PETERSON v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES (2021)

PUBLISHED OPINION

[As amended by order of the Court of Appeals August 24, 2021.]

¶1 Joshua Peterson was injured on a barge in maritime jurisdiction in 2011, and received both an award of benefits from the Department of Labor and Industries (DLI) and a settlement under federal maritime law. DLI ordered Peterson to repay a portion of his state benefits in accordance with RCW 51.12.100. That statute provides that a claimant shall repay benefits paid under the state workers’ compensation scheme when payments are also made under the federal maritime scheme. An industrial appeals judge (IAJ) upheld DLIs order, and the Board of Industrial Insurance Appeals (Board) affirmed. The superior court affirmed the Board.

¶2 Peterson seeks to retain his double recovery. He appeals the superior court decision, arguing that the trial court erred when it affirmed the Boards decision because (1) the order allowing the initial award under the state scheme was final, (2) DLIs actions prevent it from arguing that the Industrial Insurance Act (IIA), Title 51 RCW, does not apply to his claim, and (3) RCW 51.52.104 prohibits the Board from altering unchallenged conclusions of law.

In the alternative, Peterson argues that (4) DLI is limited to recouping benefits previously paid at the time of concurrent receipt of maritime benefits under RCW 51.12.100(4), and (5) the superior court erred when it awarded DLI statutory costs and fees. We find no error and affirm.

FACTS

I. Injury and Claims

A. State Workers’ Compensation Claim

¶3 In December 2011, Peterson injured his back while working for his employer on a barge in navigable waters. Peterson filed a workers’ compensation claim with DLI. Peterson reported to DLI that he was performing “rigging [and] general labor.” 2 Admin. Record (AR) at 580. Nothing in his report identified the claim as maritime in nature.

¶4 DLI issued an allowance order and began paying Peterson benefits. DLIs “Notice of Decision” explained that the allowance order became final 60 days from the date it was communicated to Peterson unless he filed for reconsideration. No party appealed this allowance order. Over the next several years, DLI paid Peterson $89,482.47 in time-loss compensation and $25,700.20 in medical aid.

B. Federal Maritime Claims

¶5 Peterson also sought compensation under federal maritime laws, filing a claim under the Longshore and Harbor Workers Compensation Act (LHWCA) and filing a third-party negligence claim under the Jones Act.

The IIA does not apply to a “master or member of a crew of any vessel, or to employers and workers for whom a right or obligation exists under the maritime laws or federal employees’ compensation act for personal injuries or death of such workers.” RCW 51.12.100(1). The IIA additionally allows DLI to recover payments made to such a worker, providing:

In the event payments are made both under this title and under the maritime laws or federal employees’ compensation act, such benefits paid under this title shall be repaid by the worker or beneficiary. For any claims made under the Jones Act, the employer is deemed a third party, and the injured workers cause of action is subject to RCW 51.24.030 through 51.24.120.[4]

RCW 51.12.100(4).

¶6 In March 2015, DLI informed Peterson it would seek reimbursement of his state benefits when he received a settlement for his maritime claims. In June, in accordance with RCW 51.12.100(4), DLI rejected Petersons December 2011 claim and issued an overpayment order based on his LHWCA and Jones Act payments. Peterson appealed this June 2015 order to the Board.

II. Procedural History

¶7 In December, Peterson and DLI entered into an agreement before an IAJ. Peterson stipulated that he sought benefits under maritime law, but that the final determination had not been made on those claims and he had not received compensation under any federal scheme. DLI agreed to pay provisional benefits pending the outcome of Petersons maritime claims and continued to pay Peterson interlocutory payments pending the resolution of his maritime claims.

¶8 In March 2016, Peterson told DLIs third-party adjudicator that settlement of his maritime claims was imminent. Peterson stated that the portion of the settlement allocated to the Jones Act claim would be $90,000. DLIs adjudicator agreed that $25,000 would satisfy DLIs share of the Jones Act recovery under RCW 51.12.100(4) and 51.24.030 through 51.24.120. DLI then issued an order distributing the $90,000 Jones Act award among Peterson, his attorneys, and DLI. After DLI received the $25,000, it determined the remaining outstanding balance Peterson owed under RCW 51.12.100(4) from his LHWCA settlement was $72,450.89.

¶9 In April, Peterson settled both his LHWCA and Jones Act claims for a combined amount of $900,000. DLI was not a party to the settlement. The United States Department of Labor approved the settlement in May. From the record on appeal, it appears that some time passed between the federal approval and DLIs learning about the settlement.

¶10 In September, DLI issued an overpayment order “correct[ing] and supersed[ing]” its prior orders, rejecting Petersons claim, and requiring Peterson pay the remaining $72,450.89 to DLI. 2 AR at 623. Peterson requested that DLI reconsider this order. On December 9, DLI affirmed the overpayment order, and again rejected Petersons 2011 claim. Peterson appealed the December 9 order.

¶11 The IAJ issued a “Proposed Decision and Order” (PD&O) in February 2018. The IAJ determined that DLI was entitled to the remaining $72,450.89. In conclusion of law 2, the IAJ found that the December 2011 allowance order was final. However, in conclusion of law 5 the IAJ determined that “[p]ursuant to RCW 51.12.100(4), [DLI] is entitled to repayment of the balance of time-loss compensation paid to Mr. Peterson in the amount of $72,450.89.” 1 AR at 65. In conclusion of law 6, the IAJ remanded the issue to DLI to resolve by “closing rather than rejecting the claim.” 1 AR at 65.

¶12 Peterson petitioned for review. In his petition, he requested the Board review the PD&O, specifically disputing five findings of fact and “the associated Conclusions of Law.” 1 AR at 23. Peterson did not specifically challenge conclusion of law 5 or DLIs statutory right to recovery under RCW 51.12.100(4). DLI did not seek review of this PD&O.

¶13 In May 2018, the Board accepted review and affirmed all of the IAJs findings and conclusions, with the exception of conclusion of law 6. Although neither party contested conclusion of law 6, the Board stated that it had granted review “solely to correct Conclusion of Law No. 6.” 1 AR at 4. The Board reversed the IAJs PD&O on that point, concluding that DLI correctly rejected Petersons claim under RCW 51.12.100. In its decision, the Board relied on Rhodes v. Department of Labor & Industries, 103 Wash.2d 895, 898, 700 P.2d 729 (1985). The Boards decision stated, “The settlement of Mr. Petersons maritime claims established that he was entitled to federal coverage rather than coverage through Washingtons industrial insurance laws. Thereafter, [DLI] was correct in rejecting the claim that had previously been allowed. RCW 51.12.100.” 1 AR at 8.

¶14 Peterson appealed to the superior court, arguing that Rhodes did not apply. Peterson also argued that DLIs right of reimbursement was limited by RCW 51.32.240(3), which states that certain claims must be rejected for DLI to seek reimbursement, and because DLI had not appealed conclusion of law 6, the claim could only be closed. Thus, Peterson argued that because his claim could not be rejected, DLI is not entitled to reimbursement.

