18 NICS App. 13, IN RE TANYA ANDERSON (April 2020)
IN THE SQUAXIN ISLAND TRIBAL COURT OF APPEALS
SQUAXIN ISLAND INDIAN RESERVATION
SHELTON, WASHINGTON
In re: Tanya Anderson
Tanya Anderson, Petitioner/Appellee,
v.
Tribal First, Respondent/Appellant.
NO. CV-2018-1802-0047 (April 6, 2020)
SYLLABUS*
Trial court reinstated appellee’s worker’s compensation claim. Court of Appeals found trial court applied incorrect standard of review by erroneously treating worker’s compensation plan committee as the factfinder, when it was the administrator who served as primary factfinder, evaluated evidence, and made determination to close claim. Trial court committed error of law in ordering reinstatement of appellee’s claim as code and worker’s compensation plan do not give court authority to order such relief. Court of Appeals reversed trial court’s decision and remanded for further proceedings.
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Before: |
Randy A. Doucet, Chief Judge; Anthony Jones, Associate Judge; Lauren J. King, Associate Judge. |
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Appearances: |
James L. Gress for Appellant Tribal First, LeeAnne Kane Amicus Curiae on behalf of the Squaxin Island Tribe, Cina Littlebird and Jennifer Yogi for Appellee Anderson. |
OPINION
King, J.:
This case involves a dispute over the propriety of Tribal First’s decision to close Squaxin Island employee Tanya Anderson’s worker’s compensation claim. This matter comes before the Court of Appeals pursuant to Tribal First’s timely Notice of Appeal filed on November 21, 2019.
18 NICS App. 13, IN RE TANYA ANDERSON (April 2020) p. 14
The appellee is Tanya Anderson. The Squaxin Island Tribe submitted an amicus brief supporting Tribal First.
Tribal First appeals the Squaxin Island Tribal Court’s November 12, 2019 Decision of the Tribal Court on Motions For Reconsideration and to Intervene, as well as the underlying October 22, 2019 Decision of the Tribal Court that was subject to the motions. At oral argument, Tribal First raised contentions regarding the propriety of prior Tribal Court orders in the underlying matter. However, Tribal First did not include those orders in its Notice of Appeal and has therefore waived its right to appeal them.
In its appeal, Tribal First claims that the Squaxin Island Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of the case. We agree.
I. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal under Squaxin Island Tribal Code § 4.32.020-.030.
The Squaxin Island Court of Appeals is empowered to make any ruling which “disposes of the issues raised by the appeal,” § 4.32.150(C), which may include allegations that “the Squaxin Island Tribal Court made a mistake in interpreting the law, a mistake in assessing the facts, or a mistake in procedure, which affected the outcome of a case.” The Code is silent regarding the deference (if any) to accord the Tribal Court’s decision. However, “[i]n the absence of an applicable ordinance or rule,” this Court is empowered “to take any measures reasonably necessary to carry out and protect its jurisdiction, so long as such measures are consistent with the overall powers of the court as provided by the Tribal Council.” SITC § 4.04.130. This Court has previously adopted the clearly erroneous standard of review for findings of fact, and de novo review for conclusions of law. See Bragg v. Krise, 15 NICS App. 30, 31 (July 2017).2 We reaffirm that decision here.
II. PROCEDURAL BACKGROUND
a. The Injury and Claim Closure
Tanya Anderson is a member of the Squaxin Island Tribe and an employee of Skookum Creek Tobacco. In April 2017, she was injured exiting a forklift while she was working as a warehouse assistant. She has received treatment from various physicians for this injury. On August 2, 2017, Tribal First, the Administrator of the Tribe’s Worker’s Compensation Plan, closed Ms. Anderson’s claim based on the following reasons:
• The conditions directly related to the industrial injury of 04/l0/17 are at maximum medical improvement.
• [Ms. Anderson] ha[s] been released to return to work without restrictions, as it relates to the industrial injury.
18 NICS App. 13, IN RE TANYA ANDERSON (April 2020) p. 15
• No further active treatment measures are necessary, as it pertains to the industrial injury.
• The current complaints are the result of pre-existing und unrelated degeneration on a more probable than not basis. . . .
• Tribal First obtained surveillance footage, which was sent to the Orthopedic Surgeon performing the Independent Medical Examination for review. Based on his examination and review of the footage, it has been determined that [Ms. Anderson] misrepresented [her] physical abilities.
Claim Closure Letter from Tribal First Claims Examiner to T. Anderson at 1 (Aug. 2, 2017). The Squaxin Island Workers Compensation Plan defines MMI as the earlier of (a) the point which further material recovery or improvement to an injury can no longer reasonably be anticipated, based on reasonable medical probability; or (b) the expiration of 24 months from the date disability income benefits begin to accrue. WCP § 1.06(B)(17).
