Significant Decisions

See BOARD Order on agreement of parties
An industrial appeals judge does not render a final judgment or final decision and order; only the Board has such authority under RCW 51.52.050. Where an industrial appeals judge declined to accept the parties' stipulation after the hearing date on the basis that issuance of a proposed decision and order, dismissing the matter for failure to present evidence when due, was merely a ministerial act, the proposed decision and order should be vacated and an order, based upon the agreement of parties, entered. ....John Herrin, 89 5253 (1991)

See also SAFETY AND HEALTH Order on Agreement of Parties



IN RE: JOHN A. HERRIN ) DOCKET NO. 89 5253
  )  
Claim No. K-423198 ) ORDER ON AGREEMENT OF PARTIES
  )  
APPEARANCES

Claimant, John A. Herrin,
Pro Se, and by
Kenneth W. Trapp, D.C.

Employer, Callen Construction Co., Inc., by
None

Department of Labor and Industries, by
The Attorney General, per
Dennis J. Beemer, Assistant,
Gary W. McGuire and Sherry Silver, Paralegals, and
Dale E. Becker, Legal Intern

This is an appeal filed by the claimant on November 21, 1989 from an order of the Department of Labor and Industries dated November 1, 1989, affirming an order dated July 25, 1989, which provided the claim had been reopened on January 28, 1989 for authorized treatment, the record revealed treatment was no longer necessary, there was no permanent partial disability, and the claim was closed. Reversed and remanded.

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 January 28, 1991 in which the appeal was dismissed.

The Board has reviewed the record of proceedings and finds that the Proposed Decision and Order contains an error of law. The Proposed [2] Decision and Order states a dismissal of the appeal occurred at a hearing held on December 28, 1990 and the Proposed Decision and Order issued on January 28, 1991 was a ministerial act. It further states that even though a signed stipulation of the parties, designed to form the basis of an Order on Agreement of Parties was received on December 31, 1990 at the Board offices, it could be given no force and effect.

The law is clear that an industrial appeals judge does not render a final judgment or a final decision and order. Only the Board has such authority under the statute. RCW 51.52.020. Rosales v. Dep't of Labor & Indus., 40 Wn. App. 712, 700 P.2d 748 (1985). The action which occurred on December 28, 1990 at the hearing was not determinative of the appeal except to form the basis in the record for the Proposed Decision and Order issued thereafter. The appeal could not have been dismissed by the judge at the hearing and it could not be dismissed by the Proposed Decision and Order except by formal adoption by the Board of that Proposed Decision and Order. That formal adoption has not occurred. RCW 51.52.104.

After negotiations at a conference held upon due and proper notice, the parties apparently reached an agreement and a means of settling the appeal. The Assistant Attorney General drafted a stipulation, signed it, and sent it to Mr. Herrin. The industrial appeals judge required that the stipulation be returned, signed by Mr. Herrin, before December 28, 1990. Otherwise Mr. Herrin would be expected to appear and proceed with the presentation of witnesses in support of his appeal. Though Mr. Herrin technically may have failed to abide by our industrial appeals [3] judge's directions to return the signed stipulation by December 28, he did return it on December 31, signed and prior to the issuance of the Proposed Decision and Order. The interests of the parties and justice would have been better served had our industrial appeals judge immediately drafted an Order on Agreement of Parties based upon that stipulation. instead, unnecessary delay has occurred and the Proposed Decision and Order must be vacated.

ORDER

The claimant and the Department have requested that based on the record and a written stipulation, the Board enter an order resolving the issues presented by this appeal. The Board finds that the agreement conforms to the law and the facts of the case and concludes that a final Decision and Order should be entered. The Proposed Decision and Order of January 28, 1991 is vacated. The Department order of November 1, 1989 is reversed and the claim is remanded to the Department to issue an order reimbursing Kenneth W. Trapp, D.C. for chiropractic services rendered to John A. Herrin from July 26, 1989 through April 24, 1990 in the amount of $412.80 and to reimburse Joseph Sueno, M.D., for treatment rendered to John A. Herrin in the amount of $272.00, and to thereupon close the claim without further time loss compensation or permanent partial disability. [4]

It is so ORDERED.

Dated this 21st day of March, 1991.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

SARA T. HARMONChairperson

/s/

FRANK E. FENNERTY, JR.Member

 


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