FILED
MAY 14,2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
OSCAR A. VILLA, ) No. 30612-7-111
)
Appellant, )
)
v. )
)
DEPARTMENT OF LABOR AND ) UNPUBLISHED OPINION
INDUSTRIES, STATE OF )
WASHINGTON, )
)
Respondent. )
BROWN, J. - Oscar Villa appeals his time loss compensation under the state
Industrial Insurance Act ("A), Title 51 RCW. The Department of Labor and Industries
(Department) closed his claim with a permanent total disability pension based on a 40
hour work week, the Board of Industrial Insurance Appeals (Board) agreed, as did the
superior court. Mr. Villa contends it should be a 50-hour week based on overtime he
was earning at the time of his back injury. We disagree. and affirm.
FACTS
Mr. Villa began working for Nuprecon. Inc. on or about October 14, 2005. He
was part of an asbestos abatement team. He was a full time employee, initially hired to
work eight hours per day for five days each week. For the first four weeks of
No. 30612-7-111
Villa v. Dep't of Labor & Indus.
employment, Mr. Villa worked a 40-hour work week. For the last full week of
employment prior to the industrial injury, he worked 50 hours, 10 of which were overtime
hours.
On November 21, 2005, Mr. Villa was injured on the job-site. He was sent home
from work and was unable to return to his job with Nuprecon. Mr. Villa continued to
receive his regular wages from Nuprecon until May 2006.
The Department began to provide time loss compensation when it determined
Mr. Villa was unable to return to work due to his injuries. It eventually determined that
he was a permanently and totally disabled worker. In an August 15, 2008 order, the
Department set his monthly pension at $5,623 by multiplying the number of daily hours
worked at the time of the accident (10) by his hourly rate of pay ($25.56). These
monthly payments continued for 16 months until December 9, 2009. Then, the
Department corrected its prior order and decreased its calculation of wages to an eight-
hour work day.
Mr. Villa unsuccessfully requested reconsideration, and then appealed the
Department decision to the Board. On March 31,2011, the Board issued its decision
and order, affirming the Department's December 9, 2009 order. Mr. Villa next appealed
to the Benton County Superior Court to review the Board's final decision. Following a
hearing, the court affirmed the Board's decision, entering findings of fact and
conclusions of law and incorporating the Board's findings of fact into the court's findings.
Mr. Villa appealed to this court.
2
No. 30612-7-111
Villa v. Oep't of Labor & Indus.
ANALYSIS
The sole issue on appeal is whether the superior court erred in affirming the
Department's calculation of Mr. Villa's time loss compensation based on a 40-hour work
week. Mr. Villa contends he was working a 50-hour work week at the time of injury.
Washington's IIA, chapter 51.52 RCW, provides that the superior court reviews
the Board's determination de novo. RCW 51.52.115. On review to the superior court,
the Board's decision is prima facie correct, and the burden of proo'f is on the party
challenging the decision. RCW 51.52.115; Ruse v. Oep't of Labor & Indus., 138 Wn.2d
1,5,977 P.2d 570 (1999). Our review is governed by RCW 51.52.140, providing an
"[a]ppeal shall lie from the judgment of the superior court as in other civil cases." We do
not sit in the same position as the superior court; we review "'whether substantial
evidence supports the trial court's factual findings and then we review, de novo, whether
the trial court's conclusions of law flow from the findings.'" Rogers v. Oep't of Labor &
Indus., 151 Wn. App. 174, 180,210 P.3d 355 (2009) (quoting Watson v. Oep'tofLabor
& Indus., 133 Wn. App. 903, 909,138 P.3d 177 (2006)).
Here, the superior court incorporated the Board's findings of fact into the court's
findings. The Board found, "As of November 21,2005, Mr. Villa had not established a
pattern of normally working additional over time hours." Clerk's Papers at 133 (Finding
of Fact 5). Mr. Villa takes exception to this finding.
Title 51 RCW is a "self-contained system" governing procedures and remedies
for injured workers. Brand v. Oep't of Labor & Indus., 139 Wn.2d 659, 668, 989 P .2d
3
No. 30612-7-111
Villa v. Dep't of Labor & Indus.
1111 (1999). Former RCW 51.08.178(1) (2008) 1 specifically governed the basis of time
loss compensation payments to injured workers.
RCW 51.08.178(1) states that daily wage computation is computed based on,
"the daily wage the worker was receiving at the time of the injury." The statute further
states, U[t]he daily wage shall be the hourly wage multiplied by the number of hours the
worker is normally employed." RCW 51.08.178(1) (emphasis added). The statute then
clarifies, "[t]he number of hours the worker is normally employed shall be determined by
the department in a fair and reasonable manner, which may include averaging the
number of hours worked per day." Id.
Our fundamental objective in statutory interpretation is to give effect to the
legislature's intent. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10,43
P.3d 4 (2002). If a statute's meaning is plain on its face, then we give effect to that plain
meaning as an expression of legislative intent. State ex reI. Citizens Against Tolls
(CAT) v. Murphy, 151 Wn.2d 226, 242, 88 P.3d 375 (2004). We discern plain meaning
not only from the provision in question but also from closely related statutes and the
underlying legislative purposes. Murphy, 151 Wn.2d at 242. If a statute is susceptible
to more than one reasonable interpretation after this inquiry, then the statute is
ambiguous and we may resort to additional canons of statutory construction or
legislative history. Campbell & Gwinn, 146 Wn.2d at 12.
1 The legislature amended RCW 51.08.178 in 2007. LAws OF 2007, ch. 297, § 1.
These amendments do not affect our analysis.
4
No. 30612-7-111
Villa v. Oep't of Labor & Indus.
We give effect to all statutory language, considering statutory provisions in
relation to each other and harmonizing them to ensure proper construction. King
County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 560,14
P.3d 133 (2000). We avoid construing a statute in a manner that results in "unlikely,
absurd, or strained consequences." Glaubach v. Regence BlueShield, 149 Wn.2d 827,
833, 74 P.3d 115 (2003). We give substantial weight to an agency's interpretation of
the law within its expertise, such as regulations the agency administers. Silverstreak,
Inc. v. Oep't of Labor & Indus., 159 Wn.2d 868, 885, 154 P.3d 891 (2007).
RCW 51.08.178(1)'s unambiguous language states a worker's "wage" is decided
at the time of injury but the hours used to compute compensation is based on "the
number of hours the worker is normally employed." (Emphasis added.) The statute
clearly grants to the Department the discretion to determine, "in a fair and reasonable
manner," the normal hours worked per day.
Here, Mr. Villa was a full time employee, initially hired to work eight hours per day
for five days each week. For the first four weeks of employment, Mr. Villa worked a 40
hour work week. For the last week of employment, he worked 50 hours, 10 of which
were overtime hours. Substantial evidence in the record shows it was a reasonable and
fair determination by the Department that Mr. Villa was normally employed for eight
hours per day. The superior court and the Board correctly found likewise and did not
err.
5
No. 30612-7-111
Villa v. Oep't of Labor & Indus.
Mr. Villa requests attorney fees based on RCW 51.52.130. This statute partly
provides for attorney fees for a prevailing appellant, but Mr. Villa does not prevail here.
Accordingly, he is not entitled to a fee award.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
Korsmo, C.J. Sid~,;r·
6