10 NICS App. 37, In Re Thomas Sperling (November 2011)
IN THE SAMISH TRIBAL COURT OF APPEALS
SAMISH INDIAN NATION
ANACORTES, WASHINGTON
Samish Indian Tribe, Employer and Appellant,
and,
Thomas Sperling, Claimant and Appellee.
No. SAM-APP-2010-01 (November 29, 2011)
SYLLABUS*
Tribe’s insurer for worker compensation claims closed a claim of a tribal employee with a finding of no permanent impairment and no additional time-loss payments. Trial court directed the Tribe to conduct a vocational assessment, provide retraining, and pay time-loss until the claimant could be retrained into a new occupation. Court of Appeals holds that the trial court exceeded its authority by ordering the retraining and time loss payments prior to the completion of the vocational assessment. Affirmed in part, reversed in part, and remanded.
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Randy A. Doucet, Chief Judge; Lisa A. Atkinson, Appellate Judge; Mark W. Pouley, Appellate Judge. |
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James L. Gress, counsel for Appellant; William R. McCann, counsel for Appellee. |
OPINION
Pouley, J.:
The Samish Tribal Court of Appeals, having reviewed the record provided to the court, the briefs and argument of the parties on October 21, 2011, hereby rules as follows:
BACKGROUND
The claimant, Thomas Sperling, sustained an industrial injury on May 16, 2004 while working for the Tribe. He filed a workers’ compensation claim with Tribal First on December 1,
10 NICS App. 37, In Re Thomas Sperling (November 2011) p. 38
2004. The Tribe has a contractual relationship with the Hudson Insurance Corporation to insure workers’ compensation claims filed by its employees. Tribal First is the claims administrator for these claims.
On May 15, 2006, Sperling’s claim was allowed for a chest contusion, a right shoulder contusion and clavicular fracture. A second order was issued by Tribal First on November 2, 2006 amending the allowance to include an abdominal hematoma with complications.1 On January 10, 2008, Tribal First issued an order closing the claim without permanent impairment and denying further time loss. Mr. Sperling challenged the order closing the claim; however on July 15, 2008 Tribal First affirmed the closure. Mr. Sperling made a second appeal to Tribal First, but the decision was affirmed on January 7, 2009 and again on August 24, 2009. On August 28, 2009, Mr. Sperling filed a Notice of Appeal with the Samish Tribal Court.
PROCEDURAL HISTORY IN THE TRIBAL COURT
The trial court heard Mr. Sperling’s appeal on August 11, 2010. The trial court heard live testimony, reviewed the medical records and deposition testimony. The trial court issued a “Proposed Decision and Order” (hereinafter, the “Order”) on November 4, 2010. In its findings, the trial court noted that “The only issue on appeal is whether the Tribe erred in closing the claim.” The trial court concluded that Mr. Sperling is permanently partially disabled due to the recurring incisional hernias and held that Tribal First erred in closing the claim before his disability was rated and compensated pursuant to R.C.W. 51.32.080.
The trial court also found Tribal First erred by closing the claim before Mr. Sperling could be vocationally assessed and retrained into a new occupation. The court ordered the Tribe to continue paying Mr. Sperling time-loss until he is retrained in a new occupation that does not require lifting over 5 pounds and his disability is rated and compensated.
The Tribe appealed on November 29, 2010. On December 10, 2010 the trial court changed the “Proposed Decision and Order” to a Final Order. The Tribe filed a Supplemental Notice of Appeal January 4, 2011 asking that the Final Order be reversed in part.
QUESTION PRESENTED
Did the trial court err when it directed the Tribe to conduct a vocational assessment and pay time-loss until such time as the claimant can be retrained into a new occupation?
10 NICS App. 37, In Re Thomas Sperling (November 2011) p. 39
This Court has determined that the trial court erred in part and modifies the order of the trial court.
DISCUSSION
The issue before this Court is one of first impression. The subject matter, workers’ compensation claims, is a complex field of law that is commonly litigated in state courts. However, the Samish Tribe is only just entering this field of law through litigation in the Samish Tribal Court. Currently, there is no established tribal case law or statutory guidance in the Samish Tribe’s code of laws. As a result, fundamental questions usually answered by statutes must be determined by this Court, such as the scope of review of this appeal. To determine the proper scope of review this Court has considered whether the Samish Tribal Court proceeding is similar to an appeal from the Department of Labor and Industries to the Board of Industrial Insurance Appeals, or an Appeal from the Board to the Washington State Superior Court.2 This Court finds it appropriate to consider analogous and well established rules and procedures developed in state industrial insurance law.
Another complicating factor in deciding this appeal was the lack of a complete record of the proceedings below. The Samish Tribal Court is new and developing and does not have proper court recording equipment, which resulted in the recording of the trial court proceedings to be incomplete and inaudible. Although this is an appeal of the orders of Tribal First, not all of the orders were made part of the trial court record for review by this Court. Documents filed with the court were not date stamped, which made it difficult to determine issues of timeliness.3 These procedural issues have not prevented this Court from rendering a decision, but they should serve as an advisory note for administration of the Court and development of codes and procedures. The Samish Tribal Court and the Samish Indian Nation are encouraged to continue to develop the Court’s capacity to serve the community with the highest possible professionalism.
