| IN RE: THOMAS N. HOULIHAN | ) | DOCKET NO. 67,414 |
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| CLAIM NO. H-422425 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Thomas Houlihan, by
- Jorgen E. Schleer, Attorney at Law
- Employer, Unknown
- Department of Labor and Industries, by
- The Attorney General, per
- William A. Garling, Jr. and Paula Selis, Assistants
This is an appeal filed by the claimant on April 4, 1984 from orders of the Department of Labor and Industries dated March 19, 1979 and August 8, 1979. The March 19, 1979 order provided a permanent partial disability award equal to 3.8% complete loss of hearing in both ears and closed the claim. The August 8, 1979 order adhered to the provisions of the prior order. On April 18, 1984 this Board entered an order granting claimant's appeal subject to proof of timeliness. 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 on January 11, 1985 to a Proposed Decision and Order issued on December 21, 1984. A response to that petition was received on January 22, 1985. The Proposed Decision and Order recommended that the order of the Department dated March 19, 1979 be reversed, and the claim remanded to the Department with direction to pay the claimant a permanent partial disability award equal to 33.34% complete loss of hearing in both ears, and thereupon close the claim.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed. [2]
The Department's Petition for Review strenuously urges that this Board has no jurisdiction to decide this appeal on its merits. The Department argues that by issuance of its order of August 8, 1979 (which Mr. Houlihan, the claimant, admittedly received) a final adjudication took place; and since no timely appeal was taken therefrom, it would follow that the matters determined thereby became res judicata.
Assuming the proper authority of the Department to issue its order of August 8, 1979, we would have to agree. The resolution of this issue must turn, then, on whether the order of August 8, 1979 was validly entered. If it was not, i.e., was a nullity as concluded in the Proposed Decision and Order, then this Board does have jurisdiction over the present appeal.
The record reveals that the order of August 8, 1979, was entered after two communications had been directed to the Department from one John S. Perazzo, a business agent for the claimant's union local. These communications were in the form of letters and are in the record before us as Exhibits 4 and 5. The initial communication of Mr. Perazzo dated March 30, 1979 was prompted by the order of the Department dated March 19, 1979, which allowed Mr. Houlihan's claim for hearing loss as an industrial injury, (sic) awarded a 3.8% loss of hearing in both ears, and closed the claim. That order contained prefatory language on both pages 1 and 2 which read:
"Any protest or request for reconsideration of this order must be made in writing to the Department of Labor and Industries in Olympia within sixty days. A further appealable order will follow such a request. Any appeal from this order must be made to the Board of Industrial Insurance Appeals, Olympia, within sixty days from the date this order is communicated to the parties or the same shall become final." [3]
It is critical to observe that in 1979 there were no statutory provisions, nor administrative regulations that have been cited to us, which bear at all upon the "alternative" of filing a request for reconsideration with the Department or an appeal to the Board of Industrial Insurance Appeals. Clearly, the only statutory provision bearing upon the appropriate language to be used in the prefatory paragraph to the Department's adjudicative orders was contained in RCW 51.52.050 and stated in pertinent part:
"... The copy, in case the same is a final order, decision or award, shall bear on the same side of the same page on which is found the amount of the award, a statement, set in blackfaced type of at least ten point body or size, that such final order, decision, or award must be appealed to the Board, Olympia, within sixty days, or the same shall become final."
Of even greater significance to the resolution of the issue in this appeal are the provisions contained in RCW 51.52.060, which has remained unchanged since last amended in 1977. That section delineates the process required for filing an appeal from "an order, decision, or award of the Department." It contains, in addition, five provisos enunciating the legal effect of the occurrence of certain operative facts, and further describes the authority of the department to act either on its own initiative or arguably in response to a notice of appeal. The last proviso is that with which we are most concerned in this case, and it reads:
"... That the Department, either within the time limited for appeal, or within thirty days after receiving a notice of appeal, may modify, reverse or change any order, decision or award, or may hold any such order, decision, or award in abeyance for a period of ninety days which time period may be extended by the Department for good cause stated in writing to all interested parties for an additional ninety days, pending further investigation in light of the allegations of the notice of appeal, and the board shall thereupon [4] deny the appeal, without prejudice to the appellant's right to appeal from any subsequent determinative order issued by the Department." (emphasis added).
