127 Wn. App. 526, Lindeman v. Kelso Sch. Dist. No. 458

[No. 31825-3-II. Division Two. May 19, 2005.]

RICHARD LINDEMAN , et AL ., Appellants , v. KELSO SCHOOL DISTRICT NO . 458, Respondent .

[1] Open Government - Public Disclosure - Judicial Review - Appellate Review - De Novo Review. Appellate review of a claim under the public disclosure act (RCW 42.17.250 -.348) is de novo if the trial record consists of only affidavits, memoranda of law, and other documentary evidence.

[2] Statutes - Construction - Legislative Intent - In General. A court's primary duty when interpreting a statute is to give effect to the legislature's intent. If the statute's meaning is plain on its face, the court will give effect to that plain meaning as an expression of what the legislature intended.

[3] Statutes - Construction - Unambiguous Language - Judicial Alteration. A court will not add words or clauses to an unambiguous statute where the legislature has chosen not to include such language.

[4] Statutes - Construction - Superfluous Provisions. A statute is construed so that no words are rendered superfluous.

[5] Open Government - Public Disclosure - Statutory Provisions - Purposes - Disclosure of Specified Documents - Personal Information About Citizens. While the public disclosure act (RCW 42.17.250 -.348) is intended to enable the citizens of this state to retain sovereignty over their government and to demand full access to information relating to governmental activities, it is not intended to make it easier for the public to obtain personal information about individuals who have become subject to government action due to personal factors such as their age, health, or financial status. Such personal information generally has no bearing on how the government operates absent some target investigation or data collection, such as, for example, information compiled in an investigation of nursing home abuse.[6] Open Government - Public Disclosure - Exemptions - Files Maintained for Students, Health Care Recipients, and Welfare Recipients - Scope - Information Violating Right to Privacy - Necessity. RCW 42.17.310 (1)(a), which exempts from public disclosure "[p]ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients," is broader than the RCW 42.17.310 (1)(b) exemption for personal information contained in files maintained for public employees and public officials and is not limited to information that violates a person's right to privacy. Subsection (1)(a) reflects the legislature's intent to provide heightened protection to a specific, narrow class of persons distinct from

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those defined in other exemptions from the public disclosure requirement.

[7] Statutes - Construction - Meaning of Words - Absence of Statutory Definition - Resort to Dictionary. A statutory term undefined by the statute may be given its plain and ordinary meaning as determined by reference to a standard dictionary.

[8] Statutes - Construction - Meaning of Words - Literal Meaning. A court will avoid reading a statute literally if to do so would result in unlikely, absurd, or strained consequences.

[9] Statutes - Construction - Considered as a Whole - In General. A statute is construed as a whole, with all of its provisions considered in relation to each other.

[10] Open Government - Public Disclosure - Exemptions - Files Maintained for Students, Health Care Recipients, and Welfare Recipients - "Personal" Information - What Constitutes. For purposes of RCW 42.17.310 (1)(a), which exempts from public disclosure "[p]ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients," "personal" means "of or relating to a particular person."

[11] Open Government - Public Disclosure - Exemptions - Files Maintained for Students, Health Care Recipients, and Welfare Recipients - "Personal" Information - Public School Student Surveillance Videotape. A surveillance videotape of public school students from which the identities of students may be discerned contains "personal information" within the meaning of RCW 42.17.310 (1)(a), which exempts from public disclosure "[p]ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients."

[12] Open Government - Public Disclosure - Partial Disclosure - Redaction - Necessity - Impairment of Document. An agency is not required to redact a public record to remove those portions that are exempt from disclosure if no meaningful information would remain in the record following its redaction.

[13] Open Government - Public Disclosure - Attorney Fees - On Appeal. A party that does not prevail on appeal in an action to enforce a public disclosure request is not entitled to an award of attorney fees or costs on appeal under RCW 42.17.340 .Nature of Action: The parents of a public school student who was involved in a fight with another student on a school bus sought to enforce a public disclosure request to obtain a redacted copy of a surveillance videotape showing the fight. The school district opposed the request on the

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grounds that the videotape is exempt from public disclosure under a state statute exempting personal information in a file maintained for students in public schools and under the federal Family Education Rights and Privacy Act of 1974.

Superior Court: The Superior Court for Cowlitz County, No. 04-2-00419-6, Stephen M. Warning, J., on May 27, 2004, entered a judgment in favor of the school district, ruling that the videotape is exempt from public disclosure requirements under the state statute protecting student records.

Court of Appeals: Holding that the videotape is exempt from public disclosure under the state statute protecting student records and that the district is not required to provide a redacted copy of the videotape, the court affirms the judgment.

James K. Morgan , for appellants.

Clifford D. Foster, Jr. (of Dionne & Rorick ), for respondent.

[As amended by order of the Court of Appeals May 23, 2005.]

<</noticeofamendment>¶1 HUNT, J. - Richard and Ginger Lindeman appeal a trial court's denial of their motion to show cause and its dismissal of their Public Disclosure Act (PDA) claim to require the Kelso School District to produce a redacted version of a school bus surveillance videotape under RCW 42.17.310 (2). The tape showed a fight on the school bus involving another student hitting the Lindemans' son. The School District allowed the Lindemans to view the tape, but

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it refused to turn over a copy for them to keep, asserting that the District had retained this tape solely for disciplinary purposes; otherwise, it would have been taped over as was the District's normal procedure.

¶2 The Lindemans argue that (1) the tape was not exempt under RCW 42.17.310 (1)(a) as "[p]ersonal information in any files maintained for students in public schools"; (2) to the extent it was exempt, the trial court erred when it concluded that the District did not have to provide a redacted version; and (3) they are, therefore, entitled to attorney fees, costs, and terms of $100 per day under the PDA.

¶3 Agreeing with the trial court that the tape was exempt from public disclosure and that the District was not required to provide a redacted copy of the tape, we affirm.

FACTS

¶4 After their son was involved in an altercation with another student on a school bus, Richard and Ginger Lindeman requested a copy of a school bus surveillance videotape from the Kelso School District.«1»The District had already allowed the Lindemans and the parents of the other child involved to view the videotape on the date of the incident.

¶5 The Lindemans threatened to bring legal proceedings under the PDA and to pursue attorney fees, costs, and terms if the District failed to comply with their request to deliver a copy for their lawyer to review. The District refused to comply with the Lindemans' request, asserting that the videotape, which the school had maintained for disciplinary purposes, was exempt from the PDA under RCW 42.17.310 (1)(a) and under the Family Education Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232(g).


