APPEARANCES:

 

Claimant, Geraldine R. Gallant, by

Putnam Lieb, per

Wayne Lieb

 

Employer, Gee Gees Hobby Craft & Gifts,

None

 

Department of Labor and Industries, by

The Office of the Attorney General, per

William Andrew Myers, Assistant

 

            The claimant, Geraldine R. Gallant, filed an appeal with the Board of Industrial Insurance Appeals (Docket No. 03 16903) on July 7, 2003 , from an order of the Department of Labor and Industries dated June 27, 2003 .  In this order, the Department affirmed a May 29, 2003 order in which it closed her January 4, 2004 left shoulder injury claim (Claim No. Y-288677) without an award for permanent partial disability.  The Department order is REVERSED AND REMANDED.

The claimant, Geraldine R. Gallant, filed an appeal with the Board of Industrial Insurance Appeals (Docket No. 03 16904) on July 7, 2003 , from an order of the Department of Labor and Industries dated June 27, 2003 .  In this order, the Department declined to consider Ms. Gallant's June 5, 2003 protest as it was not within 60 days of the July 2, 1998 closing order issued under her May 30, 1996 right shoulder injury claim (Claim No. P-328389).  The Department order is AFFIRMED.

 

DECISION

             Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the claimant to a Proposed Decision and Order issued on June 29, 2004 , in which the industrial appeals judge affirmed both of the orders of the Department dated June 27, 2003 .

             The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed.  The rulings are affirmed. 

             Our industrial appeals judge determined that the June 27, 2003 Department order, that affirmed a May 29, 2003 closing order in Claim No. Y-288677 was correct, based on application of [2] the doctrine of res judicata.  We disagree.  The Department's final determination in Claim No. P‑328389 does not bar a disability determination in the subsequent Claim No. Y-288677.  Further, based upon the medical evidence in the record, we conclude that Ms. Gallant is entitled to an award for permanent impairment of her left shoulder in the amount of 11 percent of the amputation value of the deltoid insertion or by disarticulation at the shoulder for residuals proximately caused by her January 4, 2002 industrial injury.

             Claim No. P-328389 was allowed for a right shoulder injury Ms. Gallant suffered while carrying a sewing machine for a customer on May 30, 1996 .  Board Exhibit No. 1.  Ms. Gallant's right shoulder condition healed somewhat, and she was left with permanent impairment.  4/21/04  Tr. at 18, Board Exhibit No. 2.  The parties stipulated that Ms. Gallant has permanent impairment of her right shoulder equal to 12 percent of the amputation value of the deltoid insertion or by disarticulation at the shoulder for residuals proximately caused by her May 30, 1996 industrial injury.   Although the award for permanent partial disability should have been attributed to her right shoulder in this claim, the July 2, 1998 order erroneously closed the claim with an award for permanent partial disability for her left shoulder.

It is undisputed that Ms. Gallant did not timely protest or appeal the July 2, 1998 order closing her right shoulder injury claim, Claim No. P-328389.  Board Exhibit No. 1.  The July 2, 1998 order contained the appropriate statutory language providing notice of the finality of the decision, unless a timely protest or appeal was filed.  See RCW 51.52.050.  A Department decision, even if erroneous, is final and binding on all parties and cannot be reargued unless the order was void when entered. An order is not void if entered with personal jurisdiction over the parties and subject matter jurisdiction over the claim.  Marley v. Department of Labor & Indus., 125 Wn.2d 533, 542-43 (1994).

There is no question that the Department had jurisdiction to enter the July 2, 1998 order. 

Upon receipt of the untimely protest, the Department was required by statute to deny reconsideration of its July 2, 1998 final order.  The Department has only limited statutory authority to set aside unappealed final orders (see RCW 51.32.240), and no statutory provision grants authority to set aside an unappealed final order denying a claim.  Nor does Title 51 provide the Board or the courts with statutory authority to overturn an unappealed final order of the Department.   Kingery v. Department of Labor & Indus., 132 Wn.2d 162 (1997).  Our industrial appeals judge made the correct determination in Docket No. 03 16904.  The June 27, 2003 Department order in Claim No. P-328389 is affirmed. [3]

             We reach a different result in our review of the record and the correctness of the Department's June 27, 2003 order in Claim No. Y-288677.  It is undisputed that Ms. Gallant sustained an injury to her left shoulder on January 4, 2002 , when a bolt of fabric slipped and she attempted to grab it.  Board Exhibit No. 4.  The parties agree that Ms. Gallant has permanent impairment in her left shoulder in the amount of 11 percent of the amputation value of the deltoid insertion or by disarticulation at the shoulder for residuals proximately caused by her January 4, 2002 industrial injury.

             While application of the court's holding in Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1994) may prevent a conclusion that the erroneous Department order issued in Claim No. P-328389 is void, the court's holding does not prevent us from acknowledging a clerical error.  We can find that the July 2, 1998 order contained a clerical error and acknowledge that error.  In  Callihan v. Department of Labor & Indus. 10 Wn. App. 153 (1973), the court stated that the Board has the authority to correct an "inadvertent misdescription."  If the Board was not allowed to do so it "would be required to treat a clerical error as if it were no error at all."  Callihan at 157.   The holding in the Marley decision does not prevent us from acknowledging that the order closing the prior claim referenced the wrong extremity.  What occurred in the management of the claim was a clerical error, whether it was perpetuated with the assistance of one or more physicians does not change the character of the error.  There is no disagreement  between Ms. Gallant and the Department  that an error was made.   We believe this type of error is properly characterized as a clerical error.   Because we need not conclude that the order is void, we are not prevented from finding that the error is indeed a clerical error, and we are not bound by the error contained in that order in making a decision in the claim that is before us.

             The June 27, 2003 and May 29, 2003 Department orders in Claim No. Y-288677 unequivocally denied Ms. Gallant an award for left shoulder permanent partial disability.  No reference was made to the prior adjudication in Claim No. P-328389.  There is no indication in the orders that there was any effort to segregate any prior permanent partial disability in accordance with the provisions of RCW 51.32.080(5).  Any attempt to invoke the doctrine of res judicata in this instance would result in the denial of benefits to Ms. Gallant that all agree she is entitled to.  The application of the doctrine of res judicata must not work an injustice on the party against whom it is to be applied.  Winchell's Donuts v. Quintana, 65 Wn. App. 525, 529-30 (1992).  In this situation, if we were to apply the doctrine against Ms. Gallant, in light of the undeniable error contained in the previous order,  would work an injustice. [4]

             We decline to apply the doctrine in this situation.  The June 27, 2003 Department order in Claim No. Y-288677 is reversed.  This matter is remanded to the Department with direction to close the claim with an award to Ms. Gallant of 11 percent of the amputation value of the deltoid insertion or by disarticulation at the left shoulder for residuals proximately caused by her January 4, 2002 industrial injury.

 

FINDINGS OF FACT

1.                  On June 10, 1996 , the claimant, Geraldine R. Gallant, filed an application for benefits with the Department of Labor and Industries, alleging an industrial injury to her right shoulder, which occurred on May 30, 1996 , while she was in the course of her employment with Gee Gee's Hobby Craft and Gifts.  On September 6, 1996 , the Department issued an order in which it allowed the claim.  On July 2, 1998, the Department issued an order in which it closed the claim with payment of a permanent partial disability award equal to 12 percent of the amputation value of the left arm at or above the deltoid insertion or by disarticulation at the shoulder.

 

On January 18, 2002 , the claimant, Geraldine R. Gallant, filed an application for benefits with the Department of Labor and Industries, alleging an industrial injury to her left shoulder, which occurred on January 4, 2002 , while she was in the course of her employment with Gee Gee's Hobby Craft and Gifts.  On March 29, 2002 , the Department issued an order in which it allowed the claim.  On May 29, 2003 , the Department issued an order closing the claim with no further time loss compensation and no payment of an award of permanent partial disability.

 

On June 5, 2003 , the claimant filed a Protest and Request for Reconsideration of the July 2, 1998 and May 29, 2003 Department orders.  On June 27, 2003 , the Department issued two orders.  In one order, the Department determined that it could not reconsider the Department order dated June 2, 1998 , as neither a protest nor an appeal were received within this 60-day time limitation, and determined that the Department order dated June 2, 1998 , was final and binding.  On June 27, 2003 , the Department issued another order that affirmed the provisions of the Department order dated May 29, 2003 .

 

On July 7, 2003 , the claimant filed two Notices of Appeal with the Board of Industrial Insurance Appeals.  In Docket No. 03 16904, the claimant appealed from the Department order dated June 27, 2003 .  On August 19, 2003 , this Board issued an order granting the appeal subject to proof of timeliness from the Department order dated June 27, 2003 . [5]

 

In Docket No. 03 16903, the claimant appealed from the Department order dated June 27, 2003 .  On July 29, 2003 , this Board issued an order granting the appeal from the Department order dated June 27, 2003 .

 

2.         Ms. Gallant sustained an industrial injury to her right shoulder on May 30, 1996 , and to her left shoulder on January 4, 2002 , while in the course of employment with Gee Gee's Hobby Craft and Gifts.

 

3.         Ms. Gallant's right shoulder conditions were fixed and not in need of further necessary and proper treatment as of July 2, 1998.

 

4.         Ms. Gallant's left shoulder conditions, proximately caused by the January 4, 2002 industrial injury, were fixed and not in need of further necessary and proper treatment as of May 29, 2003.

 

5.         Ms. Gallant neither timely appealed nor protested the Department order of July 2, 1998 .

 

6.         As of May 29, 2003 , Ms. Gallant's left shoulder impairment, proximately caused by the industrial injury of January 4, 2002 , resulted in residual impairment equal to 11 percent permanent impairment of her left shoulder of the amputation value of the deltoid insertion or by disarticulation at the shoulder.

 

CONCLUSIONS OF LAW

 

1.         The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of these timely filed appeals.

 

2.         As of May 29, 2003 , Ms. Gallant was a permanently partially disabled worker within the meaning of RCW 51.32.080

 

3.         The doctrine of res judicata does not bar Ms. Gallant from receiving an award for 11 percent permanent impairment of her left shoulder of the amputation value of the deltoid insertion or by disarticulation at the shoulder for residuals proximately caused by her January 4, 2002 industrial injury.

 

4.         In Docket No. 03 16903, the Department order dated June 27, 2003 , is incorrect and is reversed.  It is remanded with direction to close the claim with an award to Ms. Gallant of 11 percent of the amputation value of the deltoid insertion or by disarticulation at the left shoulder for residuals proximately caused by her January 4, 2002 industrial injury. [6]

 

5.         In Docket No. 03 16904, the Department order dated June 27, 2003 , is correct and is affirmed.

 

            It is so ORDERED.

 

            Dated this 22nd day of November, 2004.