See SANCTIONS Civil Rule 11

BEFORE THE BOARD OF INDUSTRIAL INSURANCE APPEALS

STATE OF WASHINGTON

APPEARANCES:

Claimant, Steven R. Baer, Pro Se

Provider, Family Chiropractic Center, by

Law Office of David L. Trick, per

David L. Trick

Self-Insured Employer, Superior Asphalt & Paving Co., by

Boyer Law Office, per

Jeffrey E. Boyer

Department of Labor and Industries, by

The Office of the Attorney General, per

Julian M. Bray, Assistant

The self-insured employer, Superior Asphalt & Paving Co., (Superior Asphalt), filed an appeal with the Board of Industrial Insurance Appeals on January 20, 1998, from an order of the Department of Labor and Industries dated December 9, 1997. The order affirmed a September 8, 1997 order that directed Superior Asphalt to pay all bills for treatment by James R. Milliron, D.C., for the accepted condition under this claim between the dates of October 3, 1996 and February 3, 1997. AFFIRMED.

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 timely Petitions for Review filed by the self-insured employer, Superior Asphalt, and the provider, Family Chiropractic Center (FCC), to a Proposed Decision and Order issued on December 3, 1998, that affirmed the December 9, 1997 Department order.

The Board has reviewed the evidentiary rulings in the record of proceedings and finds no prejudicial error was committed. These rulings are therefore affirmed. [2]

DECISION

We granted review solely to rule on the provider's Motion for Sanctions. We agree with our industrial appeals judge's disposition of this appeal and reaffirm his decision. We accordingly deny the merits of Superior Asphalt's Petition for Review.

FCC filed a Petition for Review that consisted entirely of a Motion for Sanctions against the James L. Groves Company. It maintains its attorney fees in defending the appeal should be awarded based on CR 11, which authorizes sanctions against an appealing party if its appeal is frivolous. We deny the motion and decline to authorize sanctions against the self-insured employer or the James L. Groves Company.

Under the provisions of CR 11, sanctions can be awarded to a responding party for its attorney fees and costs in defending a frivolous appeal. An appeal is frivolous if it cannot be supported by any rational argument on the law or facts. Layne v. Hyde, 54 Wn. App. 125, at 135 (1989). In other words, if an appeal presents no debatable issues upon which reasonable minds might differ, and it is so devoid of merit that there is no possibility of success, it should be deemed frivolous. Layne v. Hyde, 54 Wn. App. 125 (1989); Boyles v. Department of Retirement Systems, 105 Wn.2d 499, at 506-507 (1986). We do not believe Superior Asphalt's appeal was frivolous. Reasonable minds could certainly differ regarding whether FCC's chart notes complied with the requirements of WAC 296-20-01002. We, therefore, deny FCC's Motion for Sanctions.

We also wish to clarify a prior holding regarding the procedure we will follow in ruling on motions for sanctions. In Maria Gonzalez, Dckt. Nos. 97 0261 et al, we declined to rule on a party's motion for sanctions in our Decision and Order, holding that parties must file such motions after the decision and order has become final. Parties moving for sanctions can file under CR 11, which authorizes sanctions against any party for filing a frivolous pleading, or under RCW 4.84.185, which authorizes sanctions for opposing a frivolous action, claim or defense. The latter statute requires [3] motions to be filed after a final order or judgment has been issued. In re Don Eerkes, BIIA Dec., 90 2532, at 5 (1992). However, we will rule on a Petition for Review that contains a motion for sanctions filed under CR 11 in our Decision and Order. In re Donald Anderson, BIIA Dec., 97 3724 (1989). Accordingly, our holding in Maria Gonzalez is limited to motions for sanctions filed pursuant to RCW 4.84.185.

Therefore, based upon a careful review of the record in this appeal, we have determined the Proposed Decision and Order was correct and is affirmed. We hereby deny FCC's Motion for Sanctions. With minor non-substantive corrections, we adopt the findings, conclusions and order in the Proposed Decision and Order as the final decision of this Board.

FINDINGS OF FACT

1. On October 9, 1996, the claimant, Steven R. Baer, filed an application for benefits with the Department of Labor and Industries alleging that he sustained an industrial injury on October 3, 1996, while in the course of employment for Superior Asphalt & Paving Co., a self-insured employer. Subsequently, the Department issued an order allowing the claim. On September 8, 1997, the Department issued an order that directed the self-insured employer to pay all bills for treatment by James R. Milliron, D.C., for the accepted condition under this claim between the dates of October 3, 1996 and February 3, 1997. On October 6, 1997, the self-insured employer protested the order. On December 9, 1997, the Department affirmed the October 6, 1997 order. On January 20, 1998, the self-insured employer appealed the December 9, 1997 order to the Board of Industrial Insurance Appeals. On February 12, 1998, the Board issued an order granting the appeal and assigned it Docket No. 98 10319.
2. James R. Milliron, D.C., submitted chart notes to James L. Groves Co., to support billings for treatment provided between October 3, 1996 and February 3, 1997. The chart notes contain legible handwriting and a comprehensible description of subjective complaints, objective findings, assessment and treatment, and plan of care.

CONCLUSIONS OF LAW

1. The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter in this appeal. [4]
2. The chart notes submitted by James R. Milliron, D.C., comply with WAC 296-20-01002.
3. The Department order dated December 9, 1997, is correct and is affirmed.

It is so ORDERED.

Dated this 3rd day of May, 1999.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/_____________________________________

THOMAS E. EGAN Chairperson

/s/_____________________________________

FRANK E. FENNERTY, JR. Member