132 Wn. App. 750, State v. Van Tuyl

[No. 23693-5-III. Division Three. May 4, 2006.]

THE STATE OF WASHINGTON , Respondent , v. CINDY L. VAN TUYL , Petitioner .

[1] Courts of Limited Jurisdiction - Appeal - Appeal From Superior Court Decision - Governing Court Rule - Scope of Review. RALJ 9.1 governs review of a superior court's decision on appeal of a judgment rendered by a limited jurisdiction court under the Rules for Appeal of Decisions of Courts of Limited Jurisdiction. The appellate court reviews the limited jurisdiction court's decision for errors of law and its findings of fact to determine whether they are supported by substantial evidence.

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[2] Divorce - Injunction - Restraining Order - Violation - Domestic Violence Prevention Act. Under RCW 26.09.050 (2) as amended by Laws of 2000, ch. 119, §§ 6, 7, a spouse's violation of a valid restraining order issued in a marriage dissolution proceeding under RCW 26.09.060 may serve as a basis for criminal prosecution under RCW 26.50.110 (1) of the Domestic Violence Prevention Act (chapter 26.50 RCW).

[3] Divorce - Injunction - Restraining Order - Notice - Service - Sufficiency - Service by Mail. Service by mail under CR 5(b)(2)(A) is sufficient to satisfy the notice requirement of RCW 26.09.300(2), which provides that a person who is restrained by a valid restraining order issued in a marriage dissolution proceeding under RCW 26.09.060 is deemed to have notice of the order if, inter alia, the order was served upon the person to be restrained.

[4] Appeal - Review - Issues Not Raised in Trial Court - Constitutional Rights - Court Rule - "Manifest" Error - Necessity. An appellate court generally will not review a constitutional issue raised for the first time on appeal under RAP 2.5(a)(3) unless it involves manifest error affecting a constitutional right.

[5] Trial - Instructions - Sufficiency - Test. The instructions given in a trial are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and, when read as a whole, properly inform the jury of the applicable law.

[6] Criminal Law - Trial - Instructions - Sufficiency - Review - Standard of Review. The legal sufficiency of a criminal jury instruction is reviewed de novo.

[7] Criminal Law - Trial - Instructions - Formula Instruction - Omission of Element - Review - Harmless Error. Under the Sixth Amendment and Const. art. I, § 22, a jury in a criminal trial must be instructed on all essential elements of the crime charged. The omission of an essential element of a charged crime from the to-convict instruction given at trial relieves the State of its burden of proving each element of the crime beyond a reasonable doubt. Such an error is a violation of due process and is harmless only if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error.

[8] Divorce - Injunction - Restraining Order - Violation - Elements - Knowledge - General or Actual Knowledge. Under RCW 26.09.300 (1) and RCW 26.50.110 (1), so long as a spouse who is restrained by a valid restraining order issued in a marriage dissolution proceeding under RCW 26.09.060 knows of the order, a violation of the restraint provisions of the order is punishable under RCW 26.50.110 (1). Actual notice of the terms of the order is not an essential element of the offense.

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[9] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Test. A claim of ineffective assistance of counsel requires a showing (1) that counsel's performance was deficient (i.e., that counsel's representation fell below an objective standard of reasonableness based on consideration of all of the circumstances) and (2) that the deficiency prejudiced the defendant (i.e., that there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different).

[10] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Presumption - In General. When considering a claim of ineffective assistance of counsel, a court begins with the strong presumption that counsel's representation was effective.

[11] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Determination - Record. The effectiveness of an attorney's representation of a criminal defendant is determined solely on the basis of the trial record.

[12] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Deficient Performance - Absence of Trial Strategy. A criminal defendant claiming ineffective assistance of counsel must demonstrate the absence of a legitimate strategic or tactical reason for counsel's allegedly deficient conduct.

[13] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Move for Reconsideration of Recusal Decision. A criminal defense attorney's failure to move for reconsideration of the trial judge's refusal to recuse him- or herself from the case will not support a claim of ineffective assistance of counsel if the attorney's decision is based on a lack of supporting evidence for recusal in the record.

[14] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Deficient Performance - Presentation of Damaging Testimony - Defendant's Later Admission. Defense counsel's presentation of a witness who gives damaging testimony regarding a matter that the defendant later admits while testifying will not support a claim of ineffective assistance of counsel.

[15] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Call Witness - Unhelpful or Cumulative Testimony. Defense counsel's decision not to call a witness whose testimony would be unhelpful or cumulative will not support a claim of ineffective assistance of counsel.

[16] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Object to Instruction - Proper Instruction. Defense counsel's failure to object to a proper jury instruction will not support a claim of ineffective assistance of counsel.[17] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Seek Dismissal. Defense counsel's failure to move for dismissal of a criminal charge will not support a claim of

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ineffective assistance of counsel if such a motion would have been unsuccessful.

[18] Criminal Law - Trial - Taking Case From Jury - Sufficiency of Evidence - Review - In General. There is sufficient evidence to uphold a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. A claim of insufficient evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.

[19] Criminal Law - Trial - Taking Case From Jury - Sufficiency of Evidence - Circumstantial Evidence. For purposes of determining if the evidence presented in a criminal trial is sufficient to support a conviction, circumstantial evidence is as reliable as direct evidence.

[20] Evidence - Weight - Credibility of Witnesses - Review. An appellate court will defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Credibility determinations are for the trier of fact and are not subject to appellate review.

[21] Divorce - Injunction - Restraining Order - Restraint From Disturbing Peace of Other Spouse - "Disturbing Peace" - What Constitutes - Harassing Phone Calls. For purposes of a restraining order issued in a marriage dissolution proceeding under RCW 26.09.060 that restrains and enjoins one spouse from molesting or disturbing the peace of the other spouse, the spouse's making harassing telephone calls to the other spouse's workplace "disturbs the peace" of the other spouse.

