Filed
Washington State
Court of Appeals
Division Two
September 29, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KIMBERLY G. LUVAAS, No. 46656-2-II
Appellant,
v.
DEPARTMENT OF LABOR & INDUSTRIES, UNPUBLISHED OPINION
Respondent.
JOHANSON, C.J. — Kimberly G. Luvaas appeals the superior court’ s order denying her
motion for summary judgment and granting summary judgment in favor of the Department of
Labor and Industries (L&I) on her workmen’ s compensation claim. She argues that the court erred
in not finding that she was an employee of the Department of Social and Health Services (DSHS)
on the date of her industrial injury and in failing to include her wages from DSHS in her wage
calculation. We hold that (1) under RCW 51.08.178(1)’ s plain language, Luvaas’ s DSHS wages
could be considered only if she was employed by DSHS at the time of her injury, and (2) there is
no question of fact that Luvaas was not employed by DSHS at the time of her injury. Accordingly,
we affirm the superior court.
FACTS
I. DSHS CONTRACT AND LUVAAS’ S TERMINATION NOTICE
On June 25, 2009, Luvaas signed a contract with DSHS to provide client services from
July 1, 2009 through June 30, 2012. The contract included the following termination clause:
No. 46656-2-II
Termination for Convenience. DSHS may terminate this Contract in whole or in
part when it is in the best interest of DSHS by giving the Contractor at least thirty
30) calendar days’ written notice. The Contractor may terminate this Contract for
convenience by giving DSHS at least thirty ( 30) calendar days’ written notice
addressed to DSHS at the address listed on page 1 of this Contract.
Administrative Record (AR) Ex. 2 at 8.
According to Luvaas, sometime in June 2011, she informed someone1 at DSHS that she
was going to stop providing client services. But when DSHS was unable to find a replacement,
Luvaas “ verbally agreed that [ she] would stay on another month” to give DSHS time to find
someone. AR Report of Proceedings ( May 29, 2013) at 42. In a subsequent letter dated July 5,
Luvaas informed DSHS that she would not provide any client services after July 28. DSHS
received this notice on July 8. As of July 28, Luvaas had worked all of her allotted hours, and she
provided no client services after that date.
II. INJURY, CLAIM, AND INITIAL NOTICE OF DECISION
On July 29, Luvaas injured herself while working for a landscaping company. Luvaas filed
for workmen’ s compensation benefits based on the July 29, 2011 injury. In a claim form, Luvaas
stated that as of July 28, 2011,2 she had two jobs, but she also stated that “ 7-28-11 was [ her] last
day for [DSHS].” AR at 26. She also submitted a copy of her invoice to DSHS showing that she
had provided 178 hours of service from July 1 through July 31, 2011. An electronic funds transfer
remittance “ advice” also noted that the pay period for her final DSHS check was from July 1 to
July 31.
1
Luvaas was not sure who she spoke to or whether the notice was oral or in writing, but she
testified that she had provided some kind of notice in June.
2
In her original claim, Luvaas asserted that the injury occurred on July 28, but she later corrected
that date to show that the injury occurred on July 29.
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No. 46656-2-II
On May 4, 2012, L&I issued a notice of decision setting the wages for the job injury at a
monthly salary of $447.12; this rate included the wages from only Luvaas’ s landscaping job.
Luvaas protested the May 4 wage order, but L&I affirmed the order.
III. APPEAL TO THE BOARD OF INDUSTRIAL INSURANCE APPEALS
Luvaas then appealed the May 4 wage order to the Board of Industrial Insurance Appeals.
She argued, inter alia, that L&I had erred when it failed to consider her monthly DSHS wages.
After denying the parties’ motions for summary judgment, an industrial appeals judge (IAJ)
held a full hearing on the appeal. In addition to Luvaas’ s testimony, the IAJ considered testimony
from DSHS employee Rodney Gilliand and L&I claims consultant supervisor Angel Travis.
Luvaas asserted that she was employed by both the landscaping company and DSHS at the
time of her July 29, 2011 injury, and she testified consistently with the facts set out above. But
she admitted that she did not provide or intend to provide any client services for DSHS after July
28, 2011.
The IAJ issued a proposed decision and order affirming the May 4, 2012 wage order. The
IAJ concluded, in relevant part, that Luvaas’ s work with the landscaping company was her “ sole
employment at the time of [ her] injury” because she had terminated her contract with DSHS,
completed her billable hours for DSHS, and did not intend to return to work for DSHS before the
date of her injury. AR at 19. The proposed decision and order became a final order when the
Board denied Luvaas’ s petition for review.