The Petition for Review argues that the Proposed Decision and Order was erroneous in attaching significance to the failure of the Department to act within a ninety-day period to issue a further order, which authority is granted by a different proviso in RCW 51.52.060. We agree with the position of the Department expressed in its Petition for Review that the Department's order of August 8, 1979 should not be termed invalid by its failure to adhere to the ninety-day requirement expressed in statute.
However, we disagree with the characterization in the Department's Petition that the written expressions contained in Exhibits 4 and 5 constituted "ambiguous requests for reconsideration". Had Exhibit 4 been ambiguous, i.e., reasonably construed as either a request for reconsideration or a notice of appeal, we would also be sympathetic to the Department's argument. However, our reading of those exhibits leads us to conclude undeniably that the only thing intended by their filing was that each was intended as a notice of appeal. Under the statutory scheme in existence then and now, an appeal can only be made to this Board. The fact that it was sent to the Department of Labor and Industries is not fatal to this Board's jurisdiction, in view of the second proviso contained in RCW 51.52.060, which states:
" That failure to file notice of appeal with both the Board and the Department shall not be ground for denying the appeal if the notice of appeal is filed with either the Board or the Department:...." (emphasis added).
It is our analysis of the provisions of RCW 51.52.060 that where a document is addressed to either the Board or the [5] Department by a party aggrieved by an order, decision or award of the Department, and where such document can only be reasonably construed as a notice of appeal and not as a request for reconsideration, then the Department's sole authority to thereupon act would be to modify, reverse, change, or hold in abeyance for a specific time period, the action from which the appeal was taken. There exists no authority under such circumstances to simply later issue a so-called "adherence" order. It is our reading of Exhibits 4 and 5 that such could only be construed as a notice of appeal. "Appeal" language was specifically used even though not placed in the form of a pleading. Employees of the Department, who are experienced in matters of this kind, should have recognized those documents as intended appeals and forwarded them to this Board for processing. Failure of the Department to so do must not result in the appealing party being left without a remedy.
The Department's order of August 8, 1979 neither modified, reversed, changed, or held in abeyance its order of March 19, 1979. It simply "adhered" to the provisions of its prior order. Under the facts presented in this particular case, we think such action was ineffective to constitute a further and final adjudication of Mr. Houlihan's claim. The Department was without legal authority to issue an order with operative effect other than one consistent with the specific grant of authority in the final proviso of RCW 51.52.060. It attempted so to do; its attempt should be regarded as a nullity. Consequently, by reason of the timely notice of appeal filed with the Department from its order of March 19, 1979, the matter now before us must be considered timely, even though unfortunately receiving very belated attention. We do have jurisdiction to consider the merits, i.e., the percentage extent of the claimant's occupationally-related hearing loss, on which issue there is no dispute between the parties. [6]
FINDINGS, CONCLUSIONS AND ORDER
The Proposed Findings Nos. 1 through 3 are adopted herein as a portion of this Board's final Findings. Proposed Findings 4 through 7 are stricken and are replaced by our Findings Nos. 4 through 6 as follows:
4. On April 2, 1979, the Department received a document in the form of a letter dated March 30, 1979, filed on behalf of the claimant by a lay representative clearly showing the intent to be a notice of appeal from the Department order of March 19, 1979. Said document was directed to the attention of the adjudicator who had issued the order of March 19 and was not addressed to the attention of the Board of Industrial Insurance Appeals.
5. Following receipt of the notice of appeal dated March 30, 1979, the Department failed to forward the matter to the Board of Industrial Insurance Appeals to process as an appeal. On July 23, 1979 a further letter from the same lay representative on behalf of the claimant was filed with the Department again expressing the intent to file an appeal from the March 19, 1979 Department order.
6. On August 8, 1979 the Department issued an order which stated in its final paragraph:.
"THEREFORE IT IS ORDERED That the Department does hereby adhere to the provisions of the aforesaid order and notice (of March 19, 1979) and that the claim shall remain closed pursuant thereto."
Proposed Findings 8 through 15 are renumbered as Findings 7 through 14 and are also hereby adopted as this Board's final Findings. Proposed Conclusions 1, 2, 4 and 5 are adopted by reference herein as the Board's final conclusions. Proposed Conclusion No. 3 is stricken and is replaced by the conclusion which follows:
3. The order of the Department of Labor and Industries dated August 8, 1979, which ordered that it "does hereby adhere" to the provisions [7] of its prior order of March 19, 1979, was invalid and without legal effect in view of the Findings of Fact entered herein.
It is so ORDERED.
Dated this 29th day of April, 1985.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L HALL Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member