Nature of Action: Prosecutions for violation of a restraining order issued in a marriage dissolution proceeding.

District Court: The Chelan County District Court, Nos. C14583CHS and 4042ACPR, Alicia H. Nakata, J., on September 10, 2003, entered judgments on verdicts of guilty.

Superior Court: The Superior Court for Chelan County, No. 03-1-00585-2, John E. Bridges, J., affirmed the judgments on November 23, 2004.

Court of Appeals: Holding that the defendant had the requisite knowledge of the restraining order such that her violation of the order could serve as the basis for a criminal prosecution, that the defendant was not denied effective assistance of counsel, and that sufficient evidence supported the conviction, the court affirms the decision of the superior court.

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Kelly W. Padgham (of Phillabaum, Ledlin, Matthews & Sheldon, P.L.L.C. ), for petitioner .

Gary A. Riesen , Prosecuting Attorney, and Amee Jean S. Tilger , Deputy, for respondent .

¶1 BROWN, J . - We analyze the interplay between the restraining order provisions in chapter 26.09 RCW (marriage dissolution) and chapter 26.50 RCW (domestic violence). During Cindy Van Tuyl and James Van Tuyl's marriage dissolution, the court granted a temporary restraining order (TRO) under chapter 26.09 RCW. Ms. Van Tuyl was later charged and convicted of violating the order under chapter 26.50 RCW. We hold RCW 26.09.300 (1) sets the knowledge requirement consistent with RCW 26.50.110(1) despite the actual notice language of RCW 26.09.050(2). A TRO issued under chapter 26.09 RCW can serve as a basis for criminal prosecution under chapter 26.50 RCW with general knowledge as the required intent element. Additionally, we reject Ms. Van Tuyl's ineffective counsel and insufficient evidence claims. Accordingly, we affirm.

FACTS

¶2 Mr. Van Tuyl petitioned for marriage dissolution in October 2002. On January 23, 2003, the trial court entered a TRO under RCW 26.09.060 ; .110; .120; and .194, ordering the parties to restrain "from molesting or disturbing the peace of the other" and "from going onto the grounds of or entering the home or working place or school of the other party." Clerk's Papers (CP) at 308. Conforming to Washing

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ton's pattern domestic relations forms, the order stated in two places:

VIOLATION OF A RESTRAINING ORDER IN PARAGRAPH 3.1 WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.50 RCW AND WILL SUBJECT THE VIOLATOR TO ARREST. RCW 26.09.060 .

CP at 308.

¶3 Ms. Van Tuyl was unrepresented by counsel when the TRO was entered. Mr. Van Tuyl's attorney testified he mailed a proposed order and notice of the presentment hearing to Ms. Van Tuyl and then mailed her a copy of the signed TRO at her last known address. The documents were not returned as undeliverable.

¶4 On May 22, 2003, Mr. Van Tuyl contacted the authorities to report Ms. Van Tuyl's proscribed presence on his garage driveway. Ms. Van Tuyl was charged with violating a court order under RCW 26.50.110 (1). On May 24, 2003, Mr. Van Tuyl contacted the authorities to report Ms. Van Tuyl repeatedly called his place of work to harass him. She was again charged with violating a court order under RCW 26.50.110(1).

¶5 Pretrial, Ms. Van Tuyl unsuccessfully requested the trial judge recuse herself. Although allowed by the trial court, counsel did not request reconsideration.

¶6 During trial, Ms. Van Tuyl called her dissolution attorney, Laurie Daviess-White, who testified Ms. Van Tuyl was unrepresented when the TRO was entered. Further, Ms. Daviess-White testified she told Ms. Van Tuyl about the restraining order at a show cause hearing in March 2003. Ms. Van Tuyl admitted knowing about the TRO on May 22, 2003 and May 24, 2003.

¶7 The court instructed, without objection, that to convict Ms. Van Tuyl the jury must find on May 22, 2003 and May 24, 2003 she "knew of the existence of the restraining order." CP at 383-84 - jury instructions Nos. 9 and 10. Ms. Van Tuyl was convicted. Over Ms. Van Tuyl's actual notice argument, the superior court affirmed. We granted discre

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tionary review to examine the interplay between chapter 26.09 RCW and chapter 26.50 RCW.

ANALYSIS

A. Restraining Order Convictions

¶8 The initial issue is whether the trial court erred in ruling Ms. Van Tuyl's conviction was proper under chapter 26.50 RCW for violating a restraining order issued under chapter 26.09 RCW. Alternatively, Ms. Van Tuyl assigns error to her convictions using general knowledge as an element rather than actual notice.

[1]¶9 RALJ 9.1 governs review of Ms. Van Tuyl's district court convictions. State v. Frank , 112 Wn. App. 515 , 520, 49 P.3d 954 (2002). We review district court decisions for errors of law and to determine whether the factual findings are supported by substantial evidence. State v. Brokman , 84 Wn. App. 848 , 850, 930 P.2d 354 (1997).

¶10 Before June 2000, former RCW 26.09.050 (2) (1995) required marriage dissolution TROs to prominently warn "VIOLATION OF THIS ORDER WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.09 RCW AND WILL SUBJECT A VIOLATOR TO ARREST." (Emphasis added.)