«1»The Lindemans also requested other information that is not relevant to this appeal.


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¶6 The Lindemans subsequently filed a PDA claim, asking the superior court to order the District to provide the tape, attorney fees, costs, and terms under the PDA. Before the show cause hearing, the Lindemans served the District with a subpoena duces tecum to produce the videotape. Although the District recognized that the Lindemans could obtain the videotape under discovery rules if they brought a tort action, it asserted that it was not required to disclose the videotape under the PDA.«2»The District also asserted that because the tape was not subject to the PDA, the Lindemans were not entitled to attorney fees under the PDA.

¶7 When the Lindemans refused to withdraw their PDA request, the District opposed the show cause motion and moved to quash the subpoena duces tecum, asserting again that the videotape was exempt from the PDA under RCW 42.17.310 (1)(a) and FERPA. The District also contended that because of the videotape's format, it could not be


«2»The District's counsel discussed this issue in a March 8 letter to the Lindemans' counsel, in which it stated:

I have received your letter of March 4, 2004[,] and the subpoena duces tecum.

As I believe I indicated in our phone conversation, my statement that I would honor the subpoena duces tecum for the videotape was based on the assumption that you would not pursue a claim for attorney fees. I do not believe that a subpoena for the challenged record resolves the legal issue of whether the tape is subject to disclosure under chapter 42.17 RCW. As I stated, under RCW 42.17.310 (1)(a), 34 CFR § 99.31(a)(9), and 34 CFR (sic) § 99.12(a) . . . personally identifiable information may not be released without consent of the parent or adult student involved.

As we further discussed, the District may release such information in response to a valid court order or subpoena if it provides advance notice of the subpoena or court order to the parents of the students involved. Absent a resolution of the question of your fees, I cannot agree to follow this process. The videotape would be discoverable in the event of a tort action, and subject to subpoena in the discovery process. But in your public disclosure proceeding, a subpoena duces tecum for a document otherwise exempt from public disclosure is not discoverable or subject to the subpoena power. I do not believe that you have any basis under chapter 42.17 RCW to have a court enter an order making this document discoverable and thus justify an award of attorney fees.

Accordingly, unless we can enter a stipulation that drops your claim for fees, the District will move to quash the subpoena and defend against the show cause order on March 15th. Please give me a call to discuss this matter.

Clerk's Papers at 35.


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edited. The District argued that requiring it to provide the tape in a different format would be tantamount to ordering it to create a new record, which the PDA did not require.

¶8 The Lindemans argued that RCW 42.17.310 (1)(a) did not apply and that, even if it did, the District should be required to redact the videotape and to disclose the non-exempt portions. They also argued that the videotape was not protected under FERPA. They further argued that the District's refusal to comply with their subpoena duces tecum, unless they dropped their claim for attorney fees, justified terms of $100 per day for failing to comply with their PDA request.

¶9 Following argument, the trial court found that (1) the District had maintained the videotape for potential discipline, and (2) the tape contained information that would allow a viewer to identify a student other than the Lindemans' son. The court declined to address whether FERPA applied, but it concluded that (1) RCW 42.17.310 (1)(a)'s exemption was broader than that of RCW 42.17.310 (1)(b); (2) the District was not required to disclose the videotape under the PDA because it contained personal information maintained for students in public school; (3) the District was not required to edit the videotape under RCW 42.17.340 (2); and (4) the Lindemans were not entitled to fees, costs, or terms under the PDA. The trial court dismissed the matter with prejudice and awarded the District costs.

¶10 The Lindemans appeal.

ANALYSIS

¶11 RCW 42.17.310 (1)(a) excludes from disclosure under the PDA "[p]ersonal information in any files maintained for students in public schools." The primary issues here are (1) whether a school bus surveillance videotape that a school district maintains solely for disciplinary purposes is exempt from disclosure under RCW 42.17.310 (1)(a) of the PDA; and (2) if exempt, whether the trial court should have ordered

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the District to redact personal student information from the tape and then disclose the redacted version. We address each issue in turn.

I. PDA STANDARD OF REVIEW

[1]¶12 Under the PDA, state and local agencies must disclose any requested public record, unless the record falls within a specific exemption. Progressive Animal Welfare Soc'y v. Univ. of Wash. , 125 Wn.2d 243 , 250, 884 P.2d 592 (1994) (hereinafter PAWS ). The PDA enables citizens to retain sovereignty over their government and to demand full access to information relating to their government's activities. RCW 42.17.010 , .251.

[2]¶13 The Legislature directed that the PDA provisions be "liberally construed and its exemptions narrowly construed to promote this public policy." RCW 42.17.251 . When the record consists of affidavits, memoranda of law, and other documentary evidence, we review PDA challenges de novo. PAWS , 125 Wn.2d at 252 .

[3, 4]¶14 When interpreting a statute, our primary duty is to give effect to the Legislature's intent. State v. J.P. , 149 Wn.2d 444 , 450, 69 P.3d 318 (2003). "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." State v. J.M. , 144 Wn.2d 472 , 480, 28 P.3d 720 (2001). Furthermore, we will not "add words or clauses to an unambiguous statute when the legislature has chosen not to include that language." State v. Delgado , 148 Wn.2d 723 , 727, 63 P.3d 792 (2003). Because we do not find the statute ambiguous, we apply its plain meaning as written by the Legislature.

II. RCW 42.17.310 (1)(a)

¶15 The Lindemans contend that the trial court erred in concluding that RCW 42.17.310 (1)(a) ( subsection (1)(a)) was broader than RCW 42.17.310 (1)(b) ( subsection (1)(b)).

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They assert that the same test applies to both subsections. They then argue that, under this test, the District was required to produce the school bus videotape unless it could demonstrate that the tape's contents violated the right to privacy as defined in RCW 42.17.255 ,«3»by showing that the tape "(1) would be highly offensive to a reasonable person and (2) is not of legitimate concern to the public." Br. of Appellants at 16. They further argue that under this test, the District must show that the videotape concerns the private lives of the other students involved and either contains facts the other students would not want exposed to the public eye or shows intimate details of their private lives. We disagree.

