author: Schindler, J.

text:
    Ronald V. MA'AE, Appellant, v. WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
    No. 77737-8-I
    Court of Appeals of Washington, Division 1.
    FILED: April 1, 2019
    Isabel Anne Munat Cole, Tacoma Injury Law Group, 3848 S Junett St., Tacoma, WA, 98409-5623, for Appellant
    Sarah Merkel Reyneveld, Anastasia R. Sandstrom, Attorney General's Office, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent.
    PUBLISHED OPINION
   Schindler, J.

¶1 We must liberally construe the statutory provisions of the Industrial Insurance Act (IIA), Title 51 RCW, to provide compensation to workers injured in the course of employment. RCW 51.32.160 gives a worker the right to file an application to reopen a claim for aggravation of an industrial injury. Case law requires the worker to prove aggravation by presenting expert medical evidence of objective worsening of the injury since closure of the claim. If the Department of Labor and Industries (Department) denies the claim, the worker has the right to appeal, but review is limited to the administrative record. In 2011, the legislature amended chapter 51.36 RCW, "Medical Aid," to establish a network of health care providers to treat injured workers. In addition to adopting rules to establish the health care provider network, the Department amended the WAC that governs reopening a claim for aggravation of an industrial injury, WAC 296-14-400. The amendment to WAC 296-14-400 mandates that only a Department network provider can submit medical documentation in support of an application to reopen a claim to obtain benefits for aggravation of an industrial injury. We conclude the amendment to WAC 296-14-400 conflicts with the intent and purpose of the IIA; the amendment to chapter 51.36 RCW, Medical Aid; RCW 51.32.160 ; and long-standing case law and the right of a worker to prove aggravation of an industrial injury. We conclude the Department exceeded its statutory authority in promulgating the amendment to WAC 296-14-400 and the amendment is invalid. We reverse the declaratory judgment order.

Permanent Partial Disability Award

¶2 The facts are not in dispute. In 2007, Ronald V. Ma'ae worked as a journeyman carpenter for Safeway Services LLC. On January 19, Ma'ae suffered a back and shoulder injury. On February 5, 2007, the Department of Labor and Industries (Department) allowed the claim for industrial injury benefits under the Industrial Insurance Act (IIA), Title 51 RCW. On July 24, 2009, the Department closed the claim and awarded Ma'ae permanent partial disability benefits for "right upper extremity impairment."

2011 Amendment to Chapter 51.36 RCW

¶3 In 2011, the legislature amended the IIA, chapter 51.36 RCW, "Medical Aid," to establish a health care provider network to treat injured workers. LAWS OF 2011, ch. 6, § 1. RCW 51.36.010(1) states, in pertinent part:

The legislature finds that high quality medical treatment and adherence to occupational health best practices can prevent disability and reduce loss of family income for workers, and lower labor and insurance costs for employers. Injured workers deserve high quality medical care in accordance with current health care best practices.

¶4 The legislature directed the Department to establish "a health care provider network to treat injured workers" and "minimum standards for [network] providers who treat workers." RCW 51.36.010(1). The legislature states the Department "may adopt rules related to this section." RCW 51.36.010(10).

¶5 In addition to promulgating and amending chapter 296-20 WAC, "Medical Aid Rules," and chapter 296-14 WAC, "Industrial Insurance Rules," to establish a health care provider network to treat injured workers, the Department amended the rule on "Reopenings for Benefits," WAC 296-14-400. As amended, WAC 296-14-400 mandates that effective January 1, 2013, "where the department has established a provider network," medical documentation in support of a reopening application shall only "be completed by network providers." WASH. ST. REG. (WSR) 12-06-066.

2014 Denial of Reopening Application

¶6 On April 14, 2014, Ma'ae submitted an "Application to Reopen Claim Due to Worsening of Condition" to the Department with medical documentation from orthopedic surgeon Dr. H. Richard Johnson.

¶7 Dr. Johnson examined Ma'ae on March 14, 2014. Dr. Johnson states Ma'ae is experiencing "[d]aily headaches. Neck pain radiating into upper extremities. Right shoulder pain. Left shoulder pain. Right hand numbness. Low back pain. Anxiety and depression." Dr. Johnson states Ma'ae's industrial injury had objectively worsened and recommended "curative treatment" that included low back, neck, and shoulder diagnostic studies and consideration of low back surgery and "additional cervical spine surgery."

¶8 Dr. Johnson attached a report of the "current medical findings including history, examination, and test results that would support a measurable (objective) worsening of his industrial injury or occupational disease since claim closure or the last reopening denial."

[A]ggravation (permanent worsening) of cervical spondylosis ; cervical radiculopathy, left greater than right; status post op three level anterior discectomies interbody fusions at C3-C4, C4-C5, and C5-C6 with anterior plate fixation; right shoulder strain/sprain; impingement syndrome, right shoulder; adhesive capsulitis, right[ ] shoulder (frozen shoulder; status post op right shoulder manipulation under anesthesia followed by arthroscopic capsular release, anterior subacromial decompression, and distal clavicle resection ; aggravation of pre-existing left shoulder dysfunction; adhesive capsulitis of left shoulder; frozen left shoulder; ulnar entrapment neuropathy at the left elbow; status post op anterior ulnar nerve transposition at the left elbow; left carpal tunnel syndrome ; status post[ ]op left carpal tunnel release ; right carpal tunnel syndrome ; thoracic strain/sprain; aggravation of pre-existing asymptomatic thoracic spondylosis ; small left paracentral disc herniation at T12-L1; lumbosacral strain /sprain; aggravation (permanent worsening) of pre-existing, asymptomatic lumbar spondylosis ; lumbar radiculopathy, bilateral; tear of lateral meniscus, right knee; erectile dysfunction ; adjustment disorder with mixed anxiety and depressed mood; pain disorder with anxiety, depression, irritability, and low back pain; and chronic pain syndrome related on a more-probable-than not basis to the industrial injury of January 19, 2007.

¶9 The Department extended the time for the reopening application. At the direction of the Department, Ma'ae participated in independent medical examinations.

¶10 On September 5, 2014, the Department denied the reopening application because Dr. Johnson was not a member of the medical provider network.

After further review, we have learned that Dr. H. Richard Johnson is not a member of Labor and Industries Medical Provider Network. Only approved network provider can file reopening applications.[ ]Your request for reopening has been denied. This claim remains closed.

¶11 The September 5, 2014 "Notice of Decision" states, "The department denies the reopening of this claim because no medical documentation has been provided to the department as required by law."

Appeal of Department Decision to Deny Reopening Claim

¶12 On September 30, 2014, Ma'ae filed an appeal of the September 5 order denying the application to reopen to the Board of Industrial Insurance Appeals (BIIA).

¶13 The Department filed a motion for summary judgment. The Department argued it was entitled to judgment as a matter of law because Dr. Johnson was not a member of the Department's medical provider network. The Department asserted the amendment to WAC 296-14-400"mandates that the documentation for reopening application 'must be completed by network providers.' " In opposition, Ma'ae argued the amendment to WAC 296-14-400 exceeded the authority of the Department to promulgate rules under RCW 51.36.010. In reply, the Department argued the legislature gave it the authority to amend WAC 296-14-400 to require a worker to submit documentation in support of an application to reopen from only a network provider. The Department asserted the BIIA does not have the authority to review the validity of the rule.

¶14 On June 25, 2015, a Board of Industrial Insurance Appeals judge (IAJ) issued a proposed decision and order affirming the decision of the Department to deny the application to reopen. On August 11, 2015, Ma'ae appealed the IAJ proposed decision and order to the BIIA.

Declaratory Judgment Action

¶15 On August 12, 2016, Ma'ae filed a declaratory judgment action in Thurston County Superior Court challenging the authority of the Department to amend WAC 296-14-400. Ma'ae asserted the amendment exceeded the authority of the Department to promulgate rules under RCW 51.36.010.

¶16 On October 20, 2016, the superior court entered an order and judgment. The order states the WAC 296-14-400 amendment is a valid rule.

Appeal of Declaratory Judgment Order

¶17 Ma'ae contends the amendment to WAC 296-14-400 that limits the right of an injured worker to present expert medical documentation to prove objective worsening of an industrial injury from only a network provider exceeds the authority of the Department. Ma'ae asserts the amendment conflicts with the intent and purpose of the IIA; the amendment to chapter 51.36 RCW, Medical Aid; the statute on aggravation, RCW 51.32.160 ; long-standing case law; and the right to present evidence of aggravation on appeal.

¶18 The Washington Administrative Procedure Act, chapter 34.05 RCW, governs judicial review of an administrative rule. RCW 34.05.570 governs the validity of a rule. We review the validity of an agency rule de novo. Wash. Hosp. Ass'n v. Dep't of Health, 183 Wash.2d 590, 595, 353 P.3d 1285 (2015) ; Local 2916, IAFF v. Pub. Emp't Relations Comm'n, 128 Wash.2d 375, 379, 907 P.2d 1204 (1995) ; Tapper v. Emp't Sec. Dep't, 122 Wash.2d 397, 402, 858 P.2d 494 (1993). Agency rules are presumed valid. St. Francis Extended Health Care v. Dep't of Soc. & Health Servs., 115 Wash.2d 690, 702, 801 P.2d 212 (1990). "The burden of overcoming this presumption rests on the challenger, and judicial review will be limited to a determination of whether the regulation in question is reasonably consistent with the statute being implemented." St. Francis, 115 Wash.2d at 702, 801 P.2d 212. "[T]he court shall declare the rule invalid" if "the rule exceeds the statutory authority of the agency." RCW 34.05.570(2)(c). " '[A]lthough we generally accord substantial deference to agency decisions, we do not defer to an agency the power to determine the scope of its own authority.' " Fed'n of State Emos. v. Dep't of Gen. Admin., 152 Wash. App. 368, 377-78, 216 P.3d 1061 (2009) (quoting In re Registration of Elec. Lightwave. Inc., 123 Wash.2d 530, 540, 869 P.2d 1045 (1994) ).

