| IN RE: CAROL ALLEN | ) | DOCKET NO. 91 1837 |
| ) | ||
| CLAIM NO. H-261463 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Carol Allen, by
- Schroeter, Goldmark & Bender, P.S., per
- Sidney S. Royer, Attorney and Lisa Peterson, Legal Assistant
- Employer, Dexon Systems International, Inc.,
- None
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Linda Williams and Jeffrey Bean, Assistants, and
- Linda Meller, Paralegal
This is an appeal filed by the claimant, Carol Allen, on April 10, 1991 from an order of the Department of Labor and Industries dated March 4, 1991 which affirmed a Department order dated November 3, 1988, which denied the claimant's application to reopen her claim for alleged aggravation of condition filed on August 5, 1988, because it was not filed within the statutory time limit of seven years from the date compensation was terminated on April 3, 1980. Reversed and Remanded.
PROCEDURAL MATTERS
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 September 25, 1991 in which the order of the Department dated March 4, 1991 was affirmed. [2]
A review of the historical and jurisdictional facts in this claim raises a question concerning our jurisdiction to hear this appeal. The Department issued the order on November 3, 1988 denying the claimant's application to reopen her claim. The notice of appeal from that order was not received until February 6, 1989.
We have reviewed the Department file pursuant to In re Mildred Holzerland, BIIA Dec., 15,729 (1965), and that review leads us to conclude that the Department order dated November 3, 1988 was timely appealed. The order was not initially received by Ms. Allen. It was returned by the Postal Service to the Department, and then remailed to her on January 11, 1989. Thus, the notice of appeal received on February 6, 1989 was timely, and the Department had authority, pursuant to RCW 51.52.060, to hold the November 3, 1988 order in abeyance by its order of March 1, 1989, and to eventually affirm the order by its final order issued on March 4, 1991. Claimant's timely appeal from the latter order gives this Board jurisdiction to now determine this matter.
DECISION
This appeal deals with the 1988 amendments to RCW 51.32.160, which substantially changed the time periods in which injured workers could apply to reopen their claims due to alleged aggravation of their conditions.
The parties apparently attempted to streamline and expedite this appeal so that certain legal issues raised by Ms. Allen pertaining to those statutory amendments could be directly reviewed in Superior Court. [3] The record of proceedings is very skimpy and leads us to question the correctness of the action taken by the Industrial Appeals Judge.
The order now on appeal affirmed the prior Department order dated November 3, 1988, which denied the reopening application because it was not filed within seven years from finality of the original closing order. A review of the stipulated jurisdictional facts supports this position. Ms. Allen's claim was originally closed by a final order issued on April 3, 1980. The aggravation application which led to the Department order of November 3, 1988 was received by the Department on August 5, 1988.
We have previously held that the 1988 amendments to RCW 51.32.160 were remedial in nature and do apply to any application to reopen a claim filed subsequent to the effective date of the amendments, which was June 9, 1988. In re Marvin Sandven, BIIA Dec., 89 3338 (1990).
The legal arguments presented by Ms. Allen in her Petition for Review do not persuade us to change our prior decision. These arguments have been presented in prior appeals, and the Sandven decision continues to represent our view of the applicability of the 1988 amendments to all applications to reopen claims filed after the effective date of those amendments.
We have granted review because we are concerned by a further issue raised by the claimant in her Petition for Review. For the first time, Ms. Allen requests "in the alternative" that the Board remand the claim to the Department for consideration of the claimant's need for medical treatment. [4]
Even though Ms. Allen's application to reopen was filed after the seven-year period allowed for seeking further disability compensation, she would still be able to obtain additional medical services if her condition causally related to the 1977 injury objectively worsened during the aggravation period, and if so, whether she was in need of further medical treatment for such worsened condition. The seven-year time limitation does not apply to a reopening for that limited purpose. In re Marvin Sandven, id., In re Mike L. Streubel, BIIA Dec., 89 4867 (1990).
The Department order on appeal did not address the question of worsening and need for treatment. To that extent, it was incorrect since, under the 1988 amendments, there is no time limitation on applications for reopening to receive further treatment based on aggravation of condition. Under these circumstances, we see no other action for us to take except to reverse the Department order and remand the claim to the Department for consideration of the issues of worsening of Ms. Allen's causally related condition and whether or not she is in need of further treatment.
We realize that Ms. Allen may still want to take an appeal to Superior Court on her legal arguments, rather than deal further with the Department on this last-minute "alternative" issue. If she is really seeking benefits other than treatment, she can still appeal this order to Superior Court on the issue of timeliness of her 1988 aggravation application, based on the same legal arguments presented in her Petition for Review. [5]
The claimant's Petition for Review also requests that we add a finding that Ms. Allen had no personal knowledge of the 1988 amendments to the aggravation statute. Since the parties did stipulate to this fact at the proceeding held on August 26, 1991, we will include it as a finding.
Based on all the foregoing, we hereby adopt Proposed Finding of Fact No. 1 and Proposed Conclusion of Law No. 1, and enter the following additional findings and conclusions:
FINDINGS OF FACT
2. The Department order dated April 3, 1980 was the first closing order in this claim and became final sixty days after it was communicated to the claimant.
3. The application to reopen the claim on the basis of aggravation of condition filed on August 5, 1988, was filed more than seven years after the first closing order, issued on April 3, 1980, became final.
4. The claimant, Carol Allen, had no personal knowledge of the 1988 amendments to RCW 51.32.160 at the time she filed her reopening application on August 5, 1988.
5. The Department order dated November 3, 1988, which was later affirmed on March 4, 1991, did not address the issue of worsening of the claimant's condition causally related to her industrial injury of December 28, 1977 nor her need for further treatment related to such worsened condition.
CONCLUSIONS OF LAW
2. The claimant's application to reopen her claim on the basis of aggravation of condition filed on August 5, 1988, was not timely filed within the provisions of RCW 51.32.160, as it was filed more than seven years after the first closing order dated April 3, 1980 became final. [6] The claimant is therefore not eligible to receive any disability compensation benefits based on said application.
3. The claimant's aggravation application filed on August 5, 1988 entitled the claimant to a determination under the provisions of RCW 51.32.160 of her entitlement to proper and necessary medical and surgical services as authorized under RCW 51.36.010. Neither the Department order of November 3, 1988, nor the order affirming it on March 4, 1991, made any such determination.
4. The Department order of March 4, 1991, which affirmed a Department order dated November 3, 1988, which denied the claimant's application of August 5, 1988 to reopen her claim for aggravation of condition because the application was not filed within the statutory time limit of seven years from the date compensation was terminated, is incorrect in part, and is reversed, and the claim is remanded to the Department with instructions to determine whether the claimant's condition, causally related to her industrial injury of December 28, 1977, has objectively worsened since last prior claim closure, and if it has, to determine based on said determinations, whether the claimant is in need of treatment therefor, and to take whatever further action is indicated.
It is so ORDERED.
Dated this 2nd day of January, 1992.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLERChairperson
/s/
PHILLIP T. BORKMember