| IN RE: MARTINA PETERSON | ) | DOCKET NO. 94 0991 |
| ) | ||
| CLAIM NO. K-293529 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Martina Peterson,
- Pro Se
- Employer, Lake Vue Gardens, Inc.,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Amanda J. Goss, Assistant
This is an appeal filed by the claimant, Martina Peterson, on February 15, 1994, from an order of the Department of Labor and Industries dated January 12, 1994. The order of January 12, 1994, took three actions. First, the closing order of November 4, 1993, was modified from a final to an interlocutory order. Second, the Department acknowledged receipt of a lien from the Office of Support Enforcement against the claimant's benefits and ordered the claimant to repay $510.00. Third, the Department closed the claim with no additional award for permanent partial disability. 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 Department of Labor and Industries to a Proposed Decision and Order issued on December 13, 1994, in which the order of the Department dated January 12, 1994, was reversed and the matter remanded to the Department with directions to issue an order declaring that an overpayment in the amount of $510.00 had resulted because of an Office of Support Enforcement lien, to be repaid from any future benefits due [2] the claimant on any claim with the State Fund or self-insurer, but not modifying the November 4, 1993 order to an interlocutory order or closing Ms. Peterson's claim with no additional permanent partial disability award.
EVIDENTIARY MATTERS
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.
DECISION
On August 5, 1986, Martina Peterson experienced an industrial injury while employed by Lake Vue Gardens, Inc. Her claim with the Department of Labor and Industries was allowed and various benefits provided until the claim was closed on February 29, 1988.
In 1991, Ms. Peterson filed an aggravation application and successfully reopened her claim. She received further treatment and other benefits until the fall of 1993.
On November 4, 1993, the Office of Support Enforcement filed a lien in the amount of $225.00 with the Department of Labor and Industries against Ms. Peterson's industrial insurance benefits. Upon receiving the lien, the Department issued an order, also dated November 4, 1993, that closed the claim with an award for permanent partial disability equal to Category 2 of permanent lumbosacral impairments. Unfortunately, the Department made a mistake. Instead of deducting $225.00 from Ms. Peterson's award, it added that amount. Ms. Peterson, who was apparently satisfied with the award, filed neither a protest nor an appeal of the November 4, 1993 order. [3]
Although the record was not fully developed, the closing order of November 4, 1993, became final and binding 60 days later, on or about January 4, 1994. Any worker, beneficiary, employer, or other person aggrieved by an order, decision, or award of the Department must, before he or she appeals to the courts, file with the Board and the Director, by mail or personally, within 60 days from the day on which such copy of such order, decision, or award was communicated to such person, a Notice of Appeal to the Board. RCW 51.52.060. Absent such an appeal, the order becomes final. Turning to the case at hand, the burden would be on the Department of Labor and Industries to establish that its order of November 4, 1993, did not become final on or about January 4, 1994. However, no such evidence was presented. Evidence that a Department order was mailed to a worker at his or her last known address gives rise to a presumption that the order was received by the worker in the due course of the mails. In re John Karns, BIIA Dec., 05,181 (1956). Even if we were to allow three days mailing time for the November 4, 1993 order to be communicated to the claimant, the order would have become final on or about January 7, 1994.
It appears that shortly after the order became final, the Department realized its mistake. On January 12, 1994, the Department issued the order under appeal here wherein it declared that the order of November 4, 1993, was modified from a final to an interlocutory order. At the same time, it ordered Ms. Peterson to repay $510.00, $255.00 for the mistaken overpayment and $255.00 for the Office of Support Enforcement lien.
Two points need emphasis. First, the Department was without jurisdiction to modify the November 4, 1993 order from final to [4] interlocutory. When the 60-day appeal period expired on or about January 7, 1994, the order became final and binding on all parties, including the Department of Labor and Industries. An order or judgment of the Department resting upon a finding, or findings, of fact becomes a complete and final adjudication, binding upon both the Department and the claimant. LeBire v. Department of Labor & Indus., 14 Wn.2d 407, 415, 128 P.2d 308 (1942). An unappealed final order from the Department precludes the parties from rearguing the same claim. Marley v. Department of Labor & Indus., 125 Wn.2d 533, 538, ___ P.2d ___ (1994). Using the Marley rationale, we conclude that the order of November 4, 1993, that closed the claim with a Category 2 award for permanent low back impairment, became final and could not thereafter be modified to interlocutory status by the Department.
Second, even though the November 4, 1993 order became final and binding, the Department, nonetheless, retained jurisdiction over the claim to recover the $510.00 of overpaid benefits.
Whenever any payment of benefits under this title is made because of clerical error, mistake of identity, innocent misrepresentation by or on behalf of the recipient thereof mistakenly acted upon, or any other circumstance of a similar nature, all not induced by fraud, the recipient thereof shall repay it and recoupment may be made from any future payments due to the recipient on any claim with the state fund or self-insurer as the case may be. The department or self-insurer, as the case may be, must make claim for such repayment or recoupment within one year of the making of any such payment or it will be deemed any claim therefor has been waived. The director, pursuant to rules adopted in accordance with the procedures provided in the administrative procedure act, chapter 34.05 RCW, may exercise his discretion to waive, in whole or in part, the amount of any[5] such timely claim where the recovery would be against equity and good conscience.
