Opinion
No. 54572-8-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-2-41105-1. Judgment or order under review. Date filed: 06/17/2004. Judge signing: Hon. Sharon Armstrong.
Counsel for Appellant(s), Joan Lowry Glaser Morgan, Slagle Morgan LLP, 801 2nd Ave Ste 1110, Seattle, WA 98104-1576.
Counsel for Respondent(s), David L. Lybbert, Calbom Schwab Psc, Calbom Schwab Psc, PO Box 1429, Moses Lake, WA 98837-0218.
Timothy S. Hamill, Attorney at Law, 120 S 3rd St Ste 100, Yakima, WA 98901-2869.
Dennis R. Bunger hurt his back while working for self-insured employer Baugh Enterprises, Inc. Bunger reported his injury to a supervisor, but did not seek medical help. Soon before the one-year deadline of RCW 51.28.050 for filing an industrial insurance claim, Bunger informed Baugh that he intended to file a claim. A Baugh official mailed Bunger a claim form a few days before the deadline. A cover letter read, `Due to time constraints placed by the Department of Labor and Industries, please return this form at your earliest convenience.' Exhibit 12. The letter did not inform Bunger of the one-year deadline or ask him to complete and return the form within the deadline. Bunger completed and returned the form about a week after receiving it, but not within the deadline. The Board of Industrial Insurance Appeals ruled that Bunger failed to file his claim within the statutory deadline. Bunger appealed to the Superior Court, which granted summary judgment for Bunger, concluding that Baugh was estopped from asserting the one-year time bar against Bunger's claim. Baugh appeals.
We affirm, as Bunger establishes the three elements of equitable estoppel. We reject Bunger's alternative arguments that WAC 296-15-405 imposes a duty on employers to inform employees about the one-year deadline and that Bunger effectively filed a claim before the deadline by telling Baugh Enterprises about his injury and his intent to file a claim.
FACTS
Dennis R. Bunger worked for Baugh Enterprises, Inc. as a laborer. On March 8, 2000, Bunger was operating a jackhammer when he felt severe pain in his lower back. At the end of his shift, Bunger informed job site supervisor Gene Gunderson that he had suffered an injury to his back while working. Gunderson entered information about the injury in a first aid log. Bunger did not ask for or receive medical help. Bunger and Gunderson differ whether they filled out a more comprehensive first aid report. Bunger believes they did complete a report, and Gunderson does not.
Bunger continued to work for Baugh for a little over three months, then resigned. During this time, Bunger felt severe pain in his lower back and legs that he treated with Tylenol and ibuprofen. He did not inform Baugh about his pain out of fear that he would lose his job. He resigned when the pain became so severe that he could no longer work. He did not tell Baugh the reason for his resignation.
Bunger continued to feel pain in his lower back and his legs through the rest of the year. He saw an asthma physician and a primary care provider, but he did not inform them about his back problems. In December, Bunger decided to consult with Dr. Marr Mullen about his back and made an appointment for January 25, 2001.
Ten days before the appointment, Bunger's wife, Jo Ellen Bunger, contacted Baugh by telephone to get a copy of the accident report that the Bungers believed was completed for the March 8 incident. She asked for Gunderson but was told that he would be gone until February 15. The Bungers made more calls to Baugh and were transferred to supervisor John Von Lossow. According to Von Lossow, Bunger first told him that he intended to reopen an earlier claim but informed him in late February or early March that he intended to file a claim for benefits against Baugh Enterprises.
On March 6, Von Lossow sent the Bungers a blank self-insured claim form (an `SIF-2 form') for Bunger to complete and return. A cover letter accompanying the SIF-2 form read, `Due to time constraints placed by the Department of Labor and Industries, please return this form at your earliest convenience.' The letter did not request Bunger to return the form within the one-year deadline. Bunger completed the form on or around March 12, well after the one-year anniversary of the March 8 injury. Baugh Enterprises received it on or about March 13.
On April 10, 2001, Von Lossow sent an e-mail to a claims handler, explaining his interaction with Bunger and stating that he had sent an SIF-2 form to Bunger and added the phrase `how wonderful.' Exhibit 9, at 18. In an oral examination, Von Lossow acknowledged that the phrase could be an acknowledgement that Baugh might have lost the ability to deny a claim from Bunger because of timeliness.
