- APPEARANCES
- Claimant, Darrel D. Lopeman, by
- Calbom & Schwab, P.S.C., per
- G. Joe Schwab
- Employer, Grant County Fire District #5,
- None
- Department of Labor and Industries, by
- Office of the Attorney General,
per
- Tomás S. Caballero,
Assistant
The claimant,
Darrel D. Lopeman, filed an appeal with the Board of Industrial Insurance
Appeals on April 12, 2006,
from an order of the Department of Labor and Industries dated April 4, 2006. In this order, the Department rejected the
claim and assessed an overpayment of time loss compensation benefits in the
amount of $20,313.58. The
Department order is REMANDED FOR
FURTHER PROCEEDINGS.
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 Department
to a Proposed Decision and Order issued on
January 8, 2007, in which the
industrial appeals judge reversed and remanded the order
of the Department dated
April 4, 2006.
The
Board has reviewed the evidentiary rulings in the record of proceedings and
finds that no prejudicial error was committed.
The rulings are affirmed. This case was properly tried on summary
judgment and there are no material facts in dispute. The
industrial appeals judge reversed the April 4, 2006 Department order and found
that a determinative order awarding time loss compensation can bind the
Department to claim allowance. We
disagree with the industrial appeals judge's decision to grant summary judgment
on this basis. The matter must be remanded
to allow Mr. Lopeman to address the merits of his claim for benefits. [2]
In this
case, the Department issued a series of interlocutory orders in which it
awarded time loss compensation benefits after the application for benefits was
filed. On
July 20, 2005, the Department issued a subsequent
determinative order in which it paid time loss compensation benefits. On July
21, 2005, the Department issued an order in which it allowed the
claim. On August 1, 2005 and August 15, 2005, the Department issued further
determinative orders in which it paid time loss compensation benefits. On August
25, 2005, the Department issued an order in which it indicated
that it would reconsider the allowance order.
In the interim, the Department continued to issue interlocutory orders
in which it paid time loss compensation benefits. On December
23, 2005, the employer protested allowance of the claim. On February
7, 2006 and April 4,
2006, the Department issued orders in which it rejected the
claim.
We believe the Department should not
be forced to allow the claim based on the
July 20, 2005 determinative time loss order. A determinative time loss order informs the
parties that the worker will be receiving time loss compensation
benefits. It does not speak to claim
allowance. Our Court of Appeals has
historically required that Department orders include a clear and unmistakable
determination that the claim has been allowed.
The doctrine of res judicata cannot
apply to a party’s detriment when it lacks precise meaning. King
v. Department of Labor & Indus., 12 Wn. App. 1 (1974). Based on the Court's rationale in King, the Department’s determinative
time loss order fails to adequately notify the parties that the claim was
allowed.
The
Court of Appeals has continued to require clarity in orders issued by the
Department. In an appeal issued
subsequent to King, the Court held
that prior Department orders failed to provide notice of the factual basis
underlying the worker’s wage determination.
Somsak v. Criton Technologies/Heath
Tecna, Inc., 113 Wn. App. 84 (2002).
Although the Department made adjustments to Ms. Somsak’s time loss rate
in several final orders, as well as the closing order, the Court found that
none of the orders provided the specific facts used in the calculations. The Court
permitted Ms. Somsak to challenge the wage rate based on the Department’s
failure to issue orders with adequate underlying explanations. Again, the Court emphasized the importance
of fairness in the process, which can be had only when an order is clear on
its face.
We remain mindful of our prior
decisions on this issue in In re Herbert
Olive, Dckt. No. 70,349 (August 7, 1986) and In re
Gary Johnson, BIIA Dec., 86 3681
(1987). We agree with our industrial
appeals judge that the fact pattern in Olive
is nearly identical to that presented here. While the Department was bound to allow the
claim in Olive, we cannot abide by
that result in light of the Court’s most recent ruling in Somsak. [3]
We are broadening the scope of our decisions
in Johnson and Olive based on the principles of fairness articulated by the
higher court. We agree that it is
fundamentally unjust to bind a party based on an unclear order or by any
inference drawn from an order lacking in specificity. This includes implied claim allowance
stemming from a determinative time loss order.
After
consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire
record before us, we vacate the Proposed Decision and Order, and remand this
matter for further proceedings consistent with this order, and pursuant to
WAC 263-12-145(4). The parties are
advised that this order is not a final Decision and Order of the Board within
the meaning of RCW 51.52.110. At the
conclusion of the further proceedings the industrial appeals judge shall,
unless the matter is dismissed or resolved by an Order on Agreement of
Parties, enter a Proposed Decision and Order containing findings and
conclusions as to each contested issue of fact and law, based upon the entire
record, and consistent with this order.
Any party aggrieved by such Proposed Decision and Order may petition
the Board for review pursuant to RCW 51.52.104.
It is so ORDERED.
Dated this
4th day of June, 2007.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN
Chairperson
/s/
CALHOUN DICKINSON
Member
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