IV. APPEAL TO SUPERIOR COURT
Luvaas then appealed the final order to the superior court and moved for summary
judgment, arguing, inter alia, that L&I should have considered her DSHS wages. L&I filed a cross
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motion for summary judgment. Concluding that Luvaas’ s final date of employment with DSHS
was July 28, 2011, the superior court denied Luvaas’ s summary judgment motion and granted
L&I’s motion, affirming the May 4, 2012 wage order. The superior court commented, “ Since
there were no lost wages or income from DSHS to replace after July 28, 2011, there would be no
purpose to awarding time loss compensation based upon wages or income from DSHS during this
time frame.” Clerk’ s Papers at 10. Luvaas appealed to this court.
ANALYSIS
Luvaas argues that the superior court erred when it denied her summary judgment motion
and granted L&I’s summary judgment motion.3 She asserts that she was still employed by DSHS
at the time of her injury because ( 1) DSHS paid her for the entire month of July, ( 2) her
employment contract with DSHS was still in effect on the date of her industrial injury because she
did not give DSHS written notice of her intent to terminate the contract at least 30 days before the
date of her injury, and (3) she worked until the last day of the month based on her regular schedule,
which did not include Friday through Monday. Accordingly, she contends that her DSHS monthly
wages should have been included in the wage calculation. We disagree.
I. STANDARD OF REVIEW AND STATUTORY INTERPRETATION
We review the superior court’ s decision on summary judgment in an industrial insurance
appeal as we would in any other civil case. 4 Hill v. Dep’ t of Labor & Indus., 161 Wn. App. 286,
3
Luvaas contends that she is not claiming that there are any genuine issues of material fact that
bar summary judgment. Instead, she argues she was entitled to summary judgment.
4
On an appeal of a decision by the Board, the superior court considers the evidence and testimony
presented to the Board. See RCW 51.52.115. We, in turn, review the superior court’ s decision
based on that record.
4
No. 46656-2-II
292, 253 P.3d 430 (2011) (citing RCW 51.52.140); Malang v. Dep’ t of Labor & Indus., 139 Wn.
App. 677, 683, 162 P.3d 450 ( 2007). “ Summary judgment is proper only when the pleadings,
depositions, and admissions in the record, together with any affidavits show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Campos v. Dep’ t of Labor & Indus., 75 Wn. App. 379, 383, 880 P.2d 543 (1994) (citing
CR 56(c); Atherton Condo. Apartment-Owners Ass’ n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d
506, 516, 799 P.2d 250 (1990)). We consider all facts and reasonable inferences from those facts
in the light most favorable to the nonmoving party; we review all questions of law de novo.
Cowlitz Stud Co. v. Clevenger, 157 Wn.2d 569, 573, 141 P.3d 1 (2006).
Statutory construction is a question of law that we review de novo. Cockle v. Dep’ t of
Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583 ( 2001) ( citing Stuckey v. Dep’ t of Labor &
Indus., 129 Wn.2d 289, 295, 916 P.2d 399 (1996)). Our primary goal when engaging in statutory
construction is to carry out the legislature’ s intent. Cockle, 142 Wn.2d at 807 (citing Rozner v.
City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991)). If a statute is plain and unambiguous,
its meaning must be derived from the language itself. Dep’ t of Transp. v. State Employees’ Ins.
Bd., 97 Wn.2d 454, 458, 645 P.2d 1076 (1982).
II. EMPLOYMENT STATUS AT TIME OF INJURY
Under Washington’ s Industrial Insurance Act, Title 51 RCW . . ., time-loss and loss of
earning power compensation rates are determined by reference to a worker’ s wage at the time of
injury.” Gallo v. Dep’ t of Labor & Indus., 155 Wn.2d 470, 481, 120 P.3d 564 (2005) (citing RCW
51.08.178; Cockle, 142 Wn.2d at 807). Because the purpose of time-loss compensation is to reflect
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No. 46656-2-II
the worker’ s lost earning capacity, the time-loss compensation is based on the worker’ s “ wages”
as defined in RCW 51.08.178(1). This statute provides, in part,
For the purposes of this title, the monthly wages the worker was receiving from all
employment at the time of injury shall be the basis upon which compensation is
computed unless otherwise provided specifically in the statute concerned. In cases
where the worker’ s wages are not fixed by the month, they shall be determined by
multiplying the daily wage the worker was receiving at the time of the injury [by a
number determined by the number of days the employee usually worked in a week].
RCW 51.08.178(1) (emphasis added).
Luvaas argues that the statute’ s requirement that L&I consider “‘ the monthly wages the
worker was receiving from all employment,’” L&I was required to consider her DSHS wages
earned in the month of her injury. Br. of Appellant at 6 (quoting RCW 51.08.178(1)). L&I argues
that the plain language of the statute establishes that it could consider Luvaas’ s DSHS wages only
if she was employed by DSHS at the time of injury.5 We agree with L&I.
The statute’ s plain language requires L&I to consider the monthly wages that Luvaas was
receiving “ from all employment at the time of injury.” If she was not employed by DSHS at the
time of the injury, she was not receiving any wages from DSHS at that time.6 RCW 51.08.178(1).
Accordingly, we must next examine whether there was a question of fact as to whether Luvaas
was employed by DSHS at the time of her injury.
5
L&I also argues that Department of Labor & Industries v. Avundes, 140 Wn.2d 282, 996 P.2d
593 (2000), supports its argument that it could consider only the work Luvaas was engaged in on
the date of the injury. Avundes is not instructive here because our Supreme Court’ s analysis was
focused on whether RCW 51.08.178(1) or (2) applied, not whether L&I had to consider all monthly
wages regardless of whether the claimant was actually employed by an employer on the date of
the injury. 140 Wn.2d at 290.
6
We note that because we base our decision on the plain language of the statute, there is no need
for us to liberally construe the statute in Luvaas’ s favor.
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No. 46656-2-II
III. EMPLOYMENT STATUS
Luvaas argues that she was still employed under the DSHS contract on July 29, 2011,
because her contract with DSHS required her to give at least 30 days written notice if she was
terminating the contract and she was injured less than 30 days after she gave written notice. We
disagree.
The evidence unequivocally established that Luvaas unilaterally terminated her
employment relationship with DSHS after July 28, 2011—in fact, Luvaas herself testified that she
did not provide or intend to provide any further services under the DSHS contract after that date.
Furthermore, if Luvaas’ s unilateral termination of her employment amounted to a breach of
contract, it does not mean Luvaas was still employed by DSHS because a party breaching a
contract cannot demand performance from a nonbreaching party. See Kofmehl v. Baseline Lake,
LLC, 177 Wn.2d 584, 595, 305 P.3d 230 (2013) ( party breaching a sales contract cannot benefit
from his own breach of that contract); Parsons Supply, Inc. v. Smith, 22 Wn. App. 520, 523, 591
P.2d 821 (1979) (acknowledging “ general rule that a breaching party cannot demand performance
from the nonbreaching party”). The fact Luvaas chose the July 28 date instead of July 31 because
her regular work schedule would not have included July 29 through 31 does not alter the fact she
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No. 46656-2-II
specifically stated she was terminating her employment on July 28. Thus, the superior court did
not err when it found that Luvaas was not employed by DSHS on July 29.7
Because there is no question of fact that Luvaas terminated her DSHS employment the day
before her injury and L&I could consider only the wages from employers for whom Luvaas was
working as of the date of her injury, the superior court did not err when it granted DSHS summary
judgment and affirmed the Board’ s decision.
We affirm.
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 2.06.040,
it is so ordered.
JOHANSON, C.J.
We concur:
WORSWICK, J.
MELNICK, J.
7
Luvaas also argues that any attempt on her part to alter the contract by stating she was ending her
relationship with DSHS on July 28, 2011, rather than 30 days after the written notice, is irrelevant
and, apparently, ineffectual, because the contract prohibits unilateral modification of the contract.
And she asserts that DSHS’ s acquiescence to the July 28, 2011 termination date cannot be
construed as waiving “ a supposed ‘ breach’ of the contract by Ms. Luvaas,” because the contract
specifies that only the DSHS chief administrative officer or designee had the authority to waive
any term or condition of the contract. Br. of Appellant at 15. Because we hold that Luvaas
unilaterally terminated her employment with DSHS as of July 28, we do not discuss whether this
was a modification of the contract or whether DSHS had waived any contractual requirements.
8