| IN RE: KEVIN RAVSTEN | ) | DOCKET NO. 88 3859 |
| ) | ||
| CLAIM NO. H-124411 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Kevin Ravsten, by
- Keefe Moote Law Offices, per
- Thomas P. Keefe and Kevin Keefe
- Employer, Western Foam Pak, Inc., per
- None
- Department of Labor and Industries, by
- The Attorney General, per
- G. Bruce Clement, Thornton Wilson, James S. Kallmer,
- and Beverly Norwood Goetz, Assistants
This is an appeal filed by the claimant, Kevin Ravsten, on October 6, 1988 from a third party proceeds distribution order of the Department of Labor and Industries dated August 8, 1988. The order states the claimant recovered $1,100,113.05 and required distribution of settlement proceeds: (1) net share to attorney for fees and costs $376,179.59; (2) net share to claimant $633,972.00; and, (3) net share to Department $89,961.46 plus interest from the date of recovery. The order declares a statutory Department lien in the amount of $117,238.85 against the third party recovery and further states that the Department has paid the claimant and his attorney an amount of $348,902.20 for fees and costs, leaving a balance of $89,961.46 plus interest from the date of recovery due to the Department for which the order makes demand of the claimant. The order further directs that no benefits or compensation will be paid [2] to or on behalf of the claimant until such time as the excess recovery totalling $606,694.61 has been expended by the claimant for costs incurred as a result of conditions covered under the claim. Reversed and remanded.
PROCEDURAL AND EVIDENTIARY MATTERS
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, Kevin Ravsten, to a Proposed Decision and Order issued on February 6, 1991 in which the order of the Department dated August 8, 1988 was reversed and the claim remanded to the Department with instruction to consider the costs of attendant care consistent with Findings of Fact made in the Proposed Decision and Order and to recalculate benefits due to Mr. Ravsten within the meaning of RCW 51.24.060 and to take other action as authorized under the law.
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.
DECISION
The matter of third party proceeds distribution in Mr. Ravsten's claim has previously been before this Board and is the subject of Ravsten v. Dep't of Labor & Indus., 108 Wn.2d 143, 736 P.2d 265 (1987). The Supreme Court specifically approved of the Board's method of third party distribution calculation. 108 Wn.2d at 159. However, the court disagreed with the Board's finding that Mr. Ravsten had not shown entitlement to attendant care services under RCW 51.32.060, when [3] considering benefits payable in this claim for purposes of calculating the Department's proportionate share of the third party action attorney's fees and costs. The court determined "[I]t is apparent that the time will come, if it has not already arrived, when attendant care will be required." 108 Wn.2d at 155. The court further determined that Mr. Ravsten had not established by competent testimony in that record the actual date upon which attendant care would be, or had become, necessary. The court thus remanded the matter in order that this determination and the projected costs of such care could be made, and the Department's proportionate share of third party action attorney's fees and costs be appropriately calculated.(1)
The present appeal before this Board is taken by Mr. Ravsten from the Department's third party proceeds distribution order issued after the Department's consideration of the matter again, pursuant to the court's remand in Ravsten, supra. We reject Mr. Ravsten's counsel's request that we involve ourselves in recalculating his third party action attorney's fees based upon evidence presented and legal argument made in the present appeal concerning past and future costs of Mr. Ravsten's attendant care. The present matter, as did the appeal considered by the Ravsten court, concerns only the amount of the Department's proportionate share of [4] attorney's fees and costs incurred by Mr. Ravsten in obtaining the third party recovery. Counsel's attorney's fees for that recovery were previously determined by the Board and affirmed by the court as correct. Ravsten, 108 Wn.2d at 157-159. The cost, past and/or future, of attendant care in this claim has no bearing upon the amount of attorney's fees and costs incurred by Mr. Ravsten in his third party action. Rather, the cost of attendant care could have bearing only upon the Department's proportionate share of Mr. Ravsten's third party action attorney's fees and costs, as well-reflected in the Ravsten decision:
. . . The Department recognizes that where an injured worker pursues a third party action and recovers, the Department is required to bear its proportionate share of attorney's fees and costs to the extent of the benefits paid or payable under RCW Title 51. In order to determine the benefits payable under RCW Title 51, there must be a projection of the benefits to which a claimant will be entitled in the future. The benefits payable cannot be computed, nor can the Department's proportionate share of attorney's fees and costs be computed until the date is established when attendant care will be required, as contemplated by RCW 51.32.060(14). Therefore, it is appropriate and proper that the cause be remanded to the Department for (a) the establishment of the date upon which attendant care will be required and (b) the duration of such care, based upon competent medical testimony.