A. Plain Language - No "Right To Privacy" Requirement for Subsection (1)(a)

[5-7]¶16 Subsection (1)(a) provides that "[ p ] ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients" is exempt from disclosure under the PDA.«4»(Emphasis added.) But unlike several other subsections of the statute, subsection (1)(a) does not limit excluded "personal information" to information that violates a person's right to privacy. Compare RCW 42.17.310 (1)(a) with RCW 42.17.310 (1)(b), (c), and (d).«5»In


«3»RCW 42.17.255 provides:

A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

«4»Although the Lindemans argued below that the tape was not information "in any files maintained for students in public schools," they do not raise this argument on appeal.

«5»These subsections state that the following information is exempt from the PDA:

(b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy .

(c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would (i) be prohibited to such persons by RCW 84.08.210 , 82.32.330, 84.40.020, or 84.40.340 or (ii) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

(d) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy .

RCW 42.17.310 (b), (c), (d) (emphases added).


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our view, the Lindemans read subsection (1)(a) too narrowly.

¶17 For public disclosure purposes, the Legislature has drawn an express distinction between clients of public institutions, such as public school students, and persons involved in running our public institutions, such as public employees and elected or appointed officials. For example, in subsection (1)(b), the Legislature specifically excludes from public disclosure "[ p ] ersonal information in files maintained for employees, appointees, or elected officials of any public agency" only " to the extent that disclosure would violate their right to privacy ." RCW 42.17.310 (1)(b) (emphases added). In contrast, the Legislature clearly excluded this limitation in subsection (1)(a). By omitting from subsection (1)(a) the last clause of subsection (1)(b), "to the extent that disclosure would violate their right to privacy," the Legislature thus created broader protection from public disclosure for clients of government institutions, such as students.

¶18 If we did not read together these two subsections in this manner, then the right to privacy language in subsection (1)(b), and other subsections, would be superfluous, a result we avoid when interpreting a statute.«6» See PAWS , 125 Wn.2d at 260 ("We will not interpret statutes in a


«6»Because the language in subsection (1)(a) is distinct from the other subsections and this language difference is determinative, the Lindemans' reliance on cases discussing other subsections is inapposite. See Amren v. City of Kalama , 131 Wn.2d 25 , 929 P.2d 389 (1997) (not addressing any PDA exemptions under RCW 42.17.310 (1)); Dawson v. Daly , 120 Wn.2d 782 , 845 P.2d 995 (1993) (discussing RCW 42.17.310 (1)(j)); Hearst Corp. v. Hoppe , 90 Wn.2d 123 , 580 P.2d 246 (1978) (discussing RCW 42.17.310 (1)(i)); Koenig v. City of Des Moines , 123 Wn. App. 285 , 95 P.3d 777 (2004) (discussing RCW 42.17.310 (1)(e)), review granted , 153 Wn.2d 1023 (2005); King County v. Sheehan , 114 Wn. App. 325 , 57 P.3d 307 (2002) (discussing RCW 42.17.310 (1)(d)).


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manner that renders portions of the statute superfluous.") (citing Lutheran Day Care v. Snohomish County , 119 Wn.2d 91 , 829 P.2d 746 (1992), cert denied , 506 U.S. 1079 (1993)). We conclude, therefore, that the Legislature's decision to modify the term "personal information" in subsection (1)(b), and to limit disclosure solely to information that would not violate government employees' personal privacy, demonstrates that it understood the phrase public clients' "personal information," without modification , to protect personal information beyond that which would implicate a person's right to privacy.

¶19 We further note that subsection (1)(a) reflects the Legislature's decision to provide heightened protection to a specific, narrow class of persons distinct from those discussed in other PDA exemptions. Unlike the other PDA exemptions, subsection (1)(a) applies to information related to persons in public schools, patients and clients of public institutions or public health agencies, and welfare recipients. RCW 42.17.310 (1)(a). Because of the nature of these agencies, their clients, and the services they provide, much of the personal information gathered in administering these programs relates to a specific individual's typically confidential needs or evaluation rather than to the general administration of government by those acting on behalf of our government.

¶20 As noted above, the PDA enables our citizens to retain sovereignty over our government and to demand full access to information relating to our government's activities , RCW 42.17.010 , RCW 42.17.251 . The PDA, however, was not intended to make it easier for the public to obtain personal information about individuals who have become subject to government action due to personal factors such as their age, health, or financial status. Such personal information generally has no bearing on how our government

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operates, absent some target investigation or data collection, for example, information compiled during an investigation into nursing home abuse.

B. Caselaw

¶21 Two cases, however, suggest that the personal information protected under subsection (1)(a) must relate to a person's privacy interests. In Citizens For Fair Share v. Dep't of Corr. , 117 Wn. App. 411 , 429-35, 72 P.3d 206 (2003), review denied , 150 Wn.2d 1037 (2004), we examined RCW 42.17.310 (1)(a) in the context of whether the Department of Corrections had properly responded to a PDA request for a variety of information about the location of sex offenders and sex offender treatment or correctional facilities. Before examining the individual requests, we stated:

The PDA requires that, on request, state and local agencies "make available for public inspection and copying all public records," unless the record falls within a specific exemption. RCW 42.17.260 (1); Tacoma Pub. Library v. Woessner , 90 Wn. App. 205 , 212, 951 P.2d 357[, 972 P.2d 932] (1998). RCW 42.17.310 (1)(a) exempts from public inspection and copying all "[p]ersonal information in any files maintained for . . . patients or clients of public institutions." This exemption, which protects individuals' "right to privacy," is violated if disclosing the record " '(1) [w]ould be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.' " [ PAWS ], 125 Wn.2d [at 254] (quoting RCW 42.17.255 ).

Citizens , 117 Wn. App. at 429 -30 (footnotes omitted).

¶22 But we concluded that the "right to privacy" language applied to subsection (1)(a) without discussing the language differences among the various subsections. Additionally, we relied on PAWS , which mentions RCW 42.17.255 solely in the context of examining RCW 42.17.310 (1)(b), a subsection that specifically refers to a person's right of privacy. PAWS , 125 Wn.2d at 254 . Because the language differences between subsections (1)(a) and (b) suggest that a different test should apply and because we

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did not reach this issue in Citizens , Citizens is not instructive here.

