The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHARLES 0. CRESS, deceased, and ) No. 78725-0-1
CHRISTINA ATHEY, disabled child, )
) DIVISION ONE
Appellants, )
) UNPUBLISHED OPINION
v. )
)
DEPARTMENT OF LABOR & )
INDUSTRIES OF THE STATE OF )
WASHINGTON, )
)
Respondent. )
) FILED: December 9, 2019
HAZELRIGG-HERNANDEZ, J. — Christina Athey seeks reversal of a superior
court order upholding a decision of the Board of Industrial Insurance Appeals
(BHA). The BHA determined that under RCW 51.32.050(6), Athey was a
dependent child entitled to five percent of deceased worker Charles Cress' monthly
wages after the death of his spouse. Athey contends that the statute entitles her
to 35 percent of Cress' monthly wages. Because the applicable portion of the
statute is ambiguous and ambiguities are resolved in favor of the claimant, we
reverse.
FACTS
Charles Cress sustained an industrial injury in 1981. The following year,
the Department of Labor and Industries determined that he was permanently and
No. 78725-0-1/2
totally disabled, and he began receiving pension benefits. Charles1 received these
benefits until his death in 1996, at which point his wife, Elva, applied for and was
granted survivor's benefits. Elva died in 2014. After Elva's death, Christina Athey
applied for survivor's benefits as a dependent child of the Cresses. Athey meets
the applicable statutory definition of a "child." The Department determined that
she was entitled to five percent of Charles' monthly wages under RCW
51.32.050(2) and (6).
Athey appealed to the Board of Industrial Insurance Appeals (BHA),
claiming she was owed 35 percent of Charles' wages under the statute. The
parties stipulated to the foregoing facts, and the sole issue presented to the BHA
was:"What is the correct amount of survivor's benefits to which Christina Athey is
entitled under RCW 51.32.050?" The BHA agreed with the Department's decision
that Athey was entitled to five percent of Charles' wages under the statute.
Athey appealed the BIIA's ruling to the superior court. The parties filed
cross-motions for summary judgment. The court granted summary judgment in
favor of the Department, finding the statute unambiguous and upholding the
Department's decision. The court explained its rationale in its oral ruling:
"[T]he Court is bound to follow... the directive in the language
of the statute. And I don't think the language is ambiguous. I think
the language is clear, and there doesn't seem to be any precedence
for the plaintiff's reading of the statute in this case.
The language requires that when the surviving spouse of a
deceased worker dies, then the benefits are as if the surviving
spouse 'remarried. 'As if' is the way that I think the statute is to be
read. And that requires a reading of 5%. It's drastic, it's hard, but it's
what the Legislature provided in the language of the statute."
The Cresses' first names are used for clarity. We intend no disrespect.
- 2-
No. 78725-0-1/3
Athey moved for reconsideration of the judgment, which was denied. She timely
appealed.
ANALYSIS
I. Benefits
Athey argues that the superior court erred when it upheld the BIIA's
determination that she was entitled to only five percent of Charles' monthly wages
under RCW 51.32.050. She contends that she should receive 35 percent of
Charles' wages.
Workers injured in the course of employment and surviving spouses or
children of workers killed in the course of employment are entitled to compensation
as set forth in the Industrial Insurance Act2 (IIA). RCW 51.32.010. The IIA "shall
be liberally construed for the purpose of reducing to a minimum the suffering and
economic loss arising from injuries and/or death occurring in the course of
employment." RCW 51.12.010. The Washington Supreme Court has construed
this directive to mean that courts should "resolve doubts as to the meaning of the
IIA in favor of the injured worker." Mclndoe v. Dep't of Labor & Indus., 144 Wn.2d
252, 257, 26 P.3d 903(2001).
A person aggrieved by an action or decision of the Department in
administering the IIA may appeal to the BHA. RCW 51.52.050(2)(a). Decisions of
the BHA may be appealed to the superior court. RCW 51.52.110. The court
undertakes a de novo review of the record that was before the BHA. RCW
51.52.115. On appeal of the superior court's ruling, we apply the ordinary civil
2 Chapter 51, RCW
3
No. 78725-0-1/4
standard of review. RCW 51.52.140; Malang v. Dep't of Labor & Indus., 139 Wn.
App. 677, 683, 162 P.3d 450 (2007). "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." Bennerstrom v. Dep't of Labor & Indus.,
120 Wn. App. 853, 858, 86 P.3d 826 (2004).
Appellate courts review summary judgment motions de novo, engaging in
the same inquiry as the trial court. Afoa v. Port of Seattle, 176 Wn.2d 460, 466,
296 P.3d 800 (2013). The trial court properly grants summary judgment when
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c).
The interpretation of a statute is a question of law that we also review de
novo. Kustura v. Dep't of Labor & Indus., 169 Wn.2d 81, 87, 233 P.3d 853(2010).
