APPEARANCES:

 

Claimant, David Tapia-Fuentes, by

Betsy Rodriguez, P.S., per

Betsy Rodriguez

 

Employer, B H Stordahl & Sons Inc.,

None

 

Retrospective Rating Group, Risk Finance & Investment Corporation, per

Jennifer A. Gulbin

 

Department of Labor and Industries, by 

The Office of the Attorney General, per

Jessica Russell and Elijah Forde, Assistants

 

 

          The retrospective rating group, Risk Finance & Investment Corporation, filed an appeal with the Board of Industrial Insurance Appeals on May 16, 2006 , from an order of the Department of Labor and Industries dated March 20, 2006 .  In this order, the Department stated that it could not reconsider orders dated April 14, 2005 and April 15, 2005 , on the basis that a protest to the orders was not received within the 60-day statutory time, and that the orders are final and binding.  The Department order is REVERSED AND REMANDED.

 

DECISION

           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 retrospective rating group, Risk Finance & Investment Corporation, to a Proposed Decision and Order issued on April 12, 2007 , in which the industrial appeals judge dismissed the appeal.  We have granted review because we concur with the retrospective rating group, Risk Finance & Investment Corporation, that it is an interested party and has a right to appeal from the Department orders in which the Department ordered that the claim remain open for treatment.  We further find that Risk Finance filed a timely protest to those orders once it learned of their existence.

           This appeal was filed by the retrospective rating group, Risk Finance, from a Department order dated March 20, 2006 , in which the Department declined to reconsider Department orders issued on April 14, 2005 and April 15, 2005 , because the protest to the orders filed by Risk Finance [2] was not timely.  In its April 14, 2005 order, the Department reversed its order dated March 7, 2005 , in which the Department closed the claim and ordered that the claim remain open for treatment and benefits.  In the April 15, 2005 order, the Department stated that the claim was allowed for an injury of December 1, 2004 , while the claimant, David Tapia-Fuentes, was working for B H Stordahl & Sons Inc., and that the claimant was entitled to benefits in accordance with the industrial insurance laws.  Our industrial appeals judge concurred with the Department and found that Risk Finance's protest of July 20, 2005 , was not timely with respect to the Department orders of April 14, 2005 and April 15, 2005 .

           Retrospective rating plans are the subject of RCW Chapter 51.18.  A retrospective rating plan is a voluntary financial incentive in the workers' compensation insurance program offered by the Department of Labor and Industries.  A retrospective rating plan is designed to reward employers who participate in the program when they are able to keep their claim costs below the pre‑selected level that they have chosen.  Reductions in claim costs are the result of improvements in workplace safety and outcomes of injured workers.  WAC provisions 296-17-90401 through 296‑17-90497 contain the general and special rules which are applicable to retrospective rating groups and their retrospective rating plans.  Each entity that sponsors a retrospective rating group is a separate entity from the employers it represents and must meet requirements set by the Department of Labor and Industries.  RCW 51.18.030.  The retrospective rating group is composed of employers who are substantially similar considering the services or activities performed by the employees of those employers.  All of the employers within the group benefit if the group is successful in reducing claims costs.  Likewise, all of the employers within the group are negatively affected if claim costs exceed expectations.  Risk Finance established a retrospective rating group under the provisions of Chapter 51.18 RCW.   

           B H Stordahl & Sons Inc. was a member of the retrospective rating group sponsored by Risk Finance through December 31, 2004 .  After December 31, 2004 , B H Stordahl became a member of a retrospective rating group named ABC.  Employer Resources Northwest is the third-party administrator for the retrospective rating group, ABC.

           In its Petition for Review, Risk Finance focuses on the distinction between it as an entity sponsoring a retrospective rating group and the employers within the retrospective rating group.  In the Proposed Decision and Order, the industrial appeals judge made no distinction between the employer, B H Stordahl & Sons Inc., and Risk Finance.  The industrial appeals judge considered the employer and Risk Finance as the same entity.  Risk Finance contends that it has an [3] independent right as the retrospective rating group sponsor to challenge each order that is entered on claim files of the employers that it represents within the group. 

           According to the Stipulation of Facts filed by the parties, which forms the record in this appeal, Risk Finance contacted the Department and requested a copy of the March 7, 2005 Department order, in which the Department allowed and closed the claim.  Subsequently, the Department issued the April 14, 2005 and April 15, 2005 orders, in which the Department effectively reversed its March 7, 2005 Department order, in which the claim was closed.  The Department's action in its April 14, 2005 order was to order that the claim remain open for further benefits and treatment.  The April 14, 2005 and April 15, 2005 Department orders are part of the Stipulation of Facts.  Neither of these orders was mailed to Risk Finance.  The Department did mail the orders to Employer Resources Northwest, the third-party administrator for the employer's new retrospective rating group, ABC.  On July 20, 2005 , Risk Finance became aware of the April 14, 2005 and April 15, 2005 Department orders.  Risk Finance then filed a protest with the Department of Labor and Industries. 