¶23 In Oliver v. Harborview Medical Center , 94 Wn.2d 559 , 618 P.2d 76 (1980), a patient requested her hospital records under the PDA. The hospital argued that they were exempt under RCW 42.17.310 (1)(a) and (i) and that disclosure of the records would "inhibit full professional statements about patients and render care less helpful." Oliver , 94 Wn.2d at 561 . The trial court concluded that, as a matter of law, the patient's records were not public records under chapter 42.17 RCW and that all other matters were moot because the patient's appellate attorney had accepted the patient's personal medical records from the hospital. Oliver , 94 Wn.2d at 563 . On appeal, the Supreme Court determined that the case was not moot because the hospital had provided the records under hospital policy and had not contended that the PDA did not apply. The Court further held that the patient's records were "public records" for purposes of the PDA. Oliver , 94 Wn.2d at 564 -66.

¶24 The Court next addressed whether the records were exempt from disclosure under RCW 42.17.310 (1)(a):

Respondents [the hospital] contend that even if appellant's medical records fall within the purview of the [PDA], they are exempted from disclosure under RCW 42.17.310 (1)(a). We do not agree.

As indicated above, RCW 42.17.310 (1)(a) exempts from public inspection "[p]ersonal information in any files maintained for . . . patients . . . of public institutions or public health agencies." RCW 42.17.310 (2) and (3), however, render this exemption from disclosure inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought.

Oliver , 94 Wn.2d at 567 .

¶25 The Court then described RCW 42.17.310 (2) and (3): It found that the hospital could have provided the patient with "cleansed" records but that the patient had not re

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quested such records. But, as in Citizens , the Court did not discuss the effect of subsection (1)(a)'s broader language or its interaction with RCW 42.17.310 (2) or (3). Because this is the key issue here, Oliver is not instructive.

¶26 Accordingly, we hold that subsection (1)(a) protects personal information generally and is not restricted to information that would violate a person's right to privacy, as in subsection (1)(b). The test the Lindemans propose is not appropriate because it is based on case law discussing subsection (1)(b) and RCW 42.17.255 , which defines "right to privacy," and, as noted above, subsection (1)(a) does not require that the protected information relate to a person's right to privacy. Accordingly, based on the plain language of the statute and the nature of the information the Legislature was trying to protect, we hold that the trial court did not err when it ruled that subsection (1)(a) is broader than subsection (1)(b) and refused to apply the standards the Lindemans proposed.

C. "Personal Information"

¶27 The Lindemans next argue that even if their proposed test does not apply, the tape is still not exempt from disclosure under the PDA because it does not contain "personal information." Citing Webster's New International Dictionary (2d ed. 1950), they assert that the term "personal" requires that the tape depict " 'peculiar or proper to private concerns; not public or general,' " and that because the tape shows acts that occurred in view of others, it contains "public" rather than "private" information and subsection (1)(a) does not apply.

[8-12]¶28 The District argues that under the " 'usual and ordinary meaning' " of the term, as derived from the dictionary, the term "personal" clearly covers the tape. Relying on different portions of Webster 's definition, the District argues that the tape is "personal" information because it (1) contains information relating to a specific individual and (2) relates to another student's potentially

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offensive private matters because it records an apparent assault by that student against another student on the school bus. We agree with the District.

¶29 Generally, legislative definitions provided in a statute are controlling. But in the absence of a statutory definition, as is the case here, courts may give a term its plain and ordinary meaning by reference to a standard dictionary. State v. Sullivan , 143 Wn.2d 162 , 174, 19 P.3d 1012 (2001). Nonetheless, we will avoid literal reading of a statute that would result in unlikely, absurd, or strained consequences. State v. McDougal , 120 Wn.2d 334 , 350, 841 P.2d 1232 (1992). Moreover, we must interpret the statute in its entirety, reviewing all of its provisions in relation to each other, and, as noted above, should avoid interpretations that make other parts of the statute superfluous. In re Det. of Williams , 147 Wn.2d 476 , 490, 55 P.3d 597 (2002) (quoting Weyerhaeuser Co. v. Tri , 117 Wn.2d 128 , 133, 814 P.2d 629 (1991)); PAWS , 125 Wn.2d at 260 .

¶30 Webster 's third edition contains all the definitions to which the parties refer. WEBSTER'S NEW INTERNATIONAL DICTIONARY 1686 (3d ed. 1969). The first definition defines "personal" as "of or relating to a particular person : affecting one individual or each of many individuals : peculiar or proper to private concerns : not public or general." WEBSTER'S NEW INTERNATIONAL DICTIONARY 1686 (3d ed. 1969). The fourth definition defines the term as "relating to an individual, his character, conduct, motives, or private affairs esp. in an invidious and offensive manner." WEBSTER'S NEW INTERNATIONAL DICTIONARY 1686 (3d ed 1969).

¶31 Based on these definitions, the simplest meaning of the term "personal" is "of or relating to a particular person." This relatively broad definition arguably conflicts with the directive to interpret the exemptions to the PDA narrowly. But it is also the most consistent with the statute as a whole because the subsections, other than (1)(a), specifically implicate a person's privacy interests whereas subsection (1)(a) does not. Rather, as discussed above, (1)(a) does not modify the phrase "personal information" in any manner,

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suggesting that any and all personal information from agencies and institutions that fall under this subsection is exempt from public disclosure. Furthermore, were we to conclude otherwise and find that the phrase "personal information" implied "private information," the additional language in the other subsections would become superfluous, a result we must avoid. See Williams , 147 Wn.2d at 490 ; PAWS , 125 Wn.2d at 260 .

¶32 Applying this definition, the videotape clearly contains "personal information" because it would show the identities of the students on the bus. Thus, to the extent the tape identifies the children on the bus and indicates that they are district students, it falls under subsection (1)(a). We hold, therefore, that the trial court did not err when it concluded that the tape was exempt from PDA disclosure.

III. REDACTION

¶33 The Lindemans next argue that the trial court erred when it concluded that the District was not required to produce a redacted version of the tape. They contend that the trial court had evidence showing that redaction was feasible at a reasonable cost but that it did not consider this option. The District counters that because the tape is exempt under subsection (1)(a) and because subsection (1)(a) protects "personal information" rather than informa tion that would violate "personal privacy," RCW 42.17.310 (2) does not apply.«7»


«7»In its brief, the District relies on a Florida case, WFTV, Inc. v. School Board of Seminole , 874 So. 2d 48 (Fla. Dist. Ct. App.), review denied , 892 So. 2d 1015 (Fla. 2004), to support its argument that the tape is exempt from the PDA. But the parties in WFTV presumed that a videotape from a school bus was exempt from Florida's version of the PDA and the court addressed only whether the tape was also "confidential" under Florida law and, if so, whether the district was required to produce a redacted version of the tape. Accordingly, this case is not relevant to whether the tape here is exempt from disclosure under Washington's PDA.

