,000,000. At a courtordered mediation on October 10, 2001, Richardson and the Department 

### executed a compromise agreement as to howthe recovery would be allocated between them. After doing some handwritten calculations, Richard VIosich, the 

### Department's representative, explained to Richardson that approximately $415,000 would be paid to her attorneys, $216,861 would go to the Department, and she would receive approximately $368,138. VIosich told Richardson that the
1The amount subject to offset is what an injured worker must spend before the Departmentwill pay any additional benefits.
-2-No. 68825-1-1/3 Departmentwould pay for all approved medical expenses untilher recovery from Red Lion Innwas resolved, with only time loss compensation being deducted from her offset. Richardson latter settled the claim against Red Lion Inn for $373,000. Afterthe malpractice and Red Lion Inn settlements, the Department 

### issued two third-party distribution orders applying the distribution formula in RCW 51.24.060 and consistent withthe compromise agreement. The orders provided, in pertinent part: "Claimant has recovered $1,000,000 and requires distribution ofthe 

### settlement proceeds as follows: 1) Net share to attorneyforfees and costs
- $421,742.47; 2) Netshare to claimant

- $364,686.29; and 3) Net share to Department

- $213,571.24. The Department 

### has paid benefits of$372,037.72 and asserts $369,362.91 against this recovery. Demand is made upon the claimant to reimburse the Department in the amount of$213,571.24 The Department has deducted from its total reimbursement share the money itreceives 

### by this order. It is ordered that no benefits orcompensation will be paid to or on behalf of claimant or beneficiaryas defined by RCW 51.08.020 until such time the excess recovery totaling $127,296.39 has been expended by claimant or beneficiary for costs incurred as a result ofthe condition(s), injuries, or death covered underthis claim." "Claimant has recovered $373,000 and requires distribution ofthe 

### settlement proceeds as follows: 1) Net share to attorneyforfees and costs

- $138,000; 2) Net share to claimant

- $234,990.78; and 3) Net share to Department - $0. The Department has paid benefits of $6,581.14 and asserts $0 against this recovery. ... It is ordered that no benefits or compensation will be paid to or on behalfofclaimant or beneficiary as defined by RCW 51.08.020 until such time the excess recovery totaling $104,376.29 has been 

### expended by claimantor beneficiary forcosts incurred as a result of

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the condition(s), injuries, or death covered under this claim. Total excess amount to date for both recoveries is $231,672." The computations made inthese orders have been neither challenged nor briefed. Richardson appealed both orders to the Board of Industrial Insurance Appeals, challenging the Department's right to offset payment of future benefits 

### against her recovery. On November 13, 2003, Richardson and the Department executed a written settlement agreement resolving Richardson's appeals to the Board. The settlement agreement provided thatthe Departmentwould reduce the balance ofRichardson's third-party recovery subject to offsetfrom $159,045.53 to $95,427.32 and thatthe Departmentwould credit all of 

### Richardson's outstanding medical bills related to the injury against the remaining balance. The settlement agreementwas signed by Richardson and her attorney. On December 24, 2003, the Board issued an orderpursuant to WAC 263-12-093 

### memorializing the terms of the settlement agreement and resolving Richardson's Board appeals. Richardson did not petition for review ofthe order. However, on May 4, 2004, she wrote a letterto the Board objecting to the Board's order. The Board treated Richardson's letter as a CR 60(b) motion to vacate and denied the motion. Richardson appealed the Board's decision to the superior court, which affirmed the Board. Richardson appealed the superior court's decision and a

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commissioner ofthis court granted a motion on the merits to affirm. The Washington Supreme Court denied Richardson's petition for review. Throughout 2004, the Department periodically sent letters to Richardson informing her ofthe remaining offset balance. Richardson appealed these letters to the Board. The Board consolidated the appeals and dismissed them for either lack ofsubject matterjurisdiction or lack ofsufficient evidence. Richardson appealed to the superior court, which affirmed the Board, and then to this court, which granted a motion on the merits to affirm. On June 8, 2006, the Department issued an order suspending Richardson's time loss compensation untilRichardson agreed to participate in an independent medical examination. Richardson appealed this orderto the Board, which affirmed the Department's decision. Richardson did not appeal the Board's decision and has not, to date, participated inthe required examination. On December 27, 2010, Richardson filed suit against the Department for breach ofcontract, claiming that the Department had violated both the October 10, 2001, compromise agreement and the November 13, 2003, settlement 

### agreement byfailing to correctly calculate the amount of her third-party recovery 

### orproperly apply her medicalbills against the offsetamount.2 Richardson also

2Richardson claims that she is being"deniedongoing payment ofbenefitsand medical treatment" because the Department is not applying the properformula to determine her offset amount. But the record shows that Richardson has no remaining
-5-No. 68825-1-1/6 sought a writ of mandamus to compel the Department to comply with the agreements and reinstate her appeals to the Board, as well as a declaratory judgmentthatthe Department "will provide medical coverage, benefits and wage benefits as mandated under the law, and to communicate with plaintiff and/or her 

### representatives regarding hertreatment."3 On March 30, 2012, the Department moved for summaryjudgment dismissal. The Department argued that (1) the breach ofcontract claim and the writ ofmandamus were barred by resjudicata, (2) the breach ofcontract claim
was barred by the statute of limitations, (3) the complaint did not establish the 

### necessary elements foreitherthe breach ofcontact or mandamus claims, and (4) declaratory reliefwas barred because Richardson had other adequate remedies at law. The trial court granted the Department's motion. Richardson appeals.

DECISION 

### Summaryjudgment is appropriate ifthere is no genuine issue of material fact and the moving party is entitled tojudgmentas a matter of law. CR 56(c). Our review is de novo. Stalter v. State, 151 Wn.2d 148, 155, 86 P.3d 1159 

### (2004). In reviewing an order ofsummaryjudgment, this court may affirm the offset, and the reason that Richardson is not currently receiving time loss compensation or other benefits is her continued refusal to participate in the independent medical examination. 3Richardson claimed that her claims manager, the Department's medical director, and the Office ofthe Attorney General were refusing to speak with her about her case.
-6-No. 68825-1-1/7 order on any theory withinthe pleadings and the proof. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027. cert, denied. 493 U.S. 814 (1989). Resjudicata bars the relitigation ofclaims and issues that were litigated or might have been litigated in a prioraction. Loveridqe v. Fred Meyer. Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995). For res judicata to apply, a prior final 

### judgment must have "a concurrence of identity with a subsequent action" in (1) subject matter, (2) cause of action, (3) persons and parties, and (4)the quality of the persons for or against whom the claim is made. Loveridge, 125 Wn.2d at 763. Whether res judicata bars a party from pursuing an action is also a matter of law reviewed de novo. Kuhlman v. Thomas. 78 Wn. App. 115, 119-20, 897 P.2d 365 (1995). 

### The trial court properly dismissed Richardson's breach ofcontract and mandamus claims as barred by resjudicata. Both the subject matter and the
cause ofaction are identical to Richardson's previous suits: a challenge to the 

### Department's calculation of her offset amount and the Department's decision to suspend hertime loss benefits in2006. The fact that Richardson is now 

### attempting to proceed under a different legal theory does not rob the prior adjudications of their preclusive effect. See, e.g., Marshall v. Thurston County, 165 Wn. App. 346, 267 P.3d 491 (2011). Similarly, the prior and current 

### proceedings involve an identity ofpersons and parties: the Department has been a party to all ofRichardson's prior suits. Richardson argues that "she was not

-7-No. 68825-1-1/8 attempting to revisit past, litigated issues but rather the claims were addressed to her ongoing predicament," but we must disagree. Richardson's only claim that has not been previously litigated is her requestfor declaratory or injunctive relief requiring the Department and its representatives to communicate with her about her case. But Richardson's 

### opening briefcontains no argument or authority as to why she would be entitled to equitable relief. This courtwill not consider arguments that an appellant has not developed in its opening briefand for which the appellant has cited no 

### authority. RAP 10.3(a)(6); State v. Bello, 142 Wn. App. 930, 932 n.3, 176 P.3d 554. review denied, 164Wn.2d 1015(2008). Affirmed. 

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WE CONCUR: 

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