(dissenting)—I dissent. While I concur in that portion of the majority opinion dealing with exclusion of exhibits and denial of mistrial, I dissent to finding error in awarding Ms. Hill attorney fees on appeal.
*815Ms. Hill successfully challenged the initial denial of her claim for workers' compensation benefits at the Board level. Her sole misfortune was to succeed too soon in the appellate process. Thereafter, she had to defend her right to coverage in the superior and appellate courts. Yet because her initial appeal before the Board was successful rather than adverse, her subsequent successes in defending her right to benefits are statutorily meaningless, at least in regard to award of attorney fees. This reality is due solely to a legislative glitch, which this court should acknowledge and correct.
As the majority appropriately acknowledges, RCW 51.52-.130 provides for the assessment of attorney fees against a self-insured employer when the Board decision adverse to the injured worker is "reversed or modified." However, the statutory language leaves a significant gap into which injured workers like Ms. Hill must fall when appeals to denial of benefits are resolved in their favor at the Board level. A literal reading of the statute sweeps aside injured workers with procedural histories parallel to Ms. Hill's. The result is an inequitable "Catch-22" in which a small class of injured workers, though blessed with an established right to benefits, are forced to repeatedly defend their positions at additional, nonreimbursable expense or be subject to loss of those rights. See Aquarian Found, v. KTVW, Inc., 11 Wn. App. 476, 523 P.2d 969 (1974) (failure to appear and defend, i.e., file a brief, may constitute default on appeal).
As early as 1956, courts began acknowledging the additional burden placed upon an injured worker forced to defend her right to recovery. Harbor Plywood Corp. v. Department of Labor & Indus., 48 Wn.2d 553, 560, 295 P.2d 310 (1956); see also Trapp v. Department of Labor & Indus., 48 Wn.2d 560, 295 P.2d 315 (1956) (involving appeal by Department via writ of certiorari following successful defense of right to benefits by injured worker at trial and appellate level). Although the court recognized the apparent inequity in the statutory structure, the courts deemed it proper to defer to the Legislature for correction:
*816Why the employer in the Harbor Plywood case, supra, or the department in the present case, should not be required to pay the claimant a reasonable attorney's fee, is far from clear; however, the statute we are called upon to construe is clear. The arguments which have been advanced in behalf of the widow in the Harbor Plywood case and by Mr. Trapp in the present case must of necessity be directed to the legislature.
Trapp, at 562.
In Johnson v. Tradewell Stores, Inc., 95 Wn.2d 739, 630 P.2d 441 (1981), the court was again confronted with a similar issue. It sought to correct a legislative oversight which allowed the award of attorney fees against the state fund when an injured worker successfully appeals to the superior court level, yet failed to provide such fees when the employer was self-insured.3 The court based its decision on an equal protection rationale, indicating that attorney and witness fees benefit the injured worker by increasing pro tanto the actual amount of workers' compensation benefits received. By awarding attorney fees to some injured workers and not others, based solely on the status of the employer, the statute inappropriately provides disparate treatment, which results in some workers receiving fewer benefits.
Following the lead provided by Johnson, this court in Deaconess Hosp. v. Hoye, 30 Wn. App. 536, 635 P.2d 1095 (1981) used an equal protection analysis to provide attorney fees to the injured worker. Deaconess contained an identical procedural history to the case at bar. There, the worker's claim was rejected by both the self-insured *817employer and the Department. The injured worker successfully appealed to the Board, which reversed the Department and allowed the claim. Upon appeal to the superior court, the Board decision was affirmed and attorney and witness fees awarded. Notably, the award of fees was granted despite the absence of reversal or modification of the Board decision.
In 1982, the Legislature amended RCW 51.52.130, apparently in response to the Johnson and Deaconess cases. The result was specific language attempting to correct the equal protection problem outlined in Johnson:
In the case of self-insured employers, if the decision and order of the board is reversed or modified resulting in additional benefits by the litigation that would be paid from the accident fund if the employer were not self-insured, then the attorney fees fixed by the court for services before the court, only, . . . and the costs shall be payable directly by the self-insured employer.
RCW 51.52.130.
While the 1982 amendment was sufficient to correct a portion of the inequity present in the former statute, specifically the payment of fees regardless of whether the coverage is provided through the state fund or a self-insured employer when the Board decision is "reversed" or "modified", its range was insufficient to assist those workers, like Ms. Hill, who establish a right to benefits prior to the superior court appeal. This legislative gap provides a significant added level of protection for self-insured employers. It allows them to unsuccessfully appeal the allowance of a claim through two and possibly three appellate courts without being subject to payment of the injured worker's attorney fees.
Subsequent to the 1982 amendment, Washington courts have adopted a conservative approach to the statutory language of RCW 51.52.130 by undertaking a strictly literal interpretation. See Spring v. Department of Labor & Indus., 39 Wn. App. 751, 757, 695 P.2d 612 (1985) (literal reading of Harbor Plywood and Trapp require denial of *818attorney fees); Siegrist v. Simpson Timber Co., 39 Wn. App. 500, 504, 694 P.2d 1110 (assessment of fees against self-insured employer on appeal from superior court is not provided for by statute), review denied, 103 Wn.2d 1037 (1985); Simpson Timber Co. v. Smith, 37 Wn. App. 796, 682 P.2d 969 (1984) (statute provides for fees only where the Board is reversed or modified). This narrow perspective has produced a judicial position which is, at least in regard to attorney fees, oblivious to the needs and rights of a certain class of injured workers.
