| IN RE: KIRTLEY D. GARDINER | ) | DOCKET NO. 05 12349 |
| ) | ||
| CLAIM NO. Y-260258 | ) | DECISION AND ORDER |
| ) |
APPEARANCES:
Claimant, Kirtley D.
Gardiner, Pro Se
Employer, Burke Electric,
None
Department of Labor and Industries, by
The Office of the Attorney General, per
Penny L. Allen, Assistant
The claimant, Kirtley D. Gardiner, filed an appeal with the Board of Industrial Insurance Appeals on March 10, 2005, from a letter determination of the Department of Labor and Industries dated February 24, 2005. In the letter determination, the Department denied Mr. Gardiner's request for payment of provisional time loss compensation benefits for the reason that the order dated January 15, 2002, in which the Department rejected the claim, had been affirmed by the Board of Industrial Insurance Appeals in its order dated April 29, 2003, and had become final and binding on the parties. The letter determination of the Department is REVERSED AND THE CLAIM IS REMANDED.
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 December 9, 2005. In the
Proposed Decision and Order, the industrial appeals judge granted the
Department's Motion for Summary Judgment and dismissed the claimant's appeal
from the order contained in the Department letter dated February 24, 2005.
The
Board has reviewed the evidentiary rulings in the record of proceedings and
finds that no prejudicial error was committed. The rulings are affirmed.
We
have granted review in order to reverse the Department's determination that it
lacked jurisdiction to consider the payment of provisional time loss
compensation under RCW 51.32.210. The
factual situation presented by this appeal is essentially the same as that
presented by In re Lynnette A. Murray,
BIIA Dec., 42,296 (1974). The only
significant difference between these appeals is the enactment of RCW
51.32.240(3), that allows recoupment of provisional time loss [2] compensation benefits paid when the
claim has been rejected. This
legislation in no way changes our interpretation of the legislative intent that
led to the enactment of RCW 51.32.210.
This appeal raises solely
a question of law: whether the Department is required to determine if Mr.
Gardiner was entitled to provisional time loss compensation for the period from
September 4, 2001 to January 15, 2002, a period that was prior to the
Department's initial determinative order in which the Department rejected this
claim, issued on January 15, 2002. The
Department order subsequently became final when the Board, in its Decision and
Order issued on April 29, 2003, affirmed rejection of the claim, and that
order was not appealed to superior court. This appeal was filed from a Department letter dated February 24, 2005,
in which the Department determined that time loss compensation could not be
paid as the order rejecting the claim had become final.
Based on our understanding
of the basic legislative intent in adoption of RCW 51.32.210, we are convinced
that the Department's determination is incorrect and should be reversed. This provision requires prompt action after a
claim is filed, and when total temporary disability compensation is payable the
first payment is to be made within fourteen days after receipt of the
claim.
The
record made at the hearing on the Department's Motion for Summary Judgment
establishes that no material fact is at issue and that the only question before
the Board is the application of the law to these facts. The facts are simple and
straightforward. Mr. Gardiner filed an
Application for Benefits with the Department on October 10, 2001. The portion of the application for benefits,
filled out by the attending physician, indicates that the condition alleged to
be related to employment would cause Mr. Gardiner to "miss
work." (Exhibit No. 3) In his response to the Department's Motion
for Summary Judgment, and during arguments on that motion, Mr. Gardiner stated
that he had refrained from engaging in gainful employment on the advice of his
attending physician. On January 15,
2002, the Department issued an order in which it rejected the claim. A timely appeal was filed from that
order. Following hearings, a Proposed
Decision and Order was issued in which the industrial appeals judge affirmed
the rejection of the claim. A Petition
for Review was filed to the Proposed Decision and Order by Mr. Gardiner,
and on April 29, 2003, the Board issued a Decision and Order in which the Board
affirmed the Department's order dated January 15, 2002. No evidence was presented and no argument
made that the Board's Decision and Order was not communicated to Mr. Gardiner
or that an appeal was filed from that order to superior court. Thus, under the provisions of RCW 51.52.110,
the "final decision and order of the board shall become final." When the Board's Decision and Order became
final, at the expiration of [3] the
thirty-day appeal period, the Department order dated January 15, 2002, also
became final. As the Department had both
personal and subject matter jurisdiction to issue the order dated January 15,
2002, under Marley v. Department of Labor
& Indus., 125 Wn.2d 533 (1995), that order is valid and binding. However the finality of this order does not
deprive the Department of jurisdiction to consider Mr. Gardiner's entitlement
to provisional time loss compensation.
