| IN RE: LOUISE J. SCHEELER | ) | DOCKET NO. 89 0609 |
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| CLAIM NO. J-288951 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Louise J. Scheeler, by
- Goodwin, Grutz & Scott per
- Jay C. Kinney
- Employer, Auburn East Mobile Home Park, by
- None
- Department of Labor and Industries, by
- The Attorney General per
- Whitney Petersen and Carol Weyerbacher, Paralegals, and
- LeAnn McDonald and Wilhelm Dingler, Assistants
This is an appeal filed by the claimant on February 24, 1989 from an order of the Department of Labor and Industries dated February 16, 1989 which affirmed an order dated January 4, 1989. That order provided as follows:
Pay retroactive time loss compensation for the period 6/25/83 to 11/20/87 in the amount of $16,912.52 upon adjustment of time loss rate based on gross monthly wages of $938.00, (not $1,071.30) and married with no dependents, which includes $300.00 monthly income in kind at the time of injury.
There has been no error in the Department action originally taken on Order and Notice of 12/12/83 to correct the monthly gross wages based on claimant's and employer's letter of 10/26/83 and a wage verification.
THEREFORE, the Department now pays the difference based on $938.00 of the monthly gross wages for the period indicated above without considering new wage information provided in your letter of 1/15/88, which was already paid only 60 days retroactively by Order and Notice of 2/28/88 as it is not a departmental error.
The Department order is reversed and remanded. [2]
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 April 2, 1990 which affirmed the order dated February 16, 1989.
The issue presented by this appeal is whether orders paying time loss compensation benefits to the claimant for the period June 25, 1983 through November 20, 1987 are res judicata as to the rate of compensation. Because the orders paying time loss compensation failed to detail or explain how the rate was calculated, it is our determination that the Department is not precluded from later recalculating the rate of compensation based on new information as to the gross monthly wage at the time of injury.
The facts in this appeal are not in dispute and were entered into the record by stipulation. On June 24, 1983 Ms. Scheeler suffered an industrial injury while working for Auburn East Mobile Home Park. This injury left her temporarily totally disabled. Time loss compensation benefits have been paid for periods beginning on June 25, 1983 and thereafter through November 20, 1987, based on gross monthly wages of $938.00. It has been stipulated, however, that at the time of her injury Ms. Scheeler actually earned gross monthly wages of $1,071.30 and that she was married with no dependents. After issuing only interlocutory orders, on August 26, 1983 the Department issued two determinative time loss orders for the periods June 25, 1983 through June 30, 1983 and July 1, 1983 through August 15, 1983. After a protest by [3] which Ms. Scheeler questioned the rate of time loss compensation, the Department issued an order on December 12, 1983. Exhibit 4. That order indicated that the time loss benefits had been paid at an incorrect rate and that the compensation rate was now corrected. However, while the order retroactively adjusted the rate of time loss compensation, it did not specify the actual time loss rate or the gross monthly wages on which it was based.
The order under appeal (which affirms the January 4, 1989 order set forth in Exhibit No. 2) readjusts time loss compensation retroactively from June 25, 1983 through November 20, 1987, by increasing the wage base to $938.00, but refuses to consider gross monthly wages of $1,071.30 for that period. The parties did not explain in their stipulation why the Department had agreed to adjust the time loss compensation rate retroactively for that period, but only to the extent of increasing the wage base to $938.00, not $1,071.30. Claimant's hearing brief contends that the Department readjusted Ms. Scheeler's time loss rate retroactively by including $300.00 in monthly income which was received in kind from the Auburn East Mobile Home Park, but refused to include the correct amount of wages from Issaquah Village in the readjustment. The January 4, 1989 Department order supports this interpretation. No rationale has been provided by the Department to explain why the Department feels that res judicata principles do not preclude one retroactive readjustment (from a $638.00 to a $938.00 wage base) but do preclude the other (to a $1,071.30 wage base). The January 4, 1989 order indicates that the Department is only considering the new wage [4] information (gross monthly wage of $1,071.30) for the period beginning 60 days prior to the day (January 20, 1988) on which the new wage information was provided. Apparently, the 60 day time period comes from RCW 51.28.040.
The parties stipulated that Ms. Scheeler's wages at the time of injury included $300.00 of monthly income "in kind" from the Auburn East Mobile Home Park, $200.00 per month from the mobile home park, and monthly wages of $571.38 from Issaquah Valley, another employer. Based on Ms. Scheeler's letter dated January 15, 1988 and received January 20, 1988, the Department has paid time loss compensation from November 21, 1987 through the present based on the full gross monthly wages of $1,071.30.
The Department and our industrial appeals judge are incorrect in asserting that prior final Department orders paying time loss compensation, but failing to explain how the time loss compensation rate was calculated, are res judicata determinations with respect to the rate of time loss compensation for the period of June 25, 1983 through November 20, 1987.