A general premise from which all inquiries in this area begin is the legislative directive that the workers' compensation act is to be liberally construed in favor of the injured worker "for the purpose of reducing to a minimum the suffering and economic loss arising from injuries . . . occurring in the course of employment." RCW 51.12.010. As noted in Trapp, at 561 (citing RCW 51.04.010):
The modest awards provided by that act are based, in part, upon the proposition that all questions of fault are eliminated and litigation is unnecessary to secure the "sure and certain relief" which the act is intended to provide for [injured workers].
Upon this general premise rests the further consideration that statutes are to be interpreted pursuant to the spirit of the act:
Statutes should receive a sensible construction, such as will effect the legislative intention, and, if possible, so as to avoid unjust or absurd consequences. State ex rel. Thorp v. Devin, 26 Wn.2d 333, 173 P.2d 994 (1946). A thing which is within the object, purpose and spirit of an enactment is as much within the act as if it were within the letter. In re Estates of Donnelly, 81 Wn.2d 430, 502 P.2d 1163, 60 A.L.R.3d 620 (1972).
Johnson, at 743 (quoting Whitehead v. Department of Social & Health Servs., 92 Wn.2d 265, 269, 595 P.2d 926 (1979)).
Given these fundamental principles established at the inception of the workers' compensation legislation, I find difficulty in holding the act requires denial of attorney fees *819here. It clearly allows for the assessment of attorney fees against the self-insured employer when the injured worker prevails at the superior court level in an appeal from an adverse Board determination. It is illogical to deny the same worker attorney fees due solely to her "misfortune" of winning her appeal too soon, particularly when the appeal to superior court is de novo on the record below. As such, even if the injured worker recognized the benefit of initially losing at the Board level, her need to build an adequate record for the de novo review process would discourage such efforts. Consequently, a broader reading of RCW 51.52.130 mandates affirmance of attorney fees.
Additionally, I find more convincing than my brethren the equal protection argument raised by Ms. Hill. Johnson, at 745, recognized that worker classifications based on the coverage status of employers establishes the potential for violation of the equal protection clause:
At no place in the [workers' compensation] statute is there any suggestion that employees who are employed by self-insurers are somehow to receive fewer benefits than those employees whose employers are under the state system. ... It is a manifest injustice of the most egregious nature, and we hold it to be a violation of the equal protection clause of the Fourteenth Amendment and Const, art. 1, § 12 to classify one group of employees so that they receive fewer benefits than similarly situated employees simply because the employer chooses to be self-insured.
The present fact pattern reveals a disparity in benefits between two separate groups of workers: (1) those covered under the state fund, and (2) those whose coverage is provided by self-insured employers. This disparity surfaces in the nature of the right to appeal. As Ms. Hill notes, the Department is legislatively limited in the appeal process. Once a Board decision has been made, it may only appeal to the superior court on "questions of law or mandatory administrative actions of the director". RCW 51.52.110. Here, neither is applicable. Accordingly, had Ms. Hill been covered by the state fund system rather than by a self-*820insured employer, the appeals to both the superior court and this court would not have occurred. Her success in establishing her right to benefits at the Board level would have ended the litigation process, thus halting the accumulation of further attorney fees.
The central issue on appeal is whether the Board's decision in finding Ms. Hill suffered an industrial injury was appropriate, i.e., a factual determination. The self-insured employer can and has appealed that determination. Thus, since Ms. Hill had the misfortune of working for a self-insured employer, a coverage status over which she has no control, she has been forced to appear to defend her award. Given the rationale of Aquarian Found. v. KTVW, Inc., supra, she had little choice. By so doing, she has been subject to additional attorney fees, even when she has prevailed at all stages of the appellate procedure to date. The Department and self-insurer should be on an equal footing. The self-insurer should have no greater right of appeal than the Department. Likewise, the contrary is true, i.e., if a self-insurer can appeal factual issues, the Department should be able to do so. If the Johnson rationale was valid at the time of its decision, it is valid on this ground as well. This manifest injustice mandates correction.
The workers' compensation act is a compromise of legislation between representatives of business and labor. In exchange for certain concessions, each side acquired a reasonable and fair system of compensation designed to avoid the delay and frequent injustice of civil trials by eliminating the issue of fault, as well as prevent employer exposure to significant civil awards that ultimately are passed on to the general public. See generally RCW 51.04.010; State v. Mountain Timber Co., 75 Wash. 581, 135 P. 645 (1913), aff'd, 243 U.S. 219 (1917). One of its purposes was to avoid unnecessary litigation and grant sure and certain relief. Unfortunately, this purpose remains clouded in the modern day system where multiple appeals are commonplace. This harsh reality forces injured workers in many instances to defend their right to benefits over what could be years of *821litigation. An even harsher reality is that every time an appeal occurs, the injured worker's disability benefits decrease due to the addition of attorney fees. By awarding these fees, we can decrease the economic burden placed upon injured workers like Ms. Hill and at the same time force self-insured employers to rethink their appellate strategy. If forced to pay the injured worker's attorney fees upon unsuccessful litigation, perhaps the employer will reconsider the appeal of questionable cases. Such a ruling would both benefit the system and be consistent with the object and spirit of the act.
Therefore, I would affirm in all respects.
After modification, further reconsideration denied August 9 and 16,1989.
Review granted at 113 Wn.2d 1028 (1989).
Johnson was a consolidated appeal by two injured workers who worked for self-insured employers. One worker's claim was denied by the Department; the Board reversed, yet the worker still appealed to superior court and was successful in acquiring an increased award. The court authorized attorney and medical witness fees. The second worker's claim was accepted and benefits awarded; the Board affirmed. On appeal to the superior court, she received an increased award but attorney and witness fees were denied. At that time, RCW 51.52.130 allowed attorney fees only if the state fund was reversed or modified; it was silent as to the award of fees when the employer was self-insured.