RCW 51.32.210 provides:
Claims of injured workmen of employers who have
secured the payment of compensation by insuring with the department shall be
promptly acted upon by the department. Where temporary disability compensation is
payable, the first payment thereof shall be mailed within fourteen days after
receipt of the claim at the department's offices in Olympia and shall continue
at regular semimonthly intervals. The payment of this or any other benefits under this title, prior to the
entry of an order by the department in accordance with RCW 51.52.050 as
now or hereafter amended, shall be not considered a binding determination of
the obligations of the department under this title. The acceptance of compensation by the worker
or his or her beneficiaries prior to such order shall likewise not be considered
a binding determination of their rights under this title. (Emphasis added).
The overriding object of
this statute is to promote prompt initial action on the allowance or rejection
of all claims. Prompt early action is
particularly important in cases where temporary total disability is concerned,
which led to the adoption of the "14-day" requirement. To give effect to the objective in mind when
the "14-day law" was adopted requires the commencement of payment of
time loss compensation within that period. Considering the 14-day requirement in light of all the other language in
this statute, it is clear that, if in fact, there is temporary total disability
due to a condition alleged to be covered under the claim; compensation for it
must be paid, until a determinative initial order is entered by the
Department. This is the clear intent
that led to the enactment of this statute. If the intent were otherwise, there would be no need for the portions of
the statutes providing that payment by the Department, and acceptance by the
claimant of such compensation, prior to the entry of a determinative order, is
not a "binding determination" of their respective rights and
obligations under the Act. Clearly, such
payments are contemplated, or the statute would not have to provide for their
non-binding nature. Thus, until a
determinative order on allowance or rejection is entered, the Department must
comply with the "14-day" provision and pay time loss compensation to
the claimant for whatever period prior to the entry of the determinative order
that the claimant is in fact temporarily totally disabled due to the condition
for which the claim was filed. Once a
determinative order is entered, whether it allows or rejects the claim that is [4] challenged through an appeal, there
is no requirement to continue any payments while the issue of allowance is
being litigated to a final conclusion before this Board or the courts.
The reason for this
statutory requirement is a practical one, namely, that when a worker is
rendered temporarily unable to work because of a physical condition caused, or
alleged to be caused by employment, frequently an urgent economic need for
prompt payment of temporary disability compensation as wage replacement
exists. The Legislature has apparently
decided that this social and economic need of workers outweighs the prevention
of the payment of any compensation until a determinative administrative
decision has been made.
In 1986, the Legislature
enacted what is now codified as RCW 51.32.240(3). This subsection provides for repayment of
temporary disability benefits if a claim is ultimately rejected. Laws of 1986, ch. 54, § 1. Prior to the enactment of RCW 51.32.240(3), a
consequence of this statutory approach of forcing prompt administrative
determinations on allowance or rejection of claims was that in a few cases the
claimant retained payment of provisional time loss compensation where it is
later determined that no benefits were payable. In light of that statutory provision, this is no longer required. The removal of that consequence supports our
interpretation of RCW 51.32.210, as it was not amended, and highlights the
effectiveness of the statute in achieving its purpose, that within 14 days
after a claim is filed with the Department a determination will be made regarding
the payment of time loss compensation. The enactment of the provisions contained in subsection (3) do not
require that we reverse our holding in Murray or In re Melvin Oshiro, BIIA Dec.,
67,112 (1985).
We are convinced that the
information necessary to determine Mr. Gardiner's entitlement to provisional
time loss compensation was available to the Department as soon as the
application for benefits was filed. That
application contains sufficient information to establish that the attending
physician was of the opinion that Mr. Gardiner should refrain from working due
to conditions alleged to be related to employment. Mr. Gardiner relied on the advice of his
attending physician in refraining from engaging in gainful employment while
undergoing treatment. Payment of time
loss compensation is supported in situations where the injured worker relies on
an attending physician in refraining from engaging in gainful employment, even
though the attending physician is subsequently proved to be wrong as to the direction
given. See In re Charles E. Hindman, BIIA Dec., 32,851 (1970).
While
there are no contested factual matters that relate to resolution of this
appeal, there are questions that will have to be resolved administratively when
the claim is remanded. There are [5] insufficient facts in the record to
determine Mr. Gardiner's entitlement to provisional time loss compensation, and
the period of his entitlement to receive provisional time loss compensation if
any is due. The Department shall then
pay Mr. Gardiner the appropriate benefit. RCW 51.32.240(3) provides that the recipient of provisional time
loss compensation benefits should repay the benefits if the claim is ultimately
rejected. Once the Department pays
provisional time loss compensation benefits, the Director may then determine in
his discretion under RCW 51.32.240(3), whether to waive repayment or
recoupment.
