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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

RICHARD ANDERSON, deceased,                                      No.  41646-8-II

                             Appellant,

       v.

WEYERHAEUSER CO. and DEPARTMENT                            UNPUBLISHED OPINION
OF LABOR AND INDUSTRIES              OF THE 
STATE OF WASHINGTON,

                             Respondents,

       Laurie Anderson, on behalf of Richard Anderson's  dependent children/beneficiaries 

(collectively, Beneficiaries), appeals the superior court's and Board of Industrial Insurance 

Appeals's  (Board) orders affirming a Washington Department of Labor and Industries'

(Department) order.  The contested order suspended further action on the Beneficiaries' claim for 

time loss benefits owed to Anderson before he died.  The Beneficiaries argue that the Board 

improperly considered whether the Beneficiaries had made a timely application for compensation 

when that question had not been considered below.   The Department argues that the appeal is 

moot and must be dismissed due to the Beneficiaries' failure to timely apply.  Because the 

Beneficiaries were not required by the statute to file a separate claim for time loss benefits and 

were entitled to continue to pursue Anderson's ongoing claim, we reverse and remand to the 

Board for further proceedings.  

                                            FACTS

I.     Anderson's Injury, Claim for Benefits, and Appeal

       Richard Anderson was working for Weyerhaeuser in 1993 when a falling tree injured him.   

41646-8-II

Anderson v. Weyerhaeuser Co., 116 Wn. App. 149, 152, 64 P.3d 669 (2003), review granted, 

150 Wn.2d 1035 (2004), review dismissed as moot (May 20, 2004) ("Anderson I").  Two years 

later, he was unable to return to his job and Weyerhaeuser referred him to vocational services.1, 2  

Anderson I, 116 Wn. App. at 152.  In June 1995, the Department found Anderson eligible for 

vocational services.  Anderson I, 116 Wn. App. at 152.  But in September 1995, the Department 

found him ineligible for the vocational services program, contending that he failed to participate in 

plan development, did not keep scheduled appointments, and did not develop a suitable alternative 

plan with his own vocational counselor.3, 4  Anderson I, 116 Wn. App. at 152.  

1 RCW 51.32.095(1) provides for vocational rehabilitation services in some circumstances.

2 It is well-settled law in Washington that the rights of claimants under the Industrial Insurance 
Act (IIA) are determined and controlled by the law in effect at the time of the injury.  Cena v. 
Dep't of Labor & Indus., 121 Wn. App. 915, 917, 921, 91 P.3d 903 (2004); Ashenbrenner v. 
Dep't of Labor & Indus., 62 Wn.2d 22, 25, 380 P.2d 730 (1963).  Several of the statutes at issue 
in this case have been amended several times throughout the time these proceedings have been 
pending.  Because the subsequent amendments do not materially affect our analysis, we will cite 
to the current statutes throughout this opinion unless we indicate otherwise.

3 The Department originally determined that Anderson was entitled to both time loss benefits and 
vocational rehabilitation services.  During the first appeal, the Department formally suspended 
only vocational benefits.  But, at some point, Weyerhaeuser stopped paying time loss benefits.  It
is not clear from the record when Weyerhaeuser stopped payments.  The Board declined to 
address the appropriateness of that suspension of time loss benefits because it did not have 
jurisdiction to address the question without a written order by the Department suspending 
payment of those benefits. 

4 The Department or a self-insured employer may, with notice, deny any compensation for any 
period where the worker refuses or obstructs certain rehabilitation activities.  RCW 51.32.110(2).  
Therefore, termination, with proper notice, from vocational rehabilitation for noncooperation can 
also result in termination of time loss benefits.
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       Anderson unsuccessfully appealed the decision through various department levels to the 

Board and finally to the superior court, which ruled that the Department properly terminated 

Anderson under RCW 51.32.095.  Anderson I, 116 Wn. App. at 152.  Anderson appealed to this 

court.  Anderson I, 116 Wn. App. at 151.    

       On appeal, Anderson argued that because the Department had already made a decision 

that he was eligible for vocational benefits, it could not terminate him under the discretionary 

eligibility statute, RCW 51.32.095; rather, according to Anderson, the Department could 

terminate him only under the non-cooperation statute, RCW 51.32.110, with its added procedural 

rights.  Anderson I, 116 Wn. App. at 152.  On March 11, 2003, we reversed the Board, holding 

that the Department, after finding Anderson eligible for vocational benefits, was required to 

follow RCW 51.32.110's procedural requirements prior to terminating benefits.  Anderson I, 116 

Wn. App. at 152, 157-58.