Additionally, the only other case addressing RCW 42.17.310 (2) in a context similar to the current case is Oliver . But, as previously discussed, the Oliver Court did not address how subsection (1)(a)'s distinct language impacts the redaction requirements of RCW 42.17.310 (2).


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[13]¶34 The trial court concluded: "The District is not required to edit the school bus surveillance video tape pursuant to RCW 42.17.3 [1]0(2)«8»to allow the inspection and copying of information not exempt under the Public Disclosure Act, 42.17 RCW." Clerk's Papers at 92.

¶35 RCW 42.17.310 (2) provides:

Except for information described in subsection (1)(c)(i)«9»of this section and confidential income data exempted from public inspection pursuant to RCW 84.40.020 , the exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.

We agree with the District that even if it were possible to redact the tape, such redaction would obliterate audio and visual personal information such as students' faces, bodies, voices, clothing, and so forth, which would otherwise tend to reveal protected student identities. After such redaction, there would be no meaningful information remaining on the tape. Accordingly, we hold that the trial court's ruling was not error.

¶36 This result does not in any way contravene the public policy behind the PDA to allow access to public records so that our citizens can discover how our government operates. We reiterate that (1) the District's usual practice is to record over and re-use school bus surveillance videotapes every week; (2) the District retained this particular tape solely for disciplinary purposes relating to this particular incident; (3) such videotapes are not part of the District's generally kept records concerning administration


«8»The trial court's written conclusions refer to RCW 42.17.340 (2) rather than RCW 42.17.310 (2). RCW 42.17.340 addresses judicial review of agency actions and section (2) provides that the court may require an agency to prove that its time estimates are reasonable. Accordingly, this appears to be a scrivener's error and the court was actually referring to RCW 42.17.310 .

«9»This subsection exempts certain taxpayer information.


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of the school district; (4) nonetheless, the District has already allowed the Lindemans to view the tape and has not kept it secret from them; (5) the Lindemans are seeking the tape only under the PDA allowing disclosure of certain public records and not in connection with any tort action related to the school bus incident; and (6) aside from certain regularly kept school data collections, the law prohibits the School District from disclosing to the general public private, personal information about their individual students. RCW 42.17.310 (1)(a).

IV. ATTORNEY FEES, COSTS, AND PENALTIES

[14]¶37 Finally, the Lindemans argue that they are entitled to attorney fees, costs, and penalties under RCW 42.17.340 , plus sanctions of $100 per day, asserting that the District's refusal to comply with the subpoena duces tecum, unless the Lindemans waived attorney fees and costs, is evidence of bad faith. We agree with the trial court that the Lindemans were not entitled to fees or costs under the PDA because the tape was not subject to PDA disclosure, intact or redacted. For the same reasons, the Lindemans are not entitled to attorney fees and costs on appeal.

¶38 Affirmed.\

ARMSTRONG and VAN DEREN , JJ., concur. No. 30085-1-II. Division Two. March 22, 2005.]

COWLITZ STUD COMPANY , Respondent , v. DANA CLEVENGER , ET AL ., Appellants . [1] Industrial Insurance - Disability - Industrial Injury - Award - Successive Insurers - Last Injurious Exposure Rule - Applicability. The last injurious exposure rule, under

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which the insurer at risk during a disabled worker's most recent exposure that bears a causal relationship to the disability is liable for the entire amount of the worker's industrial insurance award, may be applied to industrial injury claims. The rule is not limited solely to occupational disease claims.

[2] Industrial Insurance - Self-Insurers - Payment of Benefits - Last Injurious Exposure Rule - Applicability. The last injurious exposure rule, under which the insurer at risk during a disabled worker's most recent exposure that bears a causal relationship to the disability is liable for the entire amount of the worker's industrial insurance award, may be applied where the prior and successive insurers are both self-insured employers.

[3] Industrial Insurance - Disability - Industrial Injury - Award - Successive Insurers - Last Injurious Exposure Rule - New Injury - Necessity. Application of the last injurious exposure rule is not limited to instances where a worker sustains a "new" injury while working for a successive employer. For purposes of the rule, it is sufficient that the worker's last exposure bears a causal relationship to the disability.

[4] Industrial Insurance - Disability - Industrial Injury - Award - Successive Insurers - Last Injurious Exposure Rule - Causal Connection - Question of Law or Fact. For purposes of the last injurious exposure rule, whether a worker's last employment contributed to the worker's disability may be decided as a matter of law if the evidence supports only a single conclusion.

[5] Industrial Insurance - Disability - Industrial Injury - Award - Successive Insurers - Last Injurious Exposure Rule - Preexisting Degenerative Disease - Effect. Where a worker's last employment worsens an existing back injury, the fact that the worker has a preexisting degenerative disk disease will not preclude application of the last injurious exposure rule.

[6] Industrial Insurance - Award - Apportionment - Sequential Injuries. A self-insured employer is liable for the entire cost of an employee's industrial insurance claim, regardless of whether a previous injury compensable from another source was also a proximate cause of the employee's disability.

Nature of Action: A self-insured employer sought judicial review of an administrative decision requiring the employer to pay time loss compensation to a former employee whose industrial insurance claim was reopened after her injury worsened while working for another self-insured employer.Superior Court: The Superior Court for Lewis County, No. 02-2-00880-0, David R. Draper, J., on February 7, 2003,

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entered a judgment in favor of the employer, ruling that the employer was not responsible for the employee's claim under the last injurious exposure rule.

Court of Appeals: Holding that the worker's last employer was fully responsible for the worker's claim under the last injurious exposure rule, the court affirms the judgment.

Robert R. Hall ; and Robert M. McKenna , Attorney General, and Steve R. Vinyard , Assistant, for appellants.

Craig A. Staples , for respondent.