The Department of Labor Industry ultimately ruled that the injury was a temporary aggravation of a preexisting condition. The Board of Industrial Insurance Appeals granted appeals from Bunger and from Baugh. The Board reversed the Department on the ground that Bunger did not file for benefits within one year of the injury as required by RCW 51.28.050. Bunger appealed to King County Superior Court and moved the court to exercise its equitable power to relieve him of the strict one-year deadline. Baugh cross-moved the court to apply the deadline and affirm the Board's final decision. Although the Department was a co-defendant with Baugh, on this issue it urged the court to use its equitable powers to relieve Bunger from enforcement of the deadline. The Court granted summary judgment for Bunger on equitable estoppel grounds. Baugh Enterprises appeals to this court.
ANALYSIS
We begin by analyzing whether WAC 296-15-405 imposes upon self-insurers such as Baugh a duty to inform a worker about the one-year statutory deadline once the worker indicates an intent to file a claim. WAC 296-15-405(1) provides guidance to self-insureds on reporting industrial injuries to the Department. It states, `When notified of injury or illness, the self-insurer must provide the worker with this prenumbered form and assistance in filing a claim.' WAC 296-15-405(1) (emphasis added). Bunger contends that the requirement to provide assistance imposes a duty on self-insurers to inform workers about the one-year deadline of RCW 51.28.050.
`No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the rights of dependents or beneficiaries accrued, except as provided in RCW 51.28.055.' RCW 51.28.050.
When viewed in isolation, the language of WAC 296-15-405(1) could plausibly support the interpretation advanced by Bunger. But chapter 51.28 RCW and Title 296 of the WAC already describe in detail the duties owed by the Department and employers, and to imply a duty to notify a worker about the one-year deadline under WAC 296-15-405 would be inconsistent with these provisions.
WAC 296-15-400 explicitly describes when a self-insurer must notify a worker of the worker's obligations under the state's industrial insurance laws. It requires notification only within 30 days of hiring and when a worker files a claim. It does not require a separate notification when a worker communicates an intent to file a claim. Furthermore, RCW 51.28.010 describes the duties owed by an employer and by the Department once a worker reports an injury, and it does not require the employer to notify the worker about the worker's obligations. Instead, RCW 51.28.010 requires the employer to report the injury to the Department, and only if the employee `has received treatment from a physician . . ., has been hospitalized, disabled from work, or has died as the apparent result of such accident and injury.' RCW 51.28.010(1). Once the employer has reported an injury to the Department, the Department bears the burden of providing notification, `in nontechnical language, of their rights under this title.' RCW 51.28.010(2). Because we are reluctant to interfere with this scheme by reading an additional duty into WAC 296-15-405, we decline to interpret the phrase `and assistance in filing a claim' to impose a duty to inform a worker about the statutory one-year deadline.
We next determine whether the Superior Court erred in ruling that Baugh's letter to Bunger equitably estops it from enforcing the one-year deadline for filing a claim. A worker's timely filing is a jurisdictional limit on his or her right to receive compensation and on the Department's authority to accept that worker's claim. Harman v. Dep't of Labor Indus., 111 Wn. App. 920, 923-24, 47 P.3d 169 (2002). Although courts have been reluctant to do so, they have carved out a narrow space under the doctrine of equity to set aside actions of the Department, apart from the provisions of chapter 51 RCW. Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 173, 937 P.2d 565 (1997). An appellate court reviews the authority of a trial court to fashion an equitable remedy for an abuse of discretion. Rabey v. Dep't of Labor Indus., 101 Wn. App. 390, 396-97, 3 P.3d 217 (2000). Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775 (1971).
A party asserting estoppel must prove each of its elements by clear, cogent, and convincing evidence. Robinson v. City of Seattle, 119 Wn.2d 34, 82, 830 P.2d 318 (1992). The elements to be proved are: `first, an admission, statement, or act inconsistent with a claim afterwards asserted; second, action by another in reasonable reliance on that act, statement, or admission; and third, injury to the party who relied if the court allows the first party to contradict or repudiate the prior act, statement, or admission.' Robinson, 119 Wn.2d at 82.
