Significant Decisions

See NOTICE OF APPEAL Timeliness
If an appeal is not timely, the Board must dismiss the appeal rather than affirm the appealed order. ....Leroy Hauser, 94 4636 (1995)


IN RE: LEROY R. HAUSER ) DOCKET NOS. 94 4636 & 94 5243
  )  
CLAIM NO. N-768274 ) DECISION AND ORDER
  )  
APPEARANCES
Claimant, Leroy R. Hauser
Pro Se
Employer, Waconi Training Center,
None
Department of Labor and Industries, by
Office of the Attorney General, per
Daniel W. Johnson, Assistant

Docket 94 4636 is an appeal filed by the claimant, Leroy R. Hauser, on August 2, 1994, from an order of the Department of Labor and Industries dated May 23, 1994, which closed the claim with an award for permanent partial disability equal to 7.5 percent of complete hearing loss in the right ear. DISMISSED.

Docket 94 5243 is an appeal filed by the claimant, Leroy R. Hauser, on August 2, 1994, from an order of the Department of Labor and Industries dated May 20, 1994, which allowed the claim for an industrial injury sustained on October 1, 1993, for right sensorial hearing loss, and denied responsibility for left sensorial hearing loss. DISMISSED.

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 claimant to a Proposed Decision and Order issued on January 11, 1995, in which the orders of the Department dated May 20, 1994, and May 23, 1994, were affirmed. [2]

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

The only issues before the Board in these appeals are whether the claimant filed timely appeals of the Department orders dated May 20, 1994, and May 23, 1994. We agree with our industrial appeals judge's determination that the appeals were not timely filed, and we agree with his conclusion that the Board lacks jurisdiction over the subject matter of these appeals as a result. We granted review to issue an order dismissing these appeals because the Board does not have jurisdiction to affirm the Department orders.

When the Department issues a determinative order, the law permits an aggrieved party to either file a protest and request for reconsideration with the Department or an appeal with the Board. RCW 51.52.050. The aggrieved party (the claimant in this case) must take such action within 60 days of the date the Department order was communicated. RCW 51.52.050; RCW 51.52.060. The Department order becomes a final and binding order if the aggrieved party does not file a protest or an appeal within the 60-day time period prescribed by law.

For the Board to hear and decide the merits of an appeal, it must appear from the record that the Board has jurisdiction to hear the case. The 60-day period for filing a protest or an appeal of a Department order is jurisdictional and the Board has no authority to waive its application. Lewis v. Department of Labor & Indus., 46 Wn.2d 391 (1955).

In these appeals, the claimant candidly admitted that he did not file his appeals within 60 days of the date they were communicated to [3] him. His excuse for not filing his appeals in a timely manner was that he was waiting for "appeal papers" from Ear Tech, the company he obtained hearing aids from. From the claimant's testimony, we can reasonably infer that he felt that these papers were necessary to file his appeals.

The timely filing of an appeal is a statutorily imposed jurisdictional limitation upon the claimant's ability to get relief from a Department order and upon the Board's authority to hear an appeal. Regrettably, there is simply no legal precedent for excusing the claimant from performing his statutory duty to file timely appeals. The result does not change even though Mr. Hauser may have believed that he needed the "appeal papers" prepared by Ear Tech to file his appeals. Mr. Hauser could have and, in retrospect, should have notified this agency of his desire to appeal as indicated on the Department orders. Ear Tech apparently undertook a voluntary role in assisting Mr. Hauser in preparing the appeal form, but the lateness of the appeal is exclusively the responsibility of Mr. Hauser. The inescapable fact is that Mr. Hauser failed in his duty to perfect his appeal rights until it was too late for the Board to do anything but dismiss his appeals.

After consideration of the Proposed Decision and Order and the claimant's Petition for Review, and a careful review of the entire record before us, we are persuaded that the claimant's appeals of the Department orders dated May 20, 1994, and May 23, 1994, must be dismissed because the Board does not have jurisdiction to decide the merits of these appeals by Ear Tech.

FINDINGS OF FACT

  1. On October 7, 1993, the claimant filed a claim for bilateral hearing loss incurred by him on [4] October 1, 1993, while in the course of employment with Waconi Training Center.
  2. On May 20, 1994, the Department issued an order which allowed a claim for right sensorial hearing loss and denied responsibility for left sensorial hearing loss.
  3. On May 26, 1994, the claimant received, read and understood the May 20, 1994 order.
  4. On May 23, 1994, the Department issued an order that closed the claim with an award of permanent partial disability of 7.5 percent of complete hearing loss in one ear.
  5. The claimant received, read and understood the May 23, 1994 order on May 24, 1994.
  6. The claimant contacted Ear Tech, a private company, to seek assistance with an appeal from the May 20, 1994, and May 23, 1994, orders. An employee of Ear Tech stated she would send him documents necessary for an appeal.
  7. The claimant received a document entitled "Notice of Appeal" from Ear Tech on, or about, August 1, 1994.
  8. The claimant filed notices of appeal from the Department orders of May 20, 1994 and May 23, 1994 by placing them in the regular mails on August 1, 1994.
  9. The Board received the claimant's notices of appeal on August 2, 1994.

The Board assigned the appeal from the order of May 20, 1994, Docket 94 5243, and the appeal from the order of May 23, 1994, Docket 94 4636. On September 1, 1994, the Board issued orders granting the appeals subject to proof of timeliness in Docket 94 4636 and Docket 94 5243.

CONCLUSIONS OF LAW

  1. The claimant did not file a timely appeal from the May 20, 1994 Department order within 60 days of the date the order was communicated to him, as required by RCW 51.52.050, and RCW 51.52.060. [5]
  2. The claimant did not file a timely appeal from the May 23, 1994 Department order within 60 days of the date the order was communicated to him, as required by RCW 51.52.050, and RCW 51.52.060.
  3. The Board does not have jurisdiction over the subject matter in these appeals.
  4. The claimant's appeal in Docket 94 4636 is dismissed.
  5. The claimant's appeal in Docket 94 5243 is dismissed.

It is so ORDERED.

Dated this 27th day of February, 1995.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

S. FREDERICK FELLER Chairperson

/s/

FRANK E. FENNERTY, JR. Member

/s/

ROBERT L. McCALLISTER Member

 


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