No. 35402-1-II.The Court of Appeals of Washington, Division Two.
July 3, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-2-01434-0, Chris Wickham, J., entered September 26, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Hunt, J.
BRIDGEWATER, J.
Donald E. Hobson appeals from a superior court order affirming the Department of Retirement Systems (DRS) determination that he was not totally incapacitated to qualify for Public Employees Retirement System (PERS 1) disability retirement. We hold that Hobson was not totally incapacitated within the meaning of RCW 41.40.200. We affir
In August 1995, Donald Hobson began working for the Department of Social and Health Services (DSHS) as a psychiatric child care counselor in the Child Study and Treatment Center (CSTC) and also became a member of the PERS 1. Before working for DSHS, Hobson worked as a counselor, an ambulance driver/emergency medical technician, and a fuel systems operator. Also, in 1995, Hobson earned a bachelor of arts degree in law and justice, with a minor in psychology, from Central Washington University.
On April 21, 2000, Hobson was injured in an altercation with a student at CSTC and has not returned to work since that day. Because he was injured, Hobson filed a claim for workers’ compensation benefits with the Department of Labor and Industries (LI). During this time, Dr. Stump was Hobson’s primary treating physician. On August 24, 2000, Dr. Stump reported that Hobson was ready to return to light-duty work. By July 27, 2001, Dr. Stump reported that Hobson’s condition was “fixed and stable.” CP at 14.
At LI’s request, Hobson underwent two independent medical examinations (IME), with two doctors at each IME, to determine whether he had any permanent disability. In addition, LI retained a vocational rehabilitation counselor to assess Hobson’s ability to return to work. Each doctor, including Dr. Stump, agreed that Hobson’s condition was fixed and stable, and that he had some permanent partial disability and was capable of light-duty work. CSTC agreed to modify Hobson’s position. Dr. Stump later disagreed with one of the modified duties and DSHS determined that it had no work options for Hobson at CSTC. Hobson was then referred to the Return to Work Program. The program assessor found that Hobson had many transferable skills, especially in the areas of training, supervision and management. But, because he lived in Kitsap County and the Return to Work Program was located in King County, Hobson refused to participate in the program because of the needed travel.
In March 2002, Hobson applied for PERS 1 duty disability retirement. A portion of the application required Dr. Stump to state whether Hobson was totally incapacitated for further duty. Dr. Stump stated that Hobson was capable of working with restrictions. DRS denied Hobson’s application. Then, on May 14, 2002, at Hobson’s request, Dr. Stump sent DRS a letter stating that, after reviewing the Revised Code of Washington (RCW), he felt Hobson was totally incapacitated for further duty. But, this contradicted Dr. Stump’s August 2003 response to an LI questionnaire indicating that Hobson could sit, stand, and walk four hours in an eight-hour day. Notwithstanding DRS’s duty disability denial, Hobson did qualify for disability under LI standards and for social security disability benefits and receives payments from both.
The presiding officer for the duty disability determination entered a final order denying Hobson’s application for duty-related disability. Hobson filed a petition for reconsideration. The presiding officer admitted into the record three additional documents Hobson proposed and heard testimony about the newly-admitted documents. DRS denied Hobson’s application again. Hobson filed a petition for judicial review. Thurston County Superior Court affirmed the DRS decision.
I.
A PERS 1 participant is eligible for disability retirement if he is totally incapacitated for duty. RCW 41.40.200. “`Totally incapacitated for duty’ means total inability to perform the duties of a member’s employment or office or any other work for which the member is qualified by training or experience.” RCW 41.40.010(28). LI found Hobson to be totally disabled. He also qualified for social security disability retirement benefits. But, DRS determined that Hobson was not totally disabled within the meaning of RCW 41.40.010(28) because he retained the capacity to perform part-time light duty work on an intermittent basis. Hobson contends that the DRS’s interpretation of the statute is overly restrictive and suggests that this court should rely on the LI standard because of the sparse case law on this matter.
In reviewing an administrative action, we sit in the same position as the superior court and we apply the Administrative Procedure Act (APA) standards directly to the agency’s administrative record. Superior Asphalt Concrete Co.v. Dep’t of Labor Indus., 112 Wn. App. 291, 296, 49 P.3d 135 (2002) (citing Tapper v. Employment Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993)), review denied, 149 Wn.2d 1003
(2003). We review questions of law de novo, but we accord substantial weight to the agency’s interpretation of the statutes it administers Everett Concrete Prods., Inc. v. Dep’t of Labor Indus., 109 Wn.2d 819, 823, 748 P.2d 1112 (1988) (citing Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983)). Under the APA, the “burden of demonstrating the invalidity of agency action is on the party asserting invalidity.” RCW 34.05.570(1)(a).