At the beginning of these proceedings, the parties stipulated to use of the Washington State laws for industrial insurance claims, RCW 51.52, and the Washington Rules of Civil Procedure. Order at 3-4. Although not expressly stated, it appears that the trial court treated the proceedings as if it were deciding an appeal from the Department of Labor and Industries to the Board of Industrial Insurance Appeals, in which case, the matter before this court would be in the nature of an Appeal from the Board to a Washington State Superior Court. Determining the authority being exercised by the various reviewing bodies is required to define the scope of review and the deference, if any, that should be shown to findings of fact.
10 NICS App. 37, In Re Thomas Sperling (November 2011) p. 40
It is clear in the State industrial insurance structure that the law favors decisions on claims to be made at the administrative level. Reviewing bodies are limited to the issues that may be reviewed, and the relief that may be granted. It is well established that the Board’s scope of review is limited to those issues which the Department has already decided. Hanquet v. Dept. of Labor & Industries, 75 Wash. App. 657, 661 (Div. 1, 1994); citing Lenk v.Dept. of Labor & Industries, 3 Wash. App. 977 (1970). While the Board’s review of the claims and issues is de novo, the Board is restrained from enlarging the scope of the proceedings before it. Id. 662. Likewise, while a superior court reviewing a decision of the Board may engage in de novo review, the Supreme Court has consistently held that the superior court may not consider a question that was not properly before the Board. Id. at 663. If there is no Department decision regarding a specific issue of fact, the Board and the reviewing court may not consider these matters, even if argument and evidence regarding the issues are presented. See, Mestrovac v. Dept. of Labor & Industries, Wash. App. 693, 705 (Div 1, 2008).
Regardless of whether we consider the Samish Tribal Court to be analogous to the reviewing body of the Board of Industrial Insurance Appeals, or the superior court reviewing Board decisions, the Samish Tribal Court exceeded its authority by broadening the scope of its review beyond decisions made by Tribal First. It appears that the parties and the trial court adhered to this position at least in part on the issue of the syrinx injury. In his brief before the trial court, Mr. Sperling stated “the allowance of the syrinx was never denied so there was never an order relating to the syrinx from which to appeal.” Brief of Claimant September 22, 2010. The trial court found Mr. Sperling’s syrinx “may or may not have been caused by the industrial accident. This issue is not before this Court since the Tribe has taken no official action on the issue.” Finding #7, Order at 7. This finding is not challenged and the parties appear to accept this argument and conclusion. The trial court did not, however, limit its scope of review in all such matters.
On January 7, 2009, reaffirmed August 24, 20094, Tribal First issued its final decision affirming the Orders of July 15, 2008 and January 1, 2008, finding Mr. Sperling’s condition was fixed and stable, that he was not entitled to a permanent partial disability award, and closing the claim. Mr. Sperling appealed to the Samish Tribal Court, citing three issues for appeal; 1) the claim should be allowed for injury to the neck and right shoulder, 2) he is in need of further treatment related to the abdominal injury and the consequences of subsequent surgery and, 3) he remains totally disabled and is entitled to time-loss compensation from when time-loss compensation was ended. Claimant’s Notice of Appeal, August 28, 2009.5 In his trial court brief,
10 NICS App. 37, In Re Thomas Sperling (November 2011) p. 41
Mr. Sperling contended that his claim was erroneously closed because his condition was not fixed and stable, requiring further treatment and that he is not currently employable and in need of “vocational services” and time-loss payment until such time as he becomes employable. Brief of Claimant¸ September 22, 2010. To the second claim, the Tribe replied that Mr. Sperling was not determined to be permanently disabled because he is able to work. Brief of the Tribe, October 5, 2010. Further, any subsequent disability and inability to work was not related to a claim for which the Tribe is responsible.
The trial court properly conducted a de novo review of medical and other evidence considered to establish the claim and Tribal First’s decision to close the claim without a finding of disability. Based on the evidence the trial court found that as of June 2008 the Tribe had conducted at least five independent medical examinations and all doctors had concluded that Mr. Sperling’s condition was fixed and stable and that he could return to his previous employment. On October 23, 2009, Mr. Sperling saw surgeon Dr. Tomoyuky Ochiai who opined that Mr. Sperling needed additional surgery to correct an incisional hernia. Mr. Sperling’s treating physicians opined that he will likely suffer a life-long problem with incisional hernias, and Dr. Christine Schmalz, a hernia expert, stated in her notes that Mr. Sperling was likely limited to lifting no more than five pounds.6
This Court gives deference to the factual findings of the trial court. There was sufficient evidence to support the trial court’s findings and conclusions that the surgeries for the incisional hernias are related to the original surgery for which the Tribe accepted a claim, therefore, the Tribe is required to accept the claims for the surgeries related to the original surgery.7 From these findings, it was also reasonable for the trial court to find and conclude that since the claimant has not had any surgeries since 2009 Mr. Sperling is fixed and stable, but given the permanent nature of the hernia condition and the concomitant lifting limitations, Mr. Sperling was permanently and partially disabled.