¶19 " 'Administrative "[r]ules must be written within the framework and policy of the applicable statutes." ' "

Wash. Hosp. Ass'n, 183 Wash.2d at 595, 353 P.3d 1285 (quoting SwinomishIndian Tribal Cmtv. v. Dep't of Ecology, 178 Wash.2d 571, 580, 311 P.3d 6 (2013) (quoting Dep't of Labor & Indus. v. Gongyin, 154 Wash.2d 38, 50, 109 P.3d 816 (2005) ) ). " ' " '[A]dministrative rules or regulations cannot amend or change legislative Enactments.' " ' " Wash. Hosp. Ass'n, 183 Wash.2d at 595, 353 P.3d 1285 (quoting Swinomish Indian Tribal Cmty., 178 Wash.2d at 580-81, 311 P.3d 6 (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 19, 43 P.3d 4 (2002) (quoting Dep't of Ecology v. Theodoratus, 135 Wash.2d 582, 600, 957 P.2d 1241 (1998) ) ) ). If " 'the rule is "reasonably consistent with the controlling statute[s]," an agency does not exceed its statutory authority.' " Wash. Hosp. Ass'n, 183 Wash.2d at 595, 353 P.3d 1285 (quoting Swinomish Indian Tribal Cmty., 178 Wash.2d at 580, 311 P.3d 6 (quoting Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wash.2d 637, 646, 62 P.3d 462 (2003) ) ). Rules that are not consistent with or are broader than the statutes they implement are invalid. Wash. Hosp. Ass'n, 183 Wash.2d at 595, 353 P.3d 1285 (quoting Swinomish Indian Tribal Cmty., 178 Wash.2d at 581, 311 P.3d 6 (citing Bostain v. Food Express, Inc., 159 Wash.2d 700, 715, 153 P.3d 846 (2007) ) ).

¶20 Statutory interpretation is also a question of law that we review de novo. W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wash.2d 599, 607, 998 P.2d 884 (2000) ; Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 807, 16 P.3d 583 (2001) (statutory construction is a question of law we review de novo). Our fundamental objective is to ascertain and give effect to legislative intent. Darkenwald v. Emp't Sec. Dep't, 183 Wash.2d 237, 244-45, 350 P.3d 647 (2015). The "plain meaning" of a statute is discerned from the ordinary meaning of the language at issue as well as the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole. Lake v. Woodcreek Homeowners Ass'n, 169 Wash.2d 516, 526, 243 P.3d 1283 (2010). "While we look to the broader statutory context for guidance, we 'must not add words where the legislature has chosen not to include them,' and we must 'construe statutes such that all of the language is given effect.' " Lake, 169 Wash.2d at 526, 243 P.3d 1283 (quoting Rest. Dev., Inc., v. Cananwill, Inc., 150 Wash.2d 674, 682, 80 P.3d 598 (2003) ). Where the language of a statute is clear on its face, we give effect to the plain meaning as an expression of legislative intent. Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4. A statute is ambiguous if it has two or more reasonable interpretations, but not " 'merely because different interpretations are conceivable.' " Cerrillo v. Esparza, 158 Wash.2d 194, 201, 142 P.3d 155 (2006) (quoting Agrilink Foods. Inc., v. Dep't of Revenue, 153 Wash.2d 392, 396, 103 P.3d 1226 (2005) ).

¶21 Whenever possible, statutes are to be read together to achieve a " 'harmonious total statutory scheme ... which maintains the integrity of the respective statutes.' " Dep't of Revenue v. Fed. Deposit Ins. Corp., 190 Wn. App. 150, 157-58, 359 P.3d 913 (2015) (quoting Employco Pers. Servs., Inc., v. City of Seattle, 117 Wn.2d 606, 614, 817 P.2d 1373 (1991) ). An interpretation that reads language in isolation is too limited and fails to apply this rule. Jongeward v. BNSF Ry. Co., 174 Wash.2d 586, 595, 278 P.3d 157 (2012) ; see Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."). The construction of two statutes shall be made with the assumption that the legislature does not intend to create an inconsistency. State v. Bash, 130 Wash.2d 594, 602, 925 P.2d 978 (1996).

IIA

¶22 The legislature enacted the HA in 1911 as "the product of a grand compromise" between employers and workers. LAWS OF 1911, ch. 74;

Birklid v. Boeing Co., 127 Wash.2d 853, 859, 904 P.2d 278 (1995) ; Cowlitz Stud Co. v. Clevenger, 157 Wash.2d 569, 572, 141 P.3d 1 (2006).

¶23 The IIA is a compensation system designed to give "sure and certain relief" to an injured worker "regardless of questions of fault and to the exclusion of every other remedy." RCW 51.04.010. The IIA is remedial in nature and the right of an injured worker to obtain benefits is statutory. Cockle, 142 Wash.2d at 811, 16 P.3d 583 ; Murray v. Dep't of Labor & Indus., 192 Wash.2d 488, 501, 430 P.3d 645 (2018).

¶24 The overarching and guiding principle in construing provisions of the IIA is that the IIA " 'is to be liberally construed in order to achieve its purpose of providing compensation to all covered employees injured in their employment, with doubts resolved in favor of the worker.' " Cockle, 142 Wash.2d at 811, 16 P.3d 583 (quoting Dennis v. Dep't of Labor & Indus., 109 Wash.2d 467, 470, 745 P.2d 1295 (1987) ).

¶25 Chapter 51.36 RCW, Medical Aid, governs medical aid for injured workers. A worker injured in the course of employment is entitled to compensation under the IIA. RCW 51.32.010 : Tobin v. Dep't of Labor & Indus., 145 Wash. App. 607, 613, 187 P.3d 780 (2008). RCW 51.36.010(2)(a)

states that "[u]pon the occurrence of any injury to a worker entitled to compensation under the provisions of this title, he or she shall receive proper and necessary medical and surgical services." When a condition is "fixed," the Department makes a permanent partial disability award and closes the claim. Dep't of Labor & Indus., v. Slaugh, 177 Wash. App. 439, 446, 312 P.3d 676 (2013) ; see also Pybus Steel Co. v. Dep't of Labor & Indus., 12 Wash. App. 436, 436-37, 530 P.2d 350 (1975) ; Robbins v. Dep't of Labor & Indus., 187 Wash. App. 238, 244, 349 P.3d 59 (2015).

RCW 51.32.160

¶26 The IIA allows an injured worker to reopen a claim for aggravation of the disability and additional medical benefits within seven years of the final award. RCW 51.32.160 ; Hendrickson v. Dep't of Labor & Indus., 2 Wash. App. 2d 343, 352, 409 P.3d 1162 (citing Tollycraft Yachts Corp, v. McCoy, 122 Wash.2d 426, 432, 858 P.2d 503 (1993) ), review denied, 190 Wash.2d 1030, 421 P.3d 450 (2018). A worker may seek to reopen a claim for "aggravation" of the disability only after the award is final. RCW 51.32.160(1)(a). RCW 51.32.160(1)(a) provides, in pertinent part:

If aggravation, diminution, or termination of disability takes place, the director [of the Department] may, upon the application of the beneficiary, made within seven years from the date the first closing order becomes final, or at any time upon his or her own motion, readjust the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment: PROVIDED, That the director may, upon application of the worker made at any time, provide proper and necessary medical and surgical services as authorized under RCW 51.36.010.

Objective Worsening

¶27 Long-standing case law requires the worker to prove aggravation by presenting medical testimony that establishes a causal connection " 'between the injury and the subsequent disability' " based on "some objective medical evidence" that the injury "has worsened since the initial closure of the claim." Eastwood v. Dep't of Labor & Indus., 152 Wash. App. 652, 656-57, 219 P.3d 711 (2009) (quoting Phillips v. Dep't of Labor & Indus., 49 Wash.2d 195, 197, 298 P.2d 1117 (1956) ); Tollycraft Yachts, 122 Wash.2d at 432, 858 P.2d 503 ; see Hendrickson, 2 Wash. App. 2d at 352, 409 P.3d 1162 ; see also Lewis v. ITT Cont'l Baking Co., 93 Wash.2d 1, 3, 603 P.2d 1262 (1979) ("Medical evidence-based at least in part on objective symptoms-must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis v. Dep't of Labor & Indus., 67 Wash.2d 654, 656, 409 P.2d 477 (1965) ("In an aggravation case, the burden of proving a claimed disability to be greater on the last terminal date than on the first terminal date is upon the claimant; and to prevail he must produce medical evidence to that effect based, at least in part, upon objective findings of a physician."); Page v. Dep't of Labor & Indus., 52 Wash.2d 706, 709, 328 P.2d 663 (1958) (the extent of the disability at any relevant date must be determined by medical testimony and some objective evidence); Moses v. Dep't of Labor & Indus., 44 Wash.2d 511, 517, 268 P.2d 665 (1954) (To "establish a claim for an increase in an award as a result of the aggravation of a prior industrial injury, the burden is on the claimant to produce medical evidence, some of it based on objective findings, to prove that there has been an aggravation of the injury which resulted in increased disability."); Kresoya v. Dep't of Labor & Indus., 40 Wash.2d 40, 44, 240 P.2d 257 (1952) ("[W]hether the condition of an injured workman had become aggravated since his claim had been closed ... [can] be established only by medical testimony, and ... a claim for aggravation is not sustained by such testimony if it is based upon subjective symptoms alone."); Felipe, 195 Wash. App. at 914, 381 P.3d 205 ("case law requires the worker to support a request to reopen with some objective medical evidence").