When interpreting a statute, our objective is to ascertain and carry out the
legislature's intent in enacting the statute. Dep't of Ecology v. Campbell & Gwinn,
L.L.C., 146 Wn.2d 1, 9,43 P.3d 4(2002). If the meaning of the statute is "plain on
its face, then the court must give effect to that plain meaning as an expression of
legislative intent." Id. at 9-10. We are required to give effect to every word in a
statute whenever possible. Dennis v. Dep't of Labor & Indus., 109 Wn.2d 467,479,
745 P.2d 1295(1987). "No word is deemed inoperative or superfluous unless it is
the result of an obvious mistake or error." Id.
To determine the plain meaning of a statute, we consider its text, the context
of the statute, related provisions, amendments to the provision, and the scheme
as a whole. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421,432,
4
No. 78725-0-1/5
395 P.3d 1031 (2017). If the statute remains susceptible to more than one
reasonable interpretation after we complete this inquiry, it is ambiguous, and we
may turn to principles of statutory construction, legislative history, and relevant
case law to determine the legislature's intent. Cockle v. Dep't of Labor and Indus.,
142 Wn.2d 801, 808, 16 P.3d 583(2001).
The IIA contains a specific statute detailing the method of calculating
benefits to be paid to a worker's family after their death. RCW 51.32.050. The
subsections of this statute break down the payments to apply in various factual
scenarios. Subsection (2) provides the calculations for benefits when the injured
worker dies because of the injury and leaves a surviving spouse with or without
children. RCW 51.32.050(2). Generally speaking, a surviving spouse is entitled to
receive benefits "for life or until remarriage." RCW 51.32.050(2)(a). If the surviving
spouse remarries, the benefits to the surviving spouse terminate, but a deceased
worker's surviving child begins receiving five percent of the worker's wages. RCW
51.32.050(2)(c). The IIA allows a worker's child who would otherwise have aged
out to remain qualified as a "child"for purposes of the IIA if"the child is a dependent
as a result of a physical, mental, or sensory handicap." RCW 51.08.030.
Subsection (3) applies when the deceased worker leaves a surviving child
but no surviving spouse. RCW 51.32.050(3). In that case, the child is entitled to
receive benefits in the amount of 35 percent of the worker's wages. Id. Subsection
(4) in its entirety reads as follows: "In the event a surviving spouse receiving
monthly payments dies, the child or children of the deceased worker shall receive
5
No. 78725-0-1/6
the same payment as provided in subsection (3) of this section." RCW
51.32.050(4).
The statute also contains a specific subsection that details slightly different
death benefits for older claims:
For claims filed prior to July 1, 1986, if the injured worker dies during
the period of permanent total disability, whatever the cause of death,
leaving a surviving spouse, or child, or children, the surviving spouse
or child or children shall receive benefits as if death resulted from the
injury as provided in subsections(2)through (4) of this section. Upon
remarriage or death of such surviving spouse, the payments to such
child or children shall be made as provided in subsection (2) of this
section when the surviving spouse of a deceased worker remarries.
RCW 51.32.050(6).
The parties present two very different interpretations of this subsection.
Athey contends that the second sentence applies only when the surviving spouse
of a deceased worker remarries and that, as the child of a surviving spouse who
never remarried, her benefits should be calculated using the first sentence of the
subsection. Under her interpretation, the "when" clause sets out a necessary
condition for the second sentence to apply. She argues that the "remarriage or
death" referenced in the second sentence concerns the death of the remarried
spouse. Athey believes this language is intended to clarify that the child of a
remarried spouse would remain entitled only to five percent of the deceased
worker's wages when the remarried spouse died, rather than an increased
payment of 35 percent.
The Department argues that the "when" clause does not restrict the time
that the second sentence applies, but specifies which provision of subsection (2)
should be used to calculate the child's benefits when the surviving spouse
6
No. 78725-0-1/7
remarries or dies. Because subsection (2)contains multiple methods of calculating
benefits covering many different factual scenarios, the directive to a specific fact
pattern under subsection (2) clarifies the appropriate provision.
The word "when" can mean "at what time" or "in what circumstances."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2602 (3d ed. 2002). Applying
these two different meanings to the statute yields two very different interpretations
of subsection (6), which basically mirror the two interpretations presented by the
parties. Athey contends the fact that the phrase beginning with the word "when"
is not set off by a comma indicates that it is a restrictive clause restricting the time
of the main verb,"be made." Under her interpretation, we could reword the second
sentence to read more clearly as follows: "at the time the surviving spouse of a
deceased worker remarries, upon remarriage or death of such surviving spouse,
the payments to such child or children shall be made as provided in subsection (2)
of this section."