Consideration
of the Proposed Decision and Order, Mr. Gardiner's Petition for Review filed
thereto, and a careful review of the entire record before us, persuades us that
the Department was incorrect in determining that it could not act on Mr.
Gardiner's request for payment of provisional time loss compensation benefits
for the reason that the Department's order dated January 15, 2002, wherein the
Department rejected the claim, had been affirmed by the Board of Industrial
Insurance Appeals by its order dated April 29, 2003, and had become final and
binding on the parties. The Motion for
Summary Judgment is granted, the order contained in the Department's letter is
reversed, and the claim is remanded to the Department to issue a determinative
order regarding Mr. Gardiner's entitlement to the payment of provisional time
loss compensation.
FINDINGS OF FACT
1. On September 4, 2001, Kirtley D. Gardiner
filed an Application for Benefits with the Department of Labor and Industries,
in which he alleged that on August 23, 2001, he sustained an industrial injury
or developed an occupational disease during the course of his employment with
Burke Electric, LLC. On October 10,
2001, the Department issued an order in which it denied the claim for headaches
due to mental stress in the workplace. On January 15, 2002, the Department issued an order in which it
rejected the claim for occupational disease.
On January 25, 2002, the claimant
filed a Notice of Appeal with the Board of Industrial Insurance Appeals to the
rejection order. On March 5, 2002,
the Board granted the appeal. On March
14, 2003, a Proposed Decision and Order was issued in which the industrial
appeals judge affirmed the Department order dated January 15, 2002, in which
the Department rejected the claim. On
April 1, 2004, the claimant filed a Petition for Review with the
Board and on April 29, 2003, the Board issued a Decision and Order in which it
affirmed the Department’s January 15, 2002 rejection order.
On February 16, 2005, Mr. Gardiner
filed a letter with the Director of the Department of Labor and Industries, in
which he requested that provisional time loss compensation be paid and the
claim allowed. On February 24, 2005, the
Director issued a written response to the [6] claimant in which the Director indicated that the claim had been rejected and
provisional time loss compensation would not be paid on the rejected
claim. On February 25, 2005, the
claimant filed a Notice of Appeal with the Department that was forwarded to the
Board of Industrial Insurance Appeals as a direct appeal, and received on
March 10, 2005. On March 17, 2005,
the Board denied the appeal and on July 8, 2005, after further consideration,
the Board issued an order in which it granted the appeal.
2. On September 4, 2001, Kirtley D.
Gardiner filed an Application for Benefits with the Department of Labor and
Industries with medical certification that he was not to work due to the
alleged diagnosed injuries.
3. On April 29, 2003, the Board of
Industrial Insurance Appeals issued a Decision and Order in which the Board
affirmed the Department’s January 15, 2002 order. The Department, in that order, rejected the
claim for benefits filed by the claimant under Claim No. Y‑260258.
4. Kirtley D. Gardiner did not file a
Notice of Appeal with the superior court of the state of Washington, as
provided by RCW 51.52.110, to the Board’s April 29, 2003 Decision and Order.
5. There is no issue of fact that is
material to the resolution of this appeal.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance
Appeals has jurisdiction over the parties to and the subject matter of this
appeal.
2. The Board of Industrial Insurance
Appeals Decision and Order dated April 29, 2003, in which the Board affirmed
the Department order dated January 15, 2002, rejecting the claim for benefits
filed by the claimant under Claim No. Y-260258, and the Department order dated
January 15, 2002, became final and binding because no appeal to the
Board's Decision and Order was filed by the claimant to the Superior Court of
the state of Washington, pursuant to the provisions of RCW 51.52.110.
3. Having no issue of fact material to the
resolution of this appeal, the Motion for Summary Judgment must be granted
pursuant to RCW 51.52.140, WAC 263-12-125, and CR 56.
4. RCW 51.32.210 provides the Department
authority to consider and provide temporary total disability benefits to a
claimant, notwithstanding ultimate rejection of the claim. [7]
5. The order
contained in the Department of Labor and Industries letter determination dated
February 24, 2005, is incorrect and is reversed. The claim is remanded to the Department
to issue a determinative order regarding Mr. Gardiner's entitlement to the
payment of provisional time loss compensation under RCW 51.32.210, and to take
such further action as may be authorized or indicated by the law and the facts.
It is so ORDERED.
Dated this
20th day of March, 2006.
BOARD
OF INDUSTRIAL INSURANCE APPEALS
/s/_____________________________________
THOMAS
E. EGAN Chairperson
/s/_____________________________________
FRANK
E. FENNERTY, JR. Member
/s/_____________________________________
CALHOUN
DICKINSON Member