¶28 The Supreme Court defines "objective symptoms" as "those within the independent knowledge of the doctor, because they are perceptible to persons other than a patient." ( Hinds v. Johnson, 55 Wash.2d 325, 327, 347 P.2d 828 (1959) ); see also Felipe, 195 Wash. App. at 915, 381 P.3d 205.

Right to Appeal Denial of Reopening Application

¶29 If the Department denies the application to reopen, the injured worker may appeal to the BIIA. RCW 51.52.050(2)(a). Following a hearing on the appeal before an IAJ, the worker may file a petition to review the proposed decision and order to the BIIA. RCW 51.52.104, .106; WAC 263-12-145.

¶30 The worker has the right to appeal the decision of the BIIA to superior court. RCW 51.52.110. However, review of the final decision of the BIIA is de novo, based only on the administrative record and evidence presented to the BIIA. RCW 51.52.115. In an appeal to superior court, "either party shall be entitled to a trial by jury upon demand." RCW 51.52.115. 6A Washington Practice: Washington Pattern Jury Instructions: Civil 155.09 (6th ed. 2012) (WPI), "Extent of Disability or Aggravation-Basis of Medical Opinion," sets forth the burden of proof to establish aggravation of an industrial injury. WPI 155.09 states that "aggravation" of an "industrially related condition and the extent of" the increased disability "must be supported by medical testimony based at least in part upon one or more objective findings."

¶31 The worker has the right to appeal the superior court decision to the Court of Appeals and the Supreme Court under the Rules of Appellate Procedure. RCW 51.52.110, .140 (appeal "shall lie from the judgment of the superior court as in other civil cases").

Amendment to Chapter 51.36 RCW, Medical Aid

¶32 In 2011, the legislature amended chapter 51.36 RCW, Medical Aid, to establish a health care provider network and minimum standards for providers who treat workers in order to provide high quality treatment to injured workers and lower labor and insurance costs for employers. LAWS OF 2011, ch. 6, § 1. The legislature directs the Department to establish a medical provider network to treat injured workers and adopt minimum standards for health care providers. RCW 51.36.010. The legislature requires injured workers to obtain treatment from a network provider except for "an initial office or emergency room visit." RCW 51.36.010(2)(b). RCW 51.36.010 states, in pertinent part:

(1) The legislature finds that high quality medical treatment and adherence to occupational health best practices can prevent disability and reduce loss of family income for workers, and lower labor and insurance costs for employers. Injured workers deserve high quality medical care in accordance with current health care best practices. To this end, the department shall establish minimum standards for providers who treat workers from both state fund and self-insured employers. The department shall establish a health care provider network to treat injured workers, and shall accept providers into the network who meet those minimum standards. The department shall convene an advisory group made up of representatives from or designees of the workers' compensation advisory committee and the industrial insurance medical and chiropractic advisory committees to consider and advise the department related to implementation of this section, including development of best practices treatment guidelines for providers in the network. The department shall also seek the input of various health care provider groups and associations concerning the network's implementation. Network providers must be required to follow the department's evidence-based coverage decisions and treatment guidelines, policies, and must be expected to follow other national treatment guidelines appropriate for their patient. The department, in collaboration with the advisory group, shall also establish additional best practice standards for providers to qualify for a second tier within the network, based on demonstrated use of occupational health best practices. This second tier is separate from and in addition to the centers for occupational health and education established under subsection (5) of this section.
(2)(a) Upon the occurrence of any injury to a worker entitled to compensation under the provisions of this title, he or she shall receive proper and necessary medical and surgical services at the hands of a physician or licensed advanced registered nurse practitioner of his or her own choice, if conveniently located, except as provided in (b) of this subsection, and proper and necessary hospital care and services during the period of his or her disability from such injury.
(b) Once the provider network is established in the worker's geographic area, an injured worker may receive care from a nonnetwork provider only for an initial office or emergency room visit. However, the department or self-insurer may limit reimbursement to the department's standard fee for the services. The provider must comply with all applicable billing policies and must accept the department's fee schedule as payment in full.
(c) The department, in collaboration with the advisory group, shall adopt policies for the development, credentialing. accreditation, and continued oversight of a network of health care providers approved to treat injured workers....
....
(10) The department may adopt rules related to this section. [ ]

Amendment of WAC 296-14-400, Reopening for Benefits

¶33 The legislature did not amend the statute that governs reopening a claim to obtain additional benefits under the IIA for aggravation of an industrial injury, RCW 51.32.160. However, in addition to promulgating Medical Aid Rules, chapter 296-20 WAC, and Industrial Insurance Rules, chapter 296-14 WAC, the Department amended the WAC on Reopening for Benefits, WAC 296-14-400. WSR 12-03-091 ("Proposed Rules Department of Labor and Industries"), 12-06-066.

¶34 Former WAC 296-14-400 (2004), Reopening for Benefits, provides, in pertinent part:

The director [of the Department] at any time may, upon the workers' application to reopen for aggravation or worsening of condition, provide proper and necessary medical and surgical services ....
The seven-year reopening time limitation shall run from the date the first claim closure becomes final and shall apply to all claims regardless of the date of injury. ...
....
A formal application occurs when the worker and doctor complete and file the application for reopening provided by the department. Upon receipt of an informal request without accompanying medical substantiation of worsening of the worker's condition, the department or self-insurer shall promptly provide the necessary application to the worker for completion.
If, within seven years from the date the first closing order became final, a formal application to reopen is filed which shows by "sufficient medical verification of such disability related to the accepted condition(s)" that benefits are payable, the department, or the self-insurer, pursuant to RCW 51.32.210 and 51.32.190, respectively shall mail the first payment within fourteen days of receiving the formal application to reopen. If the application does not contain sufficient medical verification of disability, the fourteen-day period will begin upon receipt of such verification. If the application to reopen is granted, compensation will be paid pursuant to RCW 51.28.040. If the application to reopen is denied, the worker shall repay such compensation pursuant to RCW 51.32.240.

¶35 The 2012 amendment to WAC 296-14-400 mandates that where the Department has established a medical provider network, the worker can submit documentation only from a network provider as part of the application to reopen. WSR 12-06-066. WAC 296-14-400 states, in pertinent part:

A formal application occurs when the worker and doctor complete and file the application for reopening provided by the department. Upon receipt of an informal request without accompanying medical substantiation of worsening of the worker's condition, the department or self-insurer shall promptly provide the necessary application to the worker for completion. For services or provider types where the department has established a provider network, beginning January 1, 2013, medical treatment and documentation for reopening applications must be completed by network providers. [ ]

¶36 The Department asserts RCW 51.36.010 gives it the authority to adopt the amendment to WAC 296-14-400 that only allows a worker to file an application to reopen a claim with medical documentation from only a Department network provider. Neither the plain and unambiguous language of the IIA, chapter 51.36 RCW, and RCW 51.32.160 nor long-standing case law and the right to appeal supports the Department's assertion.

¶37 The 2011 amendment to the Medical Aid statute, chapter 51.36 RCW, does not address either the statute that governs reopening a claim for aggravation of an industrial injury or case law that requires the worker to present medical testimony to establish a causal relationship between the injury and subsequent disability based on some objective findings.

¶38 A worker has the right to submit an application to reopen a claim to obtain benefits for aggravation of an injury. Case law establishes the worker has the burden of proving aggravation of an injury under RCW 51.32.160 by presenting objective medical findings. The amendment to the WAC rule on reopening impermissibly restricts the right of an injured worker to meet this burden of proof. The WAC amendment limits medical evidence of aggravation to documentation from only doctors who are members of the Department's approved health care provider network.

¶39 Contrary to the Department's argument, a medical examination and report submitted in support of reopening a claim is not "treatment" under RCW 51.36.010. The plain and unambiguous language of RCW 51.36.010(1) and (2)(a) address the intent to establish a network of health care providers in order to provide "high quality" medical treatment, providers who "treat injured workers," and "proper and necessary medical and surgical services" in accord "with current health care best practices." The Department defines "proper and necessary" medical services as follows:

[ (2) ](a) Reflective of accepted standards of good practice, within the scope of practice of the provider's license or certification;
(b) Curative or rehabilitative. Care must be of a type to cure the effects of a work-related injury or illness, or it must be rehabilitative. Curative treatment produces permanent changes, which eliminate or lessen the clinical effects of an accepted condition. Rehabilitative treatment allows an injured or ill worker to regain functional activity in the presence of an interfering accepted condition. Curative and rehabilitative care produce long-term changes;
(c) Not delivered primarily for the convenience of the claimant, the claimant's attending doctor, or any other provider; and
(d) Provided at the least cost and in the least intensive setting of care consistent with the other provisions of this definition.

WAC 296-20-01002.

