|IN RE: DAVID TAPIA-FUENTES||)||DOCKET NO. DOCKET NO. 06 15128|
|CLAIM NO. AA-38693||)||DECISION AND ORDER|
Betsy Rodriguez, P.S., per
Employer, B H Stordahl & Sons Inc.,
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
rating group, Risk Finance & Investment Corporation, filed an appeal with
the Board of Industrial Insurance Appeals on
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
This appeal was filed by the
retrospective rating group, Risk Finance, from a Department order dated
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
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  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
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:
If you disagree with L&I over an adjudicative or reserving issue:
· 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  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
FINDINGS OF FACT
claimant, David Tapia-Fuentes, filed an application
for benefits with the Department
of Labor and Industries on
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
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.
Department order dated
It is so ORDERED.
BOARD OF INDUSTRIAL INSURANCE APPEALS
THOMAS E. EGANChairperson