| IN RE: EDNA E. SHORE | ) | DOCKET NO. 89 5898 |
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| CLAIM NO. F-713323 | ) | ORDER VACATING PROPOSED DECISION AND ORDER AND REMANDING APPEAL FOR FURTHER PROCEEDINGS |
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- APPEARANCES
- Claimant, Edna E. Shore by
- Casey & Casey, P.S., per
- Gerald L. Casey and Carol L. Casey
- Employer, Fraternal Order of Eagles # 483,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Art E. DeBusschere, Assistant, and
- Shawn Ruth, Paralegal
This is an appeal filed by the claimant, Edna E. Shore, on December 22, 1989 from an order of the Department of Labor and Industries dated December 7, 1989. The order affirmed an order dated March 30, 1989, which determined that the claimant was not eligible for disability benefits because the application to reopen the claim for aggravation of condition was not received within the appropriate time limit, and denied medical benefits to the claimant for the reason that there was no evidence that the condition covered under this claim had worsened. Remanded for further proceedings.
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 Department of Labor and Industries to a Proposed Decision and [2] Order issued on July 9, 1990 in which the order of the Department dated December 7, 1989 was reversed, and this claim remanded to the Department with direction to reopen the claim, and take such further action as is indicated by the law and the facts.
We have granted review for the purpose of remanding this matter to the hearing process, for a decision on the merits of whether the conditions causally related to the claimant's industrial injury of August 7, 1968 worsened or became aggravated between March 9, 1987 and December 7, 1989, such as to require further medical treatment.
This claim was first closed on March 11, 1971 and was last closed effective March 9, 1987. Ms. Shore's application to reopen the claim was filed on February 3, 1989. The order denying that application was issued by the Department on March 30, 1989. On April 27, 1989 Ms. Shore filed a notice of appeal with this Board from the Department order of March 30, 1989. Pursuant to the authority provided by RCW 51.52.060, the Department, on May 3, 1989, held its order of March 30, 1989 in abeyance and reassumed jurisdiction over the matter. It was not until December 7, 1989 that the Department issued its order, which is the subject of this appeal, that affirmed the order of March 30, 1989 denying the application to reopen the claim.
RCW 51.32.160, as amended in 1988, provides that an application to reopen a claim shall be "deemed granted" if an order denying the application is not issued within ninety days of receipt of the application. For good cause, the Department may extend the time for making the determination on the application for an additional sixty days. [3] Our Industrial Appeals Judge determined that the Department had ninety days from the date on which it reassumed jurisdiction over this matter, May 3, 1989, in which to issue a further order denying the application. Because its order of December 7, 1989 was entered more than ninety days from that date, it was concluded that the reopening application was deemed granted. We disagree.
The Department order of March 30, 1989 which denied the application to reopen the claim was issued well within ninety days of February 3, 1989, the date on which the Department received the application. The Department therefore met the time requirement contained within RCW 51.32.160. When the claimant filed her notice of appeal from that order, the Department had the specific authority, pursuant to RCW 51.52.060, to hold its order of March 30, 1989 in abeyance for a period of ninety days, which time period could have been extended by the Department for good cause stated in writing to all interested parties for an additional ninety days, pending further investigation. Obviously the Department did not act within the time limitations for further investigation provided by RCW 51.52.060.
However, unlike the provisions of RCW 51.32.160, RCW 51.52.060 contains no remedy to a party when the Department has failed to comply with its time limitations. We have held that the Department may not deny an aggravation application and, on its own motion, issue an abeyance order pursuant to RCW 51.52.060 in an attempt to artificially expand the time limitations provided by RCW 51.32.160. In re Donald D. Schroeder, Dckt. No. 90 3177 (July 16, 1990). To allow such action would render the [4] time limitations of RCW 51.32.160 completely illusory. On the other hand, there is nothing in RCW 51.32.160 which otherwise purports to modify the provisions of RCW 51.52.060, which allow the Department to reconsider any decision previously made when an appeal from such decision has been filed. When a party aggrieved by an order denying a reopening application has filed a protest or notice of appeal from that order, and the Department issues an abeyance order in response thereto, the provisions of RCW 51.52.060 apply. The Department's failure to comply with the time limitations contained within RCW 51.52.060 may subject the Department to an action for mandamus (See, e.g., RCW 7.16, et seq.) but will not result in the application to reopen being "deemed granted" pursuant to the provisions of RCW 51.32.160.
It is noted that the Department duly promulgated a regulation to implement the 1988 amendments to RCW 51.32.160. The pertinent portions of that regulation are completely in accord with our view on the issue here before us. We quote:
The director at any time may, upon the worker's application to reopen for aggravation or worsening of condition, provide proper and necessary medical and surgical services as authorized under RCW 51.36.010 ....
Applications for reopenings filed on or after July 1, 1988, must be acted upon by the department within ninety days of receipt of the application by the department or the self-insurer. The ninety-day limitation shall not apply if the worker files an appeal or request for reconsideration of the department's denial of the reopening application.
Emphasis added. WAC 296-14-400 Reopenings for Benefits. [5]
Pursuant to WAC 263-12-145(3) and RCW 51.52.102, we hereby set aside the Proposed Decision and Order entered on July 9, 1990 and remand this appeal to the hearing process for the scheduling of further proceedings on the sole issue of whether the claimant's conditions causally related to her industrial injury of August 7, 1968 worsened or became aggravated between March 9, 1987 and December 7, 1989, such as to require further medical treatment. A further Proposed Decision and Order shall be issued after the parties to these proceedings have had an opportunity to present such evidence as is appropriate to this limited issue. The Proposed Decision and Order shall be based upon the entire record and the parties shall have the right, pursuant to RCW 51.52.104, to petition for review of such further Proposed Decision and Order.
It is so ORDERED.
Dated this 28th day of September, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMONChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember