IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES L. MILLER, ) ci)
—1
) DIVISION ONE •-•r•
Respondent, )
-T1
) No. 76013-1-1
v. ) rrt
(111-T1
) PUBLISHED OPINION
SHOPE CONCRETE PRODUCTS CO.,) r-
9?
) -;
Defendant, ) c_n 4.44
)
)
DEPARTMENT OF LABOR AND )
INDUSTRIES OF THE STATE OF )
WASHINGTON, )
)
Appellant. ) FILED: March 20, 2017
)
DWYER, J. — The Department of Labor and Industries appeals from a
decision of the superior court reversing an order of the Board of Industrial
Insurance Appeals. The Department asserts that the superior court erred by
determining that James Miller was entitled to have the value of health care
benefits included in his wage computation. This is so, the Department contends,
1
because, at the time of Miller's injury, his employer had made no payments or
contributions toward health care benefits on Miller's behalf. The Department is
correct.
Pursuant to the plain language of RCW 01.08.178(1), and consistent with
existing case authority, a worker's wage computation includes health care
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benefits when the worker's employer made payments or contributions toward
those benefits at the time of the injury. Miller concedes that, at the time of his
injury, his employer had made no payments or contributions toward health care
benefits on his behalf. Accordingly, we reverse the decision of the superior court
and reinstate the Board's decision.
Miller began working for Shope Concrete Products Company on
September 10, 2012. On that day, he also began a 90-day orientation period.
Upon completion of the orientation, Shope was to provide him with health care
benefits.
A month and a half later, Miller suffered a lower back injury at work. He
did not complete his orientation period and did not return to work at Shope.
Because Miller never completed the orientation; Shope never paid or contributed
funds toward health care benefits on Miller's behalf.
Miller applied to the Department of Labor and Industries for wage benefits
resulting from his injury. The Department allowed Miller's claim to go forward
and, a year later, issued a wage order calculating his wages at $3,335.20 per
month. The order did not include any amount attributable to the health care
benefits that Miller's employer would have provided him had he completed the
orientation. Miller protested the Department's Computation but the Department
affirmed its wage order. Miller then appealed the Department's order to the
Board of Industrial Insurance Appeals. The Board issued a decision and order
affirming the Department's exclusion of health Care benefits from Miller's wage
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calculation.
Miller then appealed the Board's order to the Pierce County Superior
Court. The superior court reversed, determining that Miller's workers'
compensation wages should have included an amount attributable to health care
benefits because Shope would have provided such benefits to Miller had he
completed the orientation.
The Department now appeals.
II
A
The Department asserts that the trial court erred by ordering that Miller's
wage order be modified so as to include an amount attributable to his employer's
health care payments or contributions on his behalf. This is so, the Department
contends, because, at the time of Miller's injury, his employer had, in fact, never
made payments or contributions toward health Care benefits on Miller's behalf.
We agree.
In workers' compensation cases, we review de novo the superior court's
conclusions of law. Rogers v. Dep't of Labor &'Indus., 151 Wn. App. 174, 180,
210 P.3d 355(2009)(quoting Watson v. Dep't of Labor & Indus., 133 Wn. App.
903, 909, 138 P.3d 177(2006)). "We may substitute our own judgment for that
of the agency regarding issues of law, but we give great weight to the agency's
interpretation of the law it administers." Dep't Of Labor & Indus. v. Allen, 100 Wn.
App. 526, 530, 997 P.2d 977(2000)(citing Dep't of Labor & Indus. v. Kantor, 94
Wn. App. 764, 772, 973 P.2d 30(1999)).
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"If a statute's meaning is plain on its face, then we give effect to that plain
meaning as an expression of legislative intent." Hill v. Dep't of Labor & Indus.,
161 Wn. App. 286, 293, 253 P.3d 430(2011)(citing State ex rel. Citizens Against
Tolls(CAT) v. Murphy, 151 Wn.2d 226, 242, 88 P.3d 375 (2004)).
Workers' compensation statutes are to be liberally construed and any
disagreement regarding the meaning of a Title 51 provision should be interpreted
in favor of the worker. Dep't of Labor & Indus. v. Granger, 159 Wn.2d 752, 757-
58, 153 P.3d 839(2007)(quoting RCW 51.12.010; Cockle v. Dep't of Labor &
Indus., 142 Wn.2d 801, 811, 16 P.3d 583(2001)). However,"Mules of liberal
construction cannot be used to change the meaning of a statute which in its
ordinary sense is unambiguous." Wilson v. Dep't of Labor & Indus., 6 Wn. App.
902, 906, 496 P.2d 551 (1972). Indeed,"statutes must not be construed in a
manner that renders any portion thereof meaningless or superfluous," Cockle,
142 Wn.2d at 809 (citing Stone v. Chelan County Sheriff's Dep't, 110 Wn.2d 806,
810, 756 P.2d 736 (1988)), or "in a way that would lead to a 'strained or
unrealistic interpretation." Granger, 159 Wn.2d at 757(quoting Senate
Republican Campaign Comm. v. Pub. Disclosure Comm'n, 133 Wn.2d 229, 243,
943 P.2d 1358 (1997)).
RCW 51.08.178(1) provides:
For the purposes of this title, the monthly wages the worker was
receiving from all employment at the time ofinjury shall be the
basis upon which compensation is computed unless otherwise
provided specifically in the statute concerned.. . .
The term "wages" shall include the reasonable value of
board, housing, fuel, or other consideration of like nature received
from the employer as part of the contract of hire, but shall not
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include overtime pay except in cases under subsection (2) of this
section. As consideration of like nature to'board, housing, and fuel,
wages shall also include the employer's payment or contributions,
or appropriate portions thereof, for healthcare benefits unless the
employer continues ongoing and current payment or contributions
for these benefits at the same level as provided at the time of injury.