Ms. Anderson timely protested the Claim Closure to Tribal First. The Tribal First Claims Examiner sent a response letter dated September 27, 2017, providing Ms. Anderson with additional time to submit medical evidence in support of her protest. On October 16, 2017, counsel for Ms. Anderson notified the Tribal First Claims Examiner that “we see no need” to submit additional medical records or expert assessments.
On November 2, 2017, the Tribal First Assistant Vice President of Workers Compensation Claims (“AVP of Workers Compensation”) sent a letter to Ms. Anderson, issuing the Administrator’s final order on the claim closure. The letter recounted and reaffirmed the bases for Tribal First’s closure of Ms. Anderson’s claim. The letter first notes that “[t]he independent video surveillance consists of approximately 83 minutes of video” showing Ms. Anderson performing activities that were “outside the physical abilities” she had described to medical professionals, including “lifting and carrying various items such as a full trash bag, lifting and carrying toddler sized children, bending at the waist on multiple occasions, climbing into a lifted Jeep, driving, shopping, lifting items from the bottom shelf and out of the shopping cart, lifting items out of the shopping cart and loading your Jeep.” Claim Closure Letter from Tribal First AVP of Workers Compensation to T. Anderson at 1-2 (Oct. 16, 2017).
The letter also describes the analysis and findings of the Independent Medical Examination specialist, Dr. Needham. Dr. Needham reviewed Ms. Anderson’s medical records and the independent video surveillance and “found that [she] sustained a right hip strain and a lumbar strain, with both conditions at maximum medical improvement with no ratable impairment.” Id. at 2. Dr. Needham recommended no further treatment and noted that Ms. Anderson’s diagnosis of L2 compression fracture, along with other back issues, are “pre-existing and unrelated to the 04/10/17 incident.” Id. The letter asserted that these findings were consistent with the findings of Dr. Jeffrey L. Lieberman following an “independent review of the MRI of the lumbar spine performed on 05/24/17.” Id.
18 NICS App. 13, IN RE TANYA ANDERSON (April 2020) p. 16
With respect to the surveillance video, the letter noted Dr. Needham’s findings that “the activities witnessed in the independent surveillance video, conducted approximately 11 days prior to the examination, are not consistent with [Ms. Anderson’s] pain complaints” or with the July 11, 2017 physical examination.” Id. The letter provides several examples of such inconsistencies identified by Dr. Needham. Id.
The AVP of Workers Compensation concluded that “Dr. Needham’s opinion does not leave me with anything further to reconsider the Claims Examiner’s decision to close this claim.” Id. at 3. She therefore affirmed the claim closure as correct based on the following:
• Per the Squaxin Island Tribe Worker’s Compensation Plan Section 6.01.B(2): The consulting physician, or in the discretion of the Administrator, the attending physician, declares the worker has reached Maximum Medical Improvement.
• Per the Squaxin Island Tribe Worker’s Compensation Plan Section 6.01.B(4): A full, unrestricted release is provided by the consulting physician, or in the discretion of the Administrator, the attending physician.
• Per the, False Statement or Representation to Obtain Compensation; Penalty and Forfeiture [provision]: If, in order to obtain any benefits under the provisions of the Plan, any person willfully makes a false statement or representation, they shall forfeit all rights to compensation, benefits, or payments, upon proof that the offense was committed.
Id.
b. Ms. Anderson’s First Appeal
On November 13, 2017, Ms. Anderson appealed Tribal First’s closure of her claim to the Squaxin Island Worker’s Compensation Plan Committee (the “Committee”). On February 16, 2018, the Committee upheld Tribal First’s decision. The Committee’s decision contained no rationale.
Ms. Anderson appealed the Committee’s decision to the Tribal Court. On June 6, 2018, the Tribal Court reversed the Committee’s decision and remanded, directing the Committee to reconsider its decision and consider additional evidence presented by the parties.
c. Ms. Anderson’s Second Appeal
On January 18, 2019, the Committee again upheld Tribal First’s closure of Ms. Anderson’s claim. The decision again provided no rationale. Ms. Anderson appealed the decision to the Tribal Court.
On June 21, 2019, the Tribal Court issued an order of remand to the Committee to provide further clarification and explanation of its decision.
18 NICS App. 13, IN RE TANYA ANDERSON (April 2020) p. 17
d. Ms. Anderson’s Third Appeal
On September 13, 2019, the Committee issued a decision clarifying that:
The [Committee] found the following facts at the time of its January 18, 2019 decision:
1. Ms. Anderson reached Maximum Medical Improvement (MMI) as related to her work-related injury at the time Tribal First closed her claim. Both Consulting Physicians Dr. Stelzner and Dr. Needham concluded that Ms. Anderson reached MMI as to her work-related injury.