[2]¶11 On June 8, 2000, the legislature amended RCW 26.09.050 (2) to change the criminal offense statute to chapter 26.50 RCW. LAWS OF 2000, ch. 119, §§ 6, 7. Under RCW 26.50.110 (1), violation of a protection order issued under chapter 26.50 or "26.09" is a gross misdemeanor. As later approved by Division Two of this Court, a violation of an order issued under chapter 26.09 RCW can serve as a basis for criminal prosecution under RCW 26.50.110 . State v. Turner , 118 Wn. App. 135 , 143, 74 P.3d 1215 (2003), review denied , 151 Wn.2d 1015 (2004). By changing the criminal offense statute, our legislature clearly intended chapter 26.50 RCW to be the criminal offense statute for prosecution. The pattern domestic relations forms used

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here were amended in September 2000 and contain the proper warnings.

[3]¶12 Ms. Van Tuyl, arguing a due process denial, contends she lacked the proper notice for conviction. Under RCW 26.09.300 (2), a person has notice of a TRO if: "(a) The person to be restrained or the person's attorney signed the order; (b) The order recites that the person to be restrained or the person's attorney appeared in person before the court; (c) The order was served upon the person to be restrained; or (d) The peace officer gives the person oral or written evidence of the order by reading from it or handing to the person a certified copy of the original order."

¶13 CR 5(b)(2)(A) allows service by mailing a copy to the last known address of the person to be served. Service by mail is complete on mailing. CR 5(b)(2)(A). Here, Mr. Van Tuyl's attorney testified he mailed copies of a proposed order and notice of the presentment hearing to Ms. Van Tuyl and then mailed her a copy of the signed order to her last known address. Counsel did not receive any returned, undeliverable mail. Accordingly, the service provided by Mr. Van Tuyl's counsel satisfied the notice requirements of RCW 26.09.300 (2)(c).

[4]¶14 Regarding procedural due process, generally we do not review constitutional issues not raised before the trial court unless they involve a manifest error, affecting a constitutional right. RAP 2.5(a). Since the notice requirements were satisfied under RCW 26.09.300 (2)(c), Ms. Van Tuyl's alleged due process error is not manifest.

[5, 6]¶15 Alternatively, Ms. Van Tuyl contends the "to convict" jury instructions were erroneous because the court failed to instruct the jury that actual notice was an essential element of the crimes charged. Instead, the trial court gave a general knowledge instruction. We review de novo whether a jury instruction accurately states the law without misleading the jury. State v. Linehan , 147 Wn.2d 638 , 643, 56 P.3d 542 (2002). "Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as

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a whole properly inform the jury of the applicable law." State v. Clausing , 147 Wn.2d 620 , 626, 56 P.3d 550 (2002).

[7]¶16 The jury must be instructed on all essential elements of the crime charged. U.S. CONST . amend. VI; CONST . art. I, § 22. An instruction omitting an essential element of a crime relieves the State of its burden of proving each element of the crime beyond a reasonable doubt. Linehan , 147 Wn.2d at 654 . Such an error is a violation of due process and harmless only if the reviewing court is "convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error." Id .

[8]¶17 Under RCW 26.50.110 (1), violating a restraining order is a gross misdemeanor. The offense requirements are specified in RCW 26.09.300 (1):

Whenever an order is granted under this chapter, chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020 , and the respondent or person to be restrained knows of the order , a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100 (2) (a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.

RCW 26.50.110 (1) (emphasis added).

¶18 However, Ms. Tuyl points out RCW 26.09.050 (2) requires a TRO issued under chapter 26.09 RCW to prominently bear the following statement: "VIOLATION OF THIS ORDER WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.50 RCW AND WILL SUBJECT A VIOLATOR TO ARREST." (Emphasis added.) While this required statement uses the term "actual notice," RCW 26.09.300 (1) specifies knowledge for punishment under chapter 26.50 RCW, using language similar to RCW 26.50.110 (1):

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Whenever a restraining order is issued under this chapter, and the person to be restrained knows of the order , a violation of the provisions restricting the person from acts or threats of violence or of a provision restraining the person from going onto the grounds of or entering the residence, workplace, school, or day care of another, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location, is punishable under RCW 26.50.110 .

RCW 26.09.300 (1) (emphasis added).

¶19 We conclude jury instructions Nos. 9 and 10 properly use the statutory language set forth in RCW 26.09.300 (1) and RCW 26.50.110 (1) for the knowledge element of the crimes charged. Even if erroneous, the error would be harmless under our facts. Mr. Van Tuyl's attorney mailed copies of a proposed order and notice of the presentment hearing to Ms. Van Tuyl and then mailed her a copy of the signed order. Mr. Van Tuyl's attorney testified he notified Ms. Van Tuyl about the restraining order in March 2003. And, Ms. Van Tuyl admitted knowing about the restraining order on May 22, 2003 and May 24, 2003. Thus, beyond a reasonable doubt any reasonable jury would reach the same result absent the error.

B. Assistance of Counsel

¶20 Ms. Van Tuyl contends she was denied effective assistance of counsel because defense counsel (1) failed to request reconsideration of the trial judge's refusal to recuse herself, (2) offered the testimony of Ms. Van Tuyl's dissolution attorney, (3) failed to present testimony to prove Ms. Van Tuyl only came on Mr. Van Tuyl's property on May 22, 2003 to retrieve flowers, (4) failed to object to jury instructions Nos. 9 and 10, and (5) failed to request dismissal at the close of the State's case.

[9-12]¶21 Ineffective assistance of counsel claims must show "(1) defense counsel's representation was deficient, i.e ., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2)

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defense counsel's deficient representation prejudiced the defendant, i.e ., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland , 127 Wn.2d 322 , 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas , 109 Wn.2d 222 , 225-26, 743 P.2d 816 (1987)) (applying the two-prong test in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We begin with "a strong presumption counsel's representation was effective" and must base our determination on the record below. McFarland , 127 Wn.2d at 335 . Ms. Van Tuyl "must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." Id. at 336.

