DEPARTMENT OF LABOR AND INDUS. v. Granger

123 P.3d 858 (2005) 130 Wash.App. 489 DEPARTMENT OF LABOR AND INDUSTRIES OF the State of WASHINGTON, Appellant, v. William A. GRANGER, Respondent. No. 55160-4-I. Court of Appeals of Washington, Division 1. October 31, 2005. Publication Ordered November 21, 2005. Timothy S. Hamill, Office of the Attorney General, Yakima, John R. Wasberg, Office of the Attorney General, Seattle, for Appellant. Terry James Barnett, Rumbaugh, Rideout, Barnett & Adkins, Tacoma, WA, for Respondent. BAKER, J. ¶ 1 For each hour that William Granger worked, his employer paid $2.15 into a union trust fund that provided health care benefits for qualifying employees. But under the collective *859 bargaining agreement which governed his employment, Granger did not have enough hours to qualify for health care benefits at the time of his injury. The Department of Labor and Industries allowed Granger's claim for time-loss compensation, but did not include the $2.15 per hour in the calculation of his "monthly wage." The Board of Industrial Insurance Appeals reversed the Department, ordering that the $2.15 per hour be included in the calculation. The superior court affirmed the Board, and the Department appeals. Because the $2.15 per hour for health care coverage was a benefit that Granger was receiving at the time of his injury, which is critical to his health and survival, we affirm. I. ¶ 2 Granger filed an application for benefits with the Department of Labor and Industries after he sustained an industrial injury on April 20, 1995 while working for G.G. Richardson, Inc. The Department issued an order allowing the claim and awarding time-loss benefit compensation. In July 2004, the Department issued an order affirming an earlier order that set Granger's monthly wages at $2,847.68 for purposes of calculating his time-loss compensation. The Department did not calculate health care benefits into Granger's monthly wages. ¶ 3 At the time of injury, Granger was a member of Union Local 292 of Washington and Northern Idaho District Counsel of Laborers. According to the Northwest Laborers-Employer's Health and Security Trust Fund, eligibility for medical benefits was determined on the basis of an hour bank system. For every hour that Granger worked, G.G. Richardson paid $2.15 per hour into the union trust fund for health care coverage. After working a minimum of 200 hours, Granger became eligible for medical benefits. The employer deducted 120 hours from his bank each month for medical coverage, and Granger could claim medical benefits so long as his hour bank did not drop below 120 hours. ¶ 4 Although Granger had previously become eligible for medical benefits, he did not have enough hours in his "hour bank" on the date of his injury for him to qualify for health care coverage. Granger's eligibility would have been reinstated once his hour bank was rebuilt to 120 hours, so long as that occurred within 10 months. Otherwise, Granger would have forfeited his hours in the hour bank, and his medical coverage would have been reinstated only after he worked the minimum 200 hours for new employees. ¶ 5 Granger appealed the Department's order to the Board of Industrial Insurance Appeals, arguing that the value of the employer-paid contribution for health and welfare benefits of $2.15 per hour should be included in the formula used to calculate his wages at the time of injury, and the resulting time-loss benefits. The parties submitted the case for decision based on stipulated facts. While the Industrial Appeals Judge affirmed the Department's order, on appeal, the Board reversed the appeal judge's decision. The Board remanded the claim, ordering the Department to recalculate Granger's monthly wages and include the employer-paid contribution to Granger's union health care benefit. ¶ 6 The Department appealed the Board's decision and order. The superior court affirmed the Board's decision after a bench trial. The Department appeals the superior court's judgment. We heard oral argument on July 11, 2005, but stayed our decision pending Gallo v. Department of Labor and Industries.[1] II. ¶ 7 An appeal to this court from a superior court review of a Board decision "is governed by RCW 51.52.140, which provides that `the practice in civil cases shall apply to appeals prescribed in this chapter.'"[2] We must interpret RCW 51.08.178. Statutory construction *860 is a question of law, which we review de novo.