Although she is correct that the "when" clause is restrictive because it is
necessary to the meaning of the sentence, the word "when" could be read to
restrict the word "provided." This reading, which aligns with the Department's
interpretation of the statute, is easier to understand when we reword the provision
with active verbs: "upon remarriage or death of such surviving spouse, the
Department shall make payments to the child or children as subsection (2) of this
section provides in the circumstance that the surviving spouse of a deceased
worker remarries."
7
No. 78725-0-1/8
Reading subsection (6) as a whole under the Department's interpretation,
however, reveals a potential ambiguity. The first sentence of the subsection
provides that the surviving spouse or child or children in this situation shall receive
benefits "as provided in subsections (2) through (4)." RCW 51.32.050(6).
Subsection (2) applies when there is a surviving spouse, and subsection (3)
applies when there is a child or children but no surviving spouse. Subsection (4),
however, applies only when a surviving spouse receiving monthly benefits dies
and leaves a surviving child. Because the second sentence of subsection (6)
explicitly applies to this same scenario, the reference to subsection (4) in the first
sentence appears to be superfluous.
Athey argues that the reference to subsection (4) demonstrates that
subsection (6) contemplates payment of 35 percent of a worker's wages to a
dependent child after a surviving spouse dies without remarrying. The Department
argues that the first sentence applies when the worker dies (as opposed to the
second sentence, which applies when the surviving spouse dies) and establishes
the benefit for the initial beneficiary. Although this is mostly accurate, it does not
explain the reference to subsection (4), which applies when the surviving spouse—
who would have been the initial beneficiary—dies.
Neither explanation provided by the parties is without its flaws. Athey's
interpretation requires considerable rewording of the subsection, while the
Department's reading renders a portion of the provision superfluous.
The amendment history of subsection (6) does not provide much clarity. In
the version of the statute approved in 1965, subsection (6) provided separate
8
No. 78725-0-1/9
benefit schemes for the child of a deceased worker depending on whether a
surviving spouse died or remarried. Laws of 1965, Ex. Sess., ch. 122,§ 1. When
the surviving spouse remarried, the child's benefits were to "continue as before"—
meaning, continue as set out in subsection (2). Id. If, however, after the worker's
death the child "is or shall be without father or mother—that is, there was no
surviving spouse or the surviving spouse subsequently died—then the child would
receive the same benefit as under subsection (3) or (4). Id.
In the 1971 amendment, the subsection was amended to state that the
surviving spouse would receive "benefits as if death resulted from the injury as
provided in subsections (2) through (5) of this section." Laws of 1971, 1st Ex.
Sess., ch. 289, § 7. The statute did not specifically state the benefit that a child
would receive after the death of a surviving spouse. Id. The remarriage provision
in subsection (6) was not amended, so a child of a remarried spouse would
continue to receive benefits under subsection (2). Id.
In 1975, the legislature added the phrase "or death" to the second sentence
of subsection (6), which had previously only applied "[u]pon remarriage." Laws of
1975, 1st Ex. Sess., ch. 179, § 1. The legislature also removed the language
stating that the child's benefits were to "continue as before" and substituted the
functional equivalent of the current language that the payments "be made as
provided in subsection (2) of this section when the surviving spouse of a deceased
[worker] remarries." Id.
Presumably, the legislature had noticed that the subsection did not specify
the benefit that a child would receive after the death of an unmarried surviving
9-
No. 78725-0-1/10
spouse and intended to fill that gap. However, it is not clear from these
amendments whether the legislature intended to create one unified benefit scheme
that would apply when a surviving spouse remarried or died without remarrying or
if it intended to clarify the distinction between these two eventualities.
Because the provision could reasonably be read two different ways and the
legislative intent is unclear, RCW 51.32.050(6) is ambiguous. The 11A and the
Washington Supreme Court direct us to construe the provision liberally in favor of
the claimant to achieve the 11A's purpose of providing compensation when workers
are injured in the course of employment. RCW 51.12.010; Murray v. Dep't of Labor
& Indus., 192 Wn.2d 488, 501,430 P.3d 645(2018). Accordingly, we construe the
statute in Athey's favor. Under her reasonable interpretation of the statute, she is
entitled to 35 percent of Charles' wages.
II. Attorney Fees
Athey requests that she be awarded reasonable attorney fees as authorized
by RCW 51.52.130. Under RAP 18.1(a), we may grant a party reasonable attorney
fees on appeal if the applicable law allows for such an award. The IIA provides for
an award of reasonable attorney fees to a worker or beneficiary who prevails on
appeal and obtains relief. RCW 51.52.130. Because Athey has prevailed in this
appeal, she is entitled to an award of attorney fees in an amount to be determined
by a commissioner of this court in accordance with RAP 18.1.
-10-
No. 78725-0-1/1 1
Reversed.
WE CONCUR: