| IN RE: EUGENE J. JACKL | ) | DOCKET NO. 86 2528 |
| ) | ||
| CLAIM NO. J-442943 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Eugene J. Jackl, by
- Robert A. Izzo
- Employer, Tacoma Towing, Inc., by
- Raymond Winter, Manager
- Department of Labor and Industries, by
- The Attorney General, per
- Elliott S. Furst, Christa Thompson and
- Deborah Brookings, Assistants
This is an appeal filed by the claimant on July 18, 1986 from an order of the Department of Labor and Industries dated May 19, 1986 which stated that the Department was without jurisdiction to enter the order and notice dated March 3, 1986 and declared that order null and void. The Department order is affirmed.
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 on July 27, 1987 in which the order of the Department dated May 19, 1986 was reversed and remanded to the Department to enter such further orders as are indicated in accordance with the opinion of the Proposed Decision and Order. [2]
This claim was closed on October 1, 1984. That order was received by the claimant. He did not file an appeal or protest within sixty days of communication.
On February 11, 1986, Mr. Jackl requested time-loss compensation for the period of July 5 through July 20, 1984. The Department initially denied that request on the merits by order of March 3, 1986. Mr. Jackl timely appealed the March 3 order, the Department reassumed jurisdiction, and on May 19, 1986 the Department issued an order stating that it was without jurisdiction to enter the order of March 3, 1986 and declaring that order null and void. The appeal presently before us is claimant's appeal from the May 19, 1986 order.
The issue presented is whether the Department order of October 1, 1984 closing the claim complied with the statutory notice requirements of RCW 51.52.050. Mr. Jackl contends that because the requisite notification of appeal and protest rights was in 9 point, 40% black faced type rather than 10 point type, the sixty day statute of limitations is inapplicable and the October 1, 1984 order has not become final and binding on the parties. According to claimant's theory, the Department therefore had authority to issue its March 3, 1986 order, denying claimant's request for the time-loss compensation on the merits.
The Department, on the other hand, concluded that the March 3, 1986 order was null and void based upon its determination that Mr. Jackl had failed to file a timely appeal or protest from the October 1, 1984 order. According to the Department, therefore, the October 1, 1984 order is a res judicata determination that Mr. Jackl is not entitled to the time-loss compensation for the requested period [3] prior to October 1, 1984, and the Department lacks jurisdiction to make any further decision on that question.
The parties stipulated that the October 1, 1984 order included statutorily mandated language regarding the claimant's right to protest or appeal from that order. It was further stipulated that the "notice of appeal rights" was printed in 9 point, 40% black faced type. RCW 51.52.050 requires that such language be printed "in black faced type of at least ten point body or size." Based upon the foregoing stipulation, the Industrial Appeals Judge determined that the October 1, 1984 order did not become final because it did not strictly comply with the notice requirements mandated by RCW 51.52.050. We disagree.
No evidence was presented that the claimant was in any way prejudiced by the Department's failure to print the "notice of appeal rights" in ten point, 100% black faced type. There is nothing in the record to suggest that due to the defects in the size or color of the type, the claimant was unable to understand or properly exercise his protest or appeal rights.
Any reliance which the claimant may have placed on the Board's prior decision of In re Molly L. McMillon, BIIA Dec., 22,173 (1966) is misplaced. The Board in McMillon held that mere knowledge of an order (as evidenced by a general appearance in an ancillary proceeding) was not sufficient to begin the running of the statutorily prescribed period to appeal the Department order. This differs substantially from the circumstances presently before us where the claimant did, in fact, promptly receive the notice as required by statute, but the provisions of the order relative to the claimant's right to protest and/or appeal [4] the order of October 1, 1984 were not in the statutorily prescribed ten point bold face type.
A case factually similar to the appeal presently before us is Porter v. Department of Labor and Industries, 44 Wn.2d 798, 271 P.2d 429 (1954). Porter involved a Department order which did not comply in all respects with the statutory "notice of appeal rights" provisions then in effect. There was no question, however, that the order had been served upon the claimant. Despite the failure of the Department order to strictly comply with the statute, the court held:
"In the absence of a showing that the workman or person aggrieved by the action of the Department was misled to his prejudice in the preparation or prosecution of his appeal, the variation from the language specified in the statute, while not to be approved, is not particularly important." Porter at 800-801.
We cannot condone the Department's failure to comply with the statutorily mandated type size in the design and printing of its orders. However, absent a showing that the defect in the order prejudiced the claimant in some fashion, we conclude that the order of October 1, 1984 substantially complied with the requirements of RCW 51.52.050. In so concluding, we note the judicial trend toward a rule of substantial compliance with respect to the somewhat analogous service requirements of RCW 51.52.110. In re Saltis, 94 Wn.2d 889 (1980).
Thus, because the claimant failed to file a timely protest or appeal from the October 1, 1984 order, it is res judicata that Mr. Jackl was not entitled to time-loss compensation for the period of July 5, 1984 through July 20, 1984, and the Department was without authority to reconsider that question on March 3, 1986. The Department order of [5] May 19, 1986 which determined that the Department was without jurisdiction to enter the March 3, 1986 order is correct and must be affirmed.
FINDINGS OF FACT
1. On July 10, 1984, the Department of Labor and Industries received a report of accident alleging that the claimant, Eugene J. Jackl, had sustained an injury on July 5, 1984, while in the course of his employment with Tacoma Towing, Inc. On October 1, 1984, the Department issued an order allowing the claim for medical treatment only, and closing the claim with no time-loss compensation and with no award for permanent partial disability.
On February 11, 1986, the Department received a letter from the claimant, through his attorney, Robert Izzo, contending that the claimant did not receive time-loss compensation from July 5, 1984 to July 20, 1984. On March 3, 1986, the Department issued an order stating that review of the evidence disclosed no error in the order of October 1, 1984, and that the claim remained closed pursuant to the provisions of that order.
On May 5, 1986, the claimant filed a notice of appeal from the Department order of March 3, 1986. On May 16, 1986, the Department issued an order reassuming jurisdiction, and holding its prior order of March 3, 1986 in abeyance. On May 16, 1986, the Board of Industrial Insurance Appeals issued an order returning the case to the Department for further action.
On May 19, 1986, the Department issued an order stating that the Department was without jurisdiction to enter its order of March 3, 1986, and that the order was therefore declared null and void. On July 18, 1986, the claimant filed a notice of appeal from the Department order of May 19, 1986. On August 1, 1986, the Board of Industrial Insurance Appeals issued an order granting the appeal, assigning Docket No. 86 2528, and directing that proceedings be held on the issues raised.
2. On July 5, 1984, the claimant sustained an injury to his right hand while working at Tacoma Towing, Inc. He filed a timely claim with the Department of Labor and Industries, and the claim was accepted. [6]
3. Mr. Jackl's claim was closed on October 1, 1984, which closure was communicated to the claimant via a postcard order. This postcard provided, in part, in 9 point, 40% black-face type:
"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."
The claimant received this postcard order.
4. No appeal or protest was filed by the claimant within sixty days of communication of the Department order of October 1, 1984.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this appeal.
- The order of October 1, 1984, substantially complies with the notification requirements of RCW 51.52.050 and the sixty day statute of limitations prescribed by RCW 51.52.050 therefore applies. Since no appeal or protest was filed within sixty days of communication of the order of October 1, 1984, that order is final and binding on the parties.
- The Department order of May 19, 1986 finding that it had no jurisdiction to enter the order of March 3, 1986, and declaring that order null and void, is correct and must be affirmed.
It is so ORDERED. [7]
Dated this 18th day of February, 1988.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
PHILLIP T. BORK Member