¶40 The unambiguous purpose of RCW 51.36.010 is to establish a network to provide "high quality medical treatment" of injured workers. The amendment to WAC 296-14-400 conflicts with the right of a worker to submit an application to reopen for aggravation and meet the burden to present medical testimony to prove some objective worsening. The amendment impermissibly limits the right of an injured worker to submit an application to reopen for aggravation with medical documentation only from a Department network provider.

¶41 We conclude the Department exceeded its authority by amending WAC 296-14-400 to limit a worker to submit medical documentation from only a network doctor in support of an application to reopen a claim for aggravation under the IIA. We hold the amendment to WAC 296-14-400 is invalid and reverse the declaratory judgment order.

WE CONCUR:

Chun, J.

Appelwick, C.J.

      Emphasis in original.

      On November 23, 2015, the BIIA reversed the decision of the Department to deny Ma'ae's application to reopen. The BIIA concluded the statute establishing a health care provider network, RCW 51.36.010, and the statute that allows a worker to reopen a claim for aggravation, RCW 51.32.160, do not prevent a worker from filing an application to reopen with medical documentation from a doctor who is not a member of the Department's network. We address the Department's appeal of the BIIA decision in Department of Labor & Industries v. Ma'ae, No. 78030-1-1 (Wash. Ct. App. Apr. 1, 2019) (unpublished), http://www.courts.wa.gov/opinions/.

      Alteration in original.

      Alteration in original.

      Alteration in original.

      Internal quotation marks omitted.

      Alteration in original; internal quotation marks omitted.

      Alteration in original.

      (Emphasis omitted.) The requirement that the worker provide objective medical evidence does not apply "if the symptoms of a condition are exclusively subjective in nature." Felipe v. Dep't of Labor & Indus., 195 Wash. App. 908, 918, 381 P.3d 205 (2016) ; Price v. Dep't of Labor & Indus., 101 Wash.2d 520, 528, 682 P.2d 307 (1984) (objective medical evidence is not required in worker compensation cases involving psychiatric disability because symptoms of psychiatric injury are necessarily subjective in nature). On appeal, Ma'ae does not argue that this exception applies.

      Emphasis in original.

      WPI 155.09 states, in pertinent part:
      Statements of complaints by the worker made to a physician are called subjective complaints. Findings of disability that can be seen, felt, or measured by an examining physician are called objective findings.
      In determining [whether aggravation has occurred and] the extent of [any resulting increased] disability, a physician cannot rely solely upon complaints, but must have some objective basis for his or her opinion. On the other hand, a physician need not rely solely upon objective findings. If there are objective findings, then the physician may also consider subjective complaints.
      (Alterations in original.)

      We note the legislature amended RCW 51.36.010 again in 2013 to change the language in subsection (4) from "state board of pharmacy" to "pharmacy quality assurance commission." Laws of 2013, ch. 19, § 48.

      Added emphasis shows the 2011 amendments to RCW 51.36.010. See Laws of 2011, ch. 6, § 1.

      Added emphasis shows the 2012 amendment to WAC 296-14-400. See WSR 12-06-066.

      We note the rule also states, "A formal application occurs when the worker and doctor complete and file the application for reopening provided by the department." WAC 296-14-400. The Department defines "doctor" as follows:
      For these rules, means a person licensed to independently practice one or more of the following professions: Medicine and surgery; osteopathic medicine and surgery; chiropractic; naturopathic physician; podiatry; dentistry; optometry. An attending doctor is a treating doctor.
      WAC 296-20-01002. In accord with case law, the Department's application to reopen requires the doctor to provide objective findings of worsening. See WAC 296-14-400.

      Ma'ae requests statutory attorney fees and costs under RCW 4.84.010 and .030. Upon compliance with RAP 18.1, we award Ma'ae statutory attorney fees and costs as the prevailing party.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    GROUP HEALTH COOPERATIVE, a Washington nonprofit corporation; and Group Health Options, Inc., a Washington corporation, Appellants, v. State of Washington, DEPARTMENT OF REVENUE, Respondent.
    No. 79091-9-I
    Court of Appeals of Washington, Division 1.
    FILED: April 1, 2019
    Gregg D. Barton, Robert Lee Mahon III, Luke Morgan Rona, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, for Appellants.
    David M. Hankins, Attorney Generals Office/Revenue Division, 7141 Cleanwater Drive Sw, Olympia, WA, 98504-0123, Heidi A. Irvin, Attorney Generals Office/Revenue & Finance D, Joshua Weissman, WA Attorney Generals Office, Po Box 40123, Olympia, WA, 98504-0123, for Respondent.
    PUBLISHED OPINION
   Smith, J.

¶1 Group Health Cooperative (GHC) and Group Health Options Inc. (GHO) appeal the summary dismissal of their complaint for a refund of business and occupation (B & O) taxes paid on certain premiums they received from or on behalf of their members for providing Medicare Advantage (MA) plans. The premiums at issue are described in 42 U.S.C. § 1395w-24(g) and consist of "payments to Medicare+Choice organizations under [ 42 U.S.C.] section 1395w-23 [and] premiums paid to such organizations under [part C of Title 42, chapter 7, subchapter XVIII of the United States Code]" (collectively MA premiums). We hold that although MA premiums are subject to B & O tax under state law, federal law preempts the imposition of B & O taxes on MA premiums. Therefore, we reverse and remand to the trial court to determine the refund amount.

FACTS

¶2 GHC and its wholly owned subsidiary, GHO (collectively Group Health), provide health care coverage to members in Washington and Idaho. Group Health's health care plans include MA health benefit plans, which Group Health has contracted with the Centers for Medicare & Medicaid Services (CMS) to provide. CMS is a division of the Department of Health and Human Services, a federal agency. In exchange for providing MA plans to eligible members, Group Health receives MA premiums from CMS and from Group Health members.

¶3 In 2012, GHO requested a determination from the Washington State Department of Revenue (Department) as to whether Washington State B & O tax applies to MA premiums. The Department responded that B & O tax does apply, and Group Health paid B & O tax based on MA premiums recorded as income from 2010 through February 2016.

¶4 In May 2016, Group Health filed this lawsuit for a refund of those B & O tax payments. It then moved for summary judgment, arguing that (1) MA premiums are exempt from B & O tax under RCW 82.04.322 and (2) federal law preempts the Department's imposition of B & O tax on MA premiums. The trial court disagreed with both arguments and denied Group Health's motion. Because no genuine issues of material fact remained in dispute, the court entered summary judgment in favor of the Department. Group Health appeals.

ANALYSIS

Applicability of B & O Taxes to MA Premiums

¶5 Group Health argues that the trial court erred by concluding that MA premiums are not exempt from B & O taxes under RCW 82.04.322. We disagree.

¶6 The meaning of a statute is a question of law that this court reviews de novo. Durant v. State Farm Mut. Auto. Ins. Co., 191 Wash.2d 1, 8, 419 P.3d 400 (2018). Our "fundamental objective in determining what a statute means is to ascertain and carry out the legislature's intent." Durant, 191 Wash.2d at 8, 419 P.3d 400. "If the statute's meaning is plain on its face, then courts must give effect to its plain meaning as an expression of what the legislature intended." Durant, 191 Wash.2d at 8, 419 P.3d 400. To discern a statute's plain meaning, we consider the text of the provision in question, taking into account the statutory scheme as a whole. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 11, 43 P.3d 4 (2002). "We may use a dictionary to discern the plain meaning of an undefined statutory term." Nissen v. Pierce County, 183 Wash.2d 863, 881, 357 P.3d 45 (2015). If, after conducting this inquiry, the statute is "susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history." Campbell & Gwinn, 146 Wash.2d at 12, 43 P.3d 4. Because courts presume that taxes are valid, a taxpayer that claims immunity from a tax bears the burden of establishing an exemption. Avnet, Inc. v. Dep't of Revenue, 187 Wash.2d 44, 49-50, 384 P.3d 571 (2016).

¶7 Here, Group Health argues that MA premiums are exempt from B & O taxes under RCW 82.04.322, which provides: "[B & O tax] does not apply to any health maintenance organization, health care service contractor, or certified health plan in respect to premiums or prepayments that are taxable under RCW 48.14.0201." The Department does not dispute that GHC and GHO are, respectively, a health maintenance organization and a health care service contractor under this statute. The only dispute is whether MA premiums are "taxable" under RCW 48.14.0201 and therefore exempt from B & O tax.

¶8 The B & O tax statutes do not define "taxable." Thus, we may look to the dictionary to discern its plain meaning. Nissen, 183 Wash.2d at 881, 357 P.3d 45. The dictionary defines "taxable" as "[s]ubject to taxation." BLACK'S LAW DICTIONARY 1688 (10th ed. 2014). For the following reasons, we conclude that MA premiums are not "subject to taxation" under RCW 48.14.0201 and therefore are not exempt from B & O tax under RCW 82.04.322.

¶9 First, MA premiums are expressly exempt from taxation under RCW 48.14.0201, which is the state premium tax statute. At all times relevant hereto, that statute has required each "taxpayer" to pay a tax equal to two percent of all health care premiums and prepayments received by the taxpayer. RCW 48.14.0201 (2) : see also former RCW 48.14.0201(2) (2009). But that statute also has, at all relevant times, provided the following exemption:

(6) The taxes imposed in this section do not apply to:
(a) Amounts received by any taxpayer from the United States or any instrumentality thereof as prepayments for health care services provided under Title XVIII (medicare) of the federal social security act.

