Opinion
No. 33822-0-II.
August 22, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-01090-7, Paula Casey, J., entered September 19, 2005.
Counsel for Appellant(s), Jennifer Marg Cross-Euteneier, Vail Cross-Euteneier Associates, Tacoma, WA.
Counsel for Respondent(s), Steve Vinyard, Attorney at Law, Olympia, WA.
Lee Edward Schultz, Attorney at Law, Seattle, WA.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Quinn-Brintnall, C.J., and Penoyar, J.
Mark J. Garrison appeals the denial of his request to add health care benefits to his industrial insurance time loss compensation. He argues that the Department of Labor Industries erred in determining that it lacked jurisdiction to adjust his original compensation calculation and that the Board of Industrial Insurance Appeals and the superior court erred in affirming this decision and in considering issues outside the scope of review. Although the Department's conclusion that it lacked jurisdiction was erroneous, the Board and the superior court correctly concluded that the recalculation was barred by res judicata. Thus, we affirm.
FACTS
Mark Garrison suffered an industrial injury while employed by CNF Transportation. One year later, in September 1995, his employer-paid health care benefits were terminated. In January 1998, the Department of Labor and Industries issued an order establishing Garrison's time loss compensation rate based on his monthly wages, marital status, and number of children. The calculation did not include his employer-paid health care benefits. Garrison appealed the Department's order to the Board of Industrial Insurance Appeals, which affirmed. Garrison then appealed to superior court, which also affirmed in an order dated May 2002. At no time during these proceedings did Garrison ask that his employer-paid health care be included in his time loss compensation. Garrison did not appeal the May 2002 superior court order.
Meanwhile, we held that employer-paid health care benefits should be included in an employee's time loss compensation. Cockle v. Dep't of Labor Indus., 96 Wn. App. 69, 76, 977 P.2d 668 (1999). The Supreme Court agreed in an In February 2002, Garrison asked the Department to adjust his time loss compensation based on Cockle to include his employer-paid health care benefits. In August 2002, the Department approved this request. Garrison protested the August 2002 recalculation order.
The Department then declared the August 2002 order `null and void as it was issued without authority.' Clerk's Papers (CP) at 55. Although the record does not explain its reasoning, the Department concedes it believed that res judicata deprived it of jurisdiction. Garrison appealed to the Board of Industrial Insurance Appeals. In affirming, the Board ruled that the Department had no authority to issue the August 2002 recalculation; that the January 1998 calculation became a final and binding judgment when affirmed by the superior court in May 2002; and that the Department could not recalculate Garrison's time loss benefits because he could show no change of circumstances since the Department's order of January 1998. Garrison appealed to Thurston County Superior Court. Both sides moved for summary judgment. The superior court judge granted summary judgment in favor of the Department, concluding that Garrison's failure to appeal the May 2002 superior court order had rendered the Department's original calculation res judicata; that the Department therefore lacked jurisdiction to issue the August 2002 recalculation; and that the recalculation was void.
ANALYSIS
We review the Board's legal conclusions de novo. VanHess v. Labor Indus., 132 Wn. App. 304, 309, 130 P.3d 902 (2006). Here, the facts are not in dispute; the only issues are the legal conclusions drawn from those facts. While Garrison correctly argues that the Department's designation of its August 2002 recalculation as `null and void' was erroneous, he incorrectly claims that the Board and the superior court exceeded their scope of review by considering the issues of res judicata and change of circumstances. A review of these issues convinces us that the Department's flawed jurisdictional analysis was harmless and that we should affirm summary judgment in favor of the Department.
I. Jurisdiction
Although the Department now concedes that it had jurisdiction over Garrison's claim for health care benefits, CNF argues that the Department's jurisdictional analysis was correct.
An order is void only where `the issuing tribunal lacked either personal jurisdiction over the parties or subject matter jurisdiction over the claim.' Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 543-44, 886 P.2d 189 (1994). `A tribunal lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate.' Marley, 125 Wn.2d at 539. An order which the tribunal had no authority to issue is not void, as long as the tribunal had authority over the type of controversy, because "the power to decide includes the power to decide wrong." Marley, 125 Wn.2d at 543 (quoting Dike v. Dike, 75 Wn.2d 1, 8, 448 P.2d 490 (1968)).
In Marley, the petitioner asked the court to hold that a Department decision was void. Marley, 125 Wn.2d at 534. She had claimed workers' compensation benefits for her children and herself as beneficiaries after her husband was killed in the course of employment. Marley, 125 Wn.2d at 535. Because she was separated from the worker at the time of his death, the Department found that she had been living in a state of abandonment and therefore denied her benefits. Marley, 125 Wn.2d at 535-36. Six years later, she challenged the Department's decision, arguing that her failure to appeal did not bar her new claim because the Department had exceeded its authority when it previously misconstrued `abandonment.' Thus, according to petitioner, the earlier order was void. Marley, 125 Wn.2d at 541. The Supreme Court disagreed, holding that the Department had authority to decide whether she was living in a state of abandonment and that an incorrect decision on the matter did not vitiate this authority. Marley, 125 Wn.2d at 543.