[13-17]¶22 Ms. Van Tuyl fails to meet her burden. First, under our review standard we presume counsel did not seek reconsideration of the recusal decision based on lack of supporting evidence in the record. Second, defense counsel properly called Ms. Van Tuyl's dissolution attorney to testify Ms. Van Tuyl was not represented when the TRO was entered. Any additional testimony of notifying Ms. Van Tuyl of the TRO was minimized by Ms. Van Tuyl's own testimony she knew of the order. Third, we presume defense counsel did not call additional witnesses of the May 22, 2003 incident because that testimony would have been unhelpful or cumulative under the evidence rules. Fourth, failure to object to jury instructions Nos. 9 and 10 is not prejudicial given our holding that such instructions were proper. And, fifth, a request for dismissal would have been unsuccessful. No cumulative error is shown. In sum, Ms. Van Tuyl fails to show either deficient counsel performance or prejudice.

C. Evidence Sufficiency

¶23 Ms. Van Tuyl next contends insufficient evidence supports her conviction for the May 24, 2003 incident because telephone calls do not violate the restraining order.

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[18, 19]¶24 Evidence sufficiently supports a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas , 119 Wn.2d 192 , 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id. Circumstantial evidence is as reliable as direct evidence. State v. Delmarter , 94 Wn.2d 634 , 638, 618 P.2d 99 (1980).

¶25 The elements of violating a restraining order are: (1) an order granted under chapter 26.50, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020 ; (2) knowledge of the order by the person to be restrained; and (3) a violation of the restraint provisions. RCW 26.50.110 (1).

[20, 21]¶26 The TRO ordered the parties to restrain "from molesting or disturbing the peace of the other" and "from going onto the grounds of or entering the home or working place or school of the other party." CP at 308. Ms. Van Tuyl alleges her phone calls did not disturb Mr. Van Tuyl's peace. Credibility determinations are for the trier of fact and are not subject to our review. State v. Camarillo , 115 Wn.2d 60 , 71, 794 P.2d 850 (1990). Accordingly, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton , 64 Wn. App. 410 , 415-16, 824 P.2d 533 (1992).

¶27 Viewing the evidence in the light most favorable to the State, harassing telephone calls to Mr. Van Tuyl's workplace disturbed his peace, violating the TRO. Accordingly, sufficient evidence exists to support the jury's finding of guilt for violation of a court order based on the May 24, 2003 occurrence.

¶28 Affirmed.

SWEENEY , C.J ., and KATO , J ., concur. No. 55524-3-I. Division One. March 13, 2006.]

VESNA ERAKOVIC , Respondent , v. THE DEPARTMENT OF LABOR AND INDUSTRIES , Appellant .

[1] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Time of Injury. Under RCW 51.08.178 , the time-loss and loss of earning power compensation rates for an injured worker are determined by reference to the worker's wages at the time of injury.

[2] Statutes - Construction - Review - Standard of Review. Issues of statutory interpretation are reviewed de novo.

[3] Statutes - Construction - Legislative Intent - Statutory Language - Plain Meaning. To determine the legislative intent of a statute, a court first looks to the plain language of the statute.

[4] Statutes - Construction - Legislative Intent - Legislative History - Ambiguous Statute. A court may consider the legislative history of an ambiguous statute to ascertain the legislature's intent.

[5] Statutes - Construction - Legislative Intent - Considered as a Whole - In General. The legislative intent of a statute is determined by considering the statute as a whole.

[6] Statutes - Construction - Rational Interpretation - Avoiding Absurdity. A court must avoid an absurd result when interpreting a statute.

[7] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Determination - Statutory Definition. Whether certain employer payments constitute "wages" for purposes of computing an injured worker's time-loss compensation is determined by the definition of "wages" set forth in RCW 51.08.178 , under which the term "wages" takes on a more expansive meaning than usual.

[8] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Determination - Label. Labeling employer payments as being made for a tax, contribution, payment, or benefit does not control whether or not it qualifies as "wages" for purposes of RCW 51.08.178 , which defines the wage basis on which an injured worker's time-loss compensation is calculated.[9] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Collective Bargaining Agreement - Inclusion of Mandatory Payments. Including in a collective bargaining agree- ment an employer's duty to make already mandatory payments on

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behalf of its employees does not automatically render the payments "wages" for purposes of RCW 51.08.178 , which defines the wage basis on which an injured worker's time-loss compensation is calculated.

[10] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Benefits - Test. The phrase "board, housing, fuel, or other consideration of like nature" in RCW 51.08.178 (1), which defines the wage basis for calculating an injured worker's time-loss benefits, means readily identifiable and reasonably calculable in-kind components of a worker's lost earning capacity at the time of injury that are critical to protecting the worker's basic health and survival such that the worker must replace them while disabled. Core, nonfringe benefits such as food, shelter, fuel, and health care all share that "like nature." A benefit is not critical to the basic health and survival of an injured worker at the time of injury unless it is funded by the employer at the time of injury, is immediately available to the worker at the time of injury or shortly thereafter, and is necessary to maintain the worker's health or to ensure the worker's survival during even temporary periods of disability.

[11] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Employer Contributions - Social Security and Medicare Payments. The value of employer-paid contributions to Social Security and Medicare on a worker's behalf does not constitute "wages" for purposes of RCW 51.08.178 , which defines the wage basis on which an injured worker's time-loss compensation is calculated, if the worker is not entitled to program benefits at the time of injury or shortly thereafter.

[12] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Employer Contributions - Industrial Insurance Premiums. The value of employer-paid industrial insurance premiums on a worker's behalf does not constitute "wages" for purposes of RCW 51.08.178 , which defines the wage basis on which an injured worker's time-loss compensation is calculated.