¶1 HOUGHTON, J. - In 1997, Dana Clevenger sustained an industrial injury while employed by Cowlitz Stud Company, a lumber mill. Cowlitz paid her medical benefits and closed her claim. In 2000, while employed by Hampton Lumber Company, Clevenger reopened her 1997 claim. The Department of Labor and Industries (L&I) ordered Cowlitz to pay her time loss compensation. But the superior court reversed because reasonable minds could not differ that Clevenger's 1997 injury had worsened while she worked at Hampton and the "last injurious exposure rule" applied rendering Hampton and not Cowlitz responsible for these benefits. Both Clevenger and L&I raise issues on appeal. We affirm.

FACTS

¶2 From 1995 through May 1999, Clevenger worked at Cowlitz, a self-insured employer.«1»On May 2, 1997, she


«1»For the purposes of the Industrial Insurance Act, Title 51 RCW, a " '[s]elf-insurer' means an employer or group of employers which has been authorized under this title to carry its own liability to its employees covered by this title." RCW 51.08.173 .


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injured her back, and on July 2, Cowlitz paid her medical benefits and closed her claim.«2»

¶3 In November 1999, shortly after the lumber mill changed owners, Clevenger began working for Hampton, the new owner. From November 1999 through May 2000, she experienced pain and sensory problems radiating down both legs.«3»As a result, on July 7, 2000, she applied to reopen her 1997 L&I claim. L&I denied the application. She requested reconsideration and on December 20, 2000, L&I reopened her claim effective May 30, 2000.«4»

¶4 On January 8, 2001, per L&I's order, Cowlitz paid Clevenger time loss benefits for July 5 through July 6, July 10 through July 16, and August 1 through August 14, 2000. Cowlitz did not appeal this order.

¶5 On April 5, 2001, L&I directed Cowlitz to pay Clevenger time loss compensation for the period January 16 through April 4, 2001. L&I also directed Cowlitz to address Clevenger's employability as determined by a vocational consultant. On April 25, 2001, Cowlitz filed a protest and requested reconsideration. L&I affirmed its order.

¶6 Cowlitz appealed L&I's order. Cowlitz also requested that Clevenger file a claim with Hampton because she developed increased low back problems while working at Hampton's mill. Clevenger declined to do so.


«2»In the meantime, on June 11, 1997, Clevenger began seeing Dr. Cooper, who diagnosed her with preexisting degenerative disk disease at L5-S1. Dr. Cooper placed no work restrictions on her. Between June and August 1997, Clevenger stopped seeing Dr. Cooper and continued working.

«3»In May 2000, Clevenger resumed seeing Dr. Cooper. On July 5, 2000, Dr. Cooper recommended that Clevenger stop working and referred her to a neurosurgeon, who diagnosed advanced degenerative disk disease and recommended surgery.

«4»In September 2000, at Cowlitz's request, Dr. Paudler examined Clevenger and concluded that she had an injury-related lumbar strain, worsened since her claim closure. Paudler also concluded that Clevenger had a preexisting degenerative disk disease at L5-S1 unrelated to the compensable injury.


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¶7 After a hearing on Cowlitz's appeal, an industrial appeals judge (IAJ) entered a proposed decision affirming L&I's order.«5»Cowlitz sought review before the Board of Industrial Appeals (Board), arguing that, under the last injurious exposure rule, the responsibility for Clevenger's condition should be shifted to Hampton. L&I did not respond to the petition.

¶8 The Board affirmed the IAJ's proposed order. Cowlitz appealed to the superior court. Cowlitz moved for summary judgment, arguing lack of material fact and application of the last injurious exposure rule. L&I did not participate in the proceeding.

¶9 The trial court granted Cowlitz's motion because (1) the last injurious exposure rule applied and (2) based on the record, reasonable minds could not differ that Clevenger's Hampton employment proximately caused her worsened back condition.

ANALYSIS

Standard of Review

¶10 When reviewing an order for summary judgment, we engage in the same inquiry as the trial court. Mountain Park Homeowners Ass'n v. Tydings , 125 Wn.2d 337 , 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Res., Inc. , 122 Wn.2d 544 , 548-49 n.3, 859 P.2d 51 (1993)). We affirm summary judgment if no genuine issue of any material fact exists, entitling the moving party to judgment as a matter of law. CR 56(c); Dep't of Labor & Indus. v. Fankhauser , 121 Wn.2d 304 , 308, 849 P.2d 1209 (1993). We consider all facts and reasonable inferences in the light most favorable to the nonmoving party, and we review all questions of law de novo. Mountain Park , 125 Wn.2d at 341 .


«5»The IAJ also found that Clevenger, who had only a high school education, possessed no transferable skills qualifying her for sedentary employment or light level work within her physical restrictions.


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The Last Injurious Exposure Rule«6»

The Rule's Applicability to an Industrial Injury Case

[1]¶11 Clevenger and L&I contend that the last injurious exposure rule applies only to occupational disability claims, not to industrial injury claims.«7»We disagree. We previously held to the contrary in Champion International Inc. v. Department of Labor & Industries , 50 Wn. App. 91 , 746 P.2d 1244 (1987), where we applied the last injurious exposure rule in an industrial injury case.«8»

¶12 Clevenger cites Weyerhaeuser Co. v. Tri , 117 Wn.2d 128 , 814 P.2d 629 (1991),«9»and argues that our Supreme


«6»L&I first argues that the trial court erred in granting summary judgment because a genuine issue of material fact exists whether Clevenger was temporarily and totally disabled as a proximate result of her industrial injury. But Cowlitz does not dispute Clevenger's disability. The only issue before us is whether, under the last injurious exposure rule, Hampton, and not Cowlitz, should be responsible for Clevenger's disability costs.

«7»Clevenger and L&I also argue that Cowlitz's compliance with L&I's December 20, 2000 order precludes it from appealing L&I's order to pay Clevenger's benefits for January 16 through April 4, 2001. But L&I's December 20, 2000 order is not a part of the record; it is referenced in the Board's procedural findings. According to these findings, L&I's order merely reopened Clevenger's Cowlitz claim. The record does not support an argument that the condition that formed the basis for reopening her claim was the same condition on which the later award of disability benefits was predicated. Thus, we reject this argument.

«8»In Champion , James Buti, a logger, sustained two on-the-job injuries while employed by Champion. The first injury occurred while the state insured Champion's industrial insurance program, and the second injury occurred after the company became a self-insurer. Champion , 50 Wn. App. at 92 . As a result of these injuries, Buti could not work and required vocational retraining. Champion , 50 Wn. App. at 92 . Champion argued that because the earlier injury contributed to Buti's disability, his vocational retraining expense should be apportioned between the state's and Champion's funds. Champion , 50 Wn. App. at 92 . We disagreed and held that, under the last injurious exposure rule, Champion must pay Buti's retraining benefit as the last insurer at risk at the time of his last injury. Champion , 50 Wn. App. at 93 .

