| IN RE: IVA N. JENNINGS | ) | DOCKET NO. 01 11763 |
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| CLAIM NO. P-819317 | ) | ORDER DENYING MOTION TO VACATE ORDER ADOPTING PROPOSED DECISION AND ORDER |
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On March 1, 2001, the claimant Iva N. Jennings, filed a protest and request for reconsideration with the Department of Labor and Industries. On March 9, 2001, the Department forwarded the protest to the Board for treatment as a direct appeal of an order of the Department of Labor and Industries dated January 5, 2001. The order affirmed an order dated October 24, 2000, that assessed an overpayment in the amount of $8,021.65, which resulted because the claim was rejected. On July 25, 2002, our industrial appeals judge issued a Proposed Decision and Order which affirmed the Department order dated January 5, 2001. On August 29, 2002, having received no petition for review, we issued an Order Adopting Proposed Decision and Order as the final order of the Board.
Thereafter, on September 3, 2002, we received from Ms. Jennings, a request for an extension of time in which to file a petition for review. After our executive secretary notified Ms. Jennings that the request for an extension of time in which to file a petition for review was not timely, Ms. Jennings filed a request to vacate the Order Adopting Proposed Decision and Order, on the basis of CR 60(b)(1) and (b)(4). We provided the Department of Labor and Industries and the employer the opportunity to respond. No response was received. After consideration of the claimant's motion, the records and files contained herein, we determine that the motion must be denied.
In support of her request to vacate the Order Adopting Proposed Decision and Order, Ms. Jennings, acting on her own behalf, indicated that she had been notified by her attorney that there had been a death in his family and that he would not file a timely petition for review on her behalf. He informed her to file a petition for review or an extension of time. She alleges this conversation took place on August 26, 2002. However, it would appear that the last day in which to file a petition for review or an extension of time would have been on or before August 23, 2002.
Her attorney, James Walsh, who is still the attorney of record in this matter, indicated that he had advised Ms. Jennings that he would not file a petition for review; that she indicated that she understood this; and that this conversation took place before the 20-day deadline in which to file a petition for review had elapsed.
It is clear that there is some misunderstanding between Mr. Walsh and his client. We believe it is unnecessary for us to determine the exact nature of these communications between Mr. Walsh and his client. This is because if we accept as true the circumstances ad described by Ms. Jennings, she has not described an occurrence which creates a basis under with the Order Adopting Proposed Decision and Order could be vacated pursuant to CR 60. Mistakes, inadvertence, or misrepresentation by one's attorney does not establish a basis under the rule on which the order can be vacated. See Morgan v. Burks, 17 Wn. App 193 (1977). [2]
The claimant did not file a timely petition for review or request for an extension of time in which to file a petition for review. Circumstances have not been established that would justify the untimely filing. Accordingly, the claimant's motion to vacate the Order Adopting Proposed Decision and Order must be denied.
It is so ORDERED.
DATED: December 16, 2002
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
CALHOUN DICKINSON Member