Opinion
No. 24745-7-III.
March 22, 2007.
Appeal from a judgment of the Superior Court for Chelan County, No. 04-2-01012-2, John E. Bridges, J., entered November 3, 2005.
Counsel for Appellant(s), Randy J. Fair, Calbom Schwab, Po Box 1429, Moses Lake, WA, 98837-0218.
Counsel for Respondent(s), Mary Ann McIntosh, Attorney at Law, Offc Of Attorney General, 18 S Mission St Fl 3, Wenatchee, WA, 98801-2203.
Reversed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Brown, J.
The Department of Labor and Industries has original and exclusive jurisdiction in all workers' compensation cases. Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 169, 937 P.2d 565 (1997); RCW 51.04.010. Oreon A. Jones quit working with a bad back and respiratory problems. He received an industrial injury disability award for his back. He filed an asbestosis claim 15 years later. The department ordered a permanent partial disability award. Asserting he qualified for a pension and time loss benefits, Mr. Jones appealed to the Board of Industrial Appeals. Voluntary retirement was not mentioned in either the department's award or the notice of appeal.
The board held that Mr. Jones had voluntarily retired when he quit working with his bad back. He lost his appeal in the superior court. In this appeal, Mr. Jones contends that in its appellate capacity, the board lacked subject matter jurisdiction to decide whether he was voluntarily retired because only the department has original jurisdiction to determine voluntary retirement and the department did not rule on the issue in its decision and order. We agree and reverse.
FACTS
Mr. Jones was exposed to asbestos when he did construction work from 1950 through 1984. He quit working in 1984 due to a bad back. He also had respiratory problems. He filed an industrial injury claim and received an award for permanent impairment for his back. He also filed two workers' compensation claims for asbestosis, which were both denied, the latest in 1992. Mr. Jones did not appeal.
In 1999, Mr. Jones filed a new asbestosis claim. The department allowed the claim, fixing the date of injury (manifestation of the disease) at December 1, 1999. In 2003, Mr. Jones' claim for permanent respiratory impairment (Category 4) from asbestosis (taking into consideration preexisting Category 2 permanent respiratory impairments) was paid and closed. The order did not provide for wage replacement benefits.
Mr. Jones appealed the order to the board, asserting that he was entitled to receive time loss compensation and a pension because of total disability (Category 4 or greater without deduction for a Category 2 preexisting condition) due to asbestosis.
In an interrogatory to the department, Mr. Jones requested information to support any allegation the department asserted that Mr. Jones was totally disabled from any other medical cause. The department responded:
The Department does not allege that the claimant is totally disabled from other medical causes; only that the claimant retired from the work force in 1984. The Department does not know whether the retirement was due to medical reasons or was totally voluntary, but since the claimant did not have asbestos in 1984, his retirement was not due to asbestosis.
Clerk's Papers (CP) at 291-92.
At trial, the parties stipulated that there was no evidence of impairment related to asbestosis as of September 14, 1992. After the parties rested, the department submitted a brief asserting its voluntary retirement theory. Mr. Jones objected, claiming that since the department did not decide the voluntary retirement issue in its order, the board lacked subject matter jurisdiction to consider the question for the first time on appeal.
The industrial appeals judge held that the board had subject matter jurisdiction. Further, Mr. Jones had proven that he was totally disabled as a proximate result of his asbestosis as of December 1, 1999. The industrial appeals judge also held, however, that Mr. Jones was not entitled to wage replacement benefits due to voluntary retirement.
Mr. Jones' petition for review was granted by the board. But the board ultimately affirmed the industrial appeals judge's decision.
Mr. Jones appealed to the superior court. After a bench trial, the court entered findings of fact and conclusions of law identical to those in the board's decision and order. He now appeals the superior court's decision.
DISCUSSION
To appeal an order entered by the Department of Labor and Industries, a party must first file a notice of appeal to the Board of Industrial Insurance Appeals. RCW 51.52.050, .060. The board then conducts a de novo hearing. RCW 51.52.100, .106. But the board may review only those issues that the department previously decided. Hanquet v. Dep't of Labor Indus., 75 Wn. App. 657, 661, 879 P.2d 326 (1994).