«9»In Tri , eight Weyerhaeuser employees suffered hearing loss resulting from occupational noise. 117 Wn.2d at 130 . But in each case, a portion of the employee's hearing loss occurred while the state insured the workers and a portion occurred after the company became a self-insurer. Tri , 117 Wn.2d at 130 . Weyerhaeuser argued, therefore, that the state should pay a proportionate share of the disability award. Tri , 117 Wn.2d at 130 . Our Supreme Court disagreed and held that, according to the last injurious exposure rule, the insurer covering the risk during the most recent exposure bearing a causal relationship to the disability remains liable for the entire amount of the award. Tri , 117 Wn.2d at 139 .


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Court declined to expand the rule's application from occupational disability to industrial injury cases. Again we disagree. The Tri court cited with approval our industrial injury holding in Champion :

The Court of Appeals has also adopted the last injurious exposure rule. In Champion , a worker suffered two on-the-job injuries. One occurred while the employer was state insured, and the other while the employer was self-insured. In holding the employer liable for the full cost of vocational retraining, the court rejected apportionment and applied the last injurious exposure rule.

Tri , 117 Wn.2d at 138 -39 (citation omitted). Clevenger and L&I's argument fails.«10»

The Rule's Applicability to Self-Insured Employers

[2]¶13 Clevenger contends that the last injurious exposure rule does not apply where the claims involve two self-insurers. Instead, according to Clevenger, the rule applies only when a determination must be made whether a claim should be paid under the state fund or by a self-insurer.

¶14 In Champion we held: " 'When an employee sustains a subsequent industrial injury . . . the insurer at risk at the time of the second injury is liable.' " 50 Wn. App. at 93 (emphasis added) (quoting 4 Arthur Larson, WORKMEN'S COMPENSATIO n § 95.21 (1984)). Likewise, in Tri , our Supreme Court held: "The last injurious exposure rule . . . arbitrarily assign[es] responsibility to the insurer at risk during the last exposure." 117 Wn.2d at 136 (emphasis added). Noth


«10»L&I argues that the trial court did not have jurisdiction to decide whether Clevenger suffered an occupational disability because she submitted no occupational disability claim. But the trial court acknowledged that Clevenger suffered an industrial injury and ruled that the last injurious exposure rule applied to industrial injury cases. Thus, this argument also fails.


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ing in the language of these cases implies that the last injurious exposure rule is limited to the disputes between state insurance and self-insured employees. The term "insurer at risk," as used in both cases, means an insurer who employed the injured employee at the time of his or her injury. Clevenger's argument fails.

The Rule's Applicability Where no "New" Injury Occurred

¶15 Clevenger and L&I further contend that the last injurious exposure rule applies only if an employee sustains a "new" injury while working for the last employer. L&I argues that, because Clevenger did not sustain a new injury while working at Hampton, the last injurious exposure rule does not apply.

¶16 In Champion , we applied the rule when a logger sustained two injuries: one to his back and one to his elbow. 50 Wn. App. at 92 . We held that the employer on the open second claim was responsible for paying the full cost of the vocational services provided to the worker, even though his disability resulted from both injuries. Champion , 50 Wn. App. at 93 .

¶17 In Tri , however, each employee sustained one occupational disability - loss of hearing. 117 Wn.2d at 130 . A portion of the disability occurred while the employees were insured by the state, and a portion developed when the employer became self-insured. Tri , 117 Wn.2d at 130 . Our Supreme Court acknowledged that it would be difficult to assign proportionate responsibility to the state and to the employer and applied the last injurious exposure rule to arbitrarily assign responsibility to the last insurer at risk. Tri , 117 Wn.2d at 135 -36.

¶18 The present case is more like Tri , although Champion provides insight. In 1997, while working at Cowlitz, Clevenger sustained a back injury, for which she received benefits. In 2000, while working at Hampton, she reopened her 1997 claim due to increased back pain. Thus, she did not sustain a "new" injury while working for Hampton.

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[3]¶19 Neither Champion nor Tri limit the applicability of the last injurious exposure rule to instances where an employee suffers a "new" injury. According to Tri , it is sufficient that the last exposure bears a "causal relationship" to an employee's condition. 117 Wn.2d at 136 . As we discuss below, Clevenger's Hampton employment bore a similar causal relationship to her increased back pain. Accordingly, Clevenger's argument fails.

Clevenger's Hampton Employment

[4, 5]¶20 L&I contends that a genuine issue of material fact exists on whether Clevenger's Hampton employment contributed to her disability.«11»L&I asserts that while at Hampton, Clevenger did not perform strenuous work that contributed to her back injury. We disagree.

¶21 The evidence shows that Clevenger resumed her back treatments, reopened her claim, and ultimately stopped working after she began working for Hampton. Also, she testified that during her Hampton employment, her back pain increased substantially, and she experienced pain radiating down both legs. She stated that she worked as a sorter stacker operator, requiring her to stand on a metal floor while running the buttons and pedals of the stacking equipment. At the end of her shift, she also had to lift varying sizes of wet lumber that had fallen from a


«11»Relying on Save-Way Drug, Inc. v. Standard Investment Co. , 5 Wn. App. 726 , 727, 490 P.2d 1342 (1971), Cowlitz argues that L&I may not raise this issue for the first time on appeal. We disagree. In that case, at trial the defendant stipulated to the facts set out in two affidavits. But on appeal it raised the issue of sufficiency of the supporting affidavit; Division One declined to consider it on the grounds the defendant failed to raise it before the trial court. Save-Way , 5 Wn. App. at 727 . This holding does not apply here, where the main issue argued at both levels is whether Hampton or Cowlitz should compensate Clevenger for her injury. On de novo review from summary judgment, we may affirm the trial court on alternate grounds. Piper v. Dep't of Labor & Indus. , 120 Wn. App. 886 , 890, 86 P.3d 1231 ("an appellate court may affirm a trial court on any theory supported by the pleadings and the record even if the trial court did not consider that theory") (citing LaMon v. Butler , 112 Wn.2d 193 , 200-01, 770 P.2d 1027 (1989)), review denied , 152 Wn.2d 1032 (2004).