In this matter, the Department joins Bunger in arguing that Baugh should be equitably estopped from seeking enforcement of the one-year deadline because of its statement to Bunger. We agree, as the record establishes the three elements of equitable estoppel by clear, cogent, and convincing evidence. Baugh informed Bunger that `[d]ue to time constraints placed by the Department of Labor and Industries,' he should `please return this form at your earliest convenience.' This statement clearly implies that Bunger would not violate the Department's time constraints if he returned the form at his earliest convenience. If it were to be read any other way, the statement would clearly be misleading and deceptive. This statement is inconsistent with the argument by Baugh that the Department should not allow Bunger's claim because he failed to file by the deadline and it therefore satisfies the first requirement of equitable estoppel. The act by Bunger of completing and returning the form within a week demonstrates that Bunger relied on Baugh's statement. Because Bunger had no reason to doubt his former employer's statement, his reliance was reasonable. The record therefore establishes the second requirement of equitable estoppel. Because enforcement of the deadline in spite of Baugh's statement would result in a denial of Bunger's application, Bunger will suffer injury if Baugh repudiates its prior statement. The record therefore satisfies the third requirement of equitable estoppel.
Baugh argues that because Bunger did not tell Baugh that he intended to file a claim until shortly before the statutory deadline, he failed to act with diligence and does not merit equitable relief. A lack of diligence in perfecting and prosecuting a claim for compensation can be a reason for a court to deny equitable relief. Kingery, 132 Wn.2d at 176. "The principle applicable to the situation is tersely expressed in an ancient maxim: Equity aids the vigilant, not those who slumber on their rights." Kingery, 132 Wn.2d at 176 (quoting Leschner v. Dep't of Labor Indus., 27 Wn.2d 911, 927, 185 P.2d 113 (1947)). But RCW 51.28.050 allows employees such as Bunger a year from the day of the injury to file an industrial insurance claim. Bunger did not slumber on his rights by deciding within this deadline to file a claim. While Bunger did not inform Baugh of his intent to file a claim until a few days before the one-year deadline, he did not wait until after the deadline. He cannot bear blame for acting with a lack of diligence.
Baugh also argues that Bunger hid from Baugh and his own physicians the extent of the pain from the injury and therefore does not have `clean hands.' A person seeking equitable relief must have clean hands. Income Investors v. Shelton, 3 Wn.2d 599, 602, 101 P.2d 973 (1940). A person may, by his misconduct, be precluded from a right to an accounting in equity by virtue of this maxim. Income Investors, 3 Wn. 2d at 602. Bunger did not communicate to Baugh or his doctors the true extent of the pain he suffered from the March 8 injury until nine months later. But this hardly constitutes unconscionable or unjust behavior or a want of good faith. The doctrine of clean hands does not bar equitable relief for Bunger.
We additionally note that Von Lossow's April e-mail, with the comment Show wonderful,' and his later acknowledgement about the meaning of the comment, indicate that Von Lossow himself believed that Baugh was not in a position to contend that Bunger missed the deadline for filing a claim. The trial court therefore did not err in applying the doctrine of equitable estoppel.
We next analyze Bunger's alternative argument that he met the one-year deadline for filing a claim. He argues that he timely filed a claim when he helped Gunderson complete the first aid log on the day of the injury and again when he told Von Lossow that he intended to file a claim and Von Lossow made a notation on a computer at Baugh. To support this argument, Bunger relies on language in Nelson v. Dep't of Labor Indus., 9 Wn.2d 621, 629, 115 P.2d 1014 (1941), that while Remington Revised Statutes, section 7686 (the predecessor of RCW 51.26.050) requires an application for compensation, along with a physician's certificate,
[I]t must be remembered that this is not a formal and highly technical requirement such as might apply to a pleading. As long as the writing filed with the department reasonably directs its attention to the fact that an injury with its particulars has been sustained and that compensation is claimed, the statute has been substantially complied with.
Nelson, 9 Wn.2d at 629. But while Bunger correctly states that a worker's claim does not need to meet formal or highly technical standards, he goes too far in arguing that a worker files a claim merely when the worker informs an employer about an injury or when an official for the employer makes an internal notation of a worker's intent to file a claim. Such a holding would open up the industrial insurance claims process to ambiguity, confusion, and unnecessary litigation. Employees could argue retroactively after the expiration of the one-year deadline that they filed claims merely by mentioning an injury to a supervisor and an intent to file or merely by seeking medical attention. For this reason, we reject Bunger's alternative argument.
In conclusion, we affirm the decision by the trial court to grant summary judgment for Bunger on grounds of equitable estoppel. We reject the arguments presented by Bunger that WAC 296-15-405 imposes a duty on employers to notify employees about the one-year deadline and that he effectively filed a claim by informing Baugh about his injury and his intent to file a claim.
KENNEDY and BECKER, JJ., Concur.