RCW 48.14.0201 (6)(a). Group Health does not dispute that GHO and GHC are "taxpayers" for purposes of the premium tax statute, nor does it dispute that MA premiums are expressly exempted from premium taxes under subsection 6(a) of that statute. Because MA premiums are expressly exempted from premium taxes, MA premiums are not subject to taxation under RCW 48.14.0201.

¶10 Second, federal law expressly prohibits the Department from imposing premium taxes on MA premiums. Specifically, 42 U.S.C. § 1395w-24(g) provides: "No State may impose a premium tax or similar tax with respect to payments to Medicare+Choice organizations under section 1395w-23 of this title or premiums paid to such organizations under this part." Although the parties disagree about whether this statute prohibits the Department from imposing B & O taxes on MA premiums, they agree that it expressly prohibits the Department from imposing a premium tax on MA premiums. Accordingly, even without the exemption expressly provided under RCW 48.14.0201 (6)(a), MA premiums are not subject to taxation under RCW 48.14.0201 as a result of federal preemption.

¶11 In short, under the plain language of RCW 82.04.322, MA premiums are not "taxable" under RCW 48.14.0201 because they are not subject to taxation under that statute. Therefore, Group Health has not met its burden to establish that MA premiums are exempt from B & O taxes.

¶12 Group Health argues that we should interpret "taxable" to mean "capable of being taxed," rather than "subject to taxation." It argues that this case is factually distinguishable from Crown Zellerbach Corp. v. State, 45 Wash.2d 749, 278 P.2d 305 (1954), a B & O tax case in which our Supreme Court looked to the dictionary to define "taxable" as " 'subject to taxation'." Crown Zellerbach, 45 Wash.2d at 755, 278 P.2d 305 (quoting BLACK'S LAW DICTIONARY 1706 (3d ed. 1933) ). But our construction of the term "taxable" does not depend on Crown Zellerbach. Indeed, even Crown Zellerbach's definition of "taxable" was not dependent on the facts of that case-the Supreme Court simply looked to the dictionary, as we do here. Therefore, it is irrelevant here that Crown Zellerbach may be distinguishable on its facts.

¶13 Furthermore, even if we were to interpret "taxable" as "capable of being taxed," Group Health's argument that MA premiums are "taxable" under RCW 48.14.0201 would still fail. MA premiums are neither "subject to taxation" nor "capable of being taxed" under RCW 48.14.0201 because, as discussed, federal law prohibits the imposition of premium taxes on MA premiums, and MA premiums are, under the premium tax statute itself, expressly exempt from premium tax.

¶14 Group Health next observes that the exemption under RCW 82.04.322 for premiums taxable under the premium tax statute and the premium tax statute's express exemption for MA premiums were both enacted at the same time, as part of the Health Care Reform Act. See LAWS OF 1993, ch. 492, §§ 301 (codified at RCW 48.14.0201 ), 303 (codified at RCW 82.04.322 ). It then argues that the Department's position "fails to explain" why the legislature would exempt MA premiums from the premium tax just to make them subject to the B & O tax. This argument is unpersuasive because Group Health bears the burden of establishing that an exemption applies. Avnet, 187 Wash.2d at 49-50, 384 P.3d 571. But Group Health's argument attempts to shift that burden to the Department to explain why the legislature chose the language it did. Furthermore, and as the Department points out, Group Health's argument "presumes the answer," i.e., that the legislature intended to exempt MA premiums from all taxes. But Group Health has pointed to no expression of a legislative intent to make MA premiums completely immune from taxation.

¶15 To that end, Group Health cites Columbia Riverkeeper v. Port of Vancouver USA, 188 Wash.2d 421, 395 P.3d 1031 (2017), and Citizens Alliance for Property Rights Legal Fund v. San Juan County, 184 Wash.2d 428, 359 P.3d 753 (2015), to suggest that the statutory scheme reveals such an intent. But Columbia Riverkeeper and Citizens Alliance both involved the Open Public Meetings Act of 1971 (OPMA), which declares that its provisions are "remedial and shall be liberally construed." RCW 42.30.910. The OPMA also contains an express statement of legislative intent that our Supreme Court has characterized as "some of the strongest language used in any legislation." Equitable Shipyards, Inc. v. State, 93 Wash.2d 465, 482, 611 P.2d 396 (1980) ; see also RCW 42.30.010 ("It is the intent of this chapter that ... actions [of public agencies] be taken openly and that their deliberations be conducted openly."). Here, by contrast, Group Health points to no statement in the Health Care Reform Act or in the B & O tax chapter reflecting a clear legislative intent to exempt MA premiums from B & O taxes. The absence of any such statement is particularly notable given that it is well established that "the legislative purpose behind the B & O tax scheme is to tax virtually all business activity in the state." Impecoven v. Dep't of Revenue, 120 Wash.2d 357, 363, 841 P.2d 752 (1992).

¶16 Moreover, Group Health's argument ignores the most obvious explanation for the exemption provided in RCW 82.04.322 -to avoid double taxation of premiums. If not for RCW 82.04.322, premiums received by insurers would be subject to both the premium tax and the B & O tax. Therefore, contrary to Group Health's assertions, adopting the Department's proffered interpretation of RCW 82.04.322 does not lead to "absurd results."

¶17 Group Health next points out that in another B & O tax exemption statute, the legislature used "strikingly different language" than it used in RCW 82.04.322. Specifically, RCW 82.04.320 provides: "[B & O tax] shall not apply to any person in respect to insurance business upon which a tax based on gross premiums is paid to the state ." (Emphasis added.) Group Health argues that because the legislature used the phrase "upon which a tax based on gross premiums is paid to the state" to describe the scope of the exemption in RCW 82.04.320, then the term "taxable" in RCW 82.04.322 must mean something else. But the fact that "taxable" means something other than that taxes have been paid to the state does not help Group Health here. Specifically, the difference between the language used in RCW 82.04.320 and RCW 82.04.322 is that the exemption in RCW 82.04.320 apparently depends on whether premium taxes have been paid , whereas the exemption in RCW 82.04.322 depends on whether premium taxes can be assessed under RCW 48.14.0201. And as discussed above, MA premiums are not subject to assessment under RCW 48.14.0201. The difference in language between RCW 82.04.320 and RCW 82.04.322 is not determinative.

¶18 As a final matter, Group Health argues that legislative history supports its argument that the MA premiums are exempt from B & O taxes. But "[w]e need not utilize interpretive tools such as legislative history when statutory language is unambiguous." Spokane County v. Dep't of Fish & Wildlife, 192 Wash.2d 453, 458, 430 P.3d 655 (2018). RCW 82.04.322 is not ambiguous. As discussed, MA premiums are not exempt from B & O taxes under a plain language reading of that statute. Furthermore, even if RCW 82.04.322were ambiguous, this court would be required to strictly construe that ambiguity against Group Health. Avnet, 187 Wash.2d at 50, 384 P.3d 571 ("If there is ambiguity in a provision providing an exemption or deduction, the court must strictly construe the provision against the taxpayer."). Therefore, we do not consult legislative history here.

Federal Preemption

¶19 Group Health argues that even if MA premiums are not exempt from B & O tax under RCW 82.04.322, federal law preempts the Department from imposing B & O taxes on MA premiums. We agree.

¶20 This court reviews questions of federal preemption de novo. McCurry v.Chevy Chase Bank, FSB, 169 Wash.2d 96, 100, 233 P.3d 861 (2010). "Whether federal law preempts state law depends upon whether that was the intent of Congress." McCurry, 169 Wash.2d at 100, 233 P.3d 861. To determine Congress's intent, we first look to the relevant statute's plain language. Kitsap County Consol. Hous. Auth. v. Henry-Levingston, 196 Wash. App. 688, 701, 385 P.3d 188 (2016). We may consult a dictionary to discern the meaning of undefined statutory terms in a federal statute. Kitsap County Consol. Hous. Auth., 196 Wash. App. at 701, 385 P.3d 188.

¶21 Here, the federal statute at issue is 42 U.S.C. § 1395w-24(g), which was enacted as part of the Balanced Budget Act of 1997 (BBA). See Balanced Budget Act of 1997, Pub. L. No. 105-33 § 1854(g), 111 Stat. 251, 312. That statute provides that "[n]o State may impose a premium tax or similar tax with respect to [MA premiums]." 42 U.S.C. § 1395w-24(g) (emphasis added). We conclude that the plain language of 42 U.S.C. § 1395w-24(g) preempts the Department from imposing B & O taxes on MA premiums.

¶22 The BBA did not define "similar tax" for purposes of preemption. See Medicare Program; Establishment of the Medicare+Choice Program, 63 Fed. Reg. 34,968, 35,014 (June 26, 1998) (observing that "similar tax" is not specifically defined). But the first dictionary definition for "similar" is "having characteristics in common." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2120 (2002). The B & O tax has characteristics in common with a premium tax. Like a premium tax, the B & O tax is assessed against premium revenue. Indeed, CMS acknowledged that this was a defining characteristic when it observed that the BBA did not define "premium tax" or "similar tax," "other than by reference to the applicability of such a tax to revenue received from the Federal Government for health plan enrollees ." 63 Fed. Reg. at 35,014 (June 26, 1998) (emphasis added). And, like a premium tax, the B & O tax is assessed on a gross basis. See 42 C.F.R. § 422.404(b) (clarifying that certain taxes assessed on a net basis are not preempted). Therefore, under the plain language of 42 U.S.C. § 1395w-24(g), the B & O tax is "similar" to a premium tax and is preempted by that statute.