[3] ¶ 8 This appeal turns on the meaning of "receiving ... at the time of injury" for purposes of RCW 51.08.178. The Department argues that the trial court erred because Granger was not eligible to claim health care benefits at the time of his injury, and therefore was not "receiving" the benefit of the employer's contributions. In response, Granger argues that the term "receiving" refers to whether his employer was paying consideration at the time of injury, not whether he was eligible to claim the benefit. ¶ 9 Compensation rates for time-loss and loss of earning power are determined "by reference to a worker's `wages,' as that term is defined in RCW 51.08.178, at the time of the injury."[4] Monthly wages include both cash wages and other consideration paid by the employer that is critical to protecting the worker's basic health and survival.[5] ¶ 10 In pertinent part, RCW 51.08.178 provides: (1) For the purposes of this title, the monthly wages the worker was receiving from all employment at the time of injury shall be the basis upon which compensation is computed unless otherwise provided specifically in the statute concerned. .... The term "wages" shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part of the contract of hire, but shall not include overtime pay except in cases under subsection (2) of this section.[[6]] In Cockle v. Department of Labor and Industries,[7] our Supreme Court considered whether the value of employer-provided health care coverage is "other consideration of like nature."[8] Concluding that this phrase is ambiguous, the court engaged in statutory construction.[9] Because the statute is remedial in nature, the court liberally construed the statute, and resolved doubts in favor of the worker.[10] It explained that "Title 51 RCW's overarching objective is `reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.'"[11] The court noted that wage calculation under the statute was changed by the 1971 Legislature to reflect a worker's actual "`lost earning capacity,'"[12] and that "the workers' compensation system should continue `serv[ing] the [Legislature's] goal of swift and certain relief for injured workers.'"[13] The court then construed the phrase "board, housing, fuel, or other consideration of like nature"[14] to mean "readily identifiable and reasonably calculable in-kind components of a worker's lost earning capacity at the time of injury that are critical to protecting workers' basic health and survival."[15] The court further explained that "[c]ore, nonfringe benefits such as food, shelter, fuel, and health care all share that `like nature.'"[16] ¶ 11 The circumstances we are presented with differ from those in Cockle because, unlike Granger, at the time of her injury, Cockle was eligible to claim health care benefits.[17]*861 But this distinction is immaterial to our determination that Granger was receiving health care benefits at the time of injury. ¶ 12 In Gallo v. Department of Labor and Industries,[18] our Supreme Court clarified that the "receiving ... at the time of injury" limitation under RCW 51.08.178 asks "whether the employer was providing consideration of like nature at the time of the injury."[19] In Gallo, the court decided whether consideration paid by employers for certain benefits, such as retirement plans, apprentice-programs, and life insurance, constituted "other consideration of like nature" under RCW 51.08.178(1). It analyzed each contribution under the test set forth in Cockle, explaining that not all contributions are critical to the basic health and survival of the worker, and concluded that the contributions in question did not constitute wages.[20] ¶ 13 The Department argued in Gallo, as it does here, that "receiving ... at the time of injury" means that the worker must be able to claim the benefit at the time of the injury. Our Supreme Court rejected this assertion, and clarified that a worker receives wages when the employer provides consideration.[21] ¶ 14 Because Granger's employer was paying $2.15 per hour for his health care coverage, Granger was receiving that benefit at the time of injury. And Cockle makes clear that health insurance payments are "readily identifiable and reasonably calculable in-kind components of a worker's lost earning capacity at the time of injury that are critical to protecting workers' basic health and survival," and therefore properly calculated into a worker's monthly wages under RCW 51.08.178.[22] ¶ 15 While rejecting the argument that retirement benefits are "other consideration of like nature" for purposes of wage calculation, the Gallo court explained that employer payments into retirement plans are not benefits critical to the basic health and survival of a worker at the time of injury because "they are not intended to be, nor are they generally immediately available to the worker at the time of injury."