Claimant relies in part on In re Teresa Johnson, BIIA Dec. 85 3229 (1987). In that decision, we suggested that orders paying time loss compensation which do not detail or explain the underlying basis of the time loss rate are not res judicata as to that issue. However, as the Department and our industrial appeals judge correctly point out, Teresa Johnson is of limited value here because it involved the question of whether the Department could recoup previously paid time loss [5] compensation under the provisions of RCW 51.32.240. That specific statutory provision overrides res judicata principles in certain limited circumstances when the Department seeks recoupment of overpayments. There is no comparable underpayment statute available to claimants. The nearest thing to a statutory mechanism for correcting underpayments is RCW 51.28.040, which permits a retroactive change in the rate of compensation for a period of 60 days prior to the receipt of new information. Generally this provision is considered to apply to aggravation applications. However, the Department purportedly relied on that statute here to limit its ability to go back more than 60 days from the date that the claimant's new wage information was received. Yet neither RCW 51.32.240 nor RCW 51.28.040 answers the specific question before us, i.e., do the final unappealed Department orders paying time loss compensation for the period of June 25, 1983 through November 20, 1987 preclude Ms. Scheeler from now challenging the time loss rate?
A number of our prior decisions clearly express our refusal to construe orders of the Department as having finally decided issues which are not specifically addressed or which are addressed in an ambiguous way: In re Daniel A. Gilbertson, Dckt. No. 89 2865 (November 7, 1990); In re Gary G. Johnson , BIIA Dec., 86 3681 (1987); In re Lyssa Smith, BIIA Dec., 86 1152 (1988); In re Loss Thompson, BIIA Dec., 13,473 (1962). We explained in that, when the Department issues an order expressly addressing the issue of claim allowance and that order is protested by the employer, the Department is obligated to specifically address the allowance issue in a further order. A subsequent [6] determinative time loss order which the employer failed to timely protest or appeal did not preclude the employer from later challenging allowance of the claim. The determinative time loss order could not be construed as allowance of the claim for res judicata purposes since it failed to clearly apprise the employer that the claim had been allowed. We held that a determinative time loss compensation order which has been neither appealed nor protested is a binding res judicata determination only with respect to the issue resolved by that order, i.e., entitlement to time loss compensation awarded thereby. In reaching that decision, we looked to see whether the prior unappealed time loss compensation order clearly apprised the employer that the claim had been allowed, so as to preclude further litagation on that question. Gary G. Johnson, supra, pp. 4-5, citing King v. Dep't of Labor & Indus., 12 Wn.App. 1, 528 P.2d 271 (1974). We apply the same specific and clear notice requirements here.
The record of proceedings contains no reference to any Department order which clearly apprises Ms. Scheeler of the underlying basis of the time loss rate until the order of April 7, 1988 (which was timely protested) which apprises her of the rate to be paid commencing as of November 21, 1987 based on a gross monthly wage of $1,071.30, and the order under appeal dated February 16, 1989 which affirmed a January 4, 1989 order which indicates that the retroactive time loss compensation would be paid based on a monthly wage of $938.00. These were the first instances of the Department ever informing the claimant as to the underlying basis for the rate of time loss compensation. Thus, the claimant is not precluded by the principle of res judicata from [7] challenging the rate of time loss compensation for the period of June 25, 1983 through November 20, 1987.
Our decision in this regard is consistent with our adherence to fundamental fairness when we are asked to determine whether the principle of res judicata applies. Unless prior orders of the Department have apprised the parties in clear and unmistakable terms that the present controversy has already been finally adjudicated, no res judicata effect will be applied. When Ms. Scheeler protested the first determinative time loss order, the rate of time loss was positively placed into issue. The order of December 12, 1983 which stated only that the previous rate of compensation was incorrect without specifically stating the new rate, much less the basis for the new rate, did not apprise Ms. Scheeler as to the gross monthly wages which the Department was using as the basis for calculating her time loss compensation. Such an order, or subsequent like orders, cannot be res judicata as to that issue.
Furthermore, despite the Department's current posture in this appeal, it is clear that the Department itself does not consider its prior unappealed time loss compensation orders res judicata determinations with respect to the appropriate time loss rate. Otherwise, why would the Department have adjusted Ms. Scheeler's time loss rate retroactively by increasing the wage base to $938.00? We can find no legitimate reason within the record before us for the Department to refuse to correct the retroactive time loss rate completely, rather than partially as it has done. Accordingly, the Department must recalculate the rate of time loss compensation for the periods prior to [8] November 21, 1987 based on Ms. Scheeler's stipulated gross monthly wage of $1,071.30.