RCW 51.32.240(1). (emphasis added.)
It is evident from the record that the Department's order of November 4, 1993, contains an inadvertent clerical error. The Department should have deducted $255.00 from Ms. Peterson's award, not added that amount. By virtue of the January 12, 1994 order, the Department made demand for repayment within one year of making the overpayment. We hold that even though a closing order becomes final and binding, the Department, under RCW 51.32.240(1), retains jurisdiction to issue a further order to recover amounts paid due to clerical error, mistake of identity, innocent misrepresentation, or circumstance of a similar nature where demand for repayment is made within one year of the making of the overpayment.
A final question remains as to whether our industrial appeals judge was correct in ordering the Department to recover the $510.00 paid Ms. Peterson from any future benefits due her on any claim with the State Fund or self-insurer. We conclude that our industrial appeals judge was incorrect. RCW 51.32.240(1) is reasonably clear. It states that recoupment may be made from any future payments due to the recipient. It does not state that recovery shall be made from future payments. The word "may" indicates a permissive condition, a grant of power to choose among alternatives. The Legislature intended the words to have different meanings: "may" being discretionary while "shall" being mandatory. State v. Bartholomew, 104 Wn.2d 844, 848, 710 P.2d 196 (1985). We hold that RCW 51.32.240(1) gives the Department the option to recover amounts paid by clerical error, mistake of identity, innocent misrepresentation, [6] or circumstance of a similar nature from future benefits due the recipient on any claim with the State Fund or self-insurer, but does not mandate such an approach.
After consideration of the Proposed Decision and Order, the Petition for Review filed thereto, and a careful review of the entire record before us, we make the following:
FINDINGS OF FACT
1. On August 29, 1986, the Department of Labor and Industries received an application for benefits from the claimant, Martina Peterson, alleging that she sustained an injury on August 5, 1986, while in the course of her employment with Lake Vue Gardens, Inc. The claim was allowed and various benefits provided until the claim was closed on February 29, 1988.
On June 7, 1991, Martina Peterson filed an aggravation application and successfully reopened her claim. She received further treatment and other benefits until the fall of 1993. On November 4, 1993, the Department issued an order closing the claim with a permanent partial disability award equal to Category 2 of permanent dorso-lumbar and/or lumbosacral impairments. No appeal was taken from that order.
On January 12, 1994, the Department issued an order modifying its order of November 4, 1993, from a final to an interlocutory order, and closed the claim without additional award for permanent partial disability. In addition, the Department declared that an overpayment of $510.00 had resulted because of an Office of Support Enforcement lien.
On February 15, 1994, the claimant filed a Notice of Appeal with the Board of Industrial Insurance Appeals. On April 6, 1994, the Board issued an order granting the appeal, assigned Docket No. 94 0991 to the appeal, and directed that further proceedings be held on the issues raised therein. [7]
2. On August 5, 1986, Martina Peterson suffered an injury while in the course of her employment with Lake Vue Gardens, Inc.
3. On November 4, 1993, the Office of Support Enforcement entered a lien against Ms. Peterson's industrial insurance benefits in the amount of $255.00.
4. On November 4, 1993, the Department of Labor and Industries erroneously added the sum of $255.00 to Ms. Peterson's permanent partial disability award, resulting in her receipt of the sum of $3,630.00, rather than the correct sum of $3,120.00. Ms. Peterson received $510.00 more than she would have received had the Department of Labor and Industries properly deducted the Office of Support Enforcement lien amount.
5. No person aggrieved by the Department's order of November 4, 1993, filed an appeal with the Board and/or Director of the Department of Labor and Industries within the 60-day time provision of RCW 51.52.060. The Department did not take action to modify or set aside the November 4, 1993 order within the 60-day appeal period.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- Under the provisions of RCW 51.32.240, Ms. Peterson shall reimburse the Department of Labor and Industries the amount of $510.00 received because of clerical error made by the Department of Labor and Industries in paying Ms. Peterson's permanent partial disability award.
- The Department order of November 4, 1993, which closed the claim with an award for a permanent partial disability equal to Category 2 of permanent dorso-lumbar and/or lumbosacral impairments, became final and binding on all parties inasmuch as no timely appeal or protest was filed to said order. That portion of the Department order dated January 12, 1994, which attempted to modify the November 4, 1993 order [8] from a final to an interlocutory order, is void.
- The order of the Department of Labor and Industries dated January 12, 1994, which modified its order dated November 4, 1993, from a final to an interlocutory order, closed the claim with no additional permanent partial disability award, and which declared that an overpayment of $510.00 had occurred because of an Office of Support Enforcement lien, is incorrect, and is reversed, and this matter is remanded to the Department of Labor and Industries with directions to issue an order declaring that Ms. Peterson received an overpayment of benefits in the amount of $510.00, as a result of a lien from the Office of Support Enforcement; that the Department shall thereafter take such other and further action as may be appropriate in recovering the $510.00.
It is so ORDERED.
Dated this 10th day of March, 1995.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLERChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
ROBERT L. McCALLISTERMember