Significant Decisions

See TIMELINESS OF CLAIM Filing
A written report of accident completed at the hospital with the assumption that it would be mailed to the Department could not be considered a timely claim for benefits where there was no evidence that the report was mailed to or received by the Department within one year of the date of injury. The hospital was not an agent of the Department in dealing with the worker who had the sole responsibility for timely filing his claim. ....Carl Kinder, 44,967 (1976) [dissent]


IN RE: CARL KINDER ) DOCKET NO. 44,967
  )  
Claim No. G-675209 ) DECISION AND ORDER
  )  
APPEARANCES
Claimant, Carl Kinder, by
Jackson, Ulvestad & Goodwin, per
Roy E. Jackson and Brian D. Scott
Employer, Buleh Winslow,
None
Department of Labor and Industries, by
The Attorney General, per
Joseph Albo, Robert L. DiJulio and
James Kallmer, Assistants

This is an appeal filed by the claimant on December 30, 1974, from an order of the Department of Labor and Industries dated December 23, 1974, which rejected this claim on the ground that it was not filed within one year after the day on which the alleged injury occurred. Sustained.

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 by a hearing examiner for this Board on September 11, 1975, in which the order of the Department dated December 23, 1974, was sustained.

The Board has reviewed the evidentiary rulings of the hearing examiner and finds that no prejudicial error was committed and said rulings are hereby affirmed.

The issue before the Board in this appeal is whether the claimant filed a claim with the Department within one year following an injury he allegedly sustained while in the course of his employment with Buleh Winslow on June 15, 1973, as required by the provisions of RCW 51.28.050.

The hearing examiner in his Proposed Decision and Order has adequately discussed the facts upon which the claimant is attempting to rely to substantiate the allegation that he filed his claim within [2] one year of the alleged injury; and therefore there is no need to repeat such facts in detail here.

It has been held by our Supreme Court that in order to qualify as a "claim," some sort of written information must be received by the Department which "reasonably directs its attention to the fact that an injury, with its particulars, has been sustained and that compensation is claimed."Beels vs. Department of Labor and Industries, 178 Wash. 301; Nelson vs. Department of Labor and Industries, 9 Wn. 2d 621; and Leschner vs. Department of Labor and Industries, 27 Wn. 2d 911.

There is no evidence presented in this appeal that anything in writing was received by the Department within one year following the date of alleged industrial injury. The claimant testified to some sort of a report that he filled out at a hospital, which he assumed would be mailed to the Department, but he acknowledged that he did not follow up to see whether it actually was in the mail. However, even assuming that claimant did fill out a form in writing at a hospital under the assumption that it was to be mailed to the Department, this did not constitute filing a claim with the Department, because the hospital was not an agent of the Department in dealing with the claimant. Leschner, supra.

In his Petition for Review, counsel for the claimant argues that to deny the claimant benefits on the ground that he did not get an actual claim form into the Department's file, through no fault of his own, would be "controverting" the purpose of the Act. He also alleges that the claimant had applied for benefits under the Act on at least four occasions, two of which were within the one year period. However, we have noted above that filling out a report at a hospital, which the claimant allegedly did on at least two occasions, could not constitute filing a claim with the Department of Labor and Industries. Leschner, supra. Furthermore, the Court has held that the ultimate [3] responsibility for filing a timely written claim rests solely with the workman. Pate v. General Electric Company, 43 Wn. 2d 185.

The claimant's counsel further argues in his Petition for Review that information concerning the alleged injury was transmitted to an employee-agent of the Department, a Mr. William Moffat, within one year, and that it was Mr. Moffat's duty under the Act to assist the claimant in filling out a report of accident. Although claimant's counsel does not argue that by notifying Mr. Moffat of the details of the accident, this constituted filing a claim with the Department, he apparently is urging that mere oral notice to an agent of the Department satisfies the statute.

We agree with the hearing examiner that there is very serious question concerning the particulars of the conversation that the claimant had with Mr. Moffat, if such conversation took place at all. Mr. Moffat testified that he did not remember any such conversation. The Board does not believe that the statute was satisfied by any vague oral conversation which the claimant may have had with an employee of the Department.

FINDINGS

After a careful review of the entire record, the Board finds as follows:

  1. The Department of Labor and Industries received a report of accident from the claimant, Carl Kinder, on December 10, 1974, alleging that an industrial injury occurred on June 15, 1973, while the claimant was in the course of employment with Buleh Winslow.
  2. On December 23, 1974, the Department of Labor and Industries issued an order denying the claim for the reason that no claim was filed by the claimant within one year after the day on which the alleged injury occurred. On December 30, 1974, claimant filed a notice of appeal to this Board, and on January 17, 1975, the Board entered an order granting the appeal.
  3. Within one year following June 15, 1973, the claimant signed two written reports of some [4] type at Harborview Hospital, containing information concerning an alleged industrial injury occurring on June 15, 1973. Neither of these reports were ever transmitted to the Department of Labor and Industries.
  4. At no time within one year subsequent to June 15, 1973, did the Department of Labor and Industries receive anything in writing concerning an industrial injury allegedly sustained by this claimant, Carl Kinder, in the course of his employment with Buleh Winslow on June 15, 1973.
  5. The claimant did not at any time within one year following June 15, 1973, inform an agent for the Department of Labor and Industries that he had suffered an industrial injury and wished to file a claim therefor.
  6. At no time within one year following June 15, 1973, did an agent of the Department of Labor and Industries mislead the claimant concerning his rights under the Workmen's Compensation Act.

CONCLUSIONS

From the foregoing findings of fact, the Board concludes as follows:

  1. This Board has jurisdiction of the parties and the subject matter of this appeal.
  2. The claimant did not file a timely application for benefits under the Workmen's Compensation Act, and this claim therefore cannot be recognized.
  3. The order of the Department of Labor and Industries dated December 23, 1974, rejecting this claim, is correct and should be sustained.

It is so ORDERED.

Dated this 12th day of March, 1976.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

PHILLIP T. BORK Chairperson

/s/

R. M. GILMORE Member

 

DISSENTING OPINION

I am convinced the claimant had the conversation with Mr. [5] Moffat, an agent of the Department of Labor and Industries. I am convinced that the conversation was as reported by the claimant. This conversation, in my opinion, coupled with the claim form at Harborview Medical Center, is sufficient to constitute a valid claim. By broadly and liberally construing the law for the benefit of the worker, I would reverse the Department order and instruct the Department to accept the claim as timely filed.

Dated this 12th day of March, 1976.

 

/s/

SAM KINVILLE Member

 


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