[13] Appeal - Review - Failure To Cross Appeal - Effect. Under RAP 2.4(a), an appellate court may decline to consider an issue raised by a respondent if no cross-appeal was taken from the trial court's judgment.

[14] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Employer Contributions - Pension Fund. The value of employer-paid contributions to a retirement account for a worker does not constitute "wages" for purposes of RCW 51.08.178 , which defines the wage basis on which an injured worker's time-loss compensation is calculated.

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[15] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Employer Contributions - Life Insurance Premiums. The value of employer-paid life insurance premiums on a worker's behalf does not constitute "wages" for purposes of RCW 51.08.178, which defines the wage basis on which an injured worker's time-loss compensation is calculated.

[16] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Employer Contributions - Disability Insurance Premiums. The value of employer-paid disability insurance premiums on a worker's behalf generally does not constitute "wages" for purposes of RCW 51.08.178 , which defines the wage basis on which an injured worker's time-loss compensation is calculated, if no showing is made by the worker that disability benefits are critical to the worker's health or survival such that the worker must replace them during the period of disability.

[17] Industrial Insurance - Disability - Total Disability - Temporary Total Disability - Time-Loss Compensation - Basis - Wages - Employer Contributions - Accidental Death and Dismemberment Premiums. The value of employer-paid accidental death and dismemberment insurance premiums on a worker's behalf generally does not constitute "wages" for purposes of RCW 51.08.178 , which defines the wage basis on which an injured worker's time-loss compensation is calculated, if no showing is made by the worker that the insurance benefits are critical to the worker's health or survival such that the worker must replace them during the period of disability.

Nature of Action: An injured worker sought judicial review of an administrative decision rejecting her contention that the wage basis for calculating her time-loss compensation should include the value of employer-paid contributions on the worker's behalf to Social Security, Medicare, industrial insurance, unemployment insurance, pension fund, life insurance, accidental death and dismemberment insurance, and nonindustrial short-term disability insurance.

Superior Court: The Superior Court for King County, No. 04-2-03831-6, Robert H. Alsdorf, J., on December 13, 2004, entered a judgment reversing the administrative decision in part, ruling that the wage basis for calculating the worker's time-loss compensation must include the value of employer-paid contributions to Social Security, Medicare, and industrial insurance.

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Court of Appeals: Holding that contributions made by the employer to Social Security, Medicare, and industrial insurance do not constitute "other consideration of a like nature" to wages, the court reverses the judgment and reinstates that portion of the administrative decision reversed by the trial court.

Robert M. McKenna , Attorney General, and John R. Wasberg , Assistant, for appellant .

Ann Pearl Owen (of Ann Pearl Owen, P.S. ), for respondent .

¶1 AGID, J. - The Department of Labor and Industries (L&I) appeals a superior court order requiring it to include in Vesna Erakovic's time-loss wage calculation her employer's payments for all nonretirement medical and disability benefits, including Social Security and Medicare. It argues that these employer payments are not "wages" as defined in RCW 51.08.178 and Cockle v. Department of Labor & Industries .«1»L&I is correct. Employer payments to government programs such as Social Security, Medicare, and Industrial Insurance are not wages because they are not consideration an employee receives from his or her employer. Even if they were, Erakovic was not receiving benefits from these programs at the time of her injury, and she fails to explain how the payments were critical to her health and survival at that time. We reverse the superior

«1»142 Wn.2d 801 , 806, 16 P.3d 583 (2001).

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court and reinstate the Board of Industrial Insurance Appeals' decision and order.

FACTS

¶2 On February 20, 2002, Vesna Erakovic was injured while working as a janitor for Dependable Building Maintenance of Washington (DBM) under a collective bargaining agreement (CBA). She filed a claim for time-loss compensation with L&I. L&I issued five time-loss compensation orders covering the period from February 25, 2002 to October 2, 2002. It calculated the wage rate at the time of her injury based on her gross hourly rate of $9.10 and DBM's health insurance premium payment of $252.30 per month.«2»

¶3 Erakovic appealed all five orders to the Board of Industrial Insurance Appeals (Board). She argued that the wage rate calculation should include DBM's statutorily-mandated payments for Social Security, Medicare, Industrial Insurance, and unemployment insurance. She also sought inclusion of DBM's CBA-required premium payments for pension benefits and life, accidental death and dismemberment, and nonindustrial short-term disability insurance.«3»Finally, she argued that the calculation should include holiday and vacation pay.

¶4 The industrial appeals judge (IAJ) affirmed L&I's orders. The IAJ found that L&I properly excluded all these employer payments because they were not critical to the claimant's basic health and survival as required in Cockle .«4»Erakovic petitioned for review, and the Board reversed and remanded L&I's orders in part. It ruled that the wage rate calculation should include holiday pay because it resulted

«2»Erakovic disputes the premium amount but did not appeal the superior court's ruling adopting it. Thus, the issue is not before us. RAP 2.4(a).

«3»The CBA required that DBM contribute 13 cents per hour for pension, 36 cents per month for life insurance, 12 cents per month for death and dismemberment, and $16.00 per month for short-term disability.

«4»142 Wn.2d at 806 .

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in an increase in Erakovic's income. But it adopted the IAJ's analysis of all the other employer payments, concluding they were properly excluded from the wage rate calculation because they were not critical to her basic health and survival.

¶5 Erakovic then appealed to superior court. The court reversed the Board in part. It relied on Cockle , ruling that the "key distinction under Washington's statutory scheme is whether the anticipated benefit is for immediate health and survival rather than long-term or retirement survival." It held that wage rate calculations do not include the employer's payments for benefits that might be payable at some point in the future for retirement or economic benefits for a noninjury related layoff. But it ordered that

The wage rate calculation must include those payments and amounts paid directly to, or for the benefit of, the injured worker for any and all medical and disability benefits, including specifically those portions of both employer and employee Social Security and Medicare/Medicaid contributions and other contributions or payments mandated by state or federal law which provide non-retirement medical and/or disability benefits to injured workers.