       The Department and Weyerhaeuser each filed a petition for review, which the Supreme 

Court granted.  Anderson v. Weyerhaeuser, Co., 150 Wn.2d 1035, 84 P.3d 1229 (2004).

       On March 10, 2004, Anderson died due to a medical condition unrelated to his industrial 

injury.  Anderson's former wife, Laurie Anderson, was appointed the administrator of Anderson's

estate.  

       The Supreme Court held oral argument on the merits of the case.  On May 20, 2004, the 

Supreme Court dismissed the case as moot and affirmed our March 11, 2003 decision.  On July 

13, 2004, the Supreme Court issued a supplemental decision finding the appeal to be moot and 

denying Weyerhaeuser's and the Department's motion for reconsideration and reaffirmed our 

decision.  

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       On June 9, 2005, consistent with our order remanding the case for further proceedings, 

the superior court ordered that the matter "be remanded back to the [Department] to take action 

consistent with the Court of Appeals decision."  Administrative Record (AR) at 34.

II.    Beneficiaries' Request for Payment of Benefits and Appeal

       On July 8, 2005, Laurie Anderson, on behalf of Anderson's dependent children, sent a 

letter to the Department requesting that the Department issue an order instructing Weyerhaeuser 

to pay time loss benefits5 from October 27, 1993 to March 9, 2004 to his dependent children.  

       The Department issued an order that suspended further action on the claim because 

Anderson had refused or hindered an evaluation or examination for the purposes of vocational 

rehabilitation.6 The Beneficiaries protested.  The Department affirmed the order.  The 

Beneficiaries appealed to the Board.  An industrial appeals judge issued a proposed decision and 

order reversing the Department's 2005 order, concluding that the Department had failed to give 

Anderson notice as RCW 51.32.110 requires         before suspending his benefits.  The judge 

concluded that the Department could not, in any event, suspend a worker's benefits under that 

5 Washington's IIA grants time loss compensation to a worker who is temporarily disabled due to 
an industrial injury.  RCW 51.32.090(1), (3); Cockle v. Dep't of Labor & Indus., 96 Wn. App. 69, 
72, 977 P.2d 668 (1999).  The ultimate goal of time loss compensation is to provide temporary 
financial support until the injured worker is able to return to work.  Cockle, 96 Wn. App. at 75.  
Indeed, it is for that reason that time loss compensation terminates when the injured worker's 
disability ceases or becomes permanent.  RCW 51.32.090(1), (3); Cockle, 96 Wn. App. at 75; see 
also Lightle v. Dep't of Labor & Indus., 68 Wn.2d 507, 510, 413 P.2d 814 (1966) ("Time loss 
compensation resulting from a compensable injury is that temporary compensation which a 
workman is entitled to receive from the fund while totally incapacitated to perform work for his 
employer, and before his disability condition has been fixed or determined.").

6 The Department's order stated, "Labor and Industries is suspending further action and 
compensation on this claim effective 08/26/95 because the worker:  Refused or hindered an 
evaluation or examination for the purpose of vocational rehabilitation." AR Ex. J.

                                               4 

41646-8-II

statute retroactively.  The proposed decision and order remanded the claim to the Department 

with directions that it give notice to Anderson that his benefits might be suspended and that it give 

him 30 days to respond to that notice.  

       Weyerhaeuser petitioned for review.  Weyerhaeuser argued that issuing a letter as the 

industrial appeals judge ordered would be a useless act and that because the Department could 

not send a letter asking Anderson for his reasons for noncooperation, the Department's 2005 

order should be affirmed.  

       The Board granted review.  At that time, the Board raised for the first time whether the 

Beneficiaries had properly filed application for benefits under RCW 51.32.040(2).7, 8 The Board 

vacated the industrial appeal judge's proposed order and remanded with instructions for the 

industrial appeal judge to take further evidence as to the date of Anderson's death, whether 

Laurie Anderson was a statutory beneficiary, and whether the Beneficiaries had filed an 

7 RCW 51.32.040(2)(a) states:

              If any worker suffers (i) a permanent partial injury and dies from some 
       other cause than the accident which produced the injury before he or she receives 
       payment of the award for the permanent partial injury or (ii) any other injury 
       before he or she receives payment of any monthly installment covering any period 
       of time before his or her death, the amount of the permanent partial disability 
       award or the monthly payment, or both, shall be paid to the surviving spouse or 
       the child or children if there is no surviving spouse. If there is no surviving spouse 
       and no child or children, the award or the amount of the monthly payment shall be 
       paid by the department or self-insurer and distributed consistent with the terms of 
       the decedent's will or, if the decedent dies intestate, consistent with the terms of 
       RCW 11.04.015.

8 Our Supreme Court held that another portion of this statute, not at issue here, is 
unconstitutional.  See Willoughby v. Dep't of Labor & Indus., 147 Wn.2d 725, 742, 57 P.3d 611 
(2002) ("We therefore hold RCW 51.32.040(3)(a), as applied to prisoners by [RCW] 72.60.102, 
violates equal protection.").
                                               5 

41646-8-II

application for benefits in accordance with RCW 51.32.040(2)(c).  

       On remand, the parties submitted additional briefing to the industrial appeals judge.  The 

parties stipulated that the Beneficiaries first requested payment of benefits on July 8, 2005, more 

than a year after Anderson had died.  An industrial appeals judge issued a proposed order 

dismissing the Beneficiaries' appeal.  The industrial appeals judge concluded the following:

              1.      The Board of Industrial Insurance Appeals does not have 
       jurisdiction over the parties to and subject matter of this appeal.
              2.      The special administrator for Mr. Anderson did not file a timely 
       application for benefits within one year of his death as required by RCW 
       51.32.040. 
              3.      The appeal must be dismissed because there was no timely 
       application for benefits filed by the special administrator for the estate of Mr. 
       Anderson.  

AR at 26.  

       The Beneficiaries petitioned for review.  The Beneficiaries did not contend in their petition 

for review that the Board had exceeded the scope of its review, or that it had exceeded its subject 

matter jurisdiction, by considering whether RCW 51.32.040 applied to their case.  The Board 

denied the petition.  The Beneficiaries appealed to the superior court.  After a bench trial, the 

superior court affirmed the Board.  The Beneficiaries appeal.  

                                          ANALYSIS

I.     Standard of Review

       Washington's IIA, chapter 51.52 RCW, provides that the superior court review 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 proof is on the party challenging the decision.  

RCW 51.52.115; Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).  Our 

                                               6 

41646-8-II

review is governed by RCW 51.52.140, which provides that 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 only "'whether substantial evidence supports the trial court's factual 

findings and then review, de novo, whether the trial court's conclusions of law flow from the 

findings.'"  Rogers v. Dep't of Labor & Indus., 151 Wn. App. 174, 180, 210 P.3d 355 (2009) 

(quoting Watson v. Dep't of Labor & Indus., 133 Wn. App. 903, 909, 138 P.3d 177 (2006); see 

also Ruse, 138 Wn.2d at 5.  

II.    Timeliness

       The Department argues that the appeal is moot because the Beneficiaries did not timely 

file an application for compensation within one year after Anderson's death as RCW 51.32.040(2) 

requires and therefore a court can no longer provide effective relief.9 Weyerhaeuser also contends 

that the Beneficiaries failed to make a timely application of benefits.  The Beneficiaries argue that 

they were not required to file a formal application for benefits where the benefits being requested 

were already due and owing to the injured worker at the time of his death, relying on Ramsay v. 

Department of Labor and Industries, 36 Wn.2d 410, 218 P.2d 765, adhered to on reh'g, 222 

P.2d 855 (1950).  We agree with the Beneficiaries.10

       RCW 51.32.040(2)(c) states:

9 A case is moot if a court can no longer provide effective relief. Orwick v. City of Seattle, 103 
Wn.2d 249, 253, 692 P.2d 793 (1984). 

10 The Beneficiaries also argue that although they did not file their application for compensation 
within a year of the worker's death under RCW 51.32.040, they filed within one year of when 
their rights "accrued" under RCW 51.28.050, and therefore their application was timely and the 
appeal is not moot.  Because we hold that the Beneficiaries were not required to file an 
application for compensation under RCW 51.32.040(2)(c), we need not determine when their 
rights accrued.
                                               7 

41646-8-II

              Any application for compensation under this subsection (2) shall be filed 
       with the department or self-insuring employer within one year of the date of death.  
       The department or self-insurer may satisfy its responsibilities under this subsection 
       (2) by sending any payment due in the name of the decedent and to the last known 
       address of the decedent.

The Ramsay court interpreted Rem. Rev. Stat. § 7686(d),11 the predecessor to RCW 51.28.050.  

36 Wn.2d at 412.  In those two consolidated cases, the injured workers died after the Department 

had made a final determination that they were each entitled to compensation due to a total and 

permanent disability and awarded a lump sum settlement.  Ramsay, 36 Wn.2d at 411.  Each 

widow requested payment of the award more than a year after her husband died.  Ramsay, 36 

Wn.2d at 411.  The Department denied the widows' requests, contending that Rem. Rev. Stat. § 

7686(d) required that the applications be made within a year of the worker's death.  Ramsay, 36 

Wn.2d at 411.  Our Supreme Court disagreed, concluding that 

11 Rem. Rev. Stat. § 7686 stated in part: 

              (a) Where a workman is entitled to compensation under this act he shall file 
       with the department, his application for such, together with the certificate of the 
       physician who attended him, and it shall be the duty of the physician to inform the 
       injured workman of his rights under this act and to lend all necessary assistance in 
       making this application for compensation and such proof of other matters as 
       required by the rules of the department without charge to the workman.
              (b) Where death results from injury the parties entitled to compensation 
       under this act, or someone in their behalf, shall make application for the same to 
       the department, which application must be accompanied with proof of death and 
       proof of relationship showing the parties to be entitled to compensation under this 
       act, certificates of attending physician, if any, and such proof as required by the 
       rules of the department.  
              (c) If change of circumstances warrants an increase or rearrangement of 
       compensation, like application shall be made therefor.  No increase or 
       rearrangement shall be operative for any period prior to application therefor.  
              (d) No application shall be valid or claim thereunder enforceable unless 
       filed within one year after the day upon which the injury occurred or the rights of 
       dependents or beneficiaries accrued.  
                                               8 

41646-8-II

the one year limitation in Rem. Rev. Stat. § 7686(d) did not apply to a widow's request for 

compensation which was owed to her husband and unpaid at the time of his death and that no 

other statutory limit applied limiting when widows must seek the award.  Ramsay, 36 Wn.2d at 

414.  The court reasoned: 

              The workmen in question had already filed claims for compensation in full 
       compliance with Rem. Rev. Stat. § 7686.  Those claims had been approved by the 
       department.  The widows of these workmen are now asking that the portion of 
       their respective husbands' compensation which accrued but was unpaid during the 
       husbands' lifetimes, be now paid to the widows.  This is not the assertion of a new 
       or original claim, as contemplated by subdivision (b) of Rem. Rev. Stat. § 7686.  
       Neither appellant is seeking pension or any other allowance in her own right.  Nor 
       is it an attempt to obtain increased compensation or to open a closed claim, 
       pursuant to subdivision (c) of Rem. Rev. Stat. § 7686.  Whatever unpaid 
       compensation there may have been due to the husbands at the time of their deaths 
       was not compensation provided by law for their beneficiaries.  The widows 
       became entitled to their husbands' compensation, and it passes to them, if at all,   
       by virtue of a statutory assignment expressed in the provisos of Rem. Rev. Stat. § 
       7684.

Ramsay, 36 Wn.2d at 414 (emphasis in original).  The court also stated:

              Nothing in Rem. Rev. Stat. §§ 7684, 7686, or elsewhere in the act, 
       suggests that a widow must file an "application" for any portion of her deceased 
       husband's accrued but unpaid compensation to which she may be entitled under 
       these statutory assignment provisos of Rem. Rev. Stat. § 7684.

Ramsay, 36 Wn.2d at 414.  

       The Department and Weyerhaeuser contend that RCW 51.32.040 now contains a time 

filing requirement and therefore Ramsay is inapplicable.  The time limitation for filing an 

application for compensation now contained in RCW 51.32.040(2)(c) was not added to the 

statute until 1971.  See Laws of 1971, 1st Ex. Sess., ch. 289, §43 (amending RCW 51.32.040 to 

add, "[A]ny application under the foregoing provisos of this section shall be filed with the 

department or self-insuring employer within one year of the date of death.").  But that subsection 

                                               9 

41646-8-II

relates only to filing applications for compensation.  Filing an application only means filing a 

written document with the Department or self-insured employer that reasonably directs attention 

to the fact that an injury, with its particulars, has been sustained and that compensation is claimed.  