An aggrieved party may appeal a board's decision to the superior court. RCW 51.52.060, .115. The superior court's review is de novo, but limited to those questions that were properly before the board. RCW 51.52.115; Hanquet, 75 Wn. App. at 663. A superior court's decision may be appealed to the Court of Appeals. RCW 51.52.140; Young v. Dep't of Labor Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996).
Here, Mr. Jones asserts that by exceeding the scope of review the board lacked subject matter jurisdiction to decide the voluntary retirement issue, which was not reviewed by the department. "Whether a court has subject matter jurisdiction is a question of law reviewed de novo." Dougherty v. Dep't of Labor Indus., 150 Wn.2d 310, 314, 76 P.3d 1183 (2003).
The department complains that Mr. Jones did not assign error to the legal conclusion that he appeals. See RAP 10.3(a)(3). A reviewing court will waive technical violations of the appellate rules to reach the merits when the briefing makes the nature of the challenge perfectly clear, the violation is minor, there is no prejudice to the opposing party, and minimal inconvenience to the appellate court. RAP 1.2(a); State v. Neeley, 113 Wn. App. 100, 52 P.3d 539, 542 (2002); State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995). Such is the case here. There are no disputed facts and only a de novo legal conclusion to be decided, the department was unhindered in its ability to prepare a brief, and the court had no trouble determining the issue. The department concedes that the legal issue is discernable from the brief and only argues that the court limit review to that issue. See Macey v. Dep't of Employment Sec., 110 Wn.2d 308, 311, 752 P.2d 372 (1988).
The legislature has expressly granted the Department of Labor and Industries original and exclusive jurisdiction, in all cases where workers' compensation claims are presented, to determine the mixed question of law and fact as to whether a compensable injury has occurred. Kingery, 132 Wn.2d at 169 (quoting Abraham v. Dep't of Labor Indus., 178 Wash. 160, 163, 34 P.2d 457 (1934)); RCW 51.04.010. The department has the duty to determine whether the workman was within the protection of the Industrial Insurance Act, Title 51 RCW, at the time of the injury as well as the fact of injury and its extent. Kingery, 132 Wn.2d at 169 (citing Abraham, 178 Wash. at 163).
A tribunal is limited to the nature and scope of jurisdictional authority conferred upon it. Barnett v. Hicks, 119 Wn.2d 151, 161-63, 829 P.2d 1087 (1992). The board is limited to appellate jurisdiction, as is the superior court. RCW 51.52.060, .115. "[F]or the board and the trial court to consider matters not first determined by the department would usurp the prerogatives of the department, the agency vested by statute with original jurisdiction." Lenk v. Dep't of Labor Indus., 3 Wn. App. 977, 982, 478 P.2d 761 (1970).
The disability statutes provide that if the department determines the claimant is voluntarily retired, wage replacement benefits will not be paid. RCW 51.32.090(8); RCW 51.32.060(6). A claimant is deemed voluntarily retired and no longer attached to the work force when the claimant is no longer receiving income, salary, or wages from any gainful employment and when the claimant has not provided evidence of a bona fide attempt to return to gainful employment after retirement. WAC 296-14-100 .
RCW 51.32.090(8) provides: "If the supervisor of industrial insurance determines that the worker is voluntarily retired and is no longer attached to the work force, benefits shall not be paid under this section."
RCW 51.32.060(6) provides: "In the case of new or reopened claims, if the supervisor of industrial insurance determines that, at the time of filing or reopening, the worker is voluntarily retired and is no longer attached to the work force, benefits shall not be paid under this section."
The statutes plainly provide that voluntary retirement is a consideration when deciding benefits. And the department has exclusive original jurisdiction. Our Supreme Court has held that the board has no jurisdiction to expand the scope of review. Hanquet, 75 Wn. App. at 663.
Similarly, in this case, we hold that the board improperly expanded the scope of review here to reach the voluntary retirement issue that was not decided by the department.
The department argues that it routinely enters general orders without a voluntary retirement finding and then asserts a voluntary retirement "defense" against workers' appeals at the board level. Resp't's Br. at 17. If it does, it should not. The legislature did not grant the board authority to decide the initial issue of voluntary retirement. The department and the board each have specific authority to administer the workers' compensation laws, but not general authority to administer all of those laws. South Bend Sch. Dist. No. 118 v. White, 106 Wn. App. 309, 319-20, 23 P.3d 546 (2001).