L&I appealed. Erakovic did not file a cross-appeal.

DISCUSSION

[1]¶6 Washington's Industrial Insurance Act (IIA), Title 51 RCW, dictates that compensation rates for time-loss and loss of earning power are determined based on a worker's wage at the time of the injury.«5»"Wages" are defined by RCW 51.08.178 , which provides in relevant part:

(1) For the purposes of this title, the monthly wages the worker was receiving from all employment at the time of injury shall be the basis upon which compensation is computed unless otherwise provided specifically in the statute concerned.

. . . .

«5»RCW 51.08.178 ; Gallo v. Dep't of Labor & Indus. , 155 Wn.2d 470 , 481, 120 P.3d 564 (2005) (citing RCW 51.08.178 ; Cockle , 142 Wn.2d at 806 ).

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The term "wages" shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part of the contract of hire, but shall not include overtime pay except in cases under subsection (2) of this section . . . .«7»

This appeal turns on whether the employer payments included in the superior court's judgment are "other consideration of like nature received from the employer as part of the contract of hire . . . ."«7»

[2-6]¶7 We review issues of statutory interpretation de novo.«8»We look first at a statute's plain language to determine legislative intent.«9»If the plain language is ambiguous, we may determine intent by reviewing the statute's legislative history.«10»We look at the statute as a whole, and our interpretation must not create an absurd result.«11»

I. " Consideration Received from the Employer"

¶8 L&I argues that mandatory employer payments to government-run programs are not "consideration . . . received from the employer as part of the contract of hire."«12»It contends that taxes based on wages cannot be "wages" under any logical legal theory. Erakovic argues that under the CBA her "wages and fringe benefit plans" include

«6»RCW 51.08.178 (1).

«7» Id .

«8» Castro v. Stanwood Sch. Dist. No. 401 , 151 Wn.2d 221 , 224, 86 P.3d 1166 (2004).

«9» Campbell v. Dep't of Soc. & Health Servs. , 150 Wn.2d 881 , 894, 83 P.3d 999 (2004).

«10» Dep't of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wn.2d 1 , 11-12, 43 P.3d 4 (2002).

«11» Strain v. W. Travel, Inc. , 117 Wn. App. 251 , 254, 70 P.3d 158 (2003), review denied , 150 Wn.2d 1029 (2004).

«12»The superior court ordered that both employer and employee contributions be included in Erakovic's wage computation. L&I properly points out that employee contributions were not at issue before the Board. L&I calculated Erakovic's wage rate based on her gross hourly rate of $9.10, her wages before any mandatory state or federal deductions. Erakovic does not dispute this point, and we reverse the superior court to the extent it held otherwise.

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"payments for FICA taxes, workers compensation taxes, [and] Federal and state unemployment taxes . . . ."

[7-9]¶9 Whether certain employer payments are "wages" or not is determined by the definition of wages in RCW 51.08.178 . And under that section, the term "wages" takes on a more expansive meaning than usual.«13»Labeling something a tax, contribution, payment, or benefit does not control whether or not it qualifies as wages under the statute.«14»Similarly, including the employer's already-mandatory payments in the CBA does not automatically make them wages.

[10, 11]¶10 All Washington employers must contribute to the Social Security, Medicare,«15»and Industrial Insurance programs.«16»DBM had to make these payments whether the CBA required them or not, and they were not bargained for in exchange for services. Erakovic points out that state employees are entitled by statute to health care coverage as a benefit of employment,«17»contending this demonstrates that a benefit that is not bargained for may still qualify as consideration for services. However, for several reasons, employer payments, whether voluntary or mandatory, for an employee's board, housing, fuel, or health care differ from the payments at issue here.

¶11 Employers make payments for board, housing, fuel, or health care benefits directly to or on behalf of their employees, so the payments directly benefit the employees. In contrast, employer payments for Social Security, Medi

«13» See Cockle , 142 Wn.2d at 808 ( RCW 51.08.178 expressly expands the definition of wages to include "the value of at least some in-kind work 'benefits' " that would not be included under the common definition of the term).

«14» See Gallo , 155 Wn.2d at 488 (clarifying that Cockle did not consider labels determinative of whether employer payments were wages).

«15»For ease of reference throughout the opinion, we use "Medicare" to include both the Medicare and Medicaid programs.

«16» See 26 U.S.C. § 3111(a) (2004) (Social Security); 26 U.S.C. § 3111(b) (Medicare); chs. 51.16, 51.32, 51.48 RCW (Industrial Insurance).

«17» See ch. 41.05 RCW; WAC 182-12-115 (5).

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care, and Industrial Insurance go to government programs that provide benefits for all qualified individuals. These payments are not earmarked for a specific employer's employees even though the payment amounts are based on the employees' gross cash wages. The plain language of RCW 51.08.178 requires that any "consideration" must be received from the employer as part of the contract of hire. An employer's mandatory payments for Social Security, Medicare, and Industrial Insurance are not "consideration" for its employees' services and therefore not "wages" under RCW 51.08.178 .«18»Even if the payments were "consideration," they are not "consideration of like nature" under Cockle .

