18 NICS App. 47, IN RE TANYA ANDERSON (December 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 (December 4, 2020)
SYLLABUS*
Matter involved dispute over closure of a tribal employee’s worker’s compensation claim. The administrator of the worker’s compensation plan appealed the trial court’s reconsideration of original decision. Appellee argued Court of Appeals lacks jurisdiction to hear this matter. Court of Appeals agreed with appellee as the worker’s compensation plan abolishes and bans the Court of Appeals from having jurisdiction by allowing only two levels of appeal, ending at the trial court level.
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Before: |
Randy A. Doucet, Senior Appellate Judge; Mary Finkbonner Cardoza, Appellate Judge; Lauren J. King, Appellate Judge. |
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Appearances: |
James L. Gress, for Appellant; Cina Littlebird and Jennifer Yogi, for Appellee. |
OPINION
King, J:
This case involves a dispute over the propriety of Tribal First’s decision to close a worker’s compensation claim by Squaxin Island employee Tanya Anderson. This matter comes before the Court of Appeals pursuant to Tribal First’s Notice of Appeal filed on July 2, 2020. Tribal First appeals the Squaxin Island Tribal Court’s June 11, 2020 Reconsideration of Original Decision.
Appellee Tanya Anderson has asserted that this Court lacks jurisdiction over this appeal. We agree.
18 NICS App. 47, IN RE TANYA ANDERSON (December 2020) p. 48
I. 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.
• You have been released to return to work without restrictions, as it relates to the industrial injury.
• 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 you misrepresented your 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(8)(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
18 NICS App. 47, IN RE TANYA ANDERSON (December 2020) p. 49
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.
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, [sic] 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” or “WCPC”). On February 16, 2018, the Committee upheld Tribal First’s decision. The Committee’s decision contained no rationale.
18 NICS App. 47, IN RE TANYA ANDERSON (December 2020) p. 50
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.
d. Ms. Anderson’s Third Appeal
On September 13, 2019, the Committee issued a decision clarifying that:
The WCPC 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 WCPC 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 WCPC, the WCPC found that the Administrator's decision was not (1) unsupported by the evidence, (2) arbitrary
18 NICS App. 47, IN RE TANYA ANDERSON (December 2020) p. 51
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 WCPC. One position of the WCPC 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 reinstated Anderson’s worker’s compensation benefits retroactively to August 2, 2017.
e. Tribal First’s Appeal to the Squaxin Island Tribal Appeals Court
On November 21, 2019, Tribal First appealed the Tribal Court’s decision reversing the Committee’s decision and reinstating Anderson’s benefits. On April 6, 2020, we reversed the Tribal Court’s decision, holding that the Tribal Court applied the wrong standard of review to the Committee’s decision.
On June 11, 2020, the Tribal Court issued a decision holding that it was “still of the opinion that both of the lower administrative tribunals improperly denied Ms. Anderson [sic] request for worker’s compensation benefits.” The Tribal Court then stated that it believed “the final decision again lies with the Court of Appeals.” Tribal First appealed.
II. ANALYSIS
Both litigants and courts can raise subject matter jurisdiction defects at any time; objections to subject matter jurisdiction are non-waivable. In this appeal, Ms. Anderson argues that this Court lacks jurisdiction to hear appeals of Tribal Court decisions regarding workers compensation claims. Br. of Respondent at 4 n.4 (8/13/2020).
In this Court’s April 6, 2020 Order, we held that we had jurisdiction over this appeal under Squaxin Island Tribal Code (“SITC”) Section 4.32.020-.030. SITC Section 4.32.020 states that “[a]ny person who claims, in good faith, 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 shall have the right to appeal from the final judgment.” SITC Section 4.32.030 requires appeals to be filed within 20 days of a final judgment.
Upon reconsideration, this Court holds that the Squaxin Island Worker’s Compensation Plan abolishes and bars any jurisdiction the Court of Appeals would otherwise possess under the Squaxin Island Tribal Code.
SITC Section 4.04.040 provides that the Tribal Court “shall have only those powers granted to it by the Tribal Council in this and other tribal laws,” and, more generally, that the Tribal Court “shall have the power to interpret and apply tribal law.” However, the Tribal Court only has jurisdiction “over persons and subjects as the Tribal Council gives it by ordinances or resolution.” SITC § 4.04.050.
Although SITC Section 4.32.020 states that any person who claims that the Tribal Court made certain mistakes affecting the outcome of the case “shall have the right to appeal,” and SITC Section 1.04.030 states that the word “shall” is mandatory, other parts of the Tribal Code
18 NICS App. 47, IN RE TANYA ANDERSON (December 2020) p. 52
make clear that not all persons have such a right. For example, SITC Section 12.07.050 provides that “[t]here shall be no further right of appeal” beyond the trial court for litigants involved in lawsuits involving certain employment issues, and SITC Section 6.08.110 provides that decisions of the Squaxin Island Gaming Commission on certain complaints by patrons against the gaming establishment “shall be considered final, and not subject to appeal.” As discussed below, the Workers Compensation Plan also imposes limits on litigants’ rights to appeal.
We must construe the Tribal Code “with reference to and in accordance with the written laws and common law of the Squaxin Island Tribe, supplemented by introduction of evidence of custom and tradition as appropriate.” SITC § 1.04.020(A). The written laws of the Tribe include the Workers Compensation Plan, which the Tribe adopted by resolution in 2000 and 2002. See Resolutions 00-25 & 02-68, Squaxin Island Tribe Resolution List and Disposition Table, https://library.municode.com/tribes_and_tribal_nations/squaxin_island_tribe/codes/code_of_ordinances?nodeId=RELIDITA.1 Thus, we construe the Code “with reference to and in accordance with” the Workers Compensation Plan. SITC § 1.04.020(A).
Section 1.04 of the Workers Compensation Plan, titled “Exclusive Remedy,” limits court jurisdiction to only that jurisdiction expressly permitted in the Workers Compensation Plan:
The remedies described in this Plan shall be the exclusive remedies allowed by the Tribe to employees … for injuries sustained to employees in the course and scope of their employment. To that end, all civil causes of action against the covered employer … arising from said injuries … and the jurisdiction of all courts over such causes of action are hereby abolished and barred, except as specifically provided by herein.
Section 9.01 of the Workers Compensation Plan governs “Appeals from Decisions of the Administrator,” and provides two levels of appeals from final decisions of the Administrator: (1) the WCPC and (2) the Tribal Court. Although SITC Section 4.04.030(A) describes the “Tribal Court” as including “a Trial Court, an Employment Court and an Appeals Court,” the Plan provisions regarding the second level of appeal clearly refer only to the Trial Court. The Plan describes particular deadlines for filing an appeal from the WCPC decision (Section 9.02(B)), holding a hearing on that appeal (Section 9.02(C)), and issuing a decision on that appeal (Section 9.02(G)). However, the Plan makes no mention of any subsequent appeal. Instead, Section 9.02(G) expressly states that the decision on appeal of the WCPC decision “shall be final and binding upon the parties.” Therefore, the decision of the Trial Court on appeal of the WCPC decision is final and binding, and no further appeal is permitted under Sections 1.04 and 9.02(G) of the Plan.
Because the Workers Compensation Plan abolishes and bars our jurisdiction by allowing only two levels of appeal ending at the Trial Court level, we do not have jurisdiction over this appeal.
18 NICS App. 47, IN RE TANYA ANDERSON (December 2020) p. 53
III. CONCLUSION
We hereby vacate this Court’s April 6, 2020 decision. In accordance with Section 9.02(G) of the Workers Compensation Plan, the Trial Court’s October 22, 2019 decision shall be final and binding upon the parties.
IV. COSTS
No attorney fees or any other fees or costs associated with pursuing the appeal are awarded to either party.
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.
To the extent the Code conflicts with the Workers Compensation Plan, SITC Section 1.01.060 states that the Code will supersede ordinances adopted “prior to” resolution 96-69, which was adopted in 1996. The Workers Compensation Plan was adopted after resolution 96-69.