| IN RE: DORENA R. HIRSCHMAN | ) | DOCKET NO. 09 17130 |
| ) | ||
| CLAIM NO. SB-57046 | ) | ORDER VACATING PROPOSED DECISION AND ORDER AND REMANDING APPEAL |
| ) | FOR FURTHER PROCEEDINGS |
- APPEARANCES
- Claimant, Dorena R. Hirschman, by
- Law Office of James Rolland, P.S., per
- Carroll G. Rusk, Jr.
- Self-Insured Employer, Grays Harbor Community Hospital, by
- Pratt Day & Stratton, PLLC, per
- Nancy Thygesen Day
The claimant, Dorena R. Hirschman, filed an appeal with the Board of Industrial Insurance Appeals on July 15, 2009, from an order of the Department of Labor and Industries dated May 7, 2009. In this order, the Department ended time-loss compensation benefits as paid to February 3, 2009, and closed the claim without further award for time‑loss compensation or permanent partial disability. The appeal is REMANDED FOR FURTHER PROCEEDINGS.
DECISION
As provided by RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision. The claimant filed a timely Petition for Review of a Proposed Decision and Order issued on February 23, 2010, in which the industrial appeals judge dismissed Dorena R. Hirschman's appeal of the Department order dated May 7, 2009. The self-insured employer filed a response to claimant's Petition for Review on March 31, 2010. All contested issues are addressed in this order.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed. The sole issue in this appeal is whether Ms. Hirschman filed her appeal with this Board within sixty days from the date that a copy of the May 7, 2009 Department order was "communicated" to her, as required by RCW 51.52.060(1)(a). Based on our review of the facts and the applicable law, we conclude that Ms. Hirschman's appeal was timely filed.[2]
The relevant facts are not in dispute. On May 7, 2009, the Department issued an order in which it closed Ms. Hirschman's claim. The order was mailed to Ms. Hirschman's Montesano, Washington home address no later than May 8, 2009.
On May 10, 2009, Ms. Hirschman left her home for a trip to Oregon and California. The May 7, 2009 closing order had not yet arrived at her home. Ms. Hirschman returned home from her trip late Sunday, May 17, 2009 but did not read the May 7, 2009 Department order until May 18, 2009. On July 14, 2009, Ms. Hirschman placed a letter in the U.S. Mail, in which she appealed the May 7, 2009 Department order. Her appeal was received at the Board on July 15, 2009.
The self-insured employer contends that the order was communicated to Ms. Hirschman when it reached her mailbox, regardless of whether Ms. Hirschman was home to receive and read it. Ms. Hirschman argues that the order could not be communicated until she had returned home and had the opportunity to read the letter. We agree with Ms. Hirschman's position.
Our decision is based on an analogous case, In re Lance D. Hawthorne, Dckt. No. 02 15875 (August 26, 2003). The question in Hawthorne was whether a Petition for Review of the Proposed Decision and Order in Mr. Hawthorne's appeal had been filed within 20 days of the date that he was presumed to have received the decision. This Board initially issued an order finding the Petition for Review was untimely filed, but later granted the Petition for Review based on a declaration received from Mr. Hawthorne. In the declaration, Mr. Hawthorne explained that he had been out of town and had not received the Proposed Decision and Order until he returned home from his trip. His Petition for Review had been filed within 20 days of the date that he returned home. We considered this a timely filing, per RCW 51.52.104.
We find Ms. Hirschman's situation indistinguishable from that of Mr. Hawthorne. RCW 51.52.104 and RCW 51.52.060(1)(a) each require aggrieved parties to file their challenges within a specific time frame that starts with the date of "communication." In the case of a Department "order, decision or award," the protest must be filed within 60 days of communication. RCW 51.52.060(1)(a). Challenges to a proposed decision of the Board must be filed within 20 days of communication. RCW 51.52.104.
Applying the ruling in Hawthorne to Ms. Hirschman's case, we conclude that the Department order was not communicated to her until she returned home on May 17, 2009. Her appeal, placed in the U.S. Mail on July 14, 2009, was therefore timely. Ms. Hirschman is entitled to a decision on the merits of her appeal to the Department's May 7, 2009 closing order.[3]
The February 23, 2010 Proposed Decision and Order is hereby vacated. This appeal is remanded to the hearings process pursuant to WAC 263-12-145(4), for further proceedings as indicated by this order. The parties are advised that this order is not a final Decision and Order of the Board within the meaning of RCW 51.52.110. At the conclusion of further proceedings, the industrial appeals judge shall, unless the matter is dismissed or resolved by an Order on Agreement of Parties, enter a Proposed Decision and Order containing findings and conclusions as to each contested issue of fact and law, based upon the entire record, and consistent with this order. Any party aggrieved by the Proposed Decision and Order may petition the Board for review of the Proposed Decision and Order, pursuant to RCW 51.52.104.
Dated: May 7, 2010.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
DAVID E. THREEDY Chairperson
/s/
FRANK E. FENNERTY, JR. Member
Member