| IN RE: MIKE LAMBERT | ) | DOCKET NO. 91 0107 |
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| CLAIM NO. J-144825 | ) | ORDER GRANTING RELIEF ON THE RECORD |
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An appeal was filed by the claimant, on January 9, 1991 from a letter of the Department of Labor and Industries dated December 27, 1990 which denied reconsideration of an order dated September 7, 1990.
From a review of the Department record in this matter it appears that by the order of September 7, 1990 the Department distributed a third party recovery of $180,000, making demand for reimbursement from the claimant in the amount of $86,447.99. The order was entered by June Gorsky of the Department's third party section. On October 8, 1990 the Department received an October 4, 1990 letter from the claimant's attorney, addressed to June Gorsky. In the letter the claimant's attorney denies that the Department has any right to share in the $180,000 third party recovery and states his reasons for that position. Specifically, he states the Department is precluded from sharing in the recovery by virtue of the "employer fault" provision of the third party statute. RCW 51.24.060(1)(f). The attorney suggests that the issue could be decided by way of a declaratory judgment action and asks that the matter be referred to a Department staff attorney for further discussion.
The matter was referred to the Office of the Attorney General. However, by the letter dated December 27, 1990 the claimant's attorney was advised that the order of September 7, 1990 was "now final and binding." It is the contention of the Department that the letter of October 4, 1990 is not a request for reconsideration.
It is true that the attorney's letter of October 4, 1990 does not use the words "protest" or "request for reconsideration." It is also true that the attorney's letter does not specifically refer to the order of September 7, 1990. On the other hand, we have never imposed any strict requirements on what may constitute a "protest" or "request for reconsideration". See, e.g.., In re Charles Weighall, BIIA Dec. 29,836 (1970) (Application to reopen claim construed as protest of order closing claim). The use of "magical" statutory words is not required. It is sufficient if the Department receives a written document, filed within the time allowed by law, which is reasonably calculated to put the Department on notice that the party submitting the document is requesting action inconsistent with the decision of the Department. Upon receipt of the October 4, 1990 letter June Gorsky knew, or should have known, that the claimant was disputing the Department's right to share in his third party recovery and was thereby aggrieved by the order of September 7, 1990. [2]
Pursuant to RCW 51.52.080 we conclude that the record of the Department sustains the contention of the claimant that the letter of October 4, 1990 constitutes a timely protest of the order of September 7, 1990. As a result, t hat order is not "final and binding." In re Santos Alonzo, BIIA Dec., 56,833 (1981). The letter of December 27, 1990 is therefore reversed and this matter is remanded to the Department with direction to reconsider the order of September 7, 1990 and issue a further order appealable to this Board.
During reconsideration we suggest that the parties consider the implications of our decision in In re James Funston, Dckt. No. 88 2863 (August 16, 1990) (page 7). A copy of that decision is attached to this order.
It is so ORDERED.
Dated this 29th day of January, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member