RCW 34.05.570(3) sets forth nine grounds for granting relief from the Department’s final order, only two of which pertain here: (1) “[t]he agency has erroneously interpreted or applied the law”; and (2) “the order is not supported by evidence that is substantial when viewed in light of the whole record.” RCW 34.05.570(3)(d), (e). Hobson bears the burden of showing that the Department’s final order was invalid. RCW 34.05.570(1)(a). Hobson has not met this burden.
II.
The requirements for a PERS 1 duty disability retirement benefit are found in RCW 41.40.200. A PERS 1 member is “retired” if he:
becomes totally incapacitated for duty as the natural and proximate result of an accident occurring in the actual performance of duty . . . without willful negligence on his or her part.
RCW 41.40.200(1). A PERS 1 member retired under RCW 41.40.200(1) receives a disability retirement pension until age 60, at which time the member receives a service retirement allowance. RCW 41.40.185, .210-.220. The retirement allowance is calculated in part on the number of service credit years. RCW 41.40.185(2). A PERS 1 member retired under RCW 41.40.200
continues to receive service credit during any period of total incapacitation. RCW 41.40.220(2).
Hobson bears the burden of proving that, because he is totally incapacitated, he can neither return to CSTC nor obtain a job for which he is qualified for by his previous training or experience.
A. Returning to CSTC
Here, Dr. Stump released Hobson to work on the condition that future risk of assault from patient contact be minimized or eliminated by barring him from any take-down involvement with students,[1] but that he was otherwise capable of performing the duties as modified by CSTC. But, Dr. Stump was later concerned about Hobson’s safety under the modified position description that he be limited to verbal intervention with the patients when necessary.
The State contends that Hobson’s need for non-confrontational contact with patients was met under the modified position and that he was therefore capable to perform the duties at CSTC as a psychiatric child care counselor. The presiding DRS officer agreed with the state and ruled that the evidence did not establish that Hobson was totally incapacitated for his previous employment. On review, the superior court disagreed with the presiding DRS officer and found that verbally confronting children in these circumstances presents him with a serious risk of physical confrontation. We agree.
Although a doctor’s mere concern for his patient’s future safety does not amount to a total inability to perform the duties of one’s employment, clearly a worker who is vulnerable to physical limitations will not be able to effectively intervene when two or more patients become disruptive or unruly by verbal intervention alone. Therefore, we agree with the superior court’s decision that Hobson was incapable of returning to CSTC as a psychiatric child care counselor.
B. Able to Perform Other Work
An appellate court need only review findings of fact to which error has been assigned. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Hobson does not assign error to any specific findings of facts DRS’s final order. We regard such findings as verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003) (citations omitted). DRS has discretion to evaluate the evidence presented, and we will not reconsider this evaluation on appeal because the trier of fact makes credibility determinations. See Russell v. Dep’t of Human Rights, 70 Wn. App. 408, 421, 854 P.2d 1087 (1993), review denied, 123 Wn.2d 1011 (1994); see also Inland Empire Distrib. Sys., Inc. v. Util. Transp. Comm’n, 112 Wn.2d 278, 286, 770 P.2d 624 (1989).
The PERS 1 duty disability retirement statute requires that the member be “[t]otally” incapacitated for duty. RCW 41.40.010(28). In interpreting a statute we look first to the plain meaning of the words used. State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990). We give non-technical statutory terms their dictionary meaning and we construe statutes to effect their purpose, and to avoid unlikely, absurd or strained consequences. Fjermestad, 114 Wn.2d 835. Because the statute does not define “total”, we look to the dictionary, which defines it as entire, complete and absolute. Webster’s Third New International Dictionary 2414 (2002).
DRS’s factual findings support its legal conclusion that Hobson retains the capacity to work in available light-duty positions for which he is qualified. The record contains the opinions from five physicians who, since Hobson’s injury in April 2000, have all said that he is capable of light or sedentary employment.
Dr. Stump provides the only evidence to the contrary and makes a conclusory assertion that, after “reviewing the RCW and its relationship to retirement,” Hobson is totally disabled. CP at 27. The presiding DRS officer, however, found the letter to carry little weight because, among other reasons, it was inconsistent with Dr. Stump’s earlier opinion that Hobson was capable of light duty employment and failed to indicate why Hobson was now incapable of light duty.