¶15 The superior court disagreed and adopted the Boards conclusions of law. The superior court found that “[DLI]’s lien was $72,450.89, recoverable under RCW 51.12.100(4) from his ․ LHWCA entitlement.” Clerks Papers (CP) at 76. In its opinion, the superior court explained that, despite the decision becoming final within 60 days if not appealed, the award in this case was “never adjudicated or final” because the “statute expressly provides that benefits shall be repaid if recovery is subsequently made under Federal Maritime law (LHWCA).” Suppl. CP at 86. The superior court also noted that DLI has “the ability to reject a prior allowance order and reject the claim to enable or ensure the purpose of the reimbursement reservation.” Suppl. CP at 86. The superior court affirmed the Boards decision and awarded DLI attorney fees.

¶16 Peterson appeals.

ANALYSIS

¶17 Peterson argues that he is entitled to double recovery of state workers’ compensation benefits plus federal maritime benefits. He claims that because DLIs December 2011 allowance order was final and not appealed, res judicata bars DLI from seeking repayment. But his argument is contrary to settled law. He also argues that because DLI did not deny his claim in December 2011, it could not later reject it unless DLI lacked “subject matter jurisdiction” to award the claim in the first place. Br. of Appellant at 37. But this statutory construction would render the recoupment language in RCW 51.12.100(4) meaningless.

¶18 Peterson also argues that the Board improperly increased its scope of review when it addressed conclusion of law 6, and that waiver prevents DLI from now defending the Boards decision. However, the Board had authority to address the conclusion because it was an issue Peterson raised in his petition, and thus, whether the claim could be rejected was an issue on review. Finally, he claims that the IIA does not allow DLI to recover statutory attorney fees. We reject all of Petersons arguments and affirm the superior court order.

I. Reimbursement of Benefits From a Final Allowance Order Under RCW 51.12.100

¶19 Peterson argues that because the IAJ concluded that the December 2011 allowance order was final and because DLI did not challenge that conclusion, DLI was barred from rejecting Petersons claim. We disagree.

A. Standard of Review

¶20 In appeals under the IIA, we review the superior courts decision and apply the ordinary civil standards of review. RCW 51.52.140; Rogers v. Dept of Labor & Indus., 151 Wash. App. 174, 180, 210 P.3d 355 (2009). We review whether substantial evidence supports the superior courts factual findings, and we review de novo whether the superior courts conclusions of law flow from those findings. Rogers, 151 Wash. App. at 180, 210 P.3d 355; Ruse v. Dept of Labor & Indus., 138 Wash.2d 1, 5-6, 977 P.2d 570 (1999).

¶21 This case involves issues of statutory interpretation. When interpreting IIA statutes, we give great weight to DLIs interpretation of the IIA, and we liberally construe the IIA to achieve the legislatures intent. Jones v. City of Olympia, 171 Wash. App. 614, 621, 287 P.3d 687 (2012); Hopkins v. Dept of Labor & Indus., 11 Wash. App. 2d 349, 353, 453 P.3d 755 (2019).

¶22 In determining the legislatures intent, we derive the plain meaning of the statute from the “ ‘context of the entire act as well as any related statutes which disclose legislative intent about the provision in question.’ ” Hopkins, 11 Wash. App. 2d at 353, 453 P.3d 755 (internal quotation marks omitted) (quoting Jametsky v. Olsen, 179 Wash.2d 756, 762, 317 P.3d 1003 (2014)). We interpret statutes so that all language is given effect and no portion is “ ‘rendered meaningless or superfluous,’ ” and we read statutory sections harmoniously to give effect to the legislatures intent. Gorman v. Garlock, Inc., 155 Wash.2d 198, 210, 118 P.3d 311 (2005) (internal quotation marks omitted) (quoting Davis. v. Dept of Licensing, 137 Wash.2d 957, 963, 977 P.2d 554 (1999)); Dept of Labor & Indus. v. Baker, 57 Wash. App. 57, 59, 786 P.2d 821 (1990). Additionally, we interpret statutes so as to avoid absurd or unlikely consequences. Hopkins, 11 Wash. App. 2d at 353, 453 P.3d 755.

B. Legal Principles

¶23 The legislature adopted RCW 51.12.100 in 1975 “[t]o protect the States industrial insurance funds.” Rhodes, 103 Wash.2d at 898, 700 P.2d 729; LAWS OF 1975, 1st Ex. Sess., ch. 224, § 3, at 734. To achieve this goal, subject to limited exceptions, the IIA does not apply to claimants covered by federal maritime law.

¶24 RCW 51.12.100(1) provides:

Except as otherwise provided in this section, the provisions of [the IIA] shall not apply to a master or member of a crew of any vessel, or to employers and workers for whom a right or obligation exists under the maritime laws or federal employees’ compensation act for personal injuries or death of such workers.

¶25 Under RCW 51.52.050, allowance orders that are not appealed or challenged within 60 days become “final.” However, RCW 51.12.100(4) provides:

(Emphasis added.)

¶26 In Rhodes, our Supreme Court interpreted RCW 51.12.100 and held that a worker who receives payment under both the state scheme and the federal maritime scheme must repay DLI under the statute, even where the allowance order was final.

103 Wash.2d at 898, 700 P.2d 729. In Rhodes, DLI allowed a workers claim and the allowance order became final when it was not appealed. 103 Wash.2d at 896, 700 P.2d 729. Our Supreme Court required Rhodes to reimburse DLI, holding, “There is nothing in the statute limiting reimbursement only to benefits paid pursuant to interlocutory orders. All benefits, whether granted under interlocutory or final orders, ‘shall be repaid.’ ” Rhodes, 103 Wash.2d at 898, 700 P.2d 729 (emphasis added) (quoting RCW 51.12.100). The Rhodes court went on to explain that although a decision may become “final” under RCW 51.52.050, where a claimant subsequently recovers under federal maritime law, RCW 51.12.100 expressly provides the claimant shall repay and that the state allowance order is not “final” for purposes of res judicata. 103 Wash.2d at 899, 700 P.2d 729.

¶27 Our Supreme Court has noted elsewhere that the IIA does not apply to employers or workers covered under the LHWCA and that where state payments are made prior to a determination that the employee is covered under LHWCA, the employee must repay the benefits. Stevedoring Servs. of Am., Inc. v. Eggert, 129 Wash.2d 17, 34 n.5, 914 P.2d 737 (1996). “The legislatures intent in excluding LHWCA-covered workers from the [IIA] was ‘to prevent double recovery’ ․ and thereby ‘protect the states industrial insurance fund when a worker is adequately covered under the LHWCA.’ ” Gorman, 155 Wash.2d at 208-09, 118 P.3d 311 (quoting Esparza v. Skyreach Equip., Inc., 103 Wash. App. 916, 938, 15 P.3d 188 (2000); E.P. Paup Co. v. Dir., Office of Workers Comp. Programs, 999 F.2d 1341, 1348 n.3 (9th Cir. 1993)); accord Rhodes, 103 Wash.2d at 898, 700 P.2d 729.

C. Final Order Does Not Preclude Reimbursement

¶28 Peterson argues that because the December 2011 allowance order was final, DLI failed to preserve its challenge on appeal. Peterson argues that because the allowance order was final, DLI cannot later reject his claim. He also appears to argue that DLI, by not appealing the IAJs conclusion that the December 2011 order was final, is estopped by res judicata from seeking reimbursement. We disagree.