In so holding, we make the following Finding of Facts and Conclusions of Law:
FINDINGS OF FACT
1. On July 19, 1983, the Department of Labor and Industries received an accident report from claimant, Louise J. Scheeler, alleging that she sustained an industrial injury on June 24, 1983, while in the course of her employment with Auburn East Mobile Home Park. Time loss compensation was paid by interlocutory orders dated August 1 and August 2, 1983, for the period of June 28, 1983 through June 30, 1983. On August 26, 1983 the Department issued a determinative order, paying time loss for the period of June 25, 1983 through June 30, 1983, less deduction.
On October 28, 1983, the claimant protested the rate of time loss compensation. On December 12, 1983, the Department issued an order which stated that the compensation rate was now corrected and made a partial payment of time loss compensation for the period of June 25, 1983 through November 30, 1983 to adjust the compensation rate. On January 20, 1988, the claimant protested the rate of time loss compensation. On February 8, 1988, the Department issued an order correcting and superseding earlier orders of September 22, 1987, December 16, 1987, and January 4, 1988, recalculating the time loss compensation rate and adjusting the rate for the period November 21, 1987 through February 6, 1988.
After a February 17, 1988 protest and request for reconsideration, the Department issued an order on April 7, 1988 recalculating time loss compensation benefits for the period November 21, 1987 through March 22, 1988 based upon gross monthly wages of $1,071.30. The April 7, 1988 order stated: [9]
Monthly compensation is $801.53 as of 11-21-87 based on gross monthly wages of $1071.30 based on two jobs and an income in-kind of $300.00/mo at time of injury.
After an April 12, 1988 protest and request for reconsideration, the Department issued an order on June 24, 1988 adhering to the provisions of its order dated April 7, 1988.
After a June 29, 1988 protest and request for reconsideration, the Department issued an order on September 19, 1988 placing the June 24, 1988 order in abeyance. On January 4, 1989, the Department adjusted the time loss rate and paid additional retroactive time loss compensation for the period June 25, 1983 through November 20, 1987 based upon gross monthly wages of $938.00 (married with no dependents, including $300.00 monthly income in kind). After a February 3, 1989 protest and request for reconsideration, the Department issued an order on February 16, 1989 affirming the provisions of its January 4, 1989 order.
On February 24, 1989, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On March 10, 1989, the Board issued an order granting the appeal, assigning it Docket No. 89 0609, and directed that proceedings be held on the issues raised.
2. On June 24, 1983, Louise J. Scheeler was injured while in the course of her employment with the Auburn East Mobile Home Park. Her claim was allowed by the Department and benefits provided.
3. As of June 24, 1983, Ms. Scheeler was married with no dependents and earned gross monthly wages of $1,071.30, including $300.00 in-kind income and wages of $200.00 from Auburn East Mobile Home Park as well as wages of $571.30 from Issaquah Villa.
4. Between June 25, 1983 and February 16, 1989, Ms. Scheeler was not capable of gainful [10] employment on a reasonably continuous basis as a result of her industrial injury.
5. The Department has readjusted the time loss rate retroactively and paid additional time loss compensation for the period between June 25, 1983 and November 20, 1987 based upon gross monthly wages of $938.00 at the time of injury.
6. The Department has paid time loss compensation for the period between November 21, 1987 and February 16, 1989 based upon gross monthly wages of $1,071.30 at the time of injury.
7. No order prior to the order of the Department dated April 7, 1988 clearly apprised Ms. Scheeler, of the underlying factual basis used by the Department to calculate the rate of time loss compensation.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this appeal.
- Between June 25, 1983 and February 16, 1989, claimant was a temporarily totally disabled worker within the meaning of RCW 51.32.090.
- Pursuant to RCW 51.08.178, the time loss compensation rate to which the claimant is entitled is fixed by the month and is based on her monthly income at the time of injury, which equalled $1,071.30.
- On February 16, 1989 when the Department issued its order adhering to the order of January 4, 1989, the rate of compensation for time loss benefits from June 25, 1983 through November 20, 1987 was properly in issue, and determination of the proper rate for the entire period was not precluded by the doctrine of res judicata.
- The order of the Department of Labor and Industries dated February 16, 1989 which affirmed the provisions of an order dated January 4, 1989 which readjusted the time loss rate and paid additional retroactive time loss [11] compensation for the period June 25, 1983 to November 20, 1987 based upon gross monthly wages of $938.00 (married with no dependents and including $300.00 monthly income in-kind) is reversed and this matter remanded to the Department with directions to pay claimant time loss compensation for the period June 25, 1983 through November 20, 1987 based on a gross monthly wage at the time of injury of $1,071.30 (married with no dependents), less prior awards for said period.
It is so ORDERED.
Dated this 13th day of November, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member