While there was sufficient evidence to find that Mr. Sperling suffers a permanent partial disability, and there was significant evidence that this disability limits his future employability to the extent that he may need vocational services and retraining, it was premature for the trial court to order such relief. The issue presented to the court by Mr. Sperling was that he was not fixed and stable and needed further treatment. In sum, the claim should not have been closed. Counsel for Mr. Sperling argued, “He [Sperling] has never been fixed and stable. He continues to be unstable because of the ongoing hernias that have occurred on a regular basis. And our
10 NICS App. 37, In Re Thomas Sperling (November 2011) p. 42
argument is that he is not fixed and stable, needs further treatment. And when he become (sic) fixed and stable, then he needs to be provided vocational services.” Transcript of hearing at 157. The trial court found that Mr. Sperling’s employability may be impacted by his disability and ordered the Tribe to provide him with a vocational assessment. The trial court decision is supported by the evidence and findings. However, the trial court then appears to have predicted the results of the assessment and ordered specific vocational services and job retraining. This was premature and beyond the trial court’s scope of review. While it is quite possible, given the evidence in the record, that a vocational assessment will determine that Mr. Sperling does not have any transferrable skills and/or is in need of vocational retraining, the assessment has not been completed and the conclusions are still unknown. The assessment must be completed, before Mr. Sperling can be determined to be entitled to time-loss payments for the period of time that his disability has rendered him unemployable. Assuming this outcome, the relief ordered by the trial court will follow, but it was improper for the trial court to assume this outcome and this court reverses that part of the trial court’s order.
It is unclear from the record or argument of the Tribe why Mr. Sperling was not given a vocational assessment following the closing of his claim. Presumably, the Tribe relied on the opinions of the independent medical exams prior to June 2008 that Mr. Sperling’s condition was fixed and stable and that he could return to his previous employment. It appears from that time forward, including argument before the trial court, the Tribe took the position that it was not responsible for the continuing hernia condition or the resultant disability. Providing an assessment of employability as a result of this condition, would have been inconsistent with the position that the Tribe was not responsible for that condition. Given the conclusion that the Tribe is responsible for the hernia conditions and Mr. Sperling is permanently partially disabled as a result, it is reasonable to conclude that this will impact his employability and create a need for vocational training. Unfortunately, it has been many years since this conclusion should have been reached and the assessment and possible training should have been provided. While a sense of equity may persuade this Court to order what it believes may be the obvious relief, it is premature to do so and beyond the proper scope of these reviewing bodies.
ORDER
The decision of the Samish Trial Court is affirmed in part, except that it shall be modified to delete the orders that the Tribe retrain the claimant for an occupation that requires no lifting over five pounds, and the payment of time-loss benefits until such time as he is retrained. The Tribe shall provide Mr. Sperling with a vocational assessment with all due haste and, if he is found not to be immediately employable, and/or in need of vocational services and/or job training, the Tribe shall provide claimant with such services, training and time-loss payments as are legally appropriate and required for all time that it is determined he was not employable and until such time as he can become employable.
Pursuant to STC 3.006(b), we remand this matter to the trial court for entry of a final
10 NICS App. 37, In Re Thomas Sperling (November 2011) p. 43
judgment consistent with this Opinion. Pursuant to STC 3.062(y)(1), we direct the clerk of the Samish Tribal Court to note this Opinion in the Court’s docket and to provide a conformed copy of this Opinion to the trial court judge and the parties.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
At the trial court level the Tribe argued that it should not be bound by this decision for several legal and factual reasons. The trial court rejected these arguments and found the Tribe was bound by the decision. The Tribe does not appeal that finding here.
STC 3.006(b), the Tribal code section entitled “Scope of Review,” sets forth the standard of review employed by the Court of Appeals, but does not address the special circumstances and issues raised by an industrial insurance appeal discussed in this opinion.
By prior order this Court denied a Motion to Dismiss the appeal, in part because of a challenge to the timeliness of filing.
The record on appeal includes Tribal First’s letter decision dated January 7, 2009, but does not include the letter dated August 23, 2009 from which the appeal to the Samish Tribal Court arises.
In materials submitted to the court dated March 10, 2010 counsel for the claimant reiterated “The issues, as we see it, are as follows; 1) Keeping the claim open for treatment of the hernias and other conditions that may be related to the original abdominal injury, 2) Allowing treatment for the neck/shoulder condition, 3) Requiring Tribal First to resume time-loss compensation from when it was terminated from about January 9, 2008, and 4) If the judge determines that the claim should have been closed and the treatment has concluded then we are requesting payment of permanent partial disability and or total disability benefits.”
Even before the hernia operations, earlier independent medical opinion suggested the claimant would be limited to lifting no more than 50 pounds.
At trial there was substantial argument that the Tribe was not bound by Tribal First’s acceptance of claims related to the abdominal hematoma. The trial court rejected all of these arguments and the Tribe does not appeal that decision here.