¶29 In Rhodes, which is directly on point, the claimant was injured while working in an underwater setting. 103 Wash.2d at 896, 700 P.2d 729. Rhodes filed a claim with DLI and subsequently filed a claim under the LHWCA. Rhodes, 103 Wash.2d at 896, 700 P.2d 729. DLI granted Rhodes benefits in an order that stated appeals must be made within 60 days “or the same shall become final.” Rhodes, 103 Wash.2d at 897, 700 P.2d 729; see RCW 51.52.050. No party appealed. Rhodes, 103 Wash.2d at 897, 700 P.2d 729. One year after this award, Rhodes’ LHWCA claim was allowed. Rhodes, 103 Wash.2d at 897, 700 P.2d 729. DLI then issued an order seeking reimbursement of time-loss and medical expenses it paid to Rhodes. Rhodes, 103 Wash.2d at 897, 700 P.2d 729.

¶30 Rhodes appealed, arguing that because no party had appealed the “final” order, his rights to money granted under those orders were “fixed” and subject to res judicata, despite the language of RCW 51.12.100. Rhodes, 103 Wash.2d at 898, 700 P.2d 729. Our Supreme Court disagreed.

¶31 Our Supreme Court held that RCW 51.12.100 allows DLI to recover reimbursement regardless of whether the order was final. Rhodes, 103 Wash.2d at 898, 700 P.2d 729. The court stated, “All benefits, whether granted under interlocutory or final orders, ‘shall be repaid.’ ” Rhodes, 103 Wash.2d at 898, 700 P.2d 729 (emphasis added) (quoting RCW 51.12.100). The court explained that at the time DLI ordered Rhodess benefits it “had no way of knowing whether he was covered by the LHWCA.” Rhodes, 103 Wash.2d at 899, 700 P.2d 729. Therefore, DLI “did not, and could not, determine Rhodes’[s] case was ‘final’ for the purposes of res judicata.” Rhodes, 103 Wash.2d at 899, 700 P.2d 729.

¶32 Peterson argues that Rhodes does not apply and has been overruled. But Rhodes is squarely on point and has not been overruled. Peterson, like Rhodes, filed a claim with DLI then subsequently filed federal maritime claims. DLI issued Peterson an allowance order, which no party challenged within 60 days. It therefore became a “final” order. RCW 51.52.050. Petersons maritime claim was settled more than a year after the allowance order granting benefits under the state scheme became final. DLI then sought reimbursement under RCW 51.12.100(4). Even Petersons arguments mirror those raised in Rhodes.

¶33 Accordingly, the superior court was correct when it ruled that the award in this case was “never adjudicated or final” because the “statute expressly provides that benefits shall be repaid if recovery is subsequently made under Federal Maritime law (LHWCA).” Suppl. CP at 86. As in Rhodes, the award here was not, and could not, be “final” for the purposes of res judicata.

¶34 Peterson also misstates the holding of Rhodes, arguing that under Rhodes the December 2011 order was “not final, in fact and law,” and that therefore “[DLI] does have the authority to later reject the claim.” Br. of Appellant at 13. The core holding of Rhodes is that DLI can seek reimbursement under RCW 51.12.100(4) regardless of finality for the purposes of res judicata. 103 Wash.2d at 889, 700 P.2d 732. Here, as in Rhodes, DLI had “no way of knowing” whether Peterson would be covered by maritime law. But once that decision is made in the affirmative, RCW 51.12.100(1) applies, and the IIA “shall not apply.” Thus, in accordance with Rhodes and RCW 51.12.100(4), the award “shall be repaid.”

¶35 Peterson argues that Rhodes has been overruled, although he fails to point to any case from our Supreme Court overruling the case. Our Supreme Court has not overruled Rhodes, and has made clear that it does “not overrule ․ binding precedent sub silentio.” State v. Studd, 137 Wash.2d 533, 548, 973 P.2d 1049 (1999). We are bound to follow Supreme Court precedent. 1000 Va. Ltd. Pship v. Vertecs Corp., 158 Wash.2d 566, 590, 146 P.3d 423 (2006). Thus, we reject Petersons invitation to ignore Rhodes.

¶36 Peterson also argues that DLIs failure to petition the Board to review conclusion of law 2 prohibits DLI from claiming that the December 2011 allowance order was not final under RCW 51.12.100. We disagree.

¶37 Petersons argument is flawed because it is based on the IAJs conclusion of law 2, (which concluded that the December 2011 allowance order was final) to the exclusion of the IAJs conclusion of law 5 (which concluded, “Pursuant to RCW 51.12.100(4), [DLI] is entitled to repayment of the balance of time-loss compensation paid to Mr. Peterson in the amount of $72,450.89,” 1 AR at 65). Both of these conclusions were affirmed by the Board and adopted by the superior court. Thus, DLI had no reason to cross appeal. Under RCW 51.12.100 and Rhodes, DLI was entitled to seek repayment of benefits paid after the allowance order regardless of finality. Conclusion of law 2 was beside the point for the purposes of reimbursement because conclusion of law 5 rightly preserved DLIs ability to seek reimbursement.

¶38 Because Rhodes applies and DLI is entitled to seek reimbursement under RCW 51.12.100(4), we hold that DLI was not prohibited from seeking reimbursement based on Petersons argument that the December 2011 order was final.

D. Conclusion of Law 6 Properly Considered

¶39 Peterson next argues that the Board improperly exceeded its scope of review when it reversed the IAJs conclusion of law 6 and concluded that DLI was correct in rejecting Petersons claim. He argues that this is error because the Boards review is strictly limited to the specific issues raised in his petition for review. And he argues a limited definition of “issues,” claiming that because conclusion of law 6 was not raised on appeal in Petersons petition and DLI did not appeal, the Board could not address conclusion of law 6. We disagree and hold that the Board was authorized to consider conclusion of law 6 because the conclusion was an issue Peterson raised in his petition.

¶40 RCW 51.52.020 provides that the Board “may not delegate to any other person its duties of interpreting the testimony and making the final decision and order on appeal cases.” And under RCW 51.52.106, “the proposed decision and order of the [IAJ], petition or petitions for review and, in its discretion, the record or any part thereof, may be considered by the [B]oard.” However, our Supreme Court has held that the Board cannot enlarge the lawful scope of its review, which is “limited strictly to the issues raised by the notice of appeal.” Brakus v. Dept of Labor & Indus., 48 Wash.2d 218, 220, 292 P.2d 865 (1956). The issue here is what “issue” must be raised by the notice of appeal for the Board to consider it: the specific conclusion of law, which reads, “[DLI]’s December 9, 2016 order is incorrect, and this matter is remanded to [DLI] to issue an order closing rather than rejecting the claim,” or the broader issue of reimbursement, which Peterson argues is dependent on this conclusion. 1 AR at 65.

¶41 The Board has consistently held that the scope of its review is not limited to the specific issues raised by a petition for review. In re Sims, No. 85-1748, at 3 (Wash. Bd. of Indus. Ins. Appeals Oct. 29, 1986); In re Salas, No. 18 36007, 2020 WL 916809, *2 (Wash. Bd. of Indus. Ins. Appeals Jan. 14, 2020) (“[O]ur scope of review extends to all contested issues of law and fact and is not limited to the specific issues raised by the Petition for Review.”). Although administrative decisions are not binding on this court, we recognize significant decisions of the Board as persuasive authority in interpreting the IIA. OKeefe v. Dept of Labor & Indus., 126 Wash. App. 760, 766, 109 P.3d 484 (2005). And we grant the Boards interpretation of the IIA great deference. Value Vill. v. Vasquez-Ramirez, 11 Wash. App. 2d 590, 596, 455 P.3d 216 (2019), review denied, 195 Wash.2d 1017, 461 P.3d 1200 (2020).

