|IN RE: DONZELLA GAMMON||)||DOCKET NO. 70,041|
|Claim No. S-407897||)||ORDER SETTING ASIDE PROPOSED DECISION AND ORDER AND REMANDING TO INDUSTRIAL APPEALS JUDGE|
- Claimant, Donzella Gammon, by
- Sharpe Law Firm, per
- Gwynn Townes and Mark Lange
- Self-insured employer, Sisters of Providence in Washington, by Schwabe, Williamson, Wyatt, Moore and Roberts, per
- Gary D. Keehn and Janet Smith
This is an appeal by the claimant received by this Board on March 14, 1985, from an order of the Department of Labor and Industries dated December 20, 1984. The order adhered to the provisions of an order dated August 24, 1984 which closed the claim with no permanent partial disability award. Remanded to Industrial Appeals Judge for further proceedings.
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 employer to a Proposed Decision and Order issued on June 20, 1985 in which this appeal was dismissed and the matter recommended to be returned to the Department for its further consideration of the issues raised by the protest to the Department's order.
The question posed by the Petition for Review concerns whether the Department order dated December 20, 1984 became final and unreviewable.
When a determinative order is issued by the Department of Labor and Industries, the law permits an aggrieved party to either request reconsideration of the Department or to file an appeal with the Board of Industrial Insurance Appeals. RCW 51.52.050. The aggrieved party  (the claimant in this particular case) must do so within 60 days of the date the Department's order was communicated. RCW 51.52.050; RCW 51.52.060. The 60-day period is jurisdictional and the Board has no authority to waive its application. Lewis v. Department of Labor and Industries, 46 Wn.2d 391 (1955).
A careful review of this claim's chronology, however, does reveal that timely action was taken by the claimant sufficient to toll the finality of the order on appeal.
This claim was opened following the claimant's injury in March, 1981. The claim remained open until the Department issued an order on August 24, 1984 closing the claim with time-loss compensation through April 1, 1984 and without award for permanent disability. The claimant protested that action to the Department on September 18, 1984. The Department responded to the protest by holding its August 24, 1984 order in abeyance, pending further consideration. On December 20, 1984 the Department issued another determinative order adhering to the closure of the claim. The Department attempted to obliterate from its December 20, 1984 order a printed recitation of the parties' rights to protest or request reconsideration of said order.
A letter from claimant's counsel was received by the Department on February 14, 1985. The substance of that communication challenged the correctness of the Department's order of December 20, 1984, and set forth the reasons for so challenging. It also contained a statement of claimant's intent to "protest" to the Department as opposed to "appealing" to the Board.
Though this letter was filed within the sixty-day protest and/or appeal time limitation, the Department did not transmit it to this  Board until March 14, 1985. Since 84 days had elapsed from the issuance of the Department order to receipt by this Board of the letter, the appeal was granted "subject to proof of timeliness".
The Proposed Decision and Order characterized the February 14, 1985 communication to be a timely protest, and directed the matter to be returned to the Department for further consideration. The employer's Petition for Review objects to this result, arguing that the language of the claimant's letter prevented it from being considered an appeal, and that the attempted expunging of the "right to protest" language from the Department's order prevented the letter from effectuating a protest. We are thus urged to dismiss this appeal outright.
As indicated above, parties' appeal rights (and rights to request reconsideration) are governed by statute. RCW 51.52.050 specifically provides, in part:
"Whenever the department has taken any action or made any decision relating to any phase of the administration of this title the worker, beneficiary, employer, or other person aggrieved thereby may request reconsideration of the department or may appeal to the board."
Because parties' enjoyment of review and appeal rights is regulated by the law creating those rights, we do not believe an attempted expunging of the protest language from the face of an order can, by that act alone, completely divest an aggrieved party of its review rights.
Nevertheless, the statute is silent and does not mandate or specify action the Department is to take upon receipt of a timely protest. When read together, RCW 51.52.050 and 51.52.060 permit that either a protest or an appeal may be filed with the Department. It appears to remain within the Department's discretion, when it has made no representation  that a further determinative order will be issued, to determine whether the document challenging its order is to effectuate a protest or an appeal.(1) In this case, the Department advised the parties of its probable determination at the time of its order by attempting to obliterate, i.e., "x-ing out" that portion of its printed form explaining the request for reconsideration alternative. The fact that claimant's February 14, 1985 letter attempted to alter the Department's choice merely provided the Department with notice of claimant's intent and could not operate to bind the Department to entry of a further order.
However, we believe the letter of February 14, 1985 did operate to toll the finality of the December 20, 1984 order. Fifty-six days elapsed between the date of the Department order and the letter's filing. The fact that the Department delayed in transmitting the matter to the Board is inconsequential to the claimant's rights herein. The letter of February 14, 1985 must properly, under the circumstances of this case, be considered a notice of appeal. Pursuant to RCW 51.52.060, the notice of appeal appears to have been timely filed and this Board must take jurisdiction over the appeal. Any other result would be untenable. We cannot believe that the legislature intended that the appeal rights of a party feeling aggrieved by a Department order, whether that party is a claimant or an employer, could be legally foreclosed by an administrative  practice of "x-ing out" certain information on rights on a printed form, or by administrative delay in forwarding a document expressing dissatisfaction with a Department decision from one agency to another.
Accordingly, the Proposed Decision and Order of June 20, 1985 is set aside and this appeal is remanded to Industrial Appeals Judge Ethel Williams to hold further proceedings on the merits of the appeal. Parenthetically, we note that this disposition of the matter is in accord with the "alternative" prayer for relief in the employer's Petition for Review.
This order shall not be considered the Board's final order herein. This remand is made without prejudice to the right of any party to file a Petition for Review as prescribed by RCW 51.52.104 from the Proposed Decision and Order to be hereafter entered.
It is so ORDERED.
Dated this 5th day of August, 1985.
BOARD OF INDUSTRIAL INSURANCE APPEALS
MICHAEL L. HALL Chairperson
FRANK E. FENNERTY, JR. Member
PHILLIP T. BORK Member
(1) 1The Department's determinative orders generally contain language in bold-faced type that a "further appealable order will follow" upon receipt of a request for reconsideration. This Board has in other cases directed the Department so to do where it is clear that only a request for reconsideration was intended by the aggrieved party. But here that "promise" was attempted to be obliterated from the printed form. Since no such obligation is created by statute, the Department's obligation to act on the instant protest is not bound by such "promissory" custom.