All doctors on record, including Dr. Stump, agree that Hobson is capable of doing sedentary work at a minimum of four hours and at a maximum of six and one-half hours per day (totaling 20 to 32 1/2 hours per week). Furthermore, Hobson’s education and work experience is comprehensive and supports the record’s finding that he has transferable skills and that there are jobs he is qualified to do. Hobson has a bachelor’s degree in law and justice, with a minor in psychology. Also, before working at CSTC, Hobson was employed as a counselor, an emergency medical technician, and a fuel systems operator.
We agree with DRS that a person who is able to work on a part-time basis does not meet the statutory requirement that he is totally incapacitated. Hobson is able to work on a part-time basis and is not entirely, completely, and absolutely unable to perform the duties of any other work for which he is qualified by training or experience.
C. Part-Time Employment Allows PERS 1 Credit Accumulation
DRS argues that the benefit to Hobson is not the monthly payment a PERS I member receives, because the PERS I retirement payment would offset his social security benefit. Instead, DRS argues, it is the accumulation of service credits until he reaches age 60. Thus, the crux of DRS’s argument is that giving duty disability retirement to a person able to earn the service credits is contrary to the statute’s purpose and language.
PERS 1 duty disability retirement was designed as a limited benefit, used primarily to maintain a member’s ability to continue earning service credits toward retirement when that member has been forced to resign from the productive workforce due to a job-related disability. Marler v. Dep’t of Ret. Sys., 100 Wn. App. 494, 498, 997 P.2d 966, review denied, 141 Wn.2d 1012 (2000); see also RCW 41.40.038. In order to earn one service credit, PERS 1 requires members to work at least 70 hours per calendar month. RCW 41.40.010(9)(a). PERS 1 was not intended to be a disability insurance policy or a supplement to the job related disability compensation provisions of the state workers’ compensation laws. Marler, 100 Wn. App. at 498.
A person who is not totally incapacitated within the meaning of RCW 41.40.010 and who can continue earning service credits is not entitled to the PERS 1 disability retirement. When the definition of totally incapacitated was added to the statute, a memorandum addressing the sponsors of the bill explained that the definition was added to assist DRS in handling a disabled member’s disability retirement when the member’s circumstances changed per RCW 41.40.310. See SB 223, 39th Leg., Laws of 1965, ch. 155, §§ 1.
Under RCW 41.40.310, a disabled member’s disability retirement circumstances change when the beneficiary resumes a gainful occupation. Moreover, under the same statute, a partial ability to work is considered a change of circumstances from the totally incapacitated standard that a member is required to satisfy when the member first applies for duty disability retirement. Thus, DRS is correct when it states that totally incapacitated cannot possibly apply to a member who is partially able to work at the time the member makes his application for duty disability.
Using a conservative estimate that Hobson can work four hours per day, he can still accumulate enough hours per month to earn one service credit.[2] Moreover, the record supports that there were several positions Hobson qualified for that would enable him to earn the PERS 1 service credit. Thus, Hobson is not totally incapacitated within the meaning of RCW 41.40.010 and can still continue earning service credits toward PERS 1.
Since the record establishes (1) the minimum hours that Hobson is able to work and (2) the availability of gainful employment for which Hobson qualifies, we do not need to determine exactly how long a person must work each day to satisfy the totally incapacitated standard in PERS 1 duty disability retirement.
D. PERS 1 and LI Workers’ Compensation
Hobson urges us to adopt legal principles for DRS’s duty disability retirement based fundamentally on LI disability standards.
Under LI’s standards, an injured worker must be placed in a job comparable to their work pattern at the time of injury. Thus, because Hobson was employed full-time, he would have to be capable of returning to full-time work; otherwise LI would consider him totally disabled See RCW 51.08.160; Nash v. Dep’t of Labor Indus., 1 Wn. App. 705, 462 P.2d 988 (1969) (A workman is totally and permanently disabled under RCW 51.08.160 if he can no longer perform his work with a reasonable degree of occupational continuity). In asserting this statutory construction argument, Hobson argues that to be totally incapacitated under PERS 1 is equivalent to being permanently totally disabled under LI workers’ compensation. But we rejected this argument in Marler. See Marler, 100 Wn. App. at 503.
In Marler, we stated that the standards for LI permanent total disability and PERS 1 total incapacity are different. Marler, 100 Wn. App. at 503. Although issued in a different context, we held that when PERS 1 disability retirement is compared to workers’ compensation, it is evident that there are two distinct proof requirements. Marler, 100 Wn. App. at 503. Moreover, when the legislature has intended public retirement plans to follow LI standards, it has explicitly stated so. See RCW 41.24.150(3). We have refused to apply LI disability standards to PERS 1 disability standards in the past and there is no reason to do so today.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
We concur: Hunt, J., Van Deren, A.C.J.