Here, there is no question that the Department had authority over the type of claim in controversy. The Department has broad authority over workers' compensation claims. Marley, 125 Wn.2d at 539 (citing RCW 51.04.020). Contrary to CNF's assertion, the superior court's prior final order did not nullify this jurisdiction. After a final order, the Department has authority to reexamine a case to determine whether a `change of circumstances warrants an increase or rearrangement of compensation.' RCW 51.28.040. That it may have misapplied the law in such a case does not deprive the Department of jurisdiction or render its order void. Marley, 125 Wn.2d at 543. And a potential res judicata defense does not change the type of controversy. Thus, the Department had jurisdiction over Garrison's request to add health care benefits to his compensation, and the subsequent order was not void, even if incorrect.
II. Res Judicata
Res judicata prohibits parties from relitigating claims and issues that were, or could have been, litigated in a prior action. Chavez v. Labor Indus., 129 Wn. App. 236, 239, 118 P.3d 392 (2005). Four elements must be present to trigger this preclusive effect:
(1) the parties in the two successive proceedings are the same; (2) the prior proceeding ended in a final judgment; (3) a party in the second proceeding is attempting to litigate for the first time a matter that should have been raised in the earlier proceeding; and (4) application of the doctrine must not work an injustice.
Chavez, 129 Wn. app. at 239-240 (citing Hanson v. City of Snohomish, 121 Wn.2d 552, 562, 852 P.2d 295 (1993)).
In Chavez, we found a claim barred by res judicata on nearly identical facts. See Chavez, 129 Wn. App. at 238-39; accord. Lynn v. Dep't of Labor Indus., 130 Wn. App. 829, 836, 125 P.3d 202 (2005). The Department calculated the claimant's time-loss rate for a temporary total disability without factoring in the amount of his employer-provided health insurance. Chavez, 129 Wn. App. at 238-39. The claimant did not appeal the amount, and his claim was closed. When the Supreme Court decided Cockle, the claimant attempted to reopen his claim and have his time-loss rate recalculated in accordance with Cockle. The claim was reopened, but the Department denied the claim on the grounds that the prior order was final. Chavez, 129 Wn. App. at 239. The Board, the superior court, and this court all affirmed. Chavez, 129 Wn. App. at 238.
Here, the parties are the same. And the Department's original time-loss calculation became final when Garrison failed to appeal the May 2002 superior court decision affirming it. Garrison should have raised the health care compensation issue in the prior proceeding because his employer-paid health care benefits were terminated before the Department issued its original calculation. And no injustice results from applying res judicata here because Garrison, like the claimant in Cockle, could have appealed the exclusion of health care compensation at the time the Department issued its original calculation. See Chavez, 129 Wn. App. at 240. Thus, the elements of res judicata are met, and we agree with the Board and the superior court that the doctrine bars Garrison's later claim, unless he can show that a change in circumstances has occurred, under RCW 51.28.040.
III. Scope of Review
Garrison claims that the only issue appealed to the Board was whether the August 2002 recalculation was void due to lack of jurisdiction and argues therefore that the Board and the superior court erred in considering changed circumstances. The Board's appellate jurisdiction is limited to the issues raised in the notice of appeal. It has no authority to change the issues brought before it or to enlarge the scope of proceedings. Brakus v. Dep't of Labor Indus., 48 Wn.2d 218, 223, 292 P.2d 865 (1956); see also Hanquet v. Dep't of Labor Indus., 75 Wn. App. 657, 661-62, 879 P.2d 326 (1994). But Garrison's notice of appeal to the Board stated: `That the injury or occupational exposure occurred on or about 09/13/94 while claimant was at work in the course of employment for the above named employer; that claimant disagrees with the department determination that a change of circumstances did not occur.' Board of Industrial Insurance Appeals (BIIA) Record at 25 (emphasis added).
IV. Change of Circumstances
Because the Department's prior calculation is final, to modify the calculation Garrison must demonstrate a change of circumstances under RCW 51.28.040. See VanHess v. Dep't of Labor Indus., 132 Wn. App. 304, 314, 130 P.3d 902 (2006). And because his health care benefits were terminated in 1995, the only potential change in circumstance regarding those benefits since the Department issued its original calculation in 1998 is the Cockle case itself. This position is foreclosed by our recent decision in VanHess. See VanHess, 132 Wn. App. at 315; accord. Lynn v. Dep't of Labor Indus., 130 Wn. App. 829, 832, 125 P.3d 202 (2005).
In 1998, the claimant in VanHess failed to appeal or request reconsideration of the Department's time loss compensation rate within 60 days. In 2002, he asked the Department to adjust this rate to include health care benefits. The Department denied the request on the ground that there had been no change in circumstance, and the Board affirmed. VanHess, 132 Wn. App. at 308. The superior court reversed, finding that the Cockle decision constituted a change in circumstance. VanHess, 132 Wn. App. at 309. We reversed the superior court, holding that a judicial change in legislative interpretation in general, and the Cockle decision in particular, is not a change of circumstance as contemplated by RCW 51.28.040. VanHess, 132 Wn. App. at 315.
Because the Cockle decision is not a change of circumstance that would allow the Department to recalculate Garrison's time loss benefits to include employer-paid health care benefits, we affirm the summary judgment in favor of the Department.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
PENOYAR and QUINN-BRINTNALL, JJ., concur.