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conveyor belt. And she testified that standing all day and bending over to pick up lumber caused her pain.«12»

¶22 Dr. Cooper also testified that Clevenger's Hampton employment aggravated her back problems. He analyzed a sawmill stacker job description and determined she was incapable of performing the work: "I didn't feel she was capable of going on cat walks [sic] or conveyor, stairs, capable of using some of the tools they would require in a safe manner." Clerk's Papers at 263. And Dr. Cooper addressed stooping and forward bending as the types of activities that contributed to a degenerative back condition.

¶23 Similarly, Dr. Morris identified prolonged standing on hard floors as one type of activity that can worsen symptoms of an underlying degenerative condition. Both Dr. Cooper and Morris testified that Clevenger's condition likely worsened by her work at Hampton.«13»There being no evidence to the contrary submitted, the trial court properly ruled as a matter of law that Clevenger's Hampton employment contributed to her back problem.

Clevenger Filed No Claim Versus Hampton

¶24 Next, L&I contends that because Clevenger had not filed a claim against Hampton, the last injurious exposure rule would place an impossible burden on her to obtain benefits from Hampton, while at the same time precluding


«12»Dr. Cooper explained: "Forward bending tends to put a lot more pressure on the disks for all of us. If there is already a problem with the disk, it will tend to exacerbate it causing the disk to protrude forward." Clerk's Papers at 253.

«13»On the other hand, the independent medical examiner opined that Clevenger's present back condition resulted solely from her degenerative disk disease. But in Champion , we held that if an industrial injury proximately causes a worker's disability, the worker deserves full compensation for the disability notwithstanding his or her pre-existing state of health. 50 Wn. App. at 93 (citing Wendt v. Dep't of Labor & Indus. , 18 Wn. App. 674 , 682, 571 P.2d 229 (1977); Shea v. Dep't of Labor & Indus. , 12 Wn. App. 410 , 414, 529 P.2d 1131 (1974), review denied , 85 Wn.2d 1009 (1975); Fochtman v. Dep't of Labor & Indus. , 7 Wn. App. 286 , 291, 499 P.2d 255 (1972)). Thus, Clevenger's pre-existing degenerative disk disease does not preclude the application of the last injurious exposure rule if her employment at Hampton worsened her pre-existing back condition. The independent medical examiner did not say whether Clevenger's Hampton employment worsened her back condition. Thus, the testimony is irrelevant to this issue.


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her from obtaining benefits from Cowlitz; as a result, she would be at risk of receiving no benefits. L&I cites Fankhauser , 121 Wn.2d 304 , 849 P.2d 1209, arguing that when the undisputed evidence shows that the claimant's condition arose from employment covered under the Industrial Insurance Act (Act), Title 51 RCW, the last injurious exposure rule cannot be used to deny benefits.

¶25 In Fankhauser , two claimants sought benefits for a disability resulting from multiple employment-related exposures to asbestos, some of which occurred when the workers became self-employed and had no workers' compensation coverage. 121 Wn.2d at 306 -07. Based on the last injurious exposure rule, L&I denied both claims because the periods of self-employment represented the claimants' last injurious exposure. Fankhauser , 121 Wn.2d at 307 .

¶26 Our Supreme Court held that the last injurious exposure rule did not bar the claimants from workers' compensation when they were injured in covered employment, although their last injurious exposure occurred during noncovered employment, and that the last covered employer or insurer, rather than the last employer in time, remained liable for the injury. Fankhauser , 121 Wn.2d at 315 . Thus the Fankhauser court allocated responsibility between the employer covered by the Act and employer not covered. In that instance, our Supreme Court held that the last insured employer should pay for the injury.«14»

[6]¶27 Here, on the other hand, both Cowlitz and Hampton were self-insured employers required under the Act to provide mandatory workers' compensation coverage. See RCW 51.04.060 ; see also RCW 51.12.010 , .020, 51.14.010. In applying the last injurious exposure rule, the superior court simply allocated responsibility between covered employment insurers.


«14»The rule in Fankhauser does not contradict the rules in Champion or Tri : according to all three cases, the last insured employer is required to pay the costs of industrial injury or occupational disability.


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Intervening Cause of a Disability

¶28 Citing McDougle v. Department of Labor & Industries , 64 Wn.2d 640 , 393 P.2d 631 (1964), L&I and Clevenger argue that Cowlitz would be released from its duty to pay Clevenger benefits only if it could show that her Hampton work comprised the intervening cause of her temporary and total disability.

¶29 In McDougle, the claimant aggravated his previous compensable back injury when he helped his brother-in-law unload sacks of grain. 64 Wn.2d at 641 . Because the brother-in-law was not the claimant's employer, successive employment exposure was not an issue, precluding application of the last injurious exposure rule. McDougle , 64 Wn.2d at 641 -42. Here, Clevenger had two successive employment exposures. McDougle does not apply.«15»

Trial Court Authority

¶30 Finally, Clevenger contends that the trial court exceeded the scope of judicial review accorded it under RCW 51.52.115 (trial court considers issues properly before the Board). She asserts that the Board affirmed only the order to pay temporary total disability benefits. Therefore, she argues, the trial court erred in reversing the Board and "mandat[ing] the Department [to] issue an order declaring the employer as not being liable for [her] low back condition." Appellant's Br. at 15. We disagree.

¶31 In determining that Clevenger was entitled to time loss benefits and that it was Cowlitz's responsibility, the trial court also granted Cowlitz's motion for summary judgment. As we previously noted, the trial court properly ruled as a matter of law that Clevenger's employment at


«15»Moreover, as we discussed above, the last injurious exposure rule assigns full liability for an employee's injury to the last employer whose workplace conditions contributed to the causation of the employee's disability. Tri , 117 Wn.2d at 130 . Neither the Tri court, nor we in Champion , held that the last injury must be an intervening cause of the claimed disability in order to apply the last injurious exposure rule. Instead, it is sufficient that Clevenger's Hampton work contributed to the cause of her disability.


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Hampton caused her low back condition. It then applied the law to these facts and properly applied the last injurious exposure rule. It did not err in doing so and Clevenger's argument fails.

¶32 Affirmed.\

QUINN-BRINTNALL , C.J., and BRIDGEWATER, J., concur.