(Emphasis added.)
A plain reading of this provision reveals that a wage computation includes
health care benefits when, at the time of the worker's injury, the employer was
paying or contributing toward that worker's health care benefits.
This interpretation is consistent with our Supreme Court's decisions in
Cockle, 142 Wn.2d 801, and Granger, 159 Wn.2d 752, both of which interpreted
former RCW 51.08.178(1)(1988), and both of which analyzed whether wages, as
defined in the 1988 statute, included health care benefits.1 This issue came
before our Supreme Court because the 1988 statute's language, unlike that of
the current statute, did not contain the "health care benefit[]" or "payment or
contributions" language. Rather, the provision defined "wages," in pertinent part,
as "the reasonable value of board, housing, fuel, or other consideration of like
nature received from the employer as part of the contract of hire." Former RCW
51.08.178(1).
'Although it does not impact our analysis, the tiMing between the legislative history of
the bill to amend former RCW 51.08.178(1), our decision in Granger, 130 Wn. App. 489, 123 P.3d
858(2005), and our Supreme Court's decision in Granger, 159 Wn.2d 752, bears mentioning.
We issued our decision in Granger in October 2005. 130 Wn. App. 489. The bill to
amend former RCW 51.08.178(1) was presented to our state legislature in February 2007.
SUBSTITUTE H.B. 1244, 60th Leg., Reg. Sess.(Wash. 2007).
One month later, in March 2007, our Supreme Court issued its decision in Granger. 159
Wn.2d 752. One month after that, the bill was passed by our House and Senate. SUBSTITUTE
H.B. 1244. Three months later, in July 2007, the bill became effective. SUBSTITUTE H.B. 1244.
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In Cockle, our Supreme Court determined that a worker's "wages"
pursuant to former RCW 51.08.178(1) included en employer's health care
premium payments to the worker at the time of injury. Specifically, the court
ruled that "[t]he value of such premiums should have been included in the RCW
51.08.178 basis used to calculate [the] workers' compensation payments."
Cockle, 142 Wn.2d at 823.
In Granger, our Supreme Court determined that funds that an employer
had paid into a trust for a worker's health care benefits constituted "wages,"
notwithstanding that, at the time of injury, the worker was not yet eligible to
receive the health care coverage. Granger's employer had paid $2.15 into a
health care benefit trust fund on a worker's behalf for every hour worked. To
receive health care coverage for the month, however, the worker had to have
logged 120 hours the month beforehand. Granger became injured on the jobsite
after having logged only 64 of the 120 hours required for coverage.
Consequently, Granger's employer had paid corresponding amounts to his health
care benefit trust but did not provide him with health care coverage for the
following month. Granger sought workers' compensation for his injury. Granger,
159 Wn.2d at 756. In computing his wages, the Department did not include the
health care benefit trust payments because, notwithstanding the trust funds set
aside, Granger was not actually receiving health care coverage at the time of his
injury. Granger, 159 Wn.2d at 756-57.
Our Supreme Court reversed, instructing that "the proper focus under
RCW 51.08.178's 'receiving at the time of injury' language is on the payment
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made for the benefit and not on eligibility for coverage itself." Granger, 159
Wn.2d at 766-67. Because his employer was making payments toward his
health care benefits at the time of his injury, the court concluded, Granger's wage
calculation properly included an amount attributable to those health care benefits.
Granger, 159 Wn.2d at 765.
Here, Miller concedes that Shope was not paying or contributing to health
care benefits on his behalf at the time he was injured.
It is thus clear that Miller is not entitled to have an amount attributable to
employer-provided health care benefits included in his wage computation. For
such a contention to be warranted, RCW 51.08.178(1) plainly requires that an
employer be making payment or contributions toward the worker's health care
benefits at the time of injury. Indeed, case authority has never held that a worker
in the circumstances here presented is entitled to have a value attributable to
health care benefits included in the wage computation. At the time of Miller's
injury, Shope was neither paying for his health Care coverage premiums, Cockle,
142 Wn.2d 801, nor making payments into a trust fund for his health care
benefits, Granger, 159 Wn.2d 752. Thus, the superior court erred by ruling that
Miller is entitled to a wage computation that includes a value attributable to
employer-provided health care benefits.2
2 Miller requests that we extend Cockle and Granger—and, by necessity, reinterpret
RCW 51.08.178(1)—to conclude that he is entitled to have the value of health care benefits
included in his wage computation, notwithstanding the absence of payment or contribution by his
employer. We decline to do so. The language of RCW 51.08.178(1) is clear. We will not
"change the meaning of a statute which in its ordinary sense is unambiguous." Wilson,6 Wn.
App. at 906.
Miller next asserts that he is entitled to have the value of health care benefits included in
his wage computation because the benefits constitute "other consideration of like nature received
from the employer as part of the contract of hire." RCW 51.08.178(1). Alternatively, Miller
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The Department requests that we reverse the superior court's award of
costs and attorney fees to Miller. Because the superior court erred by
determining that Miller prevailed in his suit against the Board, the Department's
request is granted. Similarly, Miller's request for an award of attorney fees on
appeal is denied.
Reversed.
We concur:
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1
4•2. I
contends that the focus regarding his wage computation should be on his lost earning capacity,
rather than whether his employer was making payments or contributions toward his health care
benefits.
As to both contentions, we disagree. Miller's interpretations would effectively excise the
"payment or contributions" language from ROW 51.08.178(1). Removing this language would be
contrary to the legislature's clearly expressed intent. Cockle, 142 Wn.2d at 809; Wilson,6 Wn.
App. at 906.
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