Ravsten, 108 Wn.2d at 155-156 (Emphasis supplied).
For purposes of distribution of Mr. Ravsten's third party recovery, the costs of attendant care have now become moot because the Department's August 8, 1988 distribution order is premised upon, and accounts for, the Department paying 100% of Mr. Ravsten's attorney's fees and costs [5] incurred in the third party action due to the recovery therein being a deficiency recovery under RCW 51.24.010 as in effect on February 17, 1977, which was the date of Mr. Ravsten's on-the-job injury by third parties. See, Ravsten, supra, 108 Wn.2d at 144-145; and, Whalen v. Dep't of Labor & Indus., 35 Wn.App. 283, 286, 665 P.2d 1389 (1983).
"The questions the board may consider and decide are fixed by the order from which the appeal was taken (citations omitted) as limited by the issues raised by the notice of appeal." Lenk v. Dep't of Labor & Indus., 3 Wn.App. 977, 982, 478 P.2d 761 (1970). ". . . [A]lthough the evidence before the board might take a wide range, the board cannot enlarge the lawful scope of the proceedings, which is limited strictly to the issues raised by the notice of appeal. . . ." Brakus v. Dep't of Labor & Indus., 48 Wn.2d 218, 220, 292 P.2d 865 (1956). The Ravsten court, as we earlier indicated, made a final determination of the attorney's fees and costs related to the third party action. Since the Department has agreed and accounted for its payment of all of these fees and costs in its August 8, 1988 order, there was no need for our industrial appeals judge to consider evidence concerning the cost of attendant care, past or future, nor was it appropriate to remand the matter to the Department with instructions to further consider such costs, as was done in the Proposed Decision and Order(2). [6]
We do, however, find the Department's August 8, 1988 distribution order incorrect because the order makes demand upon Mr. Ravsten for interest "from the date of recovery" on the otherwise properly determined amount of $89,961.46 reimbursable to the Department by Mr. Ravsten.(3) We do not know of any authority which would allow the Department to assess [7] interest at this time on that amount. RCW 51.24.060(7) does allow the Department to file a warrant in superior court, which becomes a judgment of the court, in a sum representing the Department's unpaid lien stated in its order "plus interest accruing from the date the order became final". The Department's present distribution order, as was true of its prior distribution order, was appealed and has not become final. RCW 51.52.060; State ex rel Crabb v. Olinger, 191 Wash. 534, 538, 71 P.2d 545 (1937); Hunter v. Dep't of Labor & Indus., 190 Wash. 380, 388-389, 68 P.2d 224 (1937); and, In re Daniel Bauer, BIIA Dec., 47,841 (1977). The August 8, 1988 order is incorrect insofar as it makes demand for interest on the otherwise reimbursable amount.
We adopt from the Proposed Decision and Order Finding of Fact No. 1 and Conclusion of Law No. 1 and, in addition, make the following Conclusions of Law:
CONCLUSIONS OF LAW
2. The amount of attorney's fees and costs incurred by Mr. Ravsten in furtherance of making his third party recovery under RCW 51.24.010 as in effect February 17, 1977 was finally determined by the court in Ravsten v. Dep't of Labor & Indus., 108 Wn.2d 143, 736 P.2d 265 (1987). The amount of benefits paid and payable for attendant care under RCW 51.32.060 is not material to a determination of the Department's proportionate share of these third party action attorney's fees and costs because the Department is already paying 100% of the attorney's fees and costs due to the recovery being a deficiency recovery under RCW 51.24.010 as existing on the date of injury, February 17, 1977.