¶42 Importantly, as discussed in more detail below, Peterson argues that conclusion of law 6 is critical to his argument that under RCW 51.32.240 DLI cannot seek reimbursement unless the claim is rejected. Regardless of whether this argument would carry the day, this argument put the conclusion of law squarely before the Board. If this conclusion is integral to one of his arguments on appeal, it follows that it is an issue raised in his petition.

¶43 Peterson cites to Brakus for the contention that the Board “cannot enlarge the lawful scope of the proceedings, which is limited strictly to the issues raised by the notice of appeal.” 48 Wash.2d at 220, 292 P.2d 865. In Brakus, DLI closed a workers claim. 48 Wash.2d at 219, 292 P.2d 865. The worker appealed the closing order on the sole ground he was entitled to a greater disability award. Brakus, 48 Wash.2d at 219, 292 P.2d 865. The Board found that the worker did not establish his injury was the result of the industrial injury. Brakus, 48 Wash.2d at 219, 292 P.2d 865. The Board reversed the closing order and ordered DLI to deny the entire disability award. Brakus, 48 Wash.2d at 219, 292 P.2d 865. Our Supreme Court reversed, holding that the Board erred because Brakuss appeal was limited to whether or not he was entitled to a greater disability award and the Board went beyond this issue when it vacated the disability award. Brakus, 48 Wash.2d at 220, 292 P.2d 865.

¶44 Brakus is distinguishable. The issue raised in the petition for review in Brakus was limited to the percentage of the employees permanent disability. 48 Wash.2d at 219, 292 P.2d 865. That the employee was entitled to disability was based on a final, unappealed order.

Brakus, 48 Wash.2d at 219-20, 292 P.2d 865. Here, Peterson appealed the entire overpayment order to the Board. In his petition for review, he requested the Board review the PD&O, and after naming specific findings of fact, disputed generally the “associated Conclusions of Law.” 1 AR at 23. Thus, the Boards decision to modify conclusion of law 6 fell within the issues raised in the petition for review.

¶45 Peterson also relies on Homemakers Upjohn v. Russell, 33 Wash. App. 777, 778, 658 P.2d 27 (1983), to support his argument that the Board improperly increased its scope of review, and ties this to his argument below that DLI was “aggrieved” and thus required to petition for review. Br. of Appellant at 17. But Upjohn is factually distinguishable because the issue there was whether an employer who did not petition for review was entitled to seek judicial review of the Boards decision. 33 Wash. App. at 778, 658 P.2d 27.

¶46 Peterson then cites Sepich v. Department of Labor & Industries, 75 Wash.2d 312, 317, 450 P.2d 940 (1969), and Value Village, 11 Wash. App. 2d at 606, 455 P.3d 216, 195 Wash.2d 1017, 461 P.3d 1200, to argue that the failure to raise an issue to the Board constitutes waiver on appeal. Those cases are not apt. Sepich discussed the procedure of trial de novo in superior court, not the Boards authority to review a PD&O. 75 Wash.2d at 316-17, 450 P.2d 940. And Value Village addresses the rule that an appellant must raise an issue before the Board to preserve it on appeal. 11 Wash. App. 2d at 606, 455 P.3d 216.

¶47 We hold that the Board did not “enlarge the scope of proceedings” by reaching outside of the record or addressing issues outside DLIs order but, instead, reviewed the PD&O based on its statutory authority and the issues raised in Petersons petition for review.

¶48 Peterson next argues that DLIs failure to petition for review of the IAJs order constitutes a waiver to all of the IAJs conclusions of law. Thus, Peterson argues that RCW 51.52.104 prohibits the Board from altering unchallenged conclusions of law. We disagree.

¶49 RCW 51.52.104 governs petitions for review. It provides that within 20 days of the IAJs decision,

any party may file with the board a written petition for review of the same․ Such petition for review shall set forth in detail the grounds therefor and the party or parties filing the same shall be deemed to have waived all objections or irregularities not specifically set forth therein.

RCW 51.52.104.

¶50 Appeals from the Board to the superior court are governed by a different section of the IIA. RCW 51.52.110 provides:

[W]ithin thirty days after the final decision and order of the board upon such appeal has been communicated to such worker, beneficiary, employer or other person, ․ such worker, beneficiary, employer or other person aggrieved by the decision and order of the board may appeal to the superior court. If such worker, beneficiary, employer, or other person fails to file with the superior court its appeal as provided in this section within said thirty days, the decision of the board to deny the petition or petitions for review or the final decision and order of the board shall become final.

(Emphasis added.) RCW 51.52.110 does not mention waiver.

¶51 Petersons argument that DLIs failure to petition for review of the IAJs order constitutes a waiver fails for several reasons. First, as discussed above, Peterson raised this issue in his petition for review and, thus, it was properly before the Board and not waived.

¶52 Second, Petersons argument is based on an incorrect premise. He argues DLI should have filed a petition for review because it was “aggrieved” by the IAJs conclusion of law 6. Br. of Appellant at 15. But the term “aggrieved” applies to appeals to the superior court, not petitions for review by the Board. Compare RCW 51.52.104, with 51.52.110.

¶53 DLI was not aggrieved by the IAJs decision. The PD&O authorized DLI to seek reimbursement. Likewise, because of conclusion of law 5 and our Supreme Courts decision in Rhodes, DLI had no reason to petition the Board for review of the PD&O; it was entitled to reimbursement. After Peterson petitioned for review of the PD&O, the Board reviewed conclusion of law 6 sua sponte.

¶54 Even assuming, arguendo, that DLI waived any objection to the PD&O, DLI would nonetheless be able to seek reimbursement under RCW 51.12.100(4). Conclusion of law 5 properly granted DLI authority to seek repayment. Therefore, even if we were to reverse the superior court, the net result would be to remand to DLI for repayment under RCW 51.12.100(4) and conclusion of law 5. For the purposes of repayment under RCW 51.12.100, it does not matter whether DLI “closes” or “rejects” the original allowance order. Thus, contrary to Petersons contention that DLI was “aggrieved,” DLI had no reason to petition for review because it is entitled to repayment in either case. Therefore, as explained above, under RCW 51.12.100(1), the IIA does not apply to Petersons claim.

E. RCW 51.12.100 Applies to Maritime Injuries and Is Not Limited by RCW 51.32.240

¶55 Peterson further argues that DLI conceded that it may assess an overpayment and recoup benefits only through claim rejection and under RCW 51.32.240(3). He claims DLI conceded this when it stated in its brief in the superior court that RCW 51.12.100 “becomes effective only when DLI cancels an allowed claim and is seeking to recoup benefits it has already paid.” Br. of Appellant at 20. We hold that DLIs ability to seek reimbursement from claimants covered by maritime law is not limited by RCW 51.32.240.

¶56 RCW 51.32.240(3) states:

Whenever [DLI] issues an order rejecting a claim for benefits paid pursuant to RCW 51.32.190 or 51.32.210, after payment for temporary disability benefits has been paid by a self-insurer pursuant to RCW 51.32.190(3) or by [DLI] pursuant to RCW 51.32.210, the recipient thereof shall repay such benefits and recoupment may be made from any future payments due to the recipient on any claim with the state fund or self-insurer, as the case may be.

(Emphasis added.) Peterson appears to argue that because DLI did not argue that the IAJs conclusion of law 6 was incorrect (or because the Board was wrong to modify that conclusion), then the IAJs determination that DLIs order rejecting the claim should be reversed prevails. Therefore, Peterson argues if the claim must be closed and not rejected, then RCW 51.32.240(3) does not apply, and DLI is not entitled to reimbursement. This argument fails for three reasons.

¶57 First, as explained above, under Rhodes and RCW 52.12.100, DLI is entitled to reimbursement in maritime cases where double payment occurs regardless of the finality of the original order. 103 Wash.2d at 889, 700 P.2d 732. RCW 52.12.100(1) mandates that “the provisions of this title [the IIA] shall not apply to a ․ member of a crew of any vessel, or to employers and workers for whom a right or obligation exists under the maritime laws or federal employees’ compensation act for personal injuries or death of such workers.” If provisions of Title 51—the IIA—do not apply, then nothing under the IIA except RCW 51.12.100 applies to Peterson. Accordingly, where the claimant receives payments under maritime law, DLI is entitled to repayment under RCW 51.12.100(4) and not 51.32.240(3).

¶58 This undercuts Petersons argument that “[DLI] may only recoup such benefits through claim rejection and use of RCW 51.32.240(3).” Br. of Appellant at 20. DLI may also recoup benefits under RCW 51.12.100(4) when the claimant receives payments under maritime law. Because Petersons award was never “final” for purposes of recoupment here, implicit in RCW 51.12.100(4) is the power to cancel, reverse, or reject an allowance order when a claimant subsequently makes recovery under maritime law. See Rhodes, 103 Wash.2d at 899, 700 P.2d 729.

¶59 Second, as explained above, the Board had the authority to modify the PD&O under RCW 51.52.106. The superior court affirmed the Board. Following Rhodes, the superior court did not err because RCW 51.12.100 grants DLI the authority to seek repayment. Thus, the superior courts order affirming DLIs rejection of Petersons claim was correct.

¶60 Third, RCW 51.12.100 and RCW 51.32.240 operate in the same way but apply in different circumstances. As the plain language of RCW 51.12.100(4) denotes, it applies “[i]n the event payments are made both under this title [the IIA] and under the maritime laws or federal employees’ compensation act.” In contrast, RCW 51.32.240 applies “[w]henever any payment of benefits under this title is made because of clerical error, mistake of identity, innocent misrepresentation by or on behalf of the recipient thereof mistakenly acted upon, or any other circumstance of a similar nature, all not induced by willful misrepresentation.” RCW 51.32.240(1).

¶61 Our Supreme Court explained in Birrueta v. Department of Labor & Industries that RCW 51.32.240 gives DLI authority to change a final wage order as a “necessary incident to recoupment.” 186 Wash.2d 537, 553, 379 P.3d 120 (2016). But as RCW 51.32.240 makes clear, it applies in situations of erroneous payments, willful misrepresentation, etc. RCW 51.12.100 applies to maritime occupations when payments are made under both the IIA and federal maritime laws. RCW 51.12.100(4). Indeed, the IIA does not apply when the claimant is a member of a crew of a vessel and maritime law applies. RCW 51.12.100(1). Because Petersons injury and claim fell under maritime laws, the only portion of the IIA that applies is RCW 51.12.100, and DLI need not cancel or reject the allowance order to seek reimbursement—under the statute DLI shall be repaid. See Rhodes, 103 Wash.2d at 899, 700 P.2d 729.

¶62 Peterson also argues that RCW 51.32.240 is more specific than RCW 51.12.100 and, therefore, RCW 51.32.240 must govern. Peterson would have us limit DLIs ability to collect under RCW 51.12.100 to the circumstances listed in RCW 51.32.240. We disagree.

¶63 We interpret statutes so that all language is given effect and no portion “ ‘rendered meaningless or superfluous.’ ” Gorman, 155 Wash.2d at 210, 118 P.3d 311 (internal quotation marks omitted) (quoting Davis, 137 Wash.2d at 963, 977 P.2d 554). When interpreting conflicting statutory provisions, we generally give preference to the “ ‘more specific and recently enacted statute.’ ” Gorman, 155 Wash.2d at 210, 118 P.3d 311 (quoting Tunstall v. Bergeson, 141 Wash.2d 201, 211, 5 P.3d 691 (2000)). We also read statutory sections harmoniously to give effect to the legislatures intent. Baker, 57 Wash. App. at 59, 786 P.2d 821. We interpret statutes to avoid absurd or unlikely consequences. Hopkins, 11 Wash. App. 2d at 353, 453 P.3d 755.

¶64 Applying the statutes as Peterson argues would result in RCW 51.12.100 being rendered superfluous. If that section is limited by RCW 51.32.240, then it has no meaning: only RCW 51.32.240 would ever apply. Both statutes were adopted the same year and during the same legislative session. LAWS OF 1975, 1st Ex. Sess., ch. 224, §§ 3, at 734 (RCW 51.12.100), 13, at 740 (RCW 51.32.240). However, RCW 51.12.100 is more specific. Although RCW 51.32.240 provides for recoupment in a variety of circumstances, those circumstances might apply in any variety of industrial injuries in every location. But RCW 51.12.100 applies only to maritime occupations. And RCW 51.12.100(4) applies only when a claimant also receives benefits under a federal maritime scheme. Thus, RCW 51.12.100 is more specific.

¶65 We read these provisions harmoniously. RCW 51.32.240 applies whenever DLI seeks to recoup in cases that are not maritime in nature and the provisions of RCW 51.32.240(1) apply, and RCW 51.12.100 applies where the workers claim is maritime in nature as the legislature plainly provided for in RCW 51.12.100(1). Accordingly, DLIs authority under RCW 51.12.100 to seek reimbursement from claimants covered by maritime law is not limited by RCW 51.32.240.

II. Finality of an Award and DLIs Subject Matter Jurisdiction

¶66 Peterson next argues that because DLI has the subject matter jurisdiction to decide for itself whether a claim falls under maritime law, it is therefore bound by the finality of its December 2011 allowance order. Peterson argues that the only way that DLI can overturn its order and seek repayment is if that order is void. He argues that a department order is void where DLI is without subject matter jurisdiction. Therefore, Peterson argues, because DLI has the subject matter jurisdiction to decide whether a claim falls under maritime law—and therefore outside of the IIA—the December 2011 allowance order is not void and DLI is bound by its finality. We disagree.

A. Departments Authority To Determine Whether Maritime Law Applies

¶67 Peterson argues that because DLI can “decide for itself” whether maritime laws apply, it cannot now void its December 2011 order because that order was “final.” Br. of Appellant at 23. Peterson then cites multiple cases in an apparent attempt to avoid the binding holding of Rhodes. He again invokes res judicata, despite the language of Rhodes. None of his arguments persuade us.

¶68 Under RCW 51.12.100(1), the IIA “shall not apply to a ․ member of a crew of any vessel, or to employers and workers for whom a right or obligation exists under the maritime laws or federal employees’ compensation act for personal injuries or death of such workers.” Division One of this court has interpreted this to mean that DLI may proactively determine whether maritime laws apply and deny a worker compensation under the IIA. See Lindquist v. Dept of Labor & Indus., 36 Wash. App. 646, 650, 657-58, 677 P.2d 1134 (1984).

¶69 Another subsection of that statute dictates a workers’ responsibilities when a worker receives double compensation. RCW 51.12.100(4) provides that if the worker receives payments under both maritime laws and the IIA, the worker shall repay the benefits to DLI.

¶70 We read statutory sections harmoniously to give effect to the legislatures intent. Baker, 57 Wash. App. at 59, 786 P.2d 821. We interpret statutes so that all language is given effect and no portion is “ ‘rendered meaningless or superfluous.’ ” Gorman, 155 Wash.2d at 210, 118 P.3d 311 (quoting Davis, 137 Wash.2d at 963, 977 P.2d 554) (internal quotation marks omitted) (quoting Davis, 137 Wn.2d at 963). We derive the statutes plain meaning from the “ ‘context of the entire act as well as any related statutes which disclose legislative intent about the provision in question.’ ” Hopkins, 11 Wash. App. 2d at 353, 453 P.3d 755 (internal quotation marks omitted) (quoting Jametsky, 179 Wash.2d at 762, 317 P.3d 1003). LHWCA-covered workers are excluded from the IIA to prevent double recovery and protect the industrial insurance fund. Gorman, 155 Wash.2d at 208-09, 118 P.3d 311; accord Rhodes, 103 Wash.2d at 898, 700 P.2d 729.

¶71 We read RCW 51.12.100(1) and .100(4) harmoniously. A harmonious reading of these subsections allows DLI to both pay workers who might be entitled to federal benefits and also seek reimbursement. To accept Petersons argument would render RCW 51.12.100(4) meaningless because DLI could never seek reimbursement. DLI would be forced to make a decision on whether a claim was a maritime claim as soon as it was filed. Not only would this render subsection .100(4) meaningless, it would have harmful effects on workers in the future because it would induce DLI to err on the side of denying benefits to protect the fund. Accordingly, we conclude that the statute enabled DLI to initially allow Petersons claim and later seek reimbursement.

¶72 Peterson again argues that “multiple decisions have all held” DLI can “decide for itself” whether a claim is subject to LHWCA. Br. of Appellant at 36. Even accepting that under Lindquist, DLI has the authority to decide for itself whether to allow a claim under RCW 51.12.100(1), that determination has no bearing on whether the claimant will eventually recover an award under maritime law. Although DLI can decide for itself whether a claim is subject to LHWCA (or the Jones Act) for the purposes of RCW 52.12.100(1) and whether to issue an allowance order under the state scheme, DLI has no authority to determine whether the claim is de jure subject to LHWCA under the federal scheme. Nor can DLI know whether a claimant will recover a settlement with his employer based on a federal maritime claim. Specifically, here, there was no way for DLI to know at the time of Petersons 2011 “final” allowance order whether he would eventually receive an award under LHWCA. Nor could DLI know how much Peterson would eventually receive in his settlement after informing DLI in 2015 that settlement negotiations were underway.

¶73 Just because DLI has the subject matter jurisdiction to determine whether a claim is a maritime claim and disallow it under RCW 52.12.100(1), does not mean that DLIs decision to allow a claim precludes it from seeking reimbursement in the future. To hold otherwise would prevent a Washington claimant from being able to recover under the state workers’ compensation scheme while awaiting a determination of benefits under LHWCA or the Jones Act, and potentially deprive the claimant of any recovery should the federal relief never come. This result would be harmful to all workers who are injured on or near navigable waters.

¶74 To support his position, Peterson argues that the “foundational case on [DLI]’s subject matter jurisdiction is Abraham[v. Department of Labor & Industries], 178 Wash. 160[, 34 P.2d 457] (1934).” Br. of Appellant at 24. But Abraham was not a maritime injury case; it was a widows pension benefits case. 178 Wash. at 161, 34 P.2d 457. Indeed, Abraham was decided more than 40 years before RCW 51.12.100 became law. Moreover, the appellants in Rhodes relied on Abraham for this same ineffectual argument: that DLIs original allowance order was final and any change was barred by res judicata, regardless of statutes. Rhodes, 103 Wash.2d at 898, 700 P.2d 729. The Rhodes court distinguished Abraham:

Abraham [and the other case Rhodes relied on] are distinguishable. In those cases the administrative agencies actually made factual or legal determinations as to whether, and to what extent, the claimants were covered by the particular disability statute. The administrative decisions in [those cases] were “adjudicated” and “final”. There the administrative agencies adjudicated something which was within their power to adjudicate: whether the administrative agency had jurisdiction over a claim.

Rhodes, 103 Wash.2d at 899, 700 P.2d 729. But here, as in Rhodes, DLI had no way of knowing whether Peterson would eventually be covered by the LHWCA. 103 Wash.2d at 899, 700 P.2d 729. Thus, Abraham does not apply.

¶75 Peterson also argues that under Abraham he is entitled to an equitable remedy. But the legislature has provided the means of resolution here; therefore, equitable relief is not appropriate. RCW 51.12.100. And even if equity principles applied, allowing Peterson a double recovery is not equitable.

¶76 Peterson then cites Marley v. Department of Labor & Industries, 125 Wash.2d 533, 537, 886 P.2d 189 (1994). Marley was also a widows benefit case that did not involve maritime benefits. 125 Wash.2d at 535. Moreover, our Supreme Court later recognized that Marley was superseded in part by statute. Birrueta, 186 Wash.2d at 549, 379 P.3d 120. As the Birrueta court explained, “the legislature amended the statute ․ in direct response to [the Supreme Courts] holding that ‘[t]he failure to appeal an order, even one containing a clear error of law, turns the order into a final adjudication, precluding any reargument of the same claim.’ ” 186 Wash.2d at 549, 379 P.3d 120 (third alteration in original) (quoting Marley, 125 Wash.2d at 538, 886 P.2d 189). Thus, Marley is abrogated as it pertains to the finality of Department orders where a statute otherwise provides an exception to the rule that an unappealed department order is final.

¶77 Next, Peterson cites Kingery v. Department of Labor & Industries, 132 Wash.2d 162, 937 P.2d 565 (1997) (plurality opinion), another widows benefit case. Kingery was decided before the statutory changes that came in the wake of Marley, and the court there relied on both Marley and Abraham. 132 Wash.2d at 169-70, 937 P.2d 565. Although the Kingery court noted that “an unappealed Department order is res judicata,” this was not in the context of a maritime claim and RCW 51.12.100 did not apply. 132 Wn.2d at 169, 937 P.2d 565. Thus, Kingery is not apt.

¶78 Peterson next turns to Lindquist, 36 Wash. App. at 649, 677 P.2d 1134. In Lindquist, a decision made one year before Rhodes, a worker died near the water and his estate filed claims under both the IIA and the LHWCA. 36 Wash. App. at 647-49, 677 P.2d 1134. The parties stipulated that the accident was covered by maritime law. 36 Wash. App. at 647, 677 P.2d 1134. DLI rejected Lindquists state claim. 36 Wash. App. at 649, 677 P.2d 1134. Division One of this court agreed, holding that under RCW 51.12.100(1), DLI had the authority to exclude Lindquists claim because it fell under maritime laws. 36 Wash. App. at 650-52, 677 P.2d 1134. The court did not discuss subject matter jurisdiction or res judicata.

¶79 Peterson argues that under Lindquist, DLI has the subject matter jurisdiction to “reject a claim for benefits because it has independently determined the claim can or should qualify for maritime coverage under the LHWCA.” Br. of Appellant at 28. Therefore, he argues, under Marley, because DLI could have made a determination as to whether or not maritime law applied at the time of Petersons accident, DLI could not set aside its December 2011 allowance order because it was not void. This ignores that the parties in Lindquist stipulated that maritime law applied. 36 Wash. App. at 647, 677 P.2d 1134.

¶80 This argument exposes Petersons timing problem. As the Rhodes court explained, DLI “did not, and could not, determine Rhodes’[s] case was ‘final’ for purposes of res judicata since, at the time the [original] order was issued, DLI had no way of knowing whether he was covered by the LHWCA.” 103 Wash.2d at 899, 700 P.2d 729. In Lindquist the parties had stipulated that maritime laws applied. 36 Wash. App. at 647, 677 P.2d 1134. Here, however, nothing in Petersons report to DLI identified his work or injury as maritime in nature. Thus, DLI had no way of knowing at the time of Petersons IIA claim whether he would eventually receive benefits under maritime law.

¶81 Peterson also argues that Olsen v. Department of Labor & Industries, 161 Wash. App. 443, 250 P.3d 158 (2011), supports his subject matter argument. In Olsen the court examined DLIs authority under RCW 51.12.100 as it related to RCW 51.12.102, the portion of the IIA that explicitly applies to asbestos-related diseases in maritime workers. 161 Wash. App. at 448-49, 250 P.3d 158. Because of the special rules involving section .102 and asbestos cases, that case is inapplicable here.

¶82 Next, Peterson turns to Gorman, 155 Wash.2d at 216, 118 P.3d 311. But to the extent Gorman applies at all, it works in DLIs favor. The Gorman court explained that “[t]he legislatures intent in excluding LHWCA-covered workers from the [IIA] was ‘to prevent double recovery by [such a] worker.’ ” Gorman, 155 Wash.2d at 208 (third alteration in original) (quoting Esparza, 103 Wash. App. at 938). Gorman cited Rhodes favorably, explaining that RCW 51.12.100 “ ‘protect[s] the states industrial insurance fund when a worker is adequately covered under the LHWCA.’ ” Gorman, 155 Wash.2d at 208-09, 118 P.3d 311 (quoting E.P. Paup Co., 999 F.2d at 1348 n.3; accord Rhodes, 103 Wash.2d at 898, 700 P.2d 729). The Gorman court concluded that the IIA “completely excludes LHWCA-covered workers from its provisions, except to the extent necessary to provide temporary, interim benefits as established in RCW 51.12.102 [the asbestos protocols].” 155 Wash.2d at 218-19, 118 P.3d 311.

¶83 The remainder of Petersons argument relies on Board decisions to further support his contention that DLI can “decide for itself” on whether maritime laws apply. Br. of Appellant at 30. As previously discussed, this argument fails. Because Rhodes applies and DLI may therefore reject its December 2011 allowance order, Petersons arguments on his “subject matter jurisdiction” theory fail.

B. Rhodes Remains Good Law

¶84 Peterson argues that Rhodes is no longer binding, and that instead, Abraham, Marley, and Kingery apply here. For the reasons explained above, we disagree.

¶85 Peterson argues that Rhodes is no longer good law, but he cites to no cases overruling Rhodes or clearly deviating from Rhodes’s holding. Where a party does not cite to such authority, we assume there is none. Kirby v. Dept of Empt Sec., 185 Wash. App. 706, 728, 342 P.3d 1151 (2014). Furthermore, our Supreme Court does not silently overrule precedent. Studd, 137 Wash.2d at 548, 973 P.2d 1049. We are bound to follow Supreme Court precedent. 1000 Va. Ltd., 158 Wash.2d at 590, 146 P.3d 423. Thus, Rhodes remains in effect and binds us here. Accordingly, DLI is entitled to collect reimbursement despite the “final” 2011 order.

III. Triggering of RCW 51.12.100

¶86 Peterson argues, in the alternative, that DLIs right of reimbursement is limited to benefits it paid before April 2016. We disagree.

¶87 We give great weight to DLIs interpretation of the IIA. Jones, 171 Wash. App. at 621, 287 P.3d 687. We liberally construe the IIA to achieve the legislatures intent. Hopkins, 11 Wash. App. 2d at 353, 453 P.3d 755; Value Vill., 11 Wash. App. 2d at 595-96. We will not, however, “use the liberal construction requirement to support a ‘strained or unrealistic interpretation’ of the statute.” LaRose v. Dept of Labor & Indus., 11 Wash. App. 2d 862, 882, 456 P.3d 879 (2020) (internal quotation marks omitted) (quoting Birgen v. Dept of Labor & Indus., 186 Wash. App. 851, 862, 347 P.3d 503 (2015)). We give “effect to the plain meaning of the statute as ‘derived from the context of the entire act as well as any related statutes which disclose legislative intent about the provision in question.’ ” Hopkins, 11 Wash. App. 2d at 353, 453 P.3d 755(internal citation marks omitted) (quoting Jametsky, 179 Wash.2d at 762, 317 P.3d 1003).

¶88 Peterson argues that RCW 51.12.100(4) is “triggered when a worker has concurrent receipt” of both LHWCA and IIA funds, and not after. Br. of Appellant at 40. He cites no case to support this interpretation of the statute, but he argues that because the statute reads that “such benefits paid under this title shall be repaid by the worker,” it is retroactive only. Br. of Appellant at 41 (quoting RCW 51.12.100(4)). This argument fails.

¶89 Aside from the tense of the payment verbs, there is nothing in the statute that addresses the timing of federal maritime benefits. Indeed, reading RCW 51.12.100(4) in concert with the text of .100(1) and Rhodes, the opposite of what Peterson argues is the case. Because Title 51 RCW “shall not apply”—with no timing caveats—where a claimant receives federal maritime benefits, it follows that any funds paid at any time under the IIA shall be repaid. RCW 51.12.100(1), (4). As Rhodes explains, “All benefits ․ shall be repaid.” 103 Wash.2d at 898 (emphasis added). Furthermore, the legislatures intent was to conserve industrial insurance funds when a worker is adequately covered under the LHWCA. Rhodes, 103 Wash.2d at 898, 700 P.2d 729.

¶90 To adopt Petersons argument here would go against the legislatures intent by allowing double recovery after a claimant receives a lump sum under maritime law. It would also go against the legislatures intent “to protect the States industrial insurance funds.” Rhodes, 103 Wash.2d at 898, 700 P.2d 729; LAWS OF 1975, 1st Ex. Sess., ch. 224, § 3. It would encourage claimants to seek a lump sum and hide that recovery from DLI for as long as possible so as to maximize payment from the State after receipt of bene fits under the federal scheme. Accordingly, we hold that RCW 51.12.100 requires repayment regardless of when the claimant receives maritime benefits.

ATTORNEY FEES

I. Statutory Fees

¶91 Peterson further argues that the superior court erred when it awarded statutory attorney fees to DLI under RCW 4.84.010. He argues that only injured workers may recover attorney fees. We disagree and affirm the award of statutory attorney fees to DLI.

¶92 Here the superior court ordered Peterson to pay costs for transcription and “a statutory attorney fee.” CP at 76. RCW 4.84.010 provides that a prevailing party “shall be allowed” statutory attorney fees and, “[t]o the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial.” RCW 4.84.010(6), (7).

¶93 Additionally, RCW 4.84.030 provides:

In any action in the superior court of Washington the prevailing party shall be entitled to his or her costs and disbursements; but the plaintiff shall in no case be entitled to costs taxed as attorneys’ fees in actions within the jurisdiction of the district court when commenced in the superior court.

Thus, where RCW 4.84.010 allows for the award of fees and costs, RCW 4.84.030 creates an entitlement in the prevailing party. Each is relevant to the award of statutory attorney fees.

¶94 Under the IIA, RCW 51.52.130 allows for the award of attorney fees incurred by an injured worker or employer on appeal. It is silent as to the award of fees to DLI. RCW 51.52.150 provides:

All expenses and costs incurred by [DLI] for board and court appeals, including fees for medical and other witnesses, court reporter costs and attorneys fees, and all costs taxed against [DLI], shall be paid one-half out of the medical aid fund and one-half out of the accident fund.

It is otherwise silent as to whether DLI is entitled to fees.

¶95 We review challenges to the superior courts award of fees or costs de novo. Cooper v. Dept of Labor & Indus., 188 Wash. App. 641, 650, 352 P.3d 189 (2015). The rules in civil cases apply to appeals under the IIA. RCW 51.52.140. In any action in superior court, the prevailing party is entitled to costs. RCW 4.84.030; Black v. Dept of Labor & Indus., 131 Wash.2d 547, 557, 933 P.2d 1025 (1997). The rules set forth in chapter 4.84 RCW apply to appeals in the superior court under the IIA. Black, 131 Wash.2d at 557, 933 P.2d 1025; RCW 51.52.140; Allan v. Dept of Labor & Indus., 66 Wash. App. 415, 422-23, 832 P.2d 489 (1992) (holding statutory attorney fees were properly awarded to DLI when it prevailed in superior court); Cooper, 188 Wash. App. at 651, 352 P.3d 189 (“Chapter 4.84 RCW applies to appeals in the superior court from the Board.”).

¶96 Peterson argues that chapter 4.84 RCW does not apply because the IIA attorney fee provisions are silent as to award for DLI. See RCW 51.52.130, -.150. He argues that because the IIA is silent as to fees for DLI, such an award is prohibited. He further argues that RCW 51.52.150’s statement that DLIs expenses “shall be paid” from the specified funds mandates those funds as the “only source it can use to pay for its attorney fees.” Br. of Appellant at 45-46. His argument is that our Supreme Courts holding from Black and our analysis from Cooper and Allan are all wrong. His argument lacks merit.

¶97 Courts have expressly rejected Petersons argument that the IIA attorney fee provisions preclude an award of fees to DLI. For example, in Ferencak v. Department of Labor & Industries, Division One of this court held that DLI is entitled to statutory attorney fees under RCW 4.84.030 where Ferencak argued that only RCW 51.52.130 governs the award of fees in disputes under the IIA. 142 Wash. App. 713, 729-30, 175 P.3d 1109 (2008), affd on other grounds sub nom. Kustura v. Dept of Labor & Indus., 169 Wash.2d 81, 87, 233 P.3d 853 (2010). The Ferencak court disagreed, explaining:

[T]hese two provisions do not deal with the same kind of attorney fees. RCW 51.52.130 allows for an award of actual attorney fees incurred by an injured worker or employer on appeal to the superior or appellate court. In contrast, RCW 4.84.030 allows the superior court to award costs to the prevailing party, and under RCW 4.84.080, those costs include a nominal statutory attorney fee award of $200. RCW 51.52.140 states that the rules of civil procedure apply in all industrial insurance appeals to the superior court, and the Washington Supreme Court has held that this provision allows the court to impose statutory attorney fees under RCW 4.84.030.

142 Wash. App. at 729-30, 175 P.3d 1109 (citing Black, 131 Wash.2d at 557-58, 933 P.2d 1025). Applying the same reasoning here, RCW 51.52.130 allows for the award of actual fees to an injured worker, and section .150 merely explains the funding source for DLIs other court costs. In contrast, RCW 4.84.010 allows the superior court to award statutory fees and transcription fees to the prevailing party in superior court. Accordingly, we find no error and affirm.

II. Attorney Fees on Appeal

¶98 Peterson also requests attorney fees and costs under RCW 51.52.130 and RAP 18.1. “Under RCW 51.52.130, attorney fees are awarded to the worker or beneficiary where his or her appeal to the superior or appellate court results in a reversal or modification of the [IIA] decision.” Doan v. Dept of Labor & Indus., 143 Wash. App. 596, 607, 178 P.3d 1074 (2008).

¶99 Because Peterson does not prevail and we do not modify the IIAs decision, he is not entitled to fees.

CONCLUSION

¶100 Rhodes remains binding precedent and defeats Petersons arguments. Accordingly, we hold that DLI is not barred by res judicata from seeking reimbursement. Likewise, the Board acted within the scope of its authority when it reviewed and modified the IAJs proposed decision and order.

¶101 We also hold that Petersons petition for review raised all germane issues related to reimbursement and, even if it did not, DLIs ability to seek repayment is not limited by its ability to deny a claim under RCW 51.12.100(1), and that concurrent receipt of IIA and maritime benefits is not required to trigger repayment under the statute. Thus, under RCW 51.12.100 DLI need not cancel or reject the allowance order to seek reimbursement—under the statute funds shall be repaid. Finally, the superior courts award of statutory attorney fees to DLI was proper and we deny Petersons request for fees and costs. The judgment of the superior court is affirmed.

Reconsideration granted and opinion amended August 24, 2021.

FOOTNOTES

. RCW 51.52.104 provides that parties who fail to petition for review of an IAJs decision “shall be deemed to have waived all objections.”

. The LHWCA provides relief to workers employed and injured in shore- and harbor-centered maritime occupations. Gorman v. Garlock, Inc., 155 Wash.2d 198, 205, 118 P.3d 311 (2005); 33 U.S.C. § 902(3).

. The Jones Act provides tort remedies to certain injured maritime workers based on an employers negligence. Gibson v. Am. Constr. Co., Inc., 200 Wash. App. 600, 603 n.2, 402 P.3d 928 (2017); 46 U.S.C. § 30104.

. RCW 51.24.030 through RCW 51.24.120 allow an injured worker to seek third-party damages against a third party who is not the workers employer, provide for reimbursement and distribution to DLI or self-insurer in the event of a recovery, and allow for a settlement to DLI for less than benefits paid by the third party.

. Petersons notice claims that DLI had agreed to limit repayment to the $25,000 from his Jones Act recovery. He has abandoned this issue on appeal.

. The Rhodes court interpreted the language of former RCW 51.12.100 (1975) as it existed in 1985. 103 Wash.2d at 898, 700 P.2d 729. At that time, subsection (4) read, “In the event payments are made under this title prior to the final determination under the maritime laws, such benefits shall be repaid if recovery is subsequently made under the maritime laws.” Former RCW 51.12.100(4); Rhodes, 103 Wash.2d at 898, 700 P.2d 729.

. DLI argues that Peterson waived arguments on the Boards scope of review because he did not raise them in his petition for review. But we consider these arguments because Peterson raised the issue in a supplemental brief to the Board and also raised this argument in his trial brief in the superior court.

. Unlike here, there was no separate statute allowing for reimbursement even after a final order issued.

Worswick, J.

Lee, C.J., and Veljacic, J., concur:.

PETERSON v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES (2021)

Authorities cited

Opinion · public domain