DANIEL BAUER ) DOCKET NO. 47,841
Claim No. F-586967 ) DECISION AND ORDER
APPEARANCES:
This is an appeal filed by the claimant on March 12, 1976, from an order of the Department of Labor and Industries dated January 15, 1976, which denied the application to reopen the claim for aggravation of condition for the reason that it was not presented within the statutory time limit of 7 years from the date compensation was terminated, December 3, 1968. Reversed and 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 Department of Labor and Industries to a Proposed Decision and Order issued by a hearing examiner for this Board on May 12, 1977, in which the order of the Department dated January 15, 1976 was reversed, and the claim remanded to the Department with direction to grant the aggravation application, and to take such other and further action as may be authorized or required by law.
The issue before us is strictly one of law and is adequately set forth, along with the background of this appeal, in the hearing examiner's Proposed Decision and Order.
We uphold the hearing examiner's determination of timeliness of claimant's aggravation application, but under a totally different rationale. Under the authority of Hunter v. Department of Labor and Industries, 190 Wash. 380 (1937), the statutory period for applying to reopen a claim for aggravation, as prescribed in RCW 51.32.160, [2] begins to run from the time the Department's order establishing or terminating compensation becomes a complete and final adjudication. In the instant case, inasmuch as no appeal was taken from the Department's order of December 3, 1968, establishing and terminating compensation (as had been done in the Hunter case), the statutory period for applying to reopen the claim for aggravation began to run 60 days from the date the order of December 3, 1968, was communicated to the claimant. See Ek v. Department of Labor and Industries, 181 Wash. 91 (1935). Without attempting to establish the precise date when the statutory aggravation period began to run in this case, it is sufficient to say that the claimant's aggravation application filed on
January 2, 1976, was well within seven years from the date the department's closing order of December 3, 1968, became a complete and final adjudication, since said date had to be a minimum of 60 days after December 3, 1968. The application was therefore timely filed.
As a final note, the hearing examiner, in his Proposed Decision and Order, directed the Department to "grant" the claimant's application. Manifestly, this was error inasmuch as the merits of the claim- ant's application to reopen this claim for aggravation were not before the Board on this appeal.
Proposed Findings 1 and 2 of the Proposed Decision and Order entered herein, are adopted by the Board and are incorporated herein by this reference. Proposed Finding No. 4 (sic) is hereby stricken, and in lieu thereof the Board makes the following as Finding No. 3:
3.Claimant filed his application to reopen this claim for aggravation of condition on January 2, 1976.
Based upon the foregoing findings, the Board makes the following conclusions:
It is so ORDERED.
Dated this 14th day of December, 1977.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/_____________________________________
PHILLIP T. BORK Chairman
/s/_____________________________________
SAM KINVILLE Member
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WILLIAM C. JACOBS Member