IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES J. MILLER,
No. 81676-4-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
PUBLIC UTILITY DISTRICT NO. 1
OF SNOHOMISH COUNTY and
STATE OF WASHINGTON,
DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondents.
SMITH, J. — James Miller’s worker’s compensation claim was closed after
he rejected a substitute job offer from his employer. He appealed to the director
of the Department of Labor and Industries on the basis that his injuries prevented
him from performing the substitute job duties. The director determined that the
job offer was valid because Miller did not have any restrictions that prevented
him from performing the job. The Board of Industrial Insurance Appeals (Board)
and the Snohomish County Superior Court subsequently affirmed this
determination. We affirm.
FACTS
In 2015, Miller was working for the Snohomish County Public Utilities
District No. 1 (PUD) as a line foreman. Around August 29, he fell while working
on power lines that had been damaged in a storm and hurt his right shoulder.
Citations and pin cites are based on the Westlaw online version of the cited material.
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Miller was allowed to open an industrial injury claim for medical treatment and
loss of earnings. As a result of his shoulder injury, Miller had permanent
restrictions for lifting, carrying, pushing, pulling, and reaching, and therefore
could not return to his job as a line foreman.
Miller had prior industrial injury claims, including claims for back injuries
and skin cancer. However, at the time of his shoulder injury, those claims were
closed. His job as a line foreman was heavy duty, and he had no work
restrictions from any prior claims.
In September 2016, Miller visited a doctor about back pain he was
experiencing. Miller told her that while he had had back pain on and off for the
last 10 years, he had been in his usual state of health until May 5, 2016, when he
developed lower back pain while standing. The doctor noted that his symptoms
were “possibly related” to his 2010 back injury, but upon doing an X-ray found
spinal damage which was “unlikely to be related to his strain injury.”
On September 26, 2016, PUD made a return-to-work offer to Miller for the
job “Entry Helper – Modified,” which would require Miller to stand for several
hours per day directing traffic. The job was approved by Miller’s doctor and an
independent medical examination physician. Miller rejected the job, citing his
inability to stand for extended periods of time due to his back pain. As a result of
rejecting the job, Miller’s claim was closed and his vocational services were
terminated.
Miller appealed to the director of the Department of Labor & Industries,
who determined that the job offer was valid, therefore upholding the termination
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of Miller’s claim. Miller appealed the decision to an industrial appeals judge and
the Board of Industrial Insurance Appeals, which both upheld the decision. Miller
then appealed to the Snohomish County Superior Court, which also affirmed the
decision.
Miller appeals.
ANALYSIS
Miller claims that the director abused his discretion in concluding that the
job offer was valid. Specifically, Miller contends that the director applied an
incorrect legal standard by stating that he would not consider Miller’s prior
injuries. Because substantial evidence supports the superior court’s finding that
the director did in fact consider Miller’s previous injuries, we disagree.
The Industrial Insurance Act provides for injured workers to receive
vocational rehabilitation services and benefits in order to become employable.
RCW 51.32.095(1), (10). When an employer makes a valid return-to-work offer,
the employee’s vocational rehabilitation services will be terminated, effective on
the starting date of the job, “without regard to whether the worker accepts the
return-to-work offer.” RCW 51.32.096(c). A return-to-work offer is valid if it is “for
bona fide employment with the employer of injury, consistent with the worker’s
documented physical and mental restrictions as provided by the worker’s health
care provider.” RCW 51.32.096(c). A worker is employable if they have the
ability to perform and obtain gainful employment when considering both their
preexisting physical limitations and physical limitations caused, at least in part, by
their industrial injury. WAC 296-19A-010(1)(a)(ii)-(iii). However, “[p]hysical . . .
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conditions that arose after the industrial injury[ ] . . . that were not caused or
aggravated by the industrial injury[ ] . . . are not considered in determining
whether the worker is employable.” WAC 296-19A-010(1)(b); Nash v. Dep’t of
Labor & Indus., 1 Wn. App. 705, 710, 462 P.2d 988 (1969).
The director has broad discretion to determine disputes as to whether a
return-to-work offer is valid, thus rendering vocational services unnecessary.
RCW 51.32.095(10); Anderson v. Weyerhaeuser Co., 116 Wn. App. 149, 155, 64
P.3d 669 (2003), review granted and case dismissed, 150 Wn.2d 1035 (2004).
Such a discretionary decision may be reversed only if it is manifestly
unreasonable, based on untenable grounds, or made for untenable reasons.
Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
In industrial insurance appeals, the Board’s decision is prima facie correct
and the appealing party has the burden of proof. RCW 51.52.115; Ruse v. Dep’t
of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). The superior court may
substitute its own findings and decision for the Board’s if, based on a
preponderance of the evidence, it finds that the Board’s decision is incorrect.
Ruse, 138 Wn.2d at 5. In turn, we review the superior court’s findings for
substantial evidence. Hendrickson v. Dep’t of Labor & Indus., 2 Wn. App. 2d
343, 351, 409 P.3d 1162 (2018). Under this standard, we ask whether, viewing
the record in the light most favorable to the party who prevailed in superior court,
there is sufficient evidence to persuade a rational, fair-minded person that the
findings are true. Hendrickson, 2 Wn. App. 2d at 351-52. We review the
superior court’s conclusions of law de novo. Hendrickson, 2 Wn. App. 2d at 351.
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Miller contends that the director abused his discretion and that the
reviewing bodies erred by affirming his decision because he applied an incorrect
legal standard when he excluded limitations related to Miller’s lower back from
his analysis. Miller correctly notes that the director must consider the worker as
he is, “with all his . . . preexisting frailties and bodily infirmities.” Dennis v. Dep’t
of Labor & Indus., 109 Wn.2d 467, 471, 745 P.2d 1295 (1987). However, the
director correctly explained that the employer “is not required to consider
restrictions that are not related to this claim and were not in place at the time of
the injury.” The superior court agreed with this reasoning, noting that “[t]he
Director focused on the fact that Mr. Miller was working a job with a ‘very heavy’
job classification without any formal restrictions related to his low back. There
were no low back conditions accepted on the claim or lit up by the industrial
injury.” The court further noted that there was “sufficient evidence to make a
finding that any back issues or problems that would result in physical restrictions
did not exist at the time of the injury and were not lit up or aggravated by the
injury.” The record provides substantial evidence for the court’s determination
that “taken as a whole,” it is clear from the director’s determination that he
applied the correct standard.
Miller disagrees and contends that the director was not only required to
consider preexisting formal restrictions, but any preexisting limitations, “frailties[,]
and bodily infirmities.” Dennis, 109 Wn.2d at 471. However, the record shows
that the director did consider the extent of Miller’s prior limitations in his
discussion of the heavy duty nature of Miller’s job of injury.
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Miller relies on In re Hague, No. 59 331, at 2-3 (1982) (Wash. Bd. of
Indus. Ins. Appeals July 22, 1982),
http://www.biia.wa.gov/DO/59331_ORD_19820722_DO.PDF, in which the Board
determined that although Hague’s inability to work was based in part on
conditions, such as blood pressure and stroke, that were unrelated to his
industrial injury, the industrial injury was a significant contributing cause of his
inability to work, and therefore, Hague qualified as a permanently totally disabled
worker. This case not only addresses a different legal issue but is also factually
distinguishable. In Hague, the Board noted that the worker had suffered a heart
attack and a stroke, and had high blood pressure, all prior to the industrial injury.
Hague, No. 59 331, at 4. It noted that these conditions worsened after the injury.
Hague, No. 59 331, at 4. Here, the record supports a finding that Miller’s new
back pain was unrelated to his earlier back limitations, frailties, or infirmities.
Accordingly, Hague is not persuasive.
We affirm.
WE CONCUR:
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