| IN RE: RUTH B. LOGAN | ) | DOCKET NO. 89 0189 & 89 0190 |
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| Claim No. K-272572 | ) | ORDER DENYING APPEAL |
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These appeals were filed by the employer, on January 13, 1989, from two orders of the Department of Labor and Industries dated November 30, 1988. The appeal which we have assigned Docket No. 89 0189 is from an order paying provisional time-loss compensation for the period September 14, 1987 through June 30, 1988. The appeal which we have assigned Docket No. 89 0190 is from an order paying provisional time-loss compensation for the period July 1, 1988 through November 30, 1988. Both orders recite that the claim has not been allowed and that the provisional time-loss compensation is paid to comply with the Industrial Insurance Act pending receipt of additional information necessary to make a determination to allow or reject the claim. Both orders state they are "interlocutory" orders, and that a determinative order will be issued at a later date. Neither order contains the language, required of final orders by RCW 51.52.050, that the order will become final unless a request for reconsideration or appeal is filed within sixty days from the date the order is communicated to the parties. In its notices of appeal the employer contends that the orders are incorrect for the reasons that (1) the claimant was not within the coverage of the Industrial Insurance Act, (2) the claimant was not injured, but if she did suffer an injury, the injury was not disabling, and (3) the claimant is either employed or employable.
From a review of the Department record in this matter it appears that this claim was initially rejected by the Department by an order dated September 21, 1987. The sole basis for rejection of the claim was that the claimant was employed as a domestic servant in a private home by an employer with less than two employees regularly employed forty or more hours per week, and that no provision had been made for elective coverage. See RCW 51.12.020(1). Following a protest by the claimant the Department issued an order dated October 16, 1987 which adhered to the provisions of the order dated September 21, 1987. On December 8, 1987 the claimant filed an appeal with the Department which was thereafter sent to the Board and assigned Docket No. 88 0278.
On June 14, 1988 a Proposed Decision and Order was entered which found the claimant was included within the mandatory coverage of the Act, and directed the Department to allow the claim. Thereafter, a Petition for Review was filed by the employer. We granted the Petition for Review and on September 8, 1988 issued our Decision and Order. We agreed with our Industrial Appeals Judge that the claimant was not excluded from the mandatory coverage of the Act by virtue of RCW 51.12.020(1). However, we concluded that it was inappropriate, under the circumstances, to direct the Department to allow the claim, since the Department had not passed on any issue other than whether the [2] claimant was a worker covered by the Act. We directed the Department to issue an order determining that the claimant was a mandatorily covered worker under RCW 51.12.010. We also directed that, after a full and complete investigation, the Department should issue a further order adjudicating the question of whether the claimant sustained an industrial injury during the course of employment with Mae Cochran. On October 4, 1988 the employer filed an appeal from our Decision and Order in Thurston County Superior Court (Cause No. 88-2-02247-7). There is no indication from the Department's record that the Superior Court has entered an order staying implementation of our order of September 8, 1988.
Our authority to hear an appeal from a determination made by the Department is specified in RCW 51.52.050 and 060. That authority extends to an appeal of any "order, decision or award" of the Department. An implicit limitation on our authority to hear an appeal is that any such "order, decision or award" must be a final decision of the Department. This is not to say that we will decline to hear an appeal from a final decision of the Department which the Department chooses to characterize as an "interlocutory" decision or which does not contain a recitation of the parties' appeal rights as set forth in RCW 51.52.050. On the other hand, where the finality of a determination concerning issues addressed by a Department order is contingent upon further investigation or further determinations, we cannot take jurisdiction to review what is truly only an "interlocutory" or preliminary determination.
In particular, we note that the "interlocutory" orders of November 30, 1988, were issued under the specific statutory authority of RCW 51.32.210. That statute reads as follows:
RCW 51.32.210 Claims of injured workers to be acted upon promptly--Payment--Acceptance--Effect. Claims of injured workers of employers who have secured the payment of compensation by insuring with the department shall be promptly acted upon by the department. Where temporary disability compensation is payable, the first payment thereof shall be mailed within fourteen days after receipt of the claim at the department's offices in Olympia and shall continue at regular semimonthly intervals. The payment of this or any other benefits under this title, prior to the entry of an order by the department in accordance with RCW 51.52.050 as now or hereafter amended, shall be not considered a binding determination of the obligations of the department under this title. The acceptance of compensation by the worker or his or her beneficiaries prior to such order shall likewise not be considered a binding determination of their rights under this title. [3]
By characterizing provisional time-loss compensation orders as payments made "prior to the entry of an order by the department in accordance with RCW 51.52.050," the Legislature excluded such orders from the types of Department decisions which can be appealed to the Board pursuant to RCW 51.52.050 and .060. Payment of provisional time- loss compensation is nothing more than a preliminary, tentative, non- binding determination that the claimant was temporarily totally disabled, from whatever cause, and for the specified periods. Only after the Department makes its final determination can the question of whether Ms. Logan was in fact temporarily totally disabled from September 14, 1987 through November 30, 1988 be addressed in an appeal to this Board.
The correctness of this approach is apparent. If the Department ultimately rejects the claim, provisional time-loss compensation can be recouped pursuant to RCW 51.32.240(2) and the employer's current appeals would likely be rendered moot. On the other hand, if the Department eventually allows the claim, then the issues of claim allowance and whether Ms. Logan was in fact temporarily totally disabled from September 14, 1987 through November 30, 1988 would become ripe for resolution. Until then, the authority to make the initial, tentative determination with respect to whether the claimant is temporarily totally disabled, from whatever cause, rests with the Department.
Thus the employer's appeals from the "interlocutory" orders of November 30, 1988 are premature. Since the Department has not as yet decided whether the claim should be allowed on the merits, no appeal lies to this Board from orders directing payment of provisional time- loss compensation pursuant to RCW 51.32.210.
We would note that both of the November 30, 1988 interlocutory orders advise the parties to contact the Department if they have any question regarding those orders. If the employer has information indicating that the claimant was "employed or employable" from September 14, 1987 through November 30, 1988 as alleged in the notice of appeal, then that information should be presented to the Department. Obviously provisional time-loss compensation should not be paid if the claimant was actually employed and not suffering from a compensable loss of earning power or, alternatively, if appropriate certification has not been provided pursuant to WAC 296-20-01002. However, in light of the language of RCW 51.32.210 we believe orders paying provisional time-loss compensation, entered by the Department prior to the issuance of an order rejecting or allowing the claim on its merits, were not intended by the Legislature to be final orders of the Department appealable to the Board under RCW 51.52.050 and .060.
Therefore, it is ORDERED that these appeals be denied. This is without prejudice to the right of any party to appeal from any final [4] order of the Department concerning rejection or allowance of the claim, the claimant's eligibility for time-loss compensation for the period September 14, 1987 through November 30, 1988, or any other matter within the ad judicatory authority of the Department.
It is so ORDERED.
Dated this 23rd day of February, 1989.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMONChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember