(dissenting) — The Industrial Insurance Act (IIA) grants the worker the valuable right to bring third party actions. There is no sound basis for denying Mr. Manor that right.
Nothing in Title RCW 51 provides that a self-insured corporate parent of a subsidiary is the "employer” of the worker. There is nothing in the history of the self-insurance statutes showing that the Legislature intended when enacting the self-insurance provisions that a self-insuring corporate parent be considered the "employer” of a subsidiary’s worker. Nothing in the quid pro quo compromise underlying the workers’ compensation scheme contemplated the rise of today’s modern corporate structures, and nothing about that compromise dictates that the corporate parent must be considered the "employer.” The purpose of WAC 296-15-023(2)’s provision that the entities covered under the corporate parent’s certification of self-insurance is to prohibit selective certification where some risks are self-insured while others are insured by the state fund. Nothing about this purpose requires that a self-insured corporate parent be considered its subsidiary’s worker’s "employer.”
Nonetheless, under the majority opinion Paul Manor is barred as a matter of law from bringing a third party action, based solely on a single sentence in WAC 296-15--023(2). That single sentence, however, is beyond the authority of the Department of Labor and Industries to promulgate, and it is contrary to our workers’ compensation scheme.
Moreover, the majority’s result is unjust. If Manor had been covered under the state fund he clearly would not be barred from a third party action as a matter of law. The differing treatment the majority analysis accords the worker, who happens to be covered by self-insurance rather than under the state fund, is unjustified. Further, Paul Manor has hardly received a windfall in the form of workers’ compensation benefits. While he received over $455,000 in total benefits, over $437,000 of that amount *458represents medical benefits, attesting to the severe nature and consequences of his industrial injury. Finally, there is a fact question in this case whether Nestle Food even paid the workers’ compensation costs attributable to Carnaco, Manor’s employer, or whether those costs were paid by Carnaco. This is not the dispositive question, as explained below, but its existence simply underscores the unfairness of the majority’s result in this case.
For these reasons, I dissent.
Initially, the issues in this case are more complex than the majority opinion indicates. In one short paragraph the majority concludes that the Department of Labor and Industries was within its delegated authority in promulgating WAC 296-15-023(2), but fails to address relevant statutes and policies affecting the validity of the WAC. The majority simply assumes that Nestle paid workers’ compensation premiums and, by virtue of such payment, is entitled to immunity.
Turning first to the IIA, the statutes plainly contemplate that an employer may elect to become self-insured. RCW 51.08.173; RCW 51.14.010; RCW 51.14.020(1). The statutes nowhere contemplate that self-insuring confers the status of employer to one not otherwise an employer, and neither Nestle Foods nor the majority cites to any statute providing that a self-insuring corporate parent is the "employer” of its subsidiary’s workers.8 In addition, the self-insurance statutes were enacted by the Legislature to permit an alternative means of providing workers’ compensation coverage. There is no inkling that the Legislature had in mind when enacting the statutes that by self-insuring a corporate parent could thereby change from nonemployer status to employer status and obtain immunity from civil liability in a third party action.
*459Nor is there any basis in the origins of the workers’ compensation statutes for treating the corporate parent as an employer for purposes of the IIA. The quid pro quo compromise underlying the workers’ compensation acts was effected before the advent of the modern corporate system:
Workmen’s compensation laws were passed before the multi-unit enterprise became the norm in the American economy and before the accompanying managerial revolution in American business. See Chandler, The Visible Hand 377-498 (1977). For this reason, state workmen’s compensation laws ... do not address the question of a parent corporation’s immunity from common law tort liability for injuries to its subsidiaries employe[e]s ....
Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 658 (6th Cir.), cert. denied, 444 U.S. 836 (1979). See also, e.g., Gigax v. Ralston Purina Co., 136 Cal. App. 3d 591, 186 Cal. Rptr. 395, 399 (1982) (because workers’ compensation laws were passed before modern corporate structuring, whether parent corporation was entitled to immunity for injuries to an employee of kindred corporation was an "unresolved” "pristine” issue); Hearn v. Petra Int’l Corp., 710 P.2d 769, 771 (Okla. Ct. App. 1985).
Today, giant multi-unit national and even international enterprises are common, and the IIA, the result of the compromise in Washington, could not have contemplated and did not contemplate this modern business environment. The IIA has not remained static, of course, and numerous amendments and additions to its provisions have occurred over the years, adding new dimensions to the "compromise.” However, as noted, there are no statutes addressing the parent-subsidiary issue raised in this case.
As Nestle Food’s counsel conceded at oral argument, then, the sole basis for treating Nestle Foods as Manor’s employer is WAC 296-15-023(2). WAC-296-15-023 provides that the self-insurance certification of a firm will include *460all of its subsidiaries doing business in Washington, and that one self-insurance certificate "will be issued to an approved self-insurer, including all subsidiaries or divisions. The entities will be considered as one employer for all purposes of Title 51 RCW.” WAC 296-15-023(2). The purpose of the WAC is explained in an affidavit by a senior surety analyst with the Department of Labor and Industries who explained that the rule effectuates the Department policy "to prohibit selective certification where some risks are allowed to self-insure and others would be insured by the state industrial insurance fund.” Clerk’s Papers at 91.
This purpose does not, however, require that a self-insuring corporate parent be considered to be the employer of its subsidiary’s employees. The same purpose could be achieved by simply requiring in such circumstances that all the affiliated companies must self-insure, without declaring that all such affiliates are "one employer” for purposes of the IIA.
In providing that affiliated companies are "one employer,” the Department of Labor and Industries exceeded its authority when providing that affiliated companies constitute one employer if they self-insure. An administrative agency is limited to the powers and authority which the Legislature grants to it. Fahn v. Cowlitz County, 93 Wn.2d 368, 374, 610 P.2d 857, 621 P.2d 1293 (1980). In general, an agency or administrative board charged with enforcement of certain statutes may lawfully exercise delegated authority where the Legislature has provided standards or guidelines, if adequate safeguards are provided in regard to promulgation of rules and testing the constitutionality of the rules after promulgation. Auburn v. King County, 114 Wn.2d 447, 452, 788 P.2d 534 (1990); Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972), appeal dismissed, 410 U.S. 977 (1973). Authority may be delegated *461to determine a fact or state of things upon which application of the law is made to depend. Fahn, 93 Wn.2d at 374.9
If an agency rule exceeds its delegated authority, the rule is invalid. RCW 34.05.570(2)(c). This court has explained that under this principle, where the Legislature has specifically delegated rule-making authority to an administrator, the rules are presumed valid so long as they are reasonably consistent with the statutes being implemented. St. Francis Extended Health Care v. Department of Soc. & Health Servs., 115 Wn.2d 690, 702, 801 P.2d 212 (1990). However, if there are compelling reasons which show that the rule is in conflict with the content and purpose of the legislation, the rule will be struck down. Omega Nat’l Ins. Co. v. Marquardt, 115 Wn.2d 416, 428, 799 P.2d 235 (1990).
For two reasons the provision in WAC 296-15-023(2) that affiliated companies will be considered one employer for all purposes of the IIA is contrary to the content and the purpose of the IIA. First, the statutes provide that an employer may self-insure, but do not provide that an election to self-insure by a corporate parent makes that parent the employer. The rule is thus contrary to the RCW 51.08.173 and statutes to similar effect. Second, the rule is contrary to two policies of the IIA. The first is one this court previously and emphatically recognized in Johnson v. Tradewell Stores, Inc., 95 Wn.2d 739, 630 P.2d 441 (1981): The thrust of RCW 51.14 is not that it is intended to treat employees differently dependent upon whether they are covered under a self-insurance scheme or the state fund. "Nowhere in RCW Title 51 is there even a hint that the legislature intended some covered employees to he treated differently than others.” Johnson, 95 Wn.2d at 745 (emphasis added). The second policy is recognition of the worker’s important right to bring third party claims which is embodied in RCW 51.24.030(1). As this court has *462recognized, if an employment agreement is established, "moderate” benefits are available to the worker under the IIA. But where the employment relationship is asserted as a defense in a third party action, reaching the conclusion that an employment relationship exists "results in the destruction of valuable common-law rights to the injured work[er].” Novenson v. Spokane Culvert & Fabricating Co., 91 Wn.2d 550, 555, 588 P.2d 1174 (1979).
These two policies foreclose the disputed WAC provision because it destroys the right of an injured worker to maintain a third party action solely because he or she is covered under a self-insurance program rather than under the state fund.10
If Paul Manor was not covered under a self-insurance program, there would be no automatic bar to his third party suit. There are fact questions remaining as to whether Nestle Foods was his employer under Washington’s control-consent test of an employment relationship for purposes of workers’ compensation which requires that "(1) the employer has the right to control the servant’s physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship.” Novenson, 91 Wn.2d at 553; accord Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967); Fisher v. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963); see Jackson v. Harvey, 72 Wn. App. 507, 864 P.2d 975, review denied, 124 Wn.2d 1003 (1994); Smick v. Burnup & Sims, 35 Wn. App. 276, 666 P.2d 926 (1983). Moreover, there are also fact *463questions about whether Nestle Foods and Carnaco have separate corporate identities or whether they have one identity and thus Nestle Foods is Manor’s employer entitled to immunity under the IIA. See generally 2A Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 72.40, at 14-290.29, .32-33 (1996).
The overwhelming majority of courts in other jurisdictions have concluded, as the Court of Appeals did in Meads v. Ray C. Roberts Post 969, Inc., 54 Wn. App. 486, 774 P.2d 49 (1989), that a parent corporation is not as a matter of law entitled to the workers’ compensation immunity of its subsidiary.11 See, e.g., Muniz v. National Can Corp., 737 F.2d 145 (1st Cir. 1984) (Puerto Rico law); Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir.) cert. denied 444 U.S. 836 (1979) (Kentucky law); First Nat’l Bank v. Tracor, Inc., 851 F.2d 212 (8th Cir. 1988) (Arkansas law); Love v. Flour Mills, 647 F.2d 1058 (10th Cir. 1981) (Oklahoma law); Gregory v. Garrett Corp., 578 F. Supp. 871 (S.D.N.Y. 1983) (Connecticut and North Carolina law); Peterson v. Trailways, Inc., 555 F. Supp. 827 (D. Colo. 1983); Stoddard v. Ling-Temco-Vought, Inc., 513 F. Supp. 314 (C.D. Cal. 1980) (Texas law), remanded on other grounds, 711 F.2d 1431 (9th Cir. 1983); Croxton v. Crowley Maritime Corp., 817 P.2d 460 (Alaska 1991); Oliver v. Bluegrass Resources Corp., 284 Ark. 1, 678 S.W.2d 769 (1984); Gigax v. Ralston Purina Co., 136 Cal. App. 3d 591, 186 Cal. Rptr. 395 (1982); Gaber v. Franchise Servs., Inc., 680 P.2d 1345 (Colo. Ct. App. 1984); Gulfstream Land & Dev. Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982); McQuade v. Draw Tite, Inc., 659 N.E.2d 1016 (Ind. 1995); Phillips v. Stowe Mills, Inc., 5 N.C. App. 150, 167 S.E.2d 817 (1969); Leeman v. Boylan, 134 N.H. 230, 590 A.2d 610 (1991); Volb v. G.E. Capital Corp., 139 N.J. 110, 651 A.2d *4641002 (1995); Samaras v. Gatx Leasing Corp., 75 A.D.2d 890, 428 N.Y.S.2d 48 (1980); Hearn v. Petra Int’l Corp., 710 P.2d 769 (Okla. Ct. App. 1985); Kiehl v. Action Mfg. Co., 517 Pa. 183, 535 A.2d 571 (1987); Stratman v. Admiral Beverage Corp., 760 P.2d 974 (Wyo. 1988); cf. Porter v. Be-loit Corp., 667 F. Supp. 367 (S.D. Miss. 1987) (exclusive remedy provision of workers’ compensation act did not bar suit against subsidiary corporation by employee of parent corporation); Boswell v. May Ctrs., Inc., 669 S.W.2d 585 (Mo. Ct. App. 1984) (same); Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 550 N.E.2d 127 (1990) (involving affiliated and successor corporations). Some courts have held the corporate parent is entitled to immunity. E.g., Wells v. Firestone Tire & Rubber Co., 421 Mich. 641, 364 N.W.2d 670 (1984) (under Michigan’s economic reality test); Rasnick v. Pittston Co., 237 Va. 658, 379 S.E.2d 353 (1989). See generally 2A Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 72.40 (1996) (discussing immunity of affiliated corporations and citing numerous cases); 1 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 43.80 (1990); Annotation, Workers’ Compensation Immunity as Extending to One Owning Controlling Interest in Employer Corporation, 30 A.L.R.4th 948 (1984).
The court should hold the WAC provision invalid. It neither serves its own purpose nor is it consistent with the IIA or its policies.
The majority says, though, that Nestle Foods is entitled to immunity because it paid costs of workers’ compensation for Manor. Whether Nestle Foods paid costs of its subsidiary, and the extent to which corporate finances may have been intertwined is a fact question which is relevant to the issue whether the corporate parent and the subsidiary were in eifect one entity entitled to immunity under the IIA. It is not, however, dispositive on the issue of whether Nestle Foods is Manor’s employer. In Marland, 71 Wn.2d 343, this court found no immunity for a company which had primary responsibility for workers’ *465compensation premiums because the entity was not factually the worker’s employer under the consent-control test. See also, e.g., Gulfstream Land & Dev. Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982) (unless there is absolute integration of the two entities, a parent corporation is not the employer of the subsidiary’s employee, and a joint policy of workers’ compensation insurance does not provide a basis for immunity); Stratman v. Admiral Beverage Corp., 760 P.2d 974, 984 (Wyo. 1988) ("[cjoverage of affiliated corporations under the same worker’s compensation insurance policy or state account is not relevant to the issue of whether the employee of one affiliate is also the employee of the other”; if the worker is not an employee of the particular corporation sued, that corporation is not immune regardless of whether it made fund payments).
In this case, there is also a fact question as to whether Nestle Foods paid the workers’ compensation costs or whether they were charged back to Carnaco. Of course, charging them back would lend support to Manor’s claim that Nestle Foods was not factually his employer because in that event it would be evidence that Carnaco had a separate corporate identity from Nestle Foods.
It is also significant to note that if Manor were able to pursue a third party claim against Nestle and prevail, he would not be entitled to any double recovery nor would Nestle have to pay more than his actual damages. Even if a corporate parent has provided self-insured workers’ compensation coverage, the IIA provides for an offset or similar reduction of a damages award to account for workers’ benefits paid. RCW 51.24.050; RCW 51.24.060. Cf. Goodman v. Boeing Co., 127 Wn.2d 401, 404-06, 899 P.2d 1265 (1995) (where self-insuring employer paid time-loss benefits, that part of jury award against self-insuring employer for discrimination against employee which represented lost wages and earnings capacity was offset by time-loss benefits paid, and the self-insuring employer was subrogated to future workers’ compensation benefits); 2A Arthur Larson & Lex K. Larson, The Law op Work*466men’s Compensation § 72.97, at 14-342 (1996) (carrier sued as third party would be entitled to set off in judgment against itself as tortfeasor the amount of compensation paid by the carrier). Thus, a self-insuring corporate parent would not be obliged to fully pay both workers’ compensation and benefits and tort damages and the employee would not obtain a double recovery.
Finally, I must point out that none of the four cases cited by the majority for the proposition that Nestle Foods should be considered Manor’s employer in accord with the policy of the IIA supports that proposition. In Wolf v. Scott Wetzel Servs., Inc., 113 Wn.2d 665, 782 P.2d 203 (1989) and Deeter v. Safeway Stores, Inc., 50 Wn. App. 67, 747 P.2d 1103 (1987), review denied, 110 Wn.2d 1016 (1988), the courts held that the claims administrators hired by the employer were entitled to immunity under the IIA. In Wolf, 113 Wn.2d 665, the worker tried to bring a claim for wrongful delay of benefits based upon his entitlement to workers’ compensation benefits. In Deeter, 50 Wn. App. 67, the worker sought damages based on delay in paying workers’ compensation benefits and refusal to settle his industrial insurance claim. In each case "[t]he relationship of the employee, the employer, and the claims adjuster for the employer . . . flow[ed] from the rights and obligations created by the IIA, not from any independent source.” Deeter, 50 Wn. App. at 83-84 (emphasis added) (Grosse, J., concurring), cited in Wolf, 113 Wn.2d at 675-77. In marked contrast, the present case involves a claim for damages under tort law apart from any entitlement to workers’ compensation benefits. Moreover, the second factor heavily influencing this court in Wolf was the fact that the IIA contains a penalty provision for wrongful delay or termination of benefits thus evidencing legislative intent that the remedy for wrongful delay or termination of benefits lies within the workers’ compensation system. Wolf, 113 Wn.2d at 670 (citing RCW 51.48.017). There is no analogous provision in the IIA establishing legislative intent that a corporate parent is immune from a third *467party suit merely because its affiliated companies provide coverage through self-insurance.
In Corr v. Willamette Indus., Inc., 105 Wn.2d 217, 713 P.2d 92 (1986), Willamette Industries absorbed Coreo, Inc. in a corporate merger and acquired its plant equipment. After the merger, a worker employed by Western Paper Kraft Group, a wholly owned subsidiary of Willamette, was injured by machinery designed and built by Coreo before the merger. The worker sued Willamette, arguing that it had succeeded to Corco’s liabilities. This court affirmed the trial courts’ dismissal of the action on the basis that Willamette was immune under the IIA. The court did not address the parentl subsidiary immunity issue raised in this case, however. Instead, the issue addressed was whether a corporation could be considered a third party under either the "dual capacity” or "dual persona” doctrines. Because the issue raised here was not addressed in Corr, it does not support the proposition that a corporate parent is the employer of its subsidiary’s employee, as the Court of Appeals recognized in Meads v. Ray C. Roberts Post 969, Inc., 54 Wn. App. 486, 774 P.2d 49 (1989).
