| IN RE: BETTY L. CLAYBERG | ) | DOCKET NO. 86 4295 |
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| CLAIM NO. J-673823 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Betty L. Clayberg,
- by Kenneth E. Phillipps
- Employer, Arrow Machining Co.,
- by Richard Shipp, President
- Department of Labor and Industries,
- by The Attorney General, per Loretta Lopez, Assistant
This is an appeal filed by the claimant on November 26, 1986 from an order of the Department of Labor and Industries dated December 19, 1985 which rejected the claim for industrial insurance benefits because there was no proof of a specific injury at a definite time and place in the course of employment, the claimant's condition was not the result of an industrial injury as defined by the industrial insurance laws, and the claimant's condition was not an occupational disease as contemplated by RCW 51.08.140. The appeal is dismissed for lack of Board jurisdiction.
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 on September 16, 1987 in which the order of the Department dated December 19, 1985 was affirmed. [2]
The threshold question is whether this Board has jurisdiction to reach the merits of Ms. Clayberg's appeal from the Department order of December 19, 1985. We conclude that we do not, both because claimant's appeal was untimely filed and because the claim is still pending before the Department as a result of claimant's timely protest to the December 19, 1985 order.
With respect to the timeliness of claimant's appeal, we note that the Department order of December 19, 1985 was received by Ms. Clayberg on either December 20 or December 21, 1985. Claimant did not file her notice of appeal from that order until November 26, 1986, long after the sixty day period prescribed by RCW 51.52.060 had elapsed. Accordingly, Ms. Clayberg's appeal was not timely filed.
In addition, the Department order of December 19, 1985 contained the following standard language: "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." The Board has consistently held that this standard notice in effect constitutes a legal covenant on the part of the Department to issue a further appealable order should a proper protest be filed. In other words, a timely protest legally precludes the Department order under protest from becoming final and binding. In re Santos Alonzo, BIIA Dec., 56,833 (1981).
A written protest to the Department order of December 19, 1985 was mailed to the Department by the claimant on January 2, 1986. That letter was never received by the Department. [3]
RCW 51.52.050 is silent with respect to how the filing of a protest is perfected. If filing is effectuated by mailing, then Ms. Clayberg's protest was timely filed despite the fact that it was never received by the Department. However, if filing is perfected only upon receipt, the claimant's protest would not be considered timely filed and the Department order of December 19, 1985 rejecting the claim would be final and binding.
For many years prior to 1982 there was an informal procedure before the Department permitting protests and requests for reconsideration. This procedure apparently arose because of the Department's authority, after the issuance of an order, to direct the submission of further evidence or the investigation of further facts under RCW 51.52.060. In filing protests, the parties complied with the time limitations and filing requirements established for notices of appeal to the Board by RCW 51.52.060, which provides in pertinent part:
"Any worker, beneficiary, employer, or other person aggrieved by an order, decision, or award of the department must, before he or she appeals to the courts, file with the board and the director, by mail or personally, within sixty days from the day on which such copy of such order, decision, or award was communicated to such person, a notice of appeal to the board." (Emphasis added)
Prior to 1982, RCW 51.52.050 read in pertinent part as follows:
"Whenever the department has made any order, decision, or award, it shall promptly serve the worker, beneficiary, employer, or other person affected thereby, with a copy thereof by mail, which shall be addressed to such person at his or her last known address as shown by the records of the department. 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 black faced type of at least ten point body or size, that [4] such final order, decision, or award must be appealed to the board, Olympia, within sixty days, or the same shall become final".
By Laws of 1982, Ch. 109 ] 4, RCW 51.52.050 was amended as follows to explicitly include the de facto protest procedure:
"Whenever the department has made any order, decision or award, it shall promptly serve the worker, beneficiary, employer, or other person affected thereby, with a copy thereof by mail, which shall be addressed to such person at his or her last known address as shown by the records of the department. 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 black faced 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)) shall become final within sixty days from the date the order is communicated to the parties unless a written request for reconsideration is filed with the department of labor and industries, Olympia, or an appeal is filed with the board of industrial insurance appeals, Olympia.
In codifying the de facto protest procedure in 1982, the Legislature did not specify how the filing of a protest was to be effectuated. RCW 51.52.050 does provide that the parties are to be notified of their right to file a protest in the same language as they are notified of their right to file an appeal with the Board. In addition, from a reading of RCW 51.52.050 and 51.52.060 in conjunction, it is clear that either a protest or a notice of appeal to the Board can be filed with the Department. Thus the requirements for effectuating the filing of a protest should be the same as those for a notice of appeal.
RCW 51.52.060 permits the filing of a notice of appeal with the Department or with the Board "by mail or personally." The Board has consistently interpreted that language to mean that the filing of a [5] notice of appeal is effectuated by mailing. In re Harold Francis, BIIA Dec., 68,154 (1985).
By the same token, we believe consistency dictates that the filing of a protest is effectuated by mailing. We therefore conclude that Ms. Clayberg's protest to the Department order of December 19, 1985, mailed on January 2, 1986, was timely filed. Thus, as a matter of law, this claim is still pending a final determination before the Department.
Accordingly, the appeal filed by the claimant on November 26, 1986, is dismissed for lack of Board jurisdiction. The claim is returned to the Department for further administrative action and adjudication and for the issuance of a further appealable order. The transcript of proceedings before this Board will be available to the Department for its consideration as part of such further administration and adjudication of this claim.
In support of our conclusion that this Board is without jurisdiction over this appeal we make the following findings and conclusions on the jurisdictional question only.
FINDING OF FACT
1. On December 9, 1985, Betty L. Clayberg filed an accident report with the Department of Labor and Industries alleging occurrence of an industrial injury on August 30, 1985 while in the course of her employment with Arrow Machining Company, Inc. On December 19, 1985 the Department issued an order rejecting the claim on the basis that there was no proof of a specific injury at a definite time and place in the course of employment, the claimant's condition is not the result of an industrial injury as defined by the industrial insurance laws, and the claimant's condition is not an occupational disease as contemplated by RCW 51.08.140. On January 2, 1986 the claimant mailed a letter of protest to the Department. On November 26, 1986 the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On December 19, 1986 this Board issued an order granting the [6] claimant's appeal subject to proof of timeliness, assigning it Docket No. 86 4295 and directing that proceedings be held.
CONCLUSIONS OF LAW
- Claimant's protest to the Department order of December 19, 1985 was timely filed pursuant to RCW 51.52.050 and 51.52.060. Claimant's notice of appeal from the Department order of December 19, 1985 was not timely filed pursuant to RCW 51.52.050 and 51.52.060. The Board of Industrial Insurance Appeals is without jurisdiction to hear this appeal from the Department order of December 19, 1985 both because claimant's appeal was untimely filed and because the December 19, 1985 order is not a final appealable order.
- Claimant's appeal is dismissed and the matter is returned to the Department of Labor and Industries for further administrative action and the issuance of a further order in response to claimant's timely protest and request for reconsideration.
It is so ORDERED.
Dated this 15th day of January, 1988.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member