Nelson v. Dep't of Labor & Indus., 9 Wn.2d 621, 629, 115 P.2d 1014 (1941) (interpreting 

Remington Revised Statutes, section 7686, the statutory predecessor to RCW 51.28.050).  

       Like in Ramsay, Anderson already filed such an application.  The Department ordered 

payment of time loss benefits.  Although Weyerhaeuser apparently ceased paying those benefits at 

some point, the record does not reflect a formal Department order suspending time loss 

compensation until August 12, 2005, after Anderson's death.  That order was purportedly 

retroactive, suspending benefits from August 26, 1995.  Like in Ramsay, any available benefits 

were all due and owing to Anderson prior to his death.  Like in Ramsay, the Beneficiaries were 

not required to start a new, independent claim, but rather assumed Anderson's right to those 

payments.  See Lightle,  68 Wn.2d at  513 ("We hold that the legislature, in enacting the 

questioned proviso, intended that the widow's right to the deceased workman's time loss 

compensation does survive, and that the court did not err in directing that respondent be 

substituted for the purpose of litigating the time loss claim to its final conclusion.").  Therefore, 

no filing of a new application of compensation was required.  

       We hold that the statute of limitations in RCW 51.32.040(2)(c) applies only where the 

injured, deceased worker had not previously filed an application for compensation.  Where such 

application has been filed, the Beneficiaries need not file a new application for compensation.  

       The Department argues that Ramsay is distinguishable because the injured workers in that 

case had obtained a final award of benefits before they died.  This is not persuasive.  First, as set 

                                               10 

41646-8-II

forth above, Anderson had filed an application and there was no requirement for the beneficiaries 

to do so again.  Also, a final determination of benefits is not required for a statutory beneficiary to 

obtain compensation owed the worker prior to death.  See Powell v. Dep't of Labor & Indus., 79 

Wn.2d 378, 386-87, 485 P.2d 990 (1971) ("We hold that under the provisions of RCW 

51.32.040, a widow of a workman who has suffered an industrial injury and has died from some 

other cause, is entitled to receive the compensation to which her husband was entitled but which 

he did not receive, whether or not a decision in his favor was rendered by the department prior to 

his death.").  

       The Department may be able to defend its retroactive denial of time loss benefits on 

remand, so the Beneficiaries may not ultimately obtain benefits.  But we review here only whether 

the Beneficiaries failed to assert a timely claim.  Because Anderson asserted a timely claim and no 

additional application for compensation is required, the Board erred as a matter of law and we 

remand to the Department for further proceedings.12

III.   Attorney Fees

       The Beneficiaries seek attorney fees under RAP 18.1, RCW 51.52.130, and Brand v. 

Department of Labor and Industries, 139 Wn.2d 659, 989 P.2d 1111 (1999).  The Department 

and Weyerhaeuser contend that the Beneficiaries are not entitled to fees because the statute 

requires that the appeal result in the worker obtaining additional benefits or treatment.  The 

Department and Weyerhaeuser claim that the Beneficiaries would still need to demonstrate, on 

remand, that Anderson was temporarily and totally disabled as a proximate result of his industrial 

12 The parties dispute whether the Board had the authority to consider the timeliness of the 
application where it had not been previously considered by the Board.  Because we reverse the 
Board's order on the timeliness issue, we need not consider the Beneficiaries' argument.
                                               11 

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injury during the relevant time period.  

                                               12 

41646-8-II

       The relevant portion of RCW 51.52.130(1) provides:

              If, on appeal to the superior or appellate court from the decision and order 
       of the board, said decision and order is reversed or modified and additional relief is 
       granted to a worker or beneficiary . . . a reasonable fee for the services of the 
       worker's or beneficiary's attorney shall be fixed by the court.

Here, although we reverse, our holding does not necessarily result in additional relief.  Our 

narrow holding only permits the Beneficiaries to proceed with their claim.  It is for the Board to 

determine whether that claim has any value.  At this point, the Beneficiaries are not yet entitled to 

fees under RCW 51.52.130.  

       We reverse and remand to the Board for further proceedings.

       A majority of the  panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                           Penoyar, C.J.

We concur:

       Hunt, J.

       Johanson, J.

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