¶23 The Department contends that the B & O tax is not "similar" to a premium tax by pointing to a handful of ways in which the administration and collection of the B & O tax differs from the premium tax. The Department asserts that "[m]ost significantly, the B & O tax applies to virtually all business activities; the premium tax applies only to the business of insurance." But as discussed, the B & O tax shares defining characteristics with a premium tax-namely, it is assessed against premium revenue and on a gross basis. We are not persuaded by the Department's argument that B & O tax is not similar to a premium tax merely because B & O tax applies to noninsurance businesses and because the state has chosen to administer the B & O tax differently.

¶24 Group Health Cooperative v. City of Seattle, 146 Wash. App. 80, 189 P.3d 216 (2008), is instructive on this point. There, GHC challenged the city of Seattle's imposition of B & O taxes assessed against payments GHC received from the Federal Employees Health Benefits (FEHB) fund (FEHBF). Group Health Coop., 146 Wash. App. at 83-84, 189 P.3d 216. A federal statute prohibits states from imposing any "tax, fee, or other monetary payment ... directly or indirectly, on a carrier" with respect to any payment made from the FEHBF. 5 U.S.C. § 8909(f)(1). The city argued that it was not taxing GHC in its role as a "carrier," as prohibited by federal law, but that it was instead taxing GHC in its role as a health care provider, which is not prohibited by the federal statute. Group Health Coop., 146 Wash. App. at 95, 189 P.3d 216. We rejected that argument, reasoning that the city could not escape federal preemption "by unilaterally recharacterizing [GHC] as a health care 'provider' rather than a carrier." Group Health Coop., 146 Wash. App. at 95, 189 P.3d 216. We also observed that the city was, by its own admission, taxing FEHB premium revenue, even though the city tried to recast that revenue as payments for medical services. Group Health Coop., 146 Wash. App. at 93, 189 P.3d 216. Here, like the city in Group Health Cooperative, the Department does not dispute that it is taxing premium revenue on a gross basis. These characteristics are dispositive here. Thus, like the city, the Department cannot escape federal preemption by characterizing the B & O tax as "dissimilar" to a premium tax simply because it is applicable to noninsurance businesses and because the state has unilaterally decided to administer the B & O tax differently.

¶25 The Department argues that Group Health Cooperative is distinguishable from this case because the language in the FEHB statute's preemption provision and the language in 42 U.S.C. § 1395w-24(g)"differ[ ] sharply." But CMS itself has observed that the scope of state tax preemption for MA premiums was intended to mirror the scope of state tax preemption for FEHB premium revenue. 63 Fed. Reg. at 35,014 (June 26, 1998) (observing that a Senate Finance Committee report summarizing the BBA stated that " '[t]he current law on federal preemption of state premium taxes or fees on Federal payments from the FEHB[ Program] to health plans will be extended to [MA premiums].' "). More importantly, B & O tax is, as discussed, "similar" to a premium tax under the plain language of 42 U.S.C. § 1395w-24(g). In other words, the outcome here is not dictated by Group Health Cooperative or the FEHB statute, but by a plain language reading of 42 U.S.C. § 1395w-24(g).

¶26 Additionally, CMS's own regulations confirm that B & O tax is preempted under 42 U.S.C. § 1395w-24(g). For example, B & O taxes do not fit within the savings clause that CMS promulgated to clarify the scope of the prohibition on state taxation of MA premiums. That clause provides:

Nothing in this section shall be construed to exempt any MA organization from taxes, fees, or other monetary assessments related to the net income or profit that accrues to, or is realized by, the organization from business conducted under this part, if that tax, fee, or payment is applicable to a broad range of business activity.

42 C.F.R. § 422.404(b) (emphasis added). In other words, to fit within the savings clause, a state tax must be assessed based on net income or profit. But the Department does not dispute that B & O tax is not assessed against net income or profit. Rather, it is assessed on a gross receipts basis. See Avnet, 187 Wash.2d at 50, 384 P.3d 571. Therefore, B & O tax is not saved from federal preemption by the savings clause.

¶27 The Department asserts that the savings clause is illustrative, not exclusive. It argues that "merely because [CMS] clarified that net income taxes are not included within the preemption provision does not mean that broadly applicable gross receipts taxes are 'similar taxes' to premium taxes." But when CMS first published the interim final version of the savings clause, it explained that the savings clause was intended to "clarify the scope of what constitutes a prohibited premium tax." 63 Fed. Reg. at 35,014 (June 26, 1998) (emphasis added). If, as the Department asserts, the savings clause is merely illustrative, it does little to clarify what is prohibited under 42 U.S.C. § 1395w-24(g).

¶28 As a final matter, the Department relies on a number of cases to argue that this court should be "reluctant" to conclude that federal law preempts B & O tax. But none of these cases are persuasive here. In National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995), the Court considered whether state courts are required to award declaratory and injunctive relief under § 1983 in state tax cases. Nat'l Private Truck, 515 U.S. at 588, 115 S.Ct. 2351. And in California State Board of Equalization v. Sierra Summit, Inc., 490 U.S. 844, 109 S.Ct. 2228, 104 L.Ed.2d 910 (1989), the Court considered whether immunity from state taxation could be inferred, by negative implication, from a statute that in fact confirmed that bankruptcy estates are subject to state tax. Cal. Bd. of Equalization, 490 U.S. at 852, 109 S.Ct. 2228. But neither National Private Truck nor California Board of Equalization involved the construction of a federal statute expressly aimed at preempting state taxes. Therefore, the Department's reliance on these cases is misplaced.

¶29 The Department's reliance on cases citing National Private Truck and California Board of Equalization is similarly misplaced. In Washington Trucking Associations v. Employment Security Department, 188 Wash.2d 198, 393 P.3d 761 (2017), the Washington State Supreme Court relied in part on National Private Truck merely to confirm that state courts are barred from awarding damages under § 1983 in state tax cases when there is an adequate state law remedy. Washington Trucking Assocs., 188 Wash.2d at 211, 393 P.3d 761. Thus, like National Private Truck, Washington Trucking is not persuasive here. And in Florida Department of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 128 S.Ct. 2326, 171 L.Ed.2d 203 (2008), the Court applied a canon of construction articulated in California Board of Egualization only after assuming, for purposes of argument, that the federal statute at issue was ambiguous. Florida Dep't of Revenue, 554 U.S. at 41, 47, 128 S.Ct. 2326. But 42 U.S.C. § 1395w-24(g) is not ambiguous. As discussed above, the plain language of that statute preempts B & O taxes because they are similar to premium taxes. Therefore, Florida Department of Revenue is also unpersuasive.

¶30 We reverse and remand to the trial court to determine the refund amount.

WE CONCUR:

Andrus, J.

Appelwick, C.J.

      Effective February 15, 2017, GHC's name was changed to Kaiser Foundation Health Plan of Washington and GHO's name was changed to Kaiser Foundation Health Plan of Washington Options Inc. We refer to these entities by their former names for consistency with the proceedings below and the parties' briefs.

      It is undisputed that the term "Medicare+Choice" includes MA.


author: Melnick, J.

text:
    STATE of Washington, Respondent, v. Mary E. SANDOVAL, Appellant.
    No. 50814-1-II
    Court of Appeals of Washington, Division 2.
    Filed April 2, 2019
    Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.
    Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
    PUBLISHED OPINION
   Melnick, J.

¶1 Mary Sandoval appeals her convictions for possession of stolen property in the second degree and possession of a controlled substance. She argues that insufficient evidence supports the jury's finding that the credit card found in her possession was an "access device," and that the jury instruction defining "access device" misstated the law and constituted an improper comment on the evidence. Sandoval also argues that she received ineffective assistance of counsel when her attorney failed to request an "unwitting possession" jury instruction. Finally, Sandoval argues that we should remand for the trial court to inquire into her ability to pay legal financial obligations (LFOs).

¶2 We affirm the convictions but remand for the trial court to reconsider the imposition of LFOs.

FACTS

I. INCIDENT

¶3 On March 6, Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it.

¶4 After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

¶5 On April 2, the police found Sandoval and her husband in the stolen vehicle at the address listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and searched her incident to that arrest. In Sandoval's purse, the police found a credit card with somebody else's name on it, Sandoval's sister's birth certificate, and a pipe with methamphetamine residue.

¶6 The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card's owner cancelled the card.

¶7 The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

II. TRIAL AND SENTENCING

¶8 As relevant here, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

¶9 The court defined an access device as, "any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value." Clerk's Papers (CP) at 47. In the same instruction, the court stated, "The phrase 'can be used' refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time." CP at 47.

¶10 The jury convicted Sandoval on all charges except identity theft in the second degree. The State dismissed that charge.

¶11 At sentencing, the court imposed numerous LFOs, including a $ 250 jury-demand fee. Sandoval appeals.

ANALYSIS

I. ACCESS DEVICE DEFINED

¶12 Sandoval makes three assignments of error which are premised on her argument that the court incorrectly instructed the jury on the definition of the term "access device." According to Sandoval, an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner. Sandoval argues that insufficient evidence supports her conviction for possession of stolen property in the second degree, that the trial court erroneously instructed the jury on the definition of access device, and that the court impermissibly commented on the evidence with the instruction. We disagree with Sandoval.

A. Legal Principles

¶13 RCW 9A.56.010(1) defines "access device." The definition contains the phrase "can be used." "Can be used" is not statutorily defined. Sandoval argues that the court's jury instruction contained an erroneous definition for the phrase "can be used." Sandoval's argument is two-fold. First, Sandoval argues that we should not follow State v. Schloredt , 97 Wash. App. 789, 987 P.2d 647 (1999), which interpreted the phrase "can be used," because it is not supported by sound reasoning. Sandoval argues in the alternative that State v. Rose , 175 Wash.2d 10, 282 P.3d 1087 (2012), effectively overruled Schloredt . We disagree with both arguments.

¶14 We review questions of statutory interpretation de novo. State v. Wentz , 149 Wash.2d 342, 346, 68 P.3d 282 (2003). Our primary duty in interpreting statutes is to determine and implement the legislature's intent. State v. J.P. , 149 Wash.2d 444, 450, 69 P.3d 318 (2003). If the statute's plain language and ordinary meaning is clear, we look only to the statute's language to determine intent. Wentz , 149 Wash.2d at 346, 68 P.3d 282. "[W]e discern plain meaning from 'all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.' " State v. Sanchez , 177 Wash.2d 835, 843, 306 P.3d 935 (2013) (quoting Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 11, 43 P.3d 4 (2002) ). We consider " 'all the terms and provisions of the act in relation to the subject of the legislation, the nature of the act, the general object to be accomplished and consequences that would result from construing the particular statute in one way or another.' " State v. Krall , 125 Wash.2d 146, 148, 881 P.2d 1040 (1994) (quoting State v. Huntzinger , 92 Wash.2d 128, 133, 594 P.2d 917 (1979) ). "[W]e presume the legislature does not intend absurd results and, where possible, interpret ambiguous language to avoid such absurdity." State v. Ervin , 169 Wash.2d 815, 823-24, 239 P.3d 354 (2010).

¶15 "[L]egislative inaction following a judicial decision interpreting a statute is often deemed to indicate legislative acquiescence in or acceptance of the decision."

State v. Stalker , 152 Wash. App. 805, 813, 219 P.3d 722 (2009). " '[E]vidence of legislative acquiescence is not conclusive, but is merely one factor to consider.' " Fast v. Kennewick Pub. Hosp. Dist. , 187 Wash.2d 27, 39, 384 P.3d 232 (2016) (quoting Safeco Ins. Cos. v. Meyering , 102 Wash.2d 385, 392, 687 P.2d 195 (1984) ).

¶16 RCW 9A.56.010(1) defines "access device" as

any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

(Emphasis added.)

¶17 In Schloredt , the court affirmed the defendant's convictions for possession of stolen property in the second degree based on his possession of four stolen credit cards. 97 Wash. App. at 790-91, 987 P.2d 647. Schloredt made the same argument that Sandoval makes. He argued that because the term "can be used" in RCW 9A.56.0101(1) is written in the present tense, the state must show that an access device can be used at the time the device is found on a defendant. Schloredt , 97 Wash. App. at 793, 987 P.2d 647. Thus, Schloredt argued that insufficient evidence supported his convictions because the state "failed to prove [that the cards] were 'operational' on the date [he] possessed them." Schloredt , 97 Wash. App. at 793, 987 P.2d 647. He argued that cancelled cards cannot be used to obtain something of value and therefore cancelled cards are not "access devices" under the statute. Schloredt , 97 Wash. App. at 793, 987 P.2d 647.

¶18 The court rejected the argument. It concluded that the language "can be used" referred "to the status of the access device when last in possession of its lawful owner." Schloredt , 97 Wash. App. at 794, 987 P.2d 647. The court looked to the legislative history and intent of RCW 9A.56.010(1), and reasoned that whether a victim cancelled his or her account prior to a defendant's arrest was irrelevant in determining whether stolen credit cards were "access devices" under the statute. Schloredt , 97 Wash. App. at 794, 987 P.2d 647. The court concluded that a contrary result would be an absurdity and would contravene the legislature's intent to broadly construe the term "access device." Schloredt , 97 Wash. App. at 793-94, 987 P.2d 647. "It begs reason to assume the legislature intended that a defendant could not be charged with possessing a stolen credit card or other access device solely because the victim discovered the theft and cancelled the account on the stolen card before the defendant was apprehended." Schloredt , 97 Wash. App. at 794, 987 P.2d 647. We agree that Sandoval's interpretation leads to an absurd result.

¶19 Since Schloredt was decided in 1999, the legislature has amended RCW 9A.56.010 four times. LAWS OF 2017 ch. 266, § 7; LAWS OF 2011 ch. 164, § 2; LAWS OF 2006 ch. 277, § 4; LAWS OF 2002 ch. 97, § 1. Not once has the legislature amended the definition of "access device."

¶20 We conclude that Schloredt accurately interpreted the phrase "can be used" as that phrase is used in the definition of "access device." Moreover, we conclude that the legislature's inaction following Schloredt indicates its acquiescence in Schloredt 's interpretation of the phrase "can be used."

¶21 Sandoval next argues that Rose overruled Schloredt . In Rose , the victim testified that she received a credit card offer which included an unactivated credit card in her name. 175 Wash.2d at 13, 282 P.3d 1087. The victim never activated the card and threw it away. 175 Wash.2d at 13, 282 P.3d 1087. Because she never activated the card, no account was associated with it. Rose , 175 Wash.2d at 13-15, 282 P.3d 1087. The card, later found in the defendant's possession, led to the state charging him with possession of stolen property in the second degree. Rose , 175 Wash.2d at 12, 282 P.3d 1087.

¶22 The court concluded that because the "card was not linked to an existing, active account," and had not been signed, "[i]t stretche[d] the inference beyond the evidence to conclude that th[e] card could be used to obtain something of value." Rose , 175 Wash.2d at 17-18, 282 P.3d 1087. The court also noted that although the state may have been able to prove the card could have been used to obtain goods or services, it did not. Rose , 175 Wash.2d at 17, 282 P.3d 1087.

¶23 In coming to its conclusion, Rose discussed Schloredt but did not conclude or even hint that the case had been wrongly decided. Rose , 175 Wash.2d at 16-17, 282 P.3d 1087. Instead, Rose factually distinguished Schloredt . In Rose , the card was never activated, was never linked to an existing account, and required a $ 30 payment to activate. 175 Wash.2d at 13, 15, 282 P.3d 1087. The court therefore recognized that, unlike in Schloredt , the card could not have been used to obtain something of value when it was last in the possession of its lawful owner. Rose , 175 Wash.2d at 17-18, 282 P.3d 1087. In fact, because the state failed to prove that the card in Rose was ever able to be used to obtain something of value, there was no need for the court to examine the appropriate point in time for determining when something "can be used."

¶24 Sandoval further argues that Rose overruled Schloredt because Rose "held that if the access device in question is not tied to an existing, active account, the State must present affirmative evidence that the card can be used to obtain something of value." Reply Br. of Appellant at 2-3 (emphasis omitted). This language from Rose , however, does not advance Sandoval's argument because it was used to distinguish State v. Clay , 144 Wash. App. 894, 184 P.3d 674 (2008), not Schloredt . 175 Wash.2d at 18 n.1, 282 P.3d 1087.

¶25 Clay involved an unactivated card linked to an already existing account. 144 Wash. App. at 899, 184 P.3d 674. In Rose , the court distinguished its facts recognizing that, unlike in Clay , the unactivated card was not linked to an existing account. 175 Wash.2d at 18 n.1, 282 P.3d 1087. Here, the facts are more analogous to Clay because, as evidenced by the card owner's ability to purchase items using the credit card, the card was linked to an active account.

¶26 Based on the foregoing, we conclude that Rose did not overrule Schloredt and that Schloredt correctly interpreted the phrase "can be used" in RCW 9A.56.010(1).

B. Sufficiency of the Evidence

¶27 Sandoval argues that insufficient evidence supports her conviction for possession of stolen property in the second degree because the State never proved she possessed an "access device." We disagree.

¶28 To determine whether sufficient evidence supports a conviction, we view the evidence in the light most favorable to the State and determine whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt. State v. Engel , 166 Wash.2d 572, 576, 210 P.3d 1007 (2009). "In claiming insufficient evidence, the defendant necessarily admits the truth of the State's evidence and all reasonable inferences that can be drawn from it." State v. Drum , 168 Wash.2d 23, 35, 225 P.3d 237 (2010).

¶29 Sufficient evidence supports Sandoval's conviction. As discussed above, Sandoval possessed a stolen access device. A reasonable jury could have concluded, when viewing the evidence in the light most favorable to the State, that sufficient evidence supports Sandoval's conviction.

C. Jury Instructions Misstated the Law

¶30 Sandoval argues that the trial court erroneously defined the terms "access device" and "can be used" when it instructed the jury. As discussed above, we disagree. The court did not err.

D. Comment on the Evidence

¶31 Sandoval argues that the jury instruction defining "access device" and "can be used" constituted an impermissible comment on the evidence by the court because it resolved a factual issue in favor of the State and relieved the State of its burden to prove that Sandoval possessed an "access device." Sandoval also argues that the jury instruction was an improper comment because its standard is derived from the facts of a previous sufficiency of the evidence case, Schloredt . We disagree with Sandoval.

¶32 We review jury instructions de novo to determine whether the trial court improperly commented on the evidence.

State v. Levy , 156 Wash.2d 709, 721, 132 P.3d 1076 (2006). "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." WASH. CONST. art. IV, § 16. "A jury instruction that does no more than accurately state the law pertaining to an issue ... does not constitute an impermissible comment on the evidence." State v. Woods , 143 Wash.2d 561, 591, 23 P.3d 1046 (2001). However, a definitional jury instruction that "essentially resolve[s] a contested factual issue" is an improper comment on the evidence because it "effectively relieve[s] the prosecution of its burden of establishing an element of the [crime]." State v. Brush , 183 Wash.2d 550, 557, 353 P.3d 213 (2015).

¶33 Sandoval relies on Brush . In Brush , the jury had to decide if the defendant committed an aggravated domestic violence offense. 183 Wash.2d at 554, 353 P.3d 213. To make that determination, the jury had to decide if "the offense was part of an ongoing pattern of psychological abuse of the victim 'manifested by multiple incidents over a prolonged period of time.' " Brush , 183 Wash.2d at 555, 353 P.3d 213 (quoting RCW 9.94A.535(3)(h)(i) ). Using a pattern jury instruction, the trial court instructed the jury that " '[t]he term prolonged period of time means more than a few weeks.' " Brush , 183 Wash.2d at 555, 353 P.3d 213 (internal quotation marks omitted); 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 300.17, at 719 (3d ed. 2008) (WPIC).

¶34 That instruction derived from State v. Barnett , 104 Wash. App. 191, 203, 16 P.3d 74 (2001), abrogated on other grounds by State v. Epefanio , 156 Wash. App. 378, 234 P.3d 253 (2010). Brush , 183 Wash.2d at 557, 353 P.3d 213. In Barnett , the court concluded that two weeks was not a "prolonged period of time" as a matter of law; therefore, because the evidence at trial only showed two weeks of abuse, insufficient evidence supported the jury's finding that the defendant's crime was an aggravated domestic violence offense. 104 Wash. App. at 203, 16 P.3d 74 ; see Brush , 183 Wash.2d at 557, 353 P.3d 213.

¶35 In Brush , the court reversed and decided that the jury instruction was "an inaccurate interpretation of the holding of Barnett because it implies that any abuse that occurs for more than a few weeks is a 'prolonged period of time.' " 183 Wash.2d at 558, 561, 353 P.3d 213. The court stated "that two weeks was not legally sufficient to be a 'prolonged period of time'-not that abuse occurring longer than two weeks would be legally sufficient." Brush, 183 Wash.2d at 558, 353 P.3d 213.

¶36 In Brush , the jury instruction did not accurately state the law, which in turn meant that the trial court commented on the evidence. But here, the issue is different because, as discussed above, the court's jury instruction accurately stated the law. Furthermore, the trial court did not instruct the jury that the card was active at the time the lawful owner possessed it. Rather it merely stated the law and allowed the jury to determine whether the card was active at the relevant time.

¶37 We recognize that Brush also contained a sweeping admonition that "legal definitions should not be fashioned out of courts' findings regarding legal sufficiency." 183 Wash.2d at 558, 353 P.3d 213. Subsequent courts have recognized that the reason for this admonition is because appellate courts review the sufficiency of evidence for whether any rational jury could have found guilt beyond a reasonable doubt and construe facts in the light most favorable to the state, while juries must find guilt beyond a reasonable doubt. State v. Sinrud , 200 Wash. App. 643, 650, 403 P.3d 96 (2017). "Therefore, fashioning a jury instruction based on an appellate court's sufficiency holding effectively replaces the jury standard with the lesser appellate standard." Sinrud , 200 Wash. App. at 651, 403 P.3d 96.

¶38 Here, the jury instruction defining "can be used" was based on Schloredt . See WPIC 79.07, at 206 (4th ed. 2016). And although Schloredt resolved a sufficiency of the evidence challenge, we conclude that the policy implications regarding Brush 's admonition are not implicated by the jury instruction in this case.

¶39 The language in Brush should not be read in isolation. After discussing why the instruction inaccurately interpreted Barnett , the court stated:

Furthermore, the question faced by the court in Barnett was whether the specific facts in that case were legally sufficient for the court to uphold an exceptional sentence based on abuse occurring over a "prolonged period of time." This is not an appropriate basis on which to create a jury instruction defining "prolonged period of time." Thus, we clarify that legal definitions should not be fashioned out of courts' findings regarding legal sufficiency.

Brush , 183 Wash.2d at 558, 353 P.3d 213. Read in its entirety, it is clear that the court had concerns about defining highly fact-specific terms, such as "prolonged," based on previous sufficiency of the evidence rulings.

¶40 Whether abuse occurs over a prolonged period of time is a fact-specific and subjective determination. One jury's finding, based on its facts, should not control or dictate the outcome of later cases, based on their facts.

¶41 Thus, Brush recognizes that courts should not fashion jury instructions based on previous sufficiency of the evidence cases to define certain terms, e.g., prolonged, which should be left to the sound discretion of the jury. Doing otherwise could constrain later juries in making findings. It also could relieve the State of having to prove guilt beyond a reasonable doubt in subsequent cases.

¶42 In contrast, determining the point in time for a jury to calculate whether an instrument "can be used" is not a fact-specific inquiry. Defining the phrase does not constrain juries in subsequent cases. Unlike a definition of the word "prolonged," the proper definition of the phrase "can be used" is independent of the facts of any given case.

¶43 This conclusion is further supported by Schloredt 's analysis. Schloredt engaged in statutory interpretation to define the phrase "can be used." See 97 Wash. App. at 793-94, 987 P.2d 647. The court did not construe facts in the state's favor or determine whether any reasonable jury could find that "can be used" is susceptible to the interpretation that the relevant time is the time in which the instrument was last in possession of its lawful owner. Instead, only after the court reached its legal conclusion for the appropriate definition of "can be used" did it look to the evidence presented to determine whether sufficient evidence supported the finding that the instrument was an "access device." Schloredt , 97 Wash. App. at 794, 987 P.2d 647.

¶44 Accordingly, the policies behind Brush 's admonition are not implicated by the court's instructions in this case. Based on the above, we conclude that the court did not improperly comment on the evidence.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶45 Sandoval argues that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge. We disagree.

A. Legal Principles

¶46 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Grier , 171 Wash.2d 17, 32, 246 P.3d 1260 (2011).

¶47 We review claims of ineffective assistance of counsel de novo. State v. Sutherby , 165 Wash.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel, the defendant must show both (1) that defense counsel's representation was deficient, and (2) that the deficient representation prejudiced the defendant. Grier , 171 Wash.2d at 32-33, 246 P.3d 1260. If either prong is not satisfied, the defendant's claim fails. In re Pers. Restraint of Davis , 152 Wash.2d 647, 673, 101 P.3d 1 (2004).

¶48 Unwitting possession is an affirmative defense to the charge of unlawful possession of a controlled substance. State v. Higgs , 177 Wash. App. 414, 437, 311 P.3d 1266 (2013). To prove unwitting possession, a defendant must show by a preponderance of the evidence that she did not know that the substance was in her possession or did not know the nature of the substance. State v. Olinger , 130 Wash. App. 22, 26, 121 P.3d 724 (2005).

B. Prejudice

¶49 Sandoval argues that she was prejudiced because, without the unwitting possession instruction, "the jury could give no weight to [her] testimony concerning how she inadvertently possessed the methamphetamine." Br. of Appellant at 32. Sandoval argues that without the instruction, the jury was given no choice but to convict her, and therefore, she was denied a fair trial. We disagree.

¶50 In an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel's errors, the results of the proceedings would have differed. Grier , 171 Wash.2d at 34, 246 P.3d 1260. A reasonable probability is a probability sufficient to undermine confidence in the outcome after considering the totality of evidence before the jury. Strickland , 466 U.S. at 694-95, 104 S.Ct. 2052. Such probability is lacking here.

¶51 Viewing the evidence, jury instructions, and verdicts leads to the conclusion that the jury disbelieved Sandoval's testimony. For instance, Sandoval testified that she was not aware that another person's credit card was in her purse until after she was arrested. However, in convicting Sandoval of possession of stolen property in the second degree, the jury necessarily found to the contrary. The jury found beyond a reasonable doubt that Sandoval knowingly possessed the credit card.

¶52 Furthermore, Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

¶53 Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense. Sandoval was not prejudiced by her counsel's failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

III. LFOs

¶54 Sandoval argues, and the State agrees, that the sentencing court did not adequately inquire into her ability to pay LFOs and erred when it imposed a discretionary jury-demand LFO. We accept the State's concession.

¶55 We remand for the court to reconsider the imposition of LFOs. On remand, the trial court should consider all of the LFOs in light of the 2018 amendments to the LFO provisions, LAWS OF 2018, ch. 269, and State v. Ramirez , 191 Wash.2d 732, 426 P.3d 714 (2018).

CONCLUSION

¶56 We affirm the defendant's convictions but remand for the court to reconsider the imposition LFOs.

We concur:

Worswick, P.J.

Sutton, J.

      The jury also convicted Sandoval of possession of a stolen motor vehicle. She does not raise any issues relating to this conviction.

      Division I of this court decided Schloredt . We are not bound by the decisions of another division, but we do respectfully consider them. In re Pers. Restraint of Arnold , 190 Wash.2d 136, 154, 410 P.3d 1133 (2018).

      We note that the admonition in Brush was dicta.