II. The Cockle Test

¶12 The issue before the Washington Supreme Court in Cockle was whether the value of employer-provided health care coverage is "other consideration of like nature."«19»Concluding that this statutory phrase was ambiguous, the court construed it to discern legislative intent.«20»It held that the phrase "other consideration of like nature" means "readily identifiable and reasonably calculable in-kind components of a worker's lost earning capacity at the time of injury that are critical to protecting workers' basic health

«18»While we don't ordinarily rely on foreign case law to construe Title 51 RCW provisions because of the unique nature of Washington's Industrial Insurance Act, Cockle , 142 Wn.2d at 815 , there is some persuasive authority from Colorado. Before 1989, Colorado's definition of wages was like ours, " 'the reasonable value of board, rent, housing, lodging or any other similar advantage received from the employer.' " City of Lamar v. Koehn , 968 P.2d 164, 166 (Colo. Ct. App. 1998) (quoting Colo. Sess. Laws of 1919, ch. 210, § 47 at 716). Based on that definition, the Colorado Court of Appeals held that FICA tax payments were not included in the " 'other similar advantages' " definition of "wages." Gregory v. Crown Transp ., 776 P.2d 1163, 1165 (Colo. Ct. App.) (quoting Murphy v. Ampex Corp ., 703 P.2d 632 (Colo. Ct. App. 1985), superseded by statute , Colo. Sess. Laws of 1989, ch. 67, § 8-47-101(2) at 411, as recognized in Schelly v. Indus. Claim Appeals Office , 961 P.2d 547, 548-49 (Colo. Ct. App. 1997)), cert. denied , 785 P.2d 916 (Colo. 1989); Floyd v. AMF Tuboscope, Inc ., 817 P.2d 534, 535 (Colo. Ct. App. 1990), cert. denied , 1991 Colo. LEXIS 670. The court held that FICA employer payments were not bargained for and were "not an advantage received from the employer that may be assigned an economic value . . . ." Gregory , 776 P.2d at 1165.

«19»142 Wn.2d at 805 (emphasis omitted).

«20» Id . at 808.

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and survival."«21»Under this test, the health care premiums Cockle's employer paid in exchange for her labor were "[c]ore, nonfringe benefits such as food, shelter, [and] fuel" that were a component of her lost "wages."«22»The court stated that health care coverage is " 'of like nature' to 'board, housing [and] fuel' because, like those employment benefits, it is objectively critical to protecting the basic health and survival of virtually all workers."«23»

¶13 In Gallo v. Department of Labor & Industries , L&I excluded from workers' wage calculations their employers' contributions to various trust funds made under collective bargaining agreements.«24»Among other things, the funds provided retirement, life insurance, and disability insurance benefits. The Supreme Court said its Cockle test was premised in part "on the notion that a benefit is 'other consideration' if a worker cannot survive without it, even during a period of temporary disability."«25»It held that retirement benefits are not critical to the health and survival of the injured worker at the time of injury "because they are not intended to be, nor are they generally immediately available to the worker at the time of injury."«26»Thus, they are not the kind of benefits a worker must replace during the disability period to maintain health or ensure survival. As such, they are not "wages" under RCW 51.08.178.«27»

«21» Id . at 822. This is known as the " Cockle test." See Gallo , 155 Wn.2d at 483 , 491.

«22» Cockle , 142 Wn.2d at 822 -23 (emphasis omitted).

«23» Id . at 822-23 n.13 (alteration in original). The court also clarified that "injury-caused deprivation of the reasonable value of fringe benefits that are not critical to protecting workers' basic health and survival [does not qualify] as the kind of 'suffering' that Title 51 RCW was legislatively designed to remedy." Id . at 823 (emphasis omitted).

«24»155 Wn.2d 470 , 120 P.3d 564 (2005). The court also considered employers' contributions to apprenticeship training funds and the Laborers-Employers Cooperation and Education Trust. Id . at 474.

«25» Id . at 491.

«26» Id . at 491-92.

«27» Id . at 492.

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¶14 The Gallo court also noted that the workers failed to explain how life insurance benefits are critical to the "basic health and survival" of the injured worker, rather than the injured worker's dependents, at the time of injury.«28»Nor did they explain what was included in "disability insurance," under what conditions it was available, or why it was critical to their health and survival such that they had to replace it during the disability period. Under those circumstances, the court was "compelled to conclude that these [disability] payments were properly excluded from wages." «29»

A. Social Security and Medicare Payments

¶15 L&I argues that an employer's Social Security and Medicare payments are not objectively critical to protecting workers' health and survival at the time of injury. It contends that Social Security and Medicare benefits have specific requirements for eligibility and are speculative in nature. Erakovic argues that because the payments are mandatory, the resulting benefits are core, nonfringe benefits critical to workers' health and survival. She also maintains that she was eligible for some of the benefits at the time of the injury.

¶16 To qualify as "critical to the basic health and survival of the injured worker at the time of injury,"«30»benefits must be funded by the employer at the time of the injury.«31»They must also be immediately available to the worker at the time of the injury or shortly thereafter.«32»And they must be necessary to maintain the worker's health or ensure her

«28» Id . at 493.

«29» Id .

«30» Id.

«31» Dep't of Labor & Indus. v. Granger , 130 Wn. App. 489 , 495, 123 P.3d 858 (2005) (the " 'receiving . . . at the time of injury' " limitation requires only that the " 'employer was providing consideration of like nature at the time of the injury' ") (quoting Gallo , 155 Wn.2d at 491 ).

«32» Gallo , 155 Wn.2d at 491 -92; Granger , 130 Wn. App. at 497 .

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survival during even temporary periods of disability.«33»Erakovic has not shown that Social Security and Medicare benefits meet all three of these standards.

¶17 Erakovic's benefits were being funded at the time of the injury because her employer was making Social Security and Medicare payments at the time of the injury. But she fails to explain what the benefits of those programs are or why they are so critical to workers' health or survival that workers would be required to replace them during even temporary periods of disability. Nor does she discuss the conditions under which the benefits are available to workers or which, if any, of them was immediately available to her at the time of the injury or shortly thereafter.«34»Without more, we cannot determine whether the employer's payments for those benefits qualify as "wages" under the Cockle test.«35»Even if Social Security and Medicare are "core, non-fringe" benefits, they still must be critical to workers' health or survival at the time of the injury.

