|IN RE: IN RE: MAID-FOR-YOU||)||DOCKET NO. 88 4843|
|FIRM NO. 451,297-00-6||)||ORDER VACATING PROPOSED DECISION AND ORDER AND REMANDING FOR FURTHER PROCEEDINGS|
- Firm, Maid-For-You, by
- Anderson, Hunter, Dewell, Baker & Collins, P.S., per
- Vickie K. Norris
- Department of Labor and Industries, by
- The Attorney General, per
- Ann Silvernale, Assistant, and
- William Bayness, Legal Examiner
This is an appeal filed by the firm on December 22, 1988 from an order of the Department of Labor and Industries dated November 22, 1988 which affirmed Notice and Order of Assessment No. 57587, assessing $6,812.17 in industrial insurance premiums for the audit period July 1, 1985 through September 30, 1986.
The Proposed Decision and Order issued on November 22, 1989, which vacated the Department orders of October 26, 1988 and November 22, 1988, is vacated and the matter is remanded to the Industrial Appeals Judge for the purpose of holding hearings on the merits of the appeal taken by the firm on November 24, 1987 from the decision of the Department dated November 5, 1987.
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 firm to the Proposed Decision and Order.
The issue presented by this appeal and the evidence presented by the parties are adequately set forth in the Proposed Decision and Order. The parties stipulated to the evidentiary facts.
Maid-For-You was audited in August 1987 by Richard Scott, a Department field auditor. He wrote a letter to the employer on August 26, 1987, stating that the audit's preliminary finding was a debit balance of $4,686.17 and that, in approximately 35 days, a statement would be sent reflecting the balance found due after any adjustments. On November 5, 1987, Nadine Phillips, an industrial insurance accounts auditor, sent a letter to the employer, stating that based upon the audit summary of August 17, 1987, premiums were due in the amount of $6,866.17. The letter requested that amount be remitted within ten days. On November 24, 1987, Marilyn S. Puckett, as owner of Maid-For-You, wrote a letter to Nadine Phillips, stating, inter alia, "I am requesting an appeal of the actions taken on August 17, 1987 by Richard Scott, Auditor. I understand you will contact me regarding this appeal." The letters dated November 5th and November 24th are Exhibit Nos. 2 and 3 to the Employer's Memorandum of Authorities.
On January 14, 1988 a formal notice and order of assessment was issued by the Department and served upon Maid-For-You. On or about May 12, 1988 one of the employer's bank accounts was levied. Approximately a month later, a meeting was held between Department personnel and Ms. Puckett. Ms. Puckett showed the Department personnel her earlier appeal letter. They suggested an addition to the appeal in the form of a reason why the appeal was taken. Ms. Puckett added the reason, in long hand,  to the appeal letter and handed the letter back to the Department personnel. See Exhibit No. 4 to the Employer's Memorandum of Authorities. Thereafter, the Department purported to hold the January 14, 1988 order in abeyance by an order dated October 26, 1988. Then, on November 22, 1988, the Department purported to affirm the notice and order of assessment issued on January 14, 1988. The employer filed a timely appeal from the November 22, 1988 order.
Based upon the language of the statute, RCW 51.48.131, the letter dated November 24, 1987 responding to the Department's letter of November 5, 1987, which advised the employer of the amount due and owing and required a remittance of that amount within ten days, was a valid appeal.
The Department letter of November 5th, though not containing the statutory language regarding appeal rights, was still an action or determination of the Department from which an appeal could be taken. The Department has argued that the November 5th letter was not a "Notice and Order" and, therefore, could not be appealed. However, the Department may not use its failure to invoke the statutory language concerning appeals and protests as a defense. The November 5th letter advised the firm there was an audit debit balance and requested payment within ten days. That was a decision of the Department, appealable pursuant to RCW 51.48.131, or certainly pursuant to the second paragraph of RCW 51.52.050.
After the employer filed the November 24, 1987 notice of appeal, the Department did not act to modify, reverse, or change the November 5, 1987 decision within thirty days. See, RCW 51.48.131 and 51.52.060. Furthermore, the Notice and Order of Assessment dated January 14, 1988  merely reiterated the decision of November 5, 1987. Under the reasoning of In re Richard Wagner, BIIA Dec., 88 0962 (1988), the Department was without authority to issue the January 14, 1988 Notice and Order of Assessment and all subsequent orders issued by the Department thereafter are null and void.
Whether the letter of November 5, 1987 is viewed as a Notice and Order of Assessment appealable under RCW 51.48.131, or a decision of the Department appealable under RCW 51.52.050 and .060, either statute allows an appeal to be filed with this Board or the Department. Here, the employer chose to file the notice of appeal with the Department. Since the Department did not choose to modify, reverse, or change its decision of November 5, 1987, the appeal should have been forwarded to the Board.
The parties' stipulation contains the Department decision of November 5, 1987 and the employer's notice of appeal of November 24, 1987. It would be an action which would simply delay the inevitable if we were to remand this matter to the Department with directions to forward the appeal to us. In any event, we acquired jurisdiction by any theory prior to the issuance of the January 14, 1988 Notice and Order of Assessment since the Department failed to modify, reverse, or change the November 5, 1987 decision within thirty days of receiving the November 24, 1987 notice of appeal. The November 24, 1987 appeal will therefore be remanded to our Industrial Appeals Judge to conduct hearings on the merits.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order  of November 22, 1989 must be vacated, and proceedings be held on the merits of the November 24, 1987 appeal from the November 5, 1987 Department decision. Pursuant to WAC 263-12-145(3) the matter is remanded to the Industrial Appeals Judge with directions to hold such proceedings. The parties are advised that this order is not a final decision and order of the Board within the meaning of RCW 51.52.110. At the conclusion of the proceedings the Industrial Appeals Judge shall, unless the matter is dismissed or resolved by an Order on Agreement of Parties, enter a Proposed Decision and Order containing findings and conclusions as to each contested issue of fact and law, based upon the entire record, and consistent with this order. Any party aggrieved by such Proposed Decision and Order may petition the Board for review of such further Proposed Decision and Order, pursuant to RCW 51.52.104.
It is so ORDERED.
Dated this 9th day of July, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMONChairperson
FRANK E. FENNERTY, JR.Member
PHILLIP T. BORKMember