| IN RE: GEORGE TRANGMAR | ) | DOCKET NO. 93 3287 |
| ) | ||
| CLAIM NO. N-386788 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, George Trangmar
- Pro Se
- Employer, Patricia L. Gorman and Dan Gorman, dba
- Top Fashion Framing, by
- Alfred A. Bennett
- Department of Labor and Industries, by
- Office of the Attorney General, per
- Karen M. Williams, Assistant
This is an appeal filed by the employer, Patricia L. Gorman and Dan Gorman, dba Top Fashion Framing, on April 7, 1993, by mail to the Department of Labor and Industries, from orders of the Department of Labor and Industries dated March 8, 1993 and March 9, 1993, which allowed the claim for an injury occurring on June 15, 1992. REVERSED AND REMANDED.
PROCEDURAL AND EVIDENTIARY 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 employer, Patricia L. Gorman and Dan Gorman, dba Top Fashion Framing, to a Proposed Decision and Order issued on May 31, 1994, in which the orders of the Department dated March 8, 1993 and March 9, 1993, were affirmed.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed. [2]
This appeal was consolidated with Docket 93 3585 for hearing and Proposed Decision and Order. While resolution of these appeals can be based on the same record, there are substantial differences. The parties to this appeal are different from the parties to Docket 93 3585, as are the issues presented, and the parties' respective burden of proof. Accordingly, we have de-consolidated these appeals and are issuing separate Decisions and Orders.
DECISION
The documents filed on behalf of the employer, Top Fashion Framing, set forth a clearly stated intention to challenge each order issued by the Department allowing this claim and each order assessing penalties for failure to have secured payment of compensation as required by Title 51 RCW. Each of the Notices of Appeal identified both this claim number and the number of the Notice and Order of Assessment. Each also contained detailed and specific objection to the allowance of the claim and to the assessment of a penalty.
With regard to this appeal, our only concern is whether the appeals have been filed in sufficient time to establish jurisdiction. In order to be timely, the appealing employer, Top Fashion Framing, must establish that the Notice of Appeal was filed within 60 days of the date that the orders allowing the claim were communicated. Catherine Mommsen, legal assistant to the employer's attorney, testified that the Notice of Appeal, marked and admitted as Exhibit 3, was mailed to the Department on April 7, 1993.
The Notice of Appeal docketed herein was marked and admitted as Exhibit 5 during a timeliness hearing held on January 4, 1994. The record at that hearing establishes that Exhibit 5 was filed by being [3] mailed, properly stamped and addressed, on July 2, 1993. This Notice of Appeal was filed more than 60 days after the date on which the orders allowing this claim were communicated to Top Fashion Framing, and is not timely. However the Notice of Appeal, filed by mailing to the Department on April 2, 1993, was timely and provides us with jurisdiction to consider this appeal.
As the appealing party, the employer, Top Fashion Framing, is under the burden of proceeding initially to present a prima facie case in support of rejection of the claim. RCW 51.52.050; WAC 263-12-115(2)(a) and (c). This the employer has done through the testimony of several lay witnesses who were fellow workers of the claimant, Mr. Trangmar. Daniel P. Gorman, Daniel Dai Gorman, his son, and James Lee Arionus testified that the job on which Mr. Trangmar claimed to have been injured was completed prior to June 15, 1992, and that they had been told by Mr. Trangmar that his injuries occurred on a weekend while riding a motorcycle. While this testimony was controverted and hotly contested by Mr. Trangmar, standing alone it provides a prima facie basis for rejection of the claim. Presentation of a prima facie case has shifted the burden of proof to Mr. Trangmar to establish entitlement to benefits by a preponderance of the evidence. Olympia Brewing v. Department of Labor & Indus., 34 Wn.2d 498 (1949).
Mr. Trangmar has failed to meet this burden and has not established entitlement to benefits by the necessary preponderance of the evidence. With two exceptions, all of the witnesses who testified about the alleged injury had a direct financial interest in the outcome of the appeal or were friends or relatives of one of the parties. The two disinterested witnesses were presented by the employer and proved to be inconclusive [4] as to whether the framing job had been completed prior to the date of injury claimed by Mr. Trangmar. Terry Wollam, the general contractor who hired Top Fashion Framing for the job on which Mr. Trangmar worked, was unable to state positively when the framing was completed other than a general period during mid June of 1992. Barry Bender, a real estate appraiser, inspected the job site for a bank. His testimony established that framing was 85 to 90 percent completed on June 2, 1992, but did not establish when the framing was 100 percent completed.
Although the employer's evidence does not conclusively refute Mr. Trangmar's contentions, it does raise question about Mr. Trangmar's accounts of the alleged injury. Both Mr. Trangmar and the Gormans have strong financial incentives to testify in the manner that they did; however, Mr. Trangmar ultimately bears the burden of proof. Although the issue is close, we find the employer's witnesses as a group more believable than those presented by the claimant. Even if we found the witnesses presented by the parties equally credible, we would still have to find against Mr. Trangmar as he bears the burden of proving entitlement to benefits.
After consideration of the Proposed Decision and Order, the Petition for Review filed thereto on behalf of the employer, and a careful review of the entire record before us, we are persuaded that the Department orders dated March 8, 1993 and March 9, 1993, are incorrect and must be reversed. The claim is remanded to the Department to issue an order rejecting the claim for the reason that George Trangmar did not sustain an injury during the course of his employment with Top Fashion Framing. [5]
FINDINGS OF FACT
1. In June 1992, the Department of Labor and Industries received an application for benefits from George Trangmar alleging that he sustained an injury to his low back during the course of his employment with Top Fashion Framing on June 15, 1992.
On March 8, 1993 and on March 9, 1993, the Department issued orders allowing Mr. Trangmar's claim. On April 2, 1993, Top Fashion Framing filed a Notice of Appeal from the Department orders dated March 8, 1993 and March 9, 1993, by mailing the notice to the Department properly stamped and addressed. On July 7, 1993, the Board of Industrial Insurance Appeals received Top Fashion Framing's Notice of Appeal from the Department orders dated March 8, 1993 and March 9, 1993.
2. Top Fashion Framing filed Notices of Appeal from the Department orders dated March 8, 1993 and March 9, 1993, on April 7, 1993, by mail within 60 days from the date the orders were communicated to the employer.
3. George Trangmar did not sustain an injury on June 15, 1992, or on any other date during the course of his employment with Top Fashion Framing.
4. George Trangmar has no condition which is proximally related to the alleged incident of June 15, 1992.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and subject matter of this appeal.
- George Trangmar did not sustain an industrial injury during the course of employment with Top Fashion Framing within the meaning of RCW 51.08.100 on June 15, 1992, or on any other date.
- The orders of the Department of Labor and Industries dated March 8, 1993 and March 9, 1993, which allowed Mr. Trangmar's claim for an industrial injury, are incorrect and are reversed. This claim is remanded to the [6] Department to issue an order rejecting the claim.
It is so ORDERED.
Dated this 1st day of December, 1994.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLERChairperson
/s/
ROBERT L. McCALLISTERMember