|IN RE: JOHN T. KARNS||)||DOCKET NO. 5181|
|Claim No. 8001853||)||DECISION AND ORDER|
- Claimant, John T. Karns, by
- David E. Williams and Edward Critchlow
- Employer, General Electric Company, by
- Allen, DeGarmo & Leedy, per
- Gerald DeGarmo and Seth W. Morrison
- Department of Labor and Industries, by
- The Attorney General, per
- John C. Martin, Assistant
This is an appeal filed by the claimant, John T. Karns, on September 24, 1954, from an order of the supervisor of industrial insurance issued July 21, 1954, rejecting the claimant's claim for benefits under the workmen's compensation act. Dismissed.
The claimant, John T. Karns, filed a report of accident with the department of labor and industries on July 12, 1954, in which he alleged that he suffered a loss of hearing as a result of exposure to noise in the course of his employment with the General Electric Company at its Hanford Atomic project operations. On July 21, 1954, the department of labor and industries issued and mailed an order to all parties rejecting the claimant's claim on the following grounds:
"1. That there is no proof of a specific injury at a definite time and place in the course of employment.
"2. That claimant's condition is not the result of an industrial injury as defined by the Workmen's Compensation Act.
"3. That the claimant's condition is not an occupational disease as contemplated by Section 51.08.140 R.C.W." 
A notice of appeal by the claimant from the above-quoted order was filed with this board on September 24, 1954, and the board granted the appeal "subject to proof of timeliness" by order dated October 7, 1954.
The first question in this case requiring consideration by the board is that of the board's jurisdiction to consider the merits of the claimant's appeal. With reference to this issue, the parties have stipulated that the supervisor's order of July 21, 1954, rejecting this claim was mailed to the claimant on July 21, 1954, and further that the employer's copy of said order mailed on the same date was received by the employer in Richland on July 22, 1954. The record further establishes that said order was addressed to the claimant's home at 1412 Marshall Street, Richland, Washington, and that he was living at that address at that time and at all times for the last five years. The claimant's testimony by which it was attempted to overcome the apparent defect on the face of the record with reference to the timeliness of his appeal is, to say the least, confusing and conflicting. He first testified with reference to the date he received the supervisor's order rejecting his claim as follows:
"Q Do you have any idea, though, just about the time that you received the answer that said you had no case?
"A No, I don't remember.
"Q You don't have any idea?
"Q Now, answer me, do you know of your own knowledge whether or not your appeal, your Notice of Appeal was mailed within the 60 days that you got it?
"A No, I wouldn't swear to it." (Emphasis added)
He later stated that he gave the notice which he received rejecting his claim to his supervisor, Mr. A. E. Brown, "a couple of  days" after he received it, but Mr. Brown, who was later called as a witness by the claimant, testified that the claimant at no time gave him any papers in connection with his claim. After the hearing had been recessed overnight, the original of the supervisor's order of July 21, 1954, which had been mailed to the claimant, was produced and identified at a hearing on the following day. At that time the claimant testified as follows with reference to his receipt of said order:
"Q Mr. Karns, I hand you Exhibit No. 2, which is a notice from the Department of Labor and Industries of the State of Washington, marked mailed July 21, 1954 by the Department of Labor and Industries, mailed to you, and I will ask you if you have any idea when you received that?
"A As far as I know, these things I get and some- times the wife would get them and for two or three days or maybe a week she'll put it in the drawer. As far as i know, it would be the middle of August that I got anything like this.
. . .
"Q Well, now, is it within your knowledge, Mr. Karns, that your wife does put these things away?
"A Why, sure, she puts it away and keep it. That is why I have all this stuff.
"Q Now, John, when did you receive this, to your knowledge?
"A Middle of August."
This last answer of the claimant was later explained on cross-
examination as follows:
"Q Is it your testimony that you didn't receive it, in the sense you didn't get your hand on it in August, as it was misplaced you thought?
"A That is right." (Emphasis added)
Mr. Karns further testified on this subject as follows:
"Q It is your testimony now that Exhibit 2 you did receive that?
"A Wife says I had one like that. It is right. 
"Q Have you seen it before?
"A She said she shown it to me.
"Q Do you remember ever seeing it?
"A Particularly I seen one but I didn't pay no attention to it."
. . .
"Q Well, now, that is what I am trying to get straightened out for the record. So, now your testimony is that you did receive this one, Exhibit 2?
"Q Where did this come from?
"A This come from Olympia.
"Q I understand that, but what did you do when you got it? Did you give it to your attorneys?
"Q Where did you get this? Did you find this at your home?
"A This, well, I guess the attorney had that.
"Q When did you bring it to your attorney?
"A Well, if I took it, I took it down to him afterward.
"Q After what?
"A After I got the darn thing."
. . .
"Q How long after you got this did you go to see your attorney, by "this" I am referring to Exhibit 2?
