Appellants' Reply Brief - Washington State Courts

opening brief (AB at 10-1 1) from the Board's Decision and Order where
the Board explained that, while some of these expenditures "may have
been controllable by Ms. Malang to different degrees," each had a
corresponding "impact . . . on . . . gross receipts." CABR at 6.
Malang responds with an argument that the Board rejected in her
case. She claims that no deduction from gross income should be taken for
business expenses that are controllable or discretionary by the business
operator. RB at 34-36 (asserting in RB at 35 that her only necessary
expense was her business license). Malang's argument is unsupportable in
law or common sense.4 A convenience store operator has broad discretion
as to what items to carry, whether to advertise, what kind of signage to
use, how to furnish the store, and a vast array of other things. A farmer
has discretion as to what to cultivate, who to buy product from, what
equipment to use, whether to do repairs himself, and a vast array of other
things. But if a convenience store operator or farmer elects industrial
insurance coverage, the wage-equivalent under RCW 5 1.08.178(4) for the
convenience store operator or farmer should not turn on whether the
4 Malang cites a Board non-significant decision in In re Kenneth Paige, BIIA
Dckt. Nos. 93 2534-36, 93-2547-49, 93-2633-35 (March 7, 1994) where the Board's
findings of fact, with no accompanying analysis, appear to suggest that the Board
excluded certain discretionary business expenditures in computing "wages" for purposes
of determining temporary partial disability benefits under RCW 5 1.32.090(3). It is
difficult, if not impossible, to determine the Board's reasoning in Steele, but if the
discretionary nature of business expenses was the basis for the Board's findings in Steele,
the Board was wrong there, and the Board's reasoned analysis in the instant case should
be adopted here.