SANTIBANEZ v. TRIBAL FIRST/WARD FIRST

8 NICS App. 17, SANTIBANEZ v. TRIBAL FIRST/WARD FIRST (April 2007)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Jose Santibanez, Appellee,

Tribal First/Ward First, Tulalip Casino, Appellant.

No. TUL-CV-GC-2006-0025 (April 11, 2007)

SYLLABUS^*

Trial court reversed insurer’s denial of benefits and denied insurer’s motion for reconsideration. Court of Appeals holds that trial court applied the proper legal standard and that there is sufficient evidence in the record to support trial court’s findings. Trial court order affirmed.

Before: Jane M. Smith, Chief Justice; Edythe Chenois, Justice; John Sledd, Justice.

Appearances: Jose Santibanez, pro se; James Gress, for Tulalip First/Ward First.

OPINION

This matter comes before the Tulalip Tribal Court of Appeals for Oral Argument. Appellant appeared through its attorney, James Gress. Appellee appeared in person and without representation.

SUMMARY

This case comes to the Court from an Administrative Court decision. The case involves a claim for worker’s compensation benefits, back pay, and other relief under Tulalip Ordinance 108 as it existed prior to the adoption of extensive amendments in October, 2006.

Appellee was a blackjack dealer at the Tulalip Casino. Appellee suffered shoulder pain and sought medical treatment. He also filed a claim with the Tribe’s insurer, the Appellant. That claim was denied. Appellee timely appealed to the Trial Court. By stipulation, the Court decided the matter on just the documentary evidence, without hearing from witnesses or convening a trial. The Court issued a proposed ruling in favor of Appellee. The Court also granted 14 days

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for Appellant to request reconsideration. Appellant did timely request reconsideration on the grounds that “the weight of the medical evidence demonstrates that this injury was not work related.” Motion for Reconsideration, p.1. At the hearing on that Motion and in a letter filed a week later, Appellant provided the Court with supplemental legal authority regarding the standard that Appellant felt that the Court should have used to make a decision on the claim. The Court declined to consider Appellant’s supplemental authority as it was untimely and raised an argument not presented in the Motion for Reconsideration. The Court affirmed her prior decision. Appellant timely filed an appeal.

After reviewing the briefs and hearing the arguments, this Court finds that the Trial Court committed no error and we affirm the decision.

ISSUES ON APPEAL

Appellant’s notice of appeal raises two legal issues: Did the Court err when it declined to consider the legal standard advanced by Appellant on the basis that the argument was not timely made? Did the Court apply an incorrect legal standard on the merits?

JURISDICTION

The Court of Appeals has authority to hear this matter pursuant to Ordinances 49 and 108 of the Tulalip Tribal Law and Order Code.

STANDARD OF REVIEW

The Notice of Appeal presents an issue of law. We will review the Court’s actions de novo.

DISCUSSION

Appellant argues that the Trial Court erred in failing to consider its supplemental authorities and arguments on its Motion for Reconsideration. We do not find that argument overwhelmingly persuasive, but we need not address it because, even in light of the supplemental authorities, we do not think the trial court applied the wrong standard.

Appellant argues that the Trial Court did not use the proper legal standard when it found sufficient evidence to grant Appellee’s claim for benefits. Appellant argues that the Court should have used the Washington State standard in order to establish a compensable occupational disease. At the applicable time, Tulalip Ordinance 108, Section 3 stated that the Tribes will look to Washington statutes when claims for worker’s compensation are brought before the Court. In this case, Appellant argues that the proper legal standard requires medical

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testimony showing that the disabling condition arises naturally and proximately out of the distinctive conditions of the worker’s particular employment. We disagree.

The legal standard, under the former Ordinance 108, was the standard set out in Wasington Statute. The statute, RCW 51.08.140, required that the disabling condition “arises naturally and proximately out of employment.” The “Distinctive conditions of employment” standard is an additional requirement developed by the Washington Board of Industrial Insurance Appeals and courts. See, e.g., Dennis v. Department of Labor and Industries, 109 Wash.2d 467 (1987). Ordinance 108, however, incorporated only the statute, not State regulations or case law. Ordinarily, we would have found such case law persuasive under the prior Ordinance 108, but not in this case. Rather, the cases cited by Appellant convince us that the “distinctive conditions of employment” test is a needless and confusing addition to the statutory standard. See, Simpson Timber Co. V. Wentworth, 96 Wn.App 731, 738 (Div. 2, 1999) (employment conditions must be “distinctive” but need not cause greater risk of disease than other jobs or everyday life); Kaiser Aluminum v. McDowell, 58 Wn.App 283, 286-287 (Div. 3, 1990) (conditions must be “distinctive” but need not be “peculiar” nor “unique”).

In order to prevail, Appellee was required to prove, using competent medical evidence, that his disabling condition more likely than not arose naturally and proximately out of his employment. After reviewing the record, we find sufficient evidence to support the Court’s finding of a valid claim for an occupational injury. Appellee’s treating surgeon found that Appellee’s condition is “on a more probable than not basis related to his chronic upper extremity use as a reult of a dealer at the casino [sic]” (emphasis added). The physician did not merely opine, as the Appellant argues, that the Appellee’s condition was “work-related.” We need not decide whether such an opinion, by itself, would have sustained the empolyee’s claim.

Judge Pouley found there was sufficient evidence to find that an occupational disease was present. She looked at all the medical reports and found that Appellee’s injury was caused by his work as a dealer and was not the result of pre-existing conditions. Under Washington statute, incorporated in the previous version of Ordinance 108, that finding is prima facie correct. RCW. 51.52.115. See, Simpson Timber Timber, supra. Moreover, at oral argument Appellant conceded that it is not challenging the sufficiency of the evidnece to support the findings made, but rather, whether those findings met the applicable legal standard. We find that they did.

ORDER

We affirm and remand to the Court for processing consistent with this Order.

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.