"A About a week.
"Q About a week afterwards?
"A Yes." (Emphasis added)
Finally, on further cross-examination the claimant testified as
"A When I got it it was in August. It wasn't before August. 
"Q You remember receiving it?
"Q Where from?
"A Came from Olympia.
"Q When did you first get a hold of it?
"A About a week after it was brought to the house.
"Q Did you see it brought to the house?
"A No, I didn't see it brought to the house.
"Q Do you know when it was brought to your house?
"A No, I couldn't tell you when it was brought to the house because I don't get the mail out of the box all the time." (Emphasis added)
After the claimant had testified, his counsel stated that "we will call Mrs. Karns for the purpose of this jurisdictional question," but Mrs. Karns was never called.
The law is well established that failure to file an appeal within the time prescribed by statute prohibits this board from considering the merits of an appeal and that the burden is on the appellant to prove that the appeal was timely. Nafus v. Department of Labor and Industries, 142 Wash. 48; Smith v. Department of Labor and Industries, 1 Wn. (2d) 305; Lewis v. Department of Labor and Industries, 146 Wash. Dec. 365. In the Smith case the department records disclosed that the supervisor's order, from which the appeal was taken, was mailed to the claimant on August 20, 1937, and the notice of appeal therefrom was filed with the joint board on October 26, 1937. The appeal was granted "Subject to proof that the statute of limitations had not operated against the appeal," but the claimant offered no evidence to show that the appeal was timely. The supreme court held that "the burden was upon appellant to challenge the existence of the apparent imperfection revealed by the record" and stated: 
"The giving of notice of appeal within the time prescribed by statute is jurisdiction- al. Failure to comply with that jurisdictional requirement prohibits the joint board from considering the merits of a claimant's appeal.
In the case of Nafus v. Department of Labor and Industries, 142 Wash. 48, 251 Pac. 877, this court, in considering the question of appeals to the superior court quoted with approval the following statement in 11 Cyc. 696:
'A court of special, limited, or inferior jurisdiction must by its record show all essential or vital jurisdictional facts of its authority to act in the particular case, and in what respect it has jurisdiction. This rule also applies to jurisdiction over special statutory proceedings exercised in derogation of, or not according to, the course of the common law. So the necessary jurisdictional facts must affirmatively appeal by averment and proof to bring the case within the jurisdiction of such court.'"
In the Lewis case, supra, the court stated the rule as applicable to this board as follows:
"... Although the board of industrial insurance appeals is a quasi-judicial body (Floyd v. Department of Labor and Industries, 44 Wn. (2d) 560, 269 P. (2d) 563), it is only a tribunal of special statutory jurisdiction, and the essential facts to show its jurisdiction must be proven before it can consider the merits of a particular case. (Smith v. Department of Labor and Industries, supra). Respondent has failed to prove these essential facts in this case. The burden was upon her to do so. MacVeigh v. Division of Unemployment Compensation, 19 Wn. (2d) 383, 142 P. (2d) 900. therefore, the board of industrial insurance appeals had no jurisdiction as to respondent's case." (Emphasis added)
As heretofore pointed out, the record in the case here under consideration establishes that the supervisor's order rejecting this claim was mailed to the claimant, addressed to his home at 1412 Marshall, Richland, Washington, on July 21, and that the claimant was living at that address at that time. These facts are sufficient to give rise to a presumption that the order was received by the claimant in "due course" of the mails. Avgerinion v. First Guaranty Bank, 142 Wash. 73. Such a presumption was  also obviously the basis of the holding of the supreme court in the case of Smith v. Department of Labor and Industries, (supra) that "the burden was upon the appellant to challenge the existence of the apparent imperfection revealed by the record," inasmuch as there was no evidence in that case of the time of receipt of the order by the claimant. It is further established in this case that the employer's copy of the supervisor's rejection order, also mailed from Olympia on July 21, 1954, was received by the employer in Richland on July 22, 1954, so that it may further be presumed that the claimant's copy of said order was delivered to his home in Richland on July 22, 1954, or certainly not later than July 23rd. In either case, the appeal therefrom filed on September 24, 1954, would not be timely. The specific question presented, there- fore, is whether or not there is any evidence in this record sufficient to overcome this presumption of communication of the supervisor's order of July 21, 1954, to the claimant on July 22 or 23, 1954.