¶18 Further, in Doty v. Town of South Prairie , the Washington Supreme Court held that "speculative" benefits that are not immediately available to the worker "counsels against defining them as wages or remuneration."«36»There, pension benefits were available only after 10 years of service, and the record did not show that Doty had worked the minimum 10 years to be eligible for benefits.«37»Board, housing, fuel, and the health care coverage at issue in

«33» Gallo , 155 Wn.2d at 491 .

«34»Erakovic apparently concedes on appeal that Medicare benefits are only available "at some point in the future."

«35» See Gallo , 155 Wn.2d at 493 (court was "compelled" to exclude employer payments for disability insurance from wages because the workers failed to explain what was included in disability insurance, under what conditions it was available, or why it was critical to their health or survival). Erakovic also asserts that her injury has extended the amount of time it will take her to qualify for "some" Social Security benefits. But she again fails to explain what those benefits are or how soon after the injury she expected to qualify for them.

«36»155 Wn.2d 527 , 545, 120 P.3d 941 (2005).

«37» Id .

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Cockle «38»are benefits to which the worker has immediate access at the time of the injury or shortly thereafter. A worker has access to Social Security and Medicare benefits only if she meets specific statutory requirements.«39»Employer payments for board, housing, fuel, or basic health coverage give the worker an expectation of, and access to, those benefits at the time of the injury or shortly thereafter. Employer payments to the Social Security and Medicare programs do not have the same effect. Like the retirement benefits in Gallo , Social Security and Medicare benefits "are not intended to be, nor are they generally immediately available to the worker at the time of injury."«40»Erakovic has not shown that she met the requirements for access to the benefits at the time of the injury or shortly thereafter.«41»DBM's Social Security and Medicare payments were properly excluded from the wage rate calculation.

B. Industrial Insurance Payments

[12]¶19 L&I argues that employer premium payments for industrial insurance benefits fail the Cockle test because they are not items of in-kind consideration that a worker must replace while disabled. As we said above, for employer-paid premiums to qualify as "wages" under RCW 51.08.178 and Cockle , they must be critical to the worker's health or survival such that the worker must replace them during the period of disability.«42»Industrial insurance benefits are available to a worker "injured in the course of his

«38»142 Wn.2d at 811 .

«39» See , e.g ., 42 U.S.C. § 1381 (One purpose of Social Security is to provide supplemental security income (SSI) "to individuals who have attained age 65 or are blind or disabled . . . ."); 42 U.S.C. § 1382 (outlining income eligibility requirements).

«40» Gallo , 155 Wn.2d at 491 -92.

«41»We do not foreclose the possibility that a worker's wages may include payments to replace government program benefits where he or she can establish that those benefits satisfied RCW 51.08.178 and Cockle and were immediately available to him or her at the time of the injury or shortly thereafter.

«42» Gallo , 155 Wn.2d at 493 .

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or her employment . . . ."«43»A worker's eligibility for benefits has nothing to do with her employer's premium payments.«44»An injured worker need not replace an employer's premium payment during the period of disability because the premium payment does not impact the worker's eligibility for benefits. Thus, an employer's industrial insurance premium payments are not "wages."

[13]¶20 Erakovic also argues that the superior court's judgment includes her employer's unemployment insurance premium payments. But the superior court specifically stated that the "wage rate calculation for an injured worker would not include sums paid . . . for economic benefits due to a non-injury-related layoff." This language shows that the superior court did not include noninjury related unemployment benefits in the wage rate calculation. Erakovic's failure to cross-appeal the superior court's judgment precludes further review of this issue.«45»

III. Other Payments

¶21 Finally, Erakovic asks this court to "indicate in its opinion that [L&I] must include in [her] wage her vacation and holiday pay as well as the specific benefits this Court rules fall within Judge [Robert H.] Alsdorf's ruling so a further appeal[ ] is not required when [L&I] recalculates Erakovic's wage rate." She apparently contends that employer premium payments for union life, accidental death and dismemberment, and disability insurance are included in the superior court's order. L&I argues that this court should not consider these issues because Erakovic did not file a cross-appeal and fails to provide any support for her claims. To the extent we consider them, L&I argues the Washington Supreme Court has rejected Erakovic's contentions.

«43»RCW 51.32.010 .

«44» See id .

«45»RAP 2.4(a).

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[14-17]¶22 We consider these issues to the extent necessary to avoid confusion in interpreting the superior court's order and judgment. First, the superior court did not reverse the Board's decision on holiday and vacation pay,«46»and we cannot do so in the absence of a cross-appeal.«47»As for the other employer payments, the Gallo court specifically held that payments for retirement and life insurance were not critical to the workers' basic health or survival.«48»It also held that payments for disability insurance were properly excluded because the workers failed to explain what was included in the insurance, when it was available, or why it was critical to their health and survival such that they had to replace it during the disability period.«49»

¶23 Erakovic also does not explain the terms or conditions of benefits for either the death and dismemberment or disability insurance. Nor does she provide any evidence that the benefits are critical to her health or survival such that she must replace them while she is disabled. Without more, we must conclude that these payments are not part of the superior court's order and were properly excluded from "wages" under RCW 51.08.178 .«50»

¶24 We reverse the superior court and reinstate the Board's order.\

COX , C.J., and APPELWICK , J., concur.

«46»The superior court reversed the Board decision "only to the . . . extent" specifically stated in its Order and Judgment.

«47»RAP 2.4(a).

«48»155 Wn.2d at 491 -92.

«49» Id . at 493.

«50» See id .

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