           Risk Finance argues that it is a separate entity from the employer and entitled to receive notice of the determinative orders on the claims that affect the members of the retrospective rating group.  WAC 296-17-90453 is entitled "Disputes, protests and appeals."  The provisions of WAC 296-17-90453 provide that:

 

Your responsibility:

If you disagree with L&I over an adjudicative or reserving issue:

 

You must:

·       File a written protest or appeal within sixty days after you receive the decision you disagree with. 

 

·       File a written protest or appeal as applicable to the retro adjustment order and notice within thirty days after you receive this order.  This will preserve your right to relief if you prevail in your claim protest or appeal. 

 

Note:  We cannot provide relief in the computation of the retrospective premium even if your claim protest or appeal produces relief, unless you have also protested or appealed the retro refund/assessment notice and order.

 

           Our reading of this WAC section convinces us that the Risk Finance is correct in its assertion that it has a right to protest or appeal an adjudicative Department order in a claim made against one of the employers in the retrospective rating group.  The first note following the first [4] section of WAC 296-17-90453 states that: "We cannot provide relief in the computation of the retrospective premium even if your claim protest or appeal produces relief, unless you have also protested or appealed the retro refund/assessment notice and order." 

           This note convinces us that the portion of the WAC that states that the retrospective rating group has a right to file a written protest or appeal to a decision, includes decisions involving orders issued in a claim.  The note, as we understand it, is a proviso to the retrospective rating group that it must protest or appeal two orders, one associated with the claim and attempt to get relief on that order, but they must also protest or appeal the retro fund assessment notice and order in order to get relief from the assessment.  If the WACs that apply to the Department of Labor and Industries specifically give the retrospective rating group the right to challenge the adjudicative orders in a claim file that affects the retrospective rating group, the Department must communicate the order to the retrospective rating group in order to commence the running of the 60-day protest or appeal period.

           In summary, we agree with Risk Finance, the retrospective rating group, that: (1) it is an independent entity separate from the employer and that notice to the employer is not necessarily notice to the retrospective rating group; (2) WAC 296-17-90453 gives the retrospective rating group an independent right to challenge adjudicative orders issued by the Department associated with a claim against one of the employers within the retrospective rating group; and (3) the sixty days for filing an appeal or a protest from those adjudicative orders in a claim file cannot begin to run until the orders are communicated to the retrospective rating group.

           The Department order dated March 20, 2006 , is incorrect and is reversed.  This matter is remanded to the Department to find that the protest filed by Risk Finance, the retrospective rating group, on July 20, 2005 , was a timely protest to the Department orders dated April 14, 2005 and April 15, 2005 , in this claim.

FINDINGS OF FACT

 

1.       The claimant, David Tapia-Fuentes, filed an application for benefits with the Department of Labor and Industries on December 8, 2004 , in which he alleged that he sustained an industrial injury on December 1, 2004 , during the course of his employment with B H Stordahl & Sons Inc.  On March 7, 2005 , the Department issued an order in which it allowed the claim, and closed it as of that date based on available information that indicated medical treatment was concluded.  The claimant protested this order on March 14, 2005 , and the Department reversed the order on April 14, 2005 , stating the claim would remain open for authorized treatment and benefits.  On April 15, 2005 , the Department issued an order in which it allowed the claim for injury on December 1, 2004 , [5] while Mr. Tapia-Fuentes was working for B H Stordahl & Sons Inc., and stated that the claimant was entitled to benefits in accordance with the industrial insurance laws.  Benefits were thereafter provided to the claimant.

 

          The retrospective rating group, Risk Finance, protested the April 14, 2005 and April 15, 2005 Department orders on July 20, 2005, and the Department affirmed the orders on March 20, 2006, on the basis the Department could not reconsider the orders as the protest(s) to them were not filed within the statutory 60-day time limitation.  The retrospective rating group, Risk Finance, filed a Notice of Appeal from this order on May 16, 2006 , with the Board of Industrial Insurance Appeals.  The Board issued an order on May 25, 2006 , in which it granted the appeal, assigned Docket No. 06 15128, and ordered that further proceedings be held.

 

2.       The retrospective rating group, Risk Finance, filed a protest with the Department of Labor and Industries within 60 days of the communication of the April 14, 2005 and April 15, 2005 Department orders.

 

CONCLUSIONS OF LAW

 

1.       The Board has jurisdiction over the parties to and the subject matter of this appeal.

 

2.       Risk Finance's July 20, 2005 protest was timely filed to the Department orders of April 14, 2005 and April 15, 2005, as contemplated by RCW 51.52.050.

 

3.       The Department order dated March 20, 2006 , is incorrect and is reversed.  This matter is remanded to the Department with instructions to consider the protest filed by the retrospective rating group, Risk Finance, filed on July 20, 2005, to the Department orders dated April 14, 2005 and April 15, 2005, as a timely protest; issue a further appealable order in response to Risk Finance's timely protest of the Department orders dated April 14, 2005 and April 15, 2005; and take such further action as is appropriate under the law and the facts.

 

          It is so ORDERED.

          Dated: July 5, 2007 .

 

                                                                 

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

THOMAS E. EGANChairperson

/s/

CALHOUN DICKINSONMember