The last case is Coulter v. State, 93 Wn.2d 205, 608 P.2d 261 (1980). There the court disallowed a third party suit against the state for alleged negligent inspection by a state safety inspector acting pursuant to RCW 49.17, holding that the worker’s failure to file a claim with the state’s chief fiscal office precluded any third party action. Id. at 207. Further, the court observed in dicta that under former RCW 51.24.010 the Department was subrogated to the injured person’s right against a third party, with the right to prosecute the action. If a third party action against the Department were possible, the Department would sue itself for not performing duties which are the Department’s responsibilities under RCW 49.17, thus becoming plaintiff and defendant. The court did not believe "such an anomalous result” was intended by the Legislature. Coulter, 93 Wn.2d at 208. Although Nestle Foods argues similar anomalous results ensue if it is *468subject to a third party suit, the source of the problem is WAC 296-15-023 which requires the corporate parent to include subsidiaries in its certification, and not the statutes enacted by the Legislature. Moreover, as a practical matter, it is difficult to imagine Nestle wanting to pursue an action against itself if the injured worker elects not to sue. There seems to be little danger of a self-insuring corporate parent in these circumstances placing itself in the peculiar position of being both plaintiff and defendant in a suit. Finally, courts have rejected on various grounds the argument that legislatures could not have intended that a subrogated carrier sue itself, including the ground that the subrogation provisions simply did not deal with the issue whether the employee’s common-law right to sue a third party was taken away from him. 2A Arthur Larson & Lex K. Larson, The Law op Workmen’s Compensation § 72.95, at 14-331 through -332 (1996) (citing cases).
The majority’s result is not supported by the IIA, the self-insurance provisions of the IIA, the history of the quid pro quo compromise underlying the IIA, this court’s case law, or the purpose underlying WAC 296-15-023(2). The WAC is inconsistent with the IIA and its provisions, particularly because it results in unfairly treating employees covered under a self-insurance program differently than those covered under the state fund, and it should be invalidated. I would hold that Paul Manor is not foreclosed as a matter of law from pursuing a third party action against Nestle Foods, and would accordingly affirm the Court of Appeals and remand this matter for further proceedings.12
*469Alexander and Sanders, JJ., concur with Madsen, J.
Reconsideration denied October 7, 1997.
Although the issue here is whether the corporate parent is or is not an employer by virtue of self-insurance, the majority several times assumes the answer to the question. See majority at 443 (Nestle Foods’ predecessor Carnation "treated all of its employees, including ... its Carnaco employees”); supra at 449 ("[t]o hold otherwise would deny Nestle the immunity from suit the IIA grants to all employers”); supra at 456 (“[tjhis Court has 'consistently held that when an employer . . . pays its industrial insurance premiums’ ”).
Although the majority criticizes the dissent for not explaining how WAC 296--15-023(2) is invalid, this paragraph, and the three which follow, address precisely that issue.
In a footnote the majority seems to suggest that the Legislature has acquiesced in WAC 296-15-023(2)’s "interpretation” because the WAC has not been amended since promulgation. Majority at 445 n.2. Legislative acquiescence may be found where a statutory interpretation is left standing following legislative amendment of the statute. Here, however, there is no relevant statute which has been amended. Moreover, although I cannot see how the principle applies in this case at all, the rule of silent acquiescence following administrative construction of a statute applies only when the subsequent legislative consideration involves the same issue as that covered by the administrative rule. Safeco Ins. Co. v. Meyering, 102 Wn.2d 385, 392, 687 P.2d 195 (1984); City of Seattle v. King County, 52 Wn. App. 628, 633, 762 P.2d 1152 (1988), review denied, 112 Wn.2d 1002 (1989). There is no indication the Legislature has considered WAC 296-15-023(2).
The majority thinks that this citation to other authority is irrelevant. Majority at 451 n.5. It also disputes the dissent’s view that Manor would be treated differently had he been covered under the state fund. Majority at 453 n.6. However, there is no basis in the IIA for treating Paul Manor as Nestle’s employee merely because he is covered under a self-insurance plan. That being the case, the common law is relevant to whether Nestle is his employer. Unless Nestle is his employer, his third party suit should not be barred.
The Court of Appeals also correctly concluded that Paul Manor’s action is not barred by res judicata or collateral estoppel. Collateral estoppel is the relevant doctrine, and the reason it does not bar this action is because in light of WAC 296-15-023(2) the administrative body never had occasion to determine whether Nestle Poods was factually Manor’s employer for purposes of a third party action.