[23] Similarly, Granger's health benefits were not immediately available to him at the time of injury. But employer payments for health care coverage are distinguishable from retirement payments. Unlike retirement benefits, health care benefits are intended for the basic health and survival of the worker while employed. And, although Granger's health care coverage had temporarily lapsed, the employer was replenishing his bank with each hour he worked and Granger would have soon realized the benefit. ¶ 16 The Department argues that WAC 296-14-526 directly addresses the question presented by Granger's case. Under WAC 296-14-526, the value of other consideration of like nature is included in the worker's monthly wages only where the worker was actually eligible to receive the benefit.[24] Although an appellate court defers to an "`agency's interpretation when that will help the court achieve a proper understanding of the statute,'" such interpretations are not binding.[25] If the agency's interpretation conflicts with a statutory mandate, deference is inappropriate.[26] "`[B]oth history and uncontradicted authority make clear that it is emphatically the province and duty of the judicial branch to say what the law is'" *862 and to "`determine the purpose and meaning of statutes.'"[27] ¶ 17 Because Cockle and Gallo dictate that health care payments made by an employer at the time of a worker's injury must be included in the calculation of the worker's monthly wages for purposes of RCW 51.08.178, WAC 296-14-526 is not controlling. ¶ 18 Granger requests attorney fees under RCW 51.52.130, which provides: If, on appeal to the superior or appellate court from the decision and order of the board ... where a party other than the worker or beneficiary is the appealing party and the worker's or beneficiary's right to relief is sustained, a reasonable fee for the services of the worker's or beneficiary's attorney shall be fixed by the court.... If ... in an appeal by the department or employer the worker or beneficiary's right to relief is sustained, ... the attorney's fee fixed by the court, for services before the court only, ... shall be payable out of the administrative fund of the department.[28] Because the Department appealed and Granger's right to relief is sustained, we award reasonable attorney fees for services before this court only.[29] ¶ 19 AFFIRMED. WE CONCUR: APPELWICK and GROSSE, JJ. NOTES [1] No. 74849-7, 155 Wash.2d 470, 120 P.3d 564 2005 Wash. LEXIS 797 (September 29, 2005). [2] Kingery v. Dep't of Labor & Indus., 80 Wash. App. 704, 708, 910 P.2d 1325 (1996) (quoting RCW 51.52.140), aff'd, 132 Wash.2d 162, 937 P.2d 565 (1997). [3] Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 807, 16 P.3d 583 (2001). [4] Cockle, 142 Wash.2d at 806, 16 P.3d 583. [5] Cockle, 142 Wash.2d at 822, 16 P.3d 583. [6] RCW 51.08.178(1). [7] 142 Wash.2d 801, 16 P.3d 583 (2001). [8] Cockle, 142 Wash.2d at 805, 16 P.3d 583. [9] Cockle, 142 Wash.2d at 821-22, 16 P.3d 583 (citing Wichert v. Cardwell, 117 Wash.2d 148, 151, 812 P.2d 858 (1991)). [10] Cockle, 142 Wash.2d at 819-20, 16 P.3d 583. [11] Cockle, 142 Wash.2d at 822, 16 P.3d 583 (quoting RCW 51.12.010). [12] Cockle, 142 Wash.2d at 822, 16 P.3d 583 (quoting Double D Hop Ranch v. Sanchez, 133 Wash.2d 793, 798, 947 P.2d 727 (1997)). [13] Cockle, 142 Wash.2d at 822, 16 P.3d 583 (quoting Weyerhaeuser Co. v. Tri, 117 Wash.2d 128, 138, 814 P.2d 629 (1991)). [14] RCW 51.08.178(1). [15] Cockle, 142 Wash.2d at 822, 16 P.3d 583. [16] Cockle, 142 Wash.2d at 822-23, 16 P.3d 583. [17] Cockle, 142 Wash.2d at 805-06, 16 P.3d 583. [18] No. 74849-7, 155 Wash.2d 470, 120 P.3d 564, 2005 Wash. LEXIS 797 (2005). [19] Gallo, at 491, 120 P.3d at 574, 2005 Wash. LEXIS 797 at *34. [20] Gallo, at 474, 120 P.3d at 566, 2005 Wash. LEXIS 797 at *2. [21] Gallo, at 491-92, 120 P.3d at 575, 2005 Wash. LEXIS 797 at *34. [22] Cockle, 142 Wash.2d at 822, 16 P.3d 583. [23] Gallo, at 491-92, 120 P.3d at 574, 2005 Wash. LEXIS 797 at *34. [24] WAC 296-14-526(1)(b)(ii). [25] Cockle, 142 Wash.2d at 812, 16 P.3d 583 (quoting Clark County Natural Res. Council v. Clark County Citizens United, Inc., 94 Wash.App. 670, 677, 972 P.2d 941 (1999)). [26] Cockle, 142 Wash.2d at 812, 16 P.3d 583 (citing Dep't of Labor & Indus. v. Landon, 117 Wash.2d 122, 127, 814 P.2d 626 (1991)). [27] Cockle, 142 Wash.2d at 812, 16 P.3d 583 (quoting Overton v. Econ. Assistance Auth., 96 Wash.2d 552, 555, 637 P.2d 652 (1981)). [28] RCW 51.52.130. [29] Piper v. Dep't of Labor & Indus., 120 Wash. App. 886, 890, 86 P.3d 1231, rev.denied, 152 Wash.2d 1032, 103 P.3d 201 (2004).