2. Pursuant to Section 6.01(B)(2), for those that suffer an on-the-job injury, benefits will be paid until “the consulting physician, or in the discretion of tire Administrator, the attending physician, declares that the worker has reached MMI.” The Administrator’s reliance on Dr. Needham and Dr. Stelzner’s conclusions that Ms. Anderson has reached MMI is in accordance with the Plan.
3. Although the Attending Physicians provided treatment to Ms. Anderson beyond the date of the claim closure, the attending physicians provided no additional medical evidence to attribute the ongoing treatment to Ms. Anderson’s work-related injury.
4. Ms. Anderson misrepresented her condition. This is supported by the summary of the surveillance video provided as well as the surveillance video footage that was taken on June 29 and June 30, 2017 and July 27 and August 5, 2018. Ms. Anderson did not show any symptoms as she described to the providers and showed no signs of discomfort or inability to perform regular activities throughout the duration of the video.
For the aforementioned reasons, the [Committee] found in its January 18, 2019 decision that the claimant failed to meet her burden to prove that the Administrator’s decision was not in accordance with, or was in violation of, the Plan. Upon review of all the evidence submitted to the [Committee], the [Committee] found that the Administrator’s decision was not (1) unsupported by the evidence, (2) arbitrary and capricious, or (3) contrary to the terms and provisions of the plan. These findings of fact were made unanimously by 5 members of the [Committee]. One position of the [Committee] is vacant.
Ms. Anderson appealed again. On October 22, 2019, the Tribal Court issued a decision reversing the Committee’s January 18, 2019 decision, as clarified in the Committee’s September 13, 2019 decision. The Tribal Court’s rationale is discussed in further detail below. The Tribal Court reinstated Ms. Anderson’s worker’s compensation benefits retroactively to August 2, 2017.
III. ANALYSIS
18 NICS App. 13, IN RE TANYA ANDERSON (April 2020) p. 18
The claim closure and standard of review on appeal of such closure is key to our opinion:
Initial Factfinding. Tribal First as Administrator is the primary “factfinder” in this process. It is Tribal First who evaluates the evidence, including physicians’ opinions, to determine whether to close a claim.
Review by the Committee of Factfinder’s Conclusion. On appeal of the Administrator’s decision, the Committee may reverse the decision only if it is (1) unsupported by the evidence; (2) arbitrary and capricious; or (3) contrary to the terms and provisions of the Worker’s Compensation Plan. These standards thus require the Committee to afford some deference to the Administrator’s factfinding.
Review by Tribal Court of Committee’s Review of Factfinder’s Conclusion. On appeal of the Committee’s decision, the Tribal Court’s task is to evaluate whether the Committee’s decision [that the administrator’s decision was not unsupported by the evidence, arbitrary and capricious, or contrary to the terms of the Plan] is itself unsupported by the evidence, arbitrary and capricious, or contrary to the terms of the plan.
Here, the Tribal Court concluded that the Committee’s decision was arbitrary and capricious because the Court could not discern the Committee’s rationale in deferring to certain physicians’ opinions over others. 10/22/2019 Opinion at 14-15. The October 22, 2019 Order states that the “WCPC [the Committee] employed three independent doctors” and that “WCPC [chose] to ignore Brooke’s opinion” and “instead rel[ied] on Needham and Seltzer’s opinions to decide to affirm Tribal First’s decision.” Id. at 14-15. However, it is the Administrator—not the Committee—who employed the consulting physicians and weighed the physicians’ opinions and other evidence to determine whether to close Ms. Anderson’s claim. By erroneously treating the Committee as the factfinder, the Tribal Court applied an incorrect standard of review.
The Tribal Court’s conclusion that the Committee’s decision was unfair and thus contrary to the terms of the Worker’s Compensation Plan because it would be “fair for Anderson to benefit from the ambiguity of the evidence,” see id. at 15-16, likewise relies on the Court’s erroneous factual assessment.
The Tribal Court also committed an error of law in ordering reinstatement of Ms. Anderson’s claim. The Code and Plan do not empower the Tribal Court to order such relief. Instead, the Tribal Court must remand the matter to the Committee, who must then remand to the Administrator to implement such relief. See Worker’s Compensation Plan §§ 2.03, 3.02.
IV. CONCLUSION
We REVERSE and REMAND to the Tribal Court to review the Committee’s January 22, 2019 decision, as clarified in the Committee’s September 13, 2019 decision, in accordance with this Opinion.
The Court is aware of the provisions of Section 4.32.160 of the Squaxin Island Appellate Code that the party who loses the appeal is to pay the costs of appeal. However, in this case, the interests of justice would not be served by assessing costs against the Appellee. Therefore, no costs will be assessed.
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.
There appears to be a typo in the Bragg opinion where it states that the clearly erroneous standard applies to “errors of law.” We clarify here that the clearly erroneous standard applies to findings of fact.