| IN RE: TINA GONZALEZ | ) | DOCKET NO. 89 5233 |
| ) | ||
| CLAIM NO. K-595231 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
Claimant, Tina Gonzalez, by- Flynn, Merriman, and Palmer, per
- Robert D. Merriman and Jay Flynn
- (formerly Lindsay, Flynn and Merriman, by
- John N. Lindsay)
Employer, A B Hop Farms, Inc. by- Mark Pleak, Bookkeeper
Department of Labor and Industries by- Office of the Attorney General, per
- Sharon M. Brown, Assistant, and
- Gary McGuire, Paralegal
This is an appeal filed by the claimant on November 16, 1989 from a letter determination of the Director of the Department of Labor and Industries dated September 21, 1989 in which the Director decided that vocational services are not necessary to return Ms. Gonzalez to work, because she "is qualified to work as a safety person and this type of work is in her labor market area." 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 claimant to a Proposed Decision and Order issued on October 9, 1990 in which the determination of the Director dated September 21, 1989 was affirmed. [2]
We have granted review for a number of reasons. First, the documents relied upon by the Director in making his decision were not clearly made a part of the record. We do so now; the Department file in Claim No. K-595231 is hereby made part of the record in this appeal.
In addition, the Industrial Appeals Judge used an incorrect legal standard for evaluating whether the Director had abused his discretion under RCW 51.32.095. The Proposed Decision and Order implies that the Director's interpretation of the law must be upheld so long as it is reasonable. To the contrary, in Hadley v. Dep't of Labor & Indus., 57 Wn. App. 670, 786 P.2d 817 rev. granted, 115 Wn.2d 1007 (1990), the court concluded that "Absent a showing of manifest unreasonableness, courts must affirm [the Department's discretionary decisions] so long as DLI properly interpreted and applied applicable law." Hadley, at 674 (Emphasis added). Thus Hadley establishes a two-pronged test. The first question is whether the Department has interpreted the law correctly. Since this is "a pure question of law, it is fully reviewable." Hadley, at 674.
We have also granted review because, while the Industrial Appeals Judge reached the right result, she did so for the wrong reasons. Some background is necessary.
On September 21, 1989 the Director determined that the claimant was not eligible for vocational services. Ms. Gonzalez appealed that determination on November 16, 1989 (Docket No. 89 5233). On September 27, 1989, the Department closed the claim with time loss compensation as paid through May 11, 1989 and with a permanent partial disability award [3] equal to 22% of the amputation value of the left arm at any point from below the elbow joint distal to the insertion of the biceps tendon to and including mid-metacarpal amputation of the hand. On October 16, 1989, the claimant appealed that order (Docket No. 89 4634). We have considered the record in Docket No. 89 4634 as part of the record in this appeal. By a letter received at the Board on July 30, 1990, the claimant requested that her appeal from the closure order be dismissed. In response to that request, this Board entered an Order Dismissing Appeal in Docket No. 89 4634 on August 2, 1990.
The Assistant Attorney General representing the Department immediately filed a Motion and Declaration for Summary Judgment of Dismissal in Docket No. 89 5233. She argued that the claimant's appeal from the Director's letter denying vocational services should be dismissed because RCW 51.32.095(7) prohibits the reopening of a claim "solely for vocational rehabilitation purposes." Thus the Assistant Attorney General argued that because of the dismissal of the appeal in Docket No. 89 4634, there was no relief which could be granted in the claimant's appeal from the Director's letter determination in Docket No. 89 5233.
The Industrial Appeals Judge declined to rule on the Assistant Attorney General's motion "as this is a matter which is to be resolved on stipulated facts only." 8/13/90 letter. In the Proposed Decision and Order, the Industrial Appeals Judge merely restated that position. The Proposed Decision and Order then proceeded to focus on the issue of "whether the Director abused his discretion when he decided that claimant [4] was not eligible for vocational services because she was employable as a safety person, and work as a safety person exists in the State of Washington, even though claimant resides in the State of Alabama." PD&O, at 3.
That issue became moot when the claimant dismissed her appeal in Docket No. 89 4634. In dismissing her appeal from the September 27, 1989 Department order closing her claim with time loss compensation as paid through May 11, 1989 and with a permanent partial disability award, Ms. Gonzalez conceded that she was employable from May 12, 1989 on. She has therefore conceded that the Director's September 21, 1989 decision to deny vocational services was correct since she was employable at that time.
Secondly, as the Assistant Attorney General correctly pointed out, under RCW 51.32.095(7) a claim cannot be reopened solely for vocational rehabilitation purposes. Having already agreed that her claim was properly closed on September 27, 1989, the claimant cannot now seek reopening of the claim solely for vocational rehabilitation services.
The Director's letter of September 21, 1989 is therefore correct and must be affirmed.
FINDINGS OF FACT
1. On September 14, 1987, the Department of Labor and Industries received an accident report alleging an injury to the claimant's left ring finger on September 10, 1987, while in the course of her employment with A B Hop Farms, Inc. The claim was accepted and benefits, including time loss compensation, were paid.
On September 21, 1989, the Director issued an employability determination which determined [5] that vocational services were not necessary to assist the claimant to return to work, as she was qualified to work as a safety person.
On November 16, 1989, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals from the Director's determination of September 21, 1989. On December 18, 1989, the Board issued an order granting the appeal, and assigning it Docket No. 89 5233.
2. On May 11, 1989, the Department of Labor and Industries issued a letter to the claimant approving the claimant to do the job of safety person for the claimant's employer at the time of the industrial injury.
3. As of May 11, 1989 and thereafter, the claimant was a resident of the State of Alabama.
4. On May 19, 1989 the Department terminated time loss compensation with payment through May 11, 1989.
5. On June 5, 1989 the claimant protested the May 19, 1989 order.
6. On September 27, 1989 the Department issued an order affirming the May 19, 1989 order, and closing the claim with time loss compensation as paid and with a permanent partial disability award equal to 22% of the amputation value of the left arm at any point from below the elbow joint distal to the insertion of the biceps tendon, to and including mid-metacarpal amputation of the hand.
On October 16, 1989 the claimant appealed the September 27, 1989 Department order to the Board. On November 14, 1989 that appeal was granted and assigned Docket No. 89 4634.
By a letter received at the Board on July 30, 1990, the claimant's attorney moved to dismiss her appeal in Docket No. 89 4634.
Accordingly, on August 2, 1990 the Board issued an Order Dismissing Appeal in Docket No. 89 4634. [6]
7. On August 9, 1990 the Assistant Attorney General representing the Department filed a Motion and Declaration for Summary Judgment of Dismissal in Docket No. 89 5233.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this appeal.
- By dismissing her appeal in Docket No. 89 4634, the claimant conceded that she was employable from May 12, 1989 through September 27, 1989. She therefore has conceded that the Director was correct on September 21, 1989 when he concluded that she was employable and that vocational services should not be provided. Thus no justiciable issue is raised in Docket No. 89 5233.
- Claimant agrees that Claim No. K-595231 was properly closed on September 27, 1989. Under RCW 51.32.095(7), the claim cannot be reopened solely for vocational rehabilitation purposes.
- The Director's determination of September 21, 1989 is correct and is affirmed.
It is so ORDERED.
Dated this 24th day of April, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMONChairperson
/s/
PHILLIP T. BORKMember