Although the claimant testified that he did not get "hold" of the order until sometime in August, which was "about a week after it was brought to the house," he also testified that he did not know when it was brought to the house "because I don't get the mail out of the box all of the time." Clearly this testimony is not sufficient to overcome the presumption of delivery to his home on July 22 or July 23, 1954. His testimony as to when he actually obtained physical possession of the order in question, and as to what he did with it thereafter, is so vague, conflicting and in-consistent that in the board's opinion it can be given no probative weight whatsoever. However, even it his testimony that he did not actually get "hold" of the order and do something about it until "about a week after it was brought to the house" were accepted, it is noted that he admitted that his wife said "she  shown it to me" and that "I didn't pay no attention to it," so that it is apparent that he saw and was aware of the communication from the department before that time. The issue therefore is further narrowed to the question of whether it can be said that the order was not "communicated" to the claimant because he didn't "pay no attention to it." The statute (R.C.W. Sec. 51.52.050) does not provide for personal service of the department's decisions and orders on the parties affected thereby, but merely that they be served "by mail, which shall be addressed to such person at his last known address as shown by the records of the department." Although R.C.W. Sec. 51.52.060 provides that the time limited for appeal does not begin to run until the department's decision or order is "communicated" to the persons affected thereby, if this were interpreted as meaning that such a decision or order is not "communicated" to a party until he choses to pay attention to it and do something about it, there would be, in effect, no statute of limitations. This fact was recognized by our supreme court in the case of Nafus v. Department of Labor and Industries, 142 Wash. 48. In holding that the claimant's appeal in that case was not timely, the court stated:
"The controlling question is whether the appeal was prosecuted within time and this depends upon whether notice of the closing of the claim on April 23, 1925, was communicated to the respondent. The testimony of the respondent above set out shows that he received the letter of April 23, 1925, and that it was in the pocket of his bathrobe that hung at the side of his bed. He says that the nurse read it and its contents were not communicated to him. Mr. Hammond testified that when he asked the respondent with reference to receiving a letter that he said that the letter was in his bathrobe. The undisputed evidence, then, is to the effect that the letter was received and placed in the pocket of the respondent's bathrobe which hung at the side of his bed, and he knew that it was there. He also knew that the letter was from Olympia. The fact that the respondent says that he did not read the letter and did not know its contents  is not controlling. The department had done all it was required to do in making 'communication' of its decision in closing the claim to the party affected thereby. There is no evidence from which it could be found that the respondent was not competent to understand the nature of the communication at the time. It follows that the appeal was not taken within twenty days after notice of the decision of the department closing the claim had been communicated to the respondent." (Emphasis added)
In the case here under consideration the claimant apparently does not know whether he or his wife took the communication from the department out of the mailbox. He stated merely that sometimes his "wife would get them and for two or three days or maybe a week, she'll put it in the drawer," but he also stated that he did not know when the notice was delivered to his house "because I don't get the mail out of the box all the time." Even if it were assumed that his wife did get the communication first, the fact remains that the claimant admitted that she showed it to him and he didn't pay any attention to it. If it were a fact that Mrs. Karns did not call her husband's attention to the department's rejection order until sometime after it was received, this fact could easily have been established by Mrs. Karns, but she was not called as a witness and no attempt was made to explain why she was not called to testify. The board is of the opinion therefore that the claimant had failed to sustain his burden of proving that his appeal was filed within the time required by law. Inasmuch as the record does not affirmatively establish that the board has jurisdiction, the claimant's appeal must be dismissed.
In view of the foregoing and after reviewing the entire record herein, the board finds as follows;
1. The claimant, John T. Karns, filed a report of accident with the department of labor and industries on July 12, 1954, alleging that he suffered a loss of hearing as a result of exposure to noise in the course of his employ-  ment with the General Electric Company at its Hanford atomic project operations. His claim was rejected by an order of the supervisor of industrial insurance mailed to all parties on July 21, 1954. The claimant's copy of said order was addressed to his home at 1412 Marshall Street, Richland, Washington, and the claimant was living at that address at that time and at all times subsequent thereto. The claimant filed a notice of appeal from the last mentioned order of the supervisor of industrial insurance with this board on September 24, 1954, and the board granted the appeal "Subject to proof of timeliness" by order dated October 7, 1954.
2. The above-mentioned order of the supervisor of industrial insurance mailed July 21, 1954, was delivered to the claimant's residence at 1412 Marshall Street, Richland, Washington, on July 22, 1954, or July 23, 1954, and the claimant was living at said residence and actually present thereat on those dates.
Based on the foregoing findings of fact, the board concludes:
- The supervisor's order of July 21, 1954, rejecting the above-numbered claim was "communicated" to the claimant within the meaning of R.C.W. Sec. 51.52.060, not later than July 23, 1954.
- The claimant's appeal from the above-mentioned order of the supervisor of industrial insurance filed with this board on September 24, 1954, was not filed within the time required by R.C.W. 51.52.060.
- This board does not have jurisdiction to consider the merits of the claimant's appeal.
Now, therefore, it is hereby ORDERED that the appeal of the above-named claimant filed herein on September 24, 1954, be, and the same is hereby, dismissed.
Dated this 7th day of February, 1956.
BOARD OF INDUSTRIAL INSURANCE APPEALS
J. HARRIS LYNCHChairperson