3. The Department's distribution order of August 8, 1988 did not become final, nor did any prior order of the Department claiming third party [8] distribution reimbursement from Mr. Ravsten, and the Department, under RCW 51.24.060(7) or any prior or existing statute, lacks authority to charge interest to Mr. Ravsten on the reimbursable amount.
4. The order of the Department dated August 8, 1988 which determined the claimant recovered $1,100,113.05 in a third party action and which directed distribution of proceeds: (1) net share to attorney for fees and costs $376,179.59; (2) net share to claimant $633,972.00; and, (3) net share to Department $89,961.46 plus interest from the date of recovery, which declared a statutory lien for the sum of $117,238.85 and which indicated the Department had paid the claimant and his attorney for fees and costs in the sum of $348,902.20, leaving a balance of $89,961.46 due the Department plus interest from the date of recovery and which made demand for $89,961.46 plus interest from the date of recovery and which ordered that no benefits or compensation will be paid to or on behalf of the claimant until such time as the excess recovery totalling $606,694.61 has been expended by the claimant for costs incurred as a result of the conditions covered under the claim, is incorrect and is reversed. The matter is remanded to the Department of Labor and Industries with directions to issue a new distribution order containing the same terms and provisions as contained in the order of August 8, 1988, but omitting therefrom the Department's claim for interest on the amount of $89,961.46 reimbursable by Mr. Ravsten to the Department, i.e., omitting the phrase "plus interest from date of recovery" from the three places where said phrase had appeared in the order dated August 8, 1988. [9]
It is so ORDERED.
Dated this 18th day of September, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member
(1) At 108 Wn.2d at 155 the court indicated it was proper that the cause be remanded to the Department while, in contrast, later in the decision the court held "The cause is remanded for further proceedings before the Board ..." 108 Wn.2d at 160. In any event, the parties agreed on mandate in superior court that the matter should be remanded to the Department. The present appeal before this Board, then, is taken by Mr. Ravsten from the subsequent order of the Department after remand to the Department.
(2) We are mindful of potentially confusing language in the Ravsten decision:
We hold that the computation of attorney's fees is to be upon the present value of the total award to the claimant, including permanent attendant care when the need is established. An attorney is entitled to fees based upon benefits secured by the claimant which result from the attorney's efforts, but an attorney is not entitled to fees based upon benefits which would have been paid to the claimant in any event.
108 Wn.2d at 160 (Emphasis supplied). This language could appear to confuse attorney's fees for obtaining additional benefits from the Department with fees incurred in obtaining recovery from a third party. The two are entirely separate. This Board is involved in setting attorney's fees for the obtaining of additional benefits (such as attendant care services) only where such additional benefits are obtained "on appeal to the board". RCW 51.52.120(2). The Director of the Department of Labor and Industries, upon application, fixes reasonable fees for services before the Department. RCW 51.52.120(1). When additional relief is granted to a worker or beneficiary through appeal to the court, the court fixes the attorney's fee for such services. RCW 51.52.130. From our review of the Ravsten decision, it appears that Mr. Ravsten's right to attendant care (as an additional benefit) may have been established in the courts and it may be the case that the superior court would involve itself pursuant to the mandate in Ravsten, if necessary, to determine whether any additional fees are owing to counsel related directly to establishing the right to attendant care benefits. In any event, this is immaterial to the correctness of the Department's August 8, 1988 distribution order and otherwise falls outside the scope of this Board's authority in this appeal.
(3)An amount of $89,961.46 is reimbursable to the Department due to the Department's lien of $117,238.85 being reduced by $27,277.39 which was the balance still owed by the Department for 100% of the third party action attorney's fees and costs in light of prior payments which the Department had made toward those attorney fees and costs. See, Third Party Recovery Worksheet, July 22, 1988, Exhibit No. 10.