Moreover, if we had any doubt,
the workmen's compensation act should be liberally construed to the benefit of claimants: "[O]ur workmen's compensation act should be liberally construed in favor of its beneficiaries. It is a humane law and founded on sound public policy, and is the result of thoughtful, painstaking and humane considerations, and its beneficent provisions should not be limited or curtailed by a narrow construction."
Rabey v. Dep't of Labor Indus., 101 Wn. App. 390, 396, 3 P.3d 217 (2000) (quoting Hilding v. Dep't of Labor Indus., 162 Wash. 168, 175, 298 P. 321 (1931)).
Our conclusion is supported by a number of the board's own decisions. E.g., In re Heyrend, No. 91 5237, 1993 WA Wrk. Comp. LEXIS 1072, Bd. of Indus. Ins. Appeals (Wash. Feb. 24, 1993); In re Hicks, No. 98 22022, 2000 WA Wrk. Comp. LEXIS 10, Bd. of Indus. Ins. Appeals (Wash. Jan. 7, 2000); In re Caruso, No. 89 1564, 1990 WA Wrk. Comp. LEXIS 685, Bd. of Indus. Ins. Appeals (Wash. Sept. 14, 1990). The board publishes its significant decisions and makes them available to the public. RCW 51.52.160. Courts view these decisions as persuasive but not binding authority. Dep't of Labor Indus. v. Janssen, 125 Wn. App. 461, 466, 105 P.3d 431 (2005).
The department contends that the board has implicit subject matter jurisdiction to decide issues such as voluntary retirement granted by Washington case law. It relies on Kaiser Aluminum Chem. Corp. v. Overdorff, 57 Wn. App. 291, 788 P.2d 8 (1990) and Weyerhaeuser Co. v. Farr, 70 Wn. App. 759, 855 P.2d 711 (1993). These cases do not support the department's argument. In neither case did the board determine the issue of the employee's voluntary retirement. See Overdorff, 57 Wn. App. at 292-93; Farr, 70 Wn. App. at 761.
The department asserts that Mr. Jones' own argument would bar his appeal. The department's order and decision closing Mr. Jones' claim provided payment for permanent disability but not time loss or a pension, yet he appealed a time loss and pension. The department disregards the standard to determine the issues on appeal. The scope of review is "fixed by the order from which the appeal was taken as limited by the issues raised by the notice of appeal." Lenk, 3 Wn. App. at 982 (emphasis added) (citation omitted); see RCW 51.52.115.
The relevant issues before the board as expressed in Mr. Jones' appeal were that he was totally and permanently disabled "since the date time loss was terminated" due to respiratory impairments and he sought to have the general order reversed and that he "be placed on pension rolls effective from the date the time loss was terminated." CP at 203, 204. Mr. Jones did not raise the voluntary retirement issue and it is not addressed in the order.
The department properly states that a final decision or order by the department has no prescribed form and it need not explain every basis for its decisions. It only must not be misleading when providing the statutory notices. Porter v. Dep't of Labor Indus., 44 Wn.2d 798, 271 P.2d 429 (1954). But the failure of the department to address an issue in its decision and order certainly does not place a burden on the worker to rebut a presumption that the issue was actually decided by it as the department seems to suggest.
The department also argues that Mr. Jones had notice of the voluntary retirement issue on appeal before the board by its response to his interrogatory. Assuming (without holding) the department is correct, notice does not affect the department's original jurisdiction or the board's lack of subject matter jurisdiction. See Merchant v. Dep't of Labor Indus., 24 Wn.2d 410, 413, 165 P.2d 661 (1946). Subject matter jurisdiction cannot be waived. Skagit Motel v. Dep't of Labor Indus., 107 Wn.2d 856, 734 P.2d 478 (1987), overruled on other grounds by Dougherty, 150 Wn.2d 310.
Mr. Jones seeks fees under RCW 51.52.130. The statute provides for reasonable appellate attorney fees if the decision or order is reversed or modified and additional relief is granted. RCW 51.52.130. Recovery of fees under the statute encompasses fees in the superior court and the appellate court when both courts review the matter. Fred Meyer, Inc. v. Shearer, 102 Wn. App. 336, 341, 8 P.3d 310 (2000). Mr. Jones is entitled to attorney fees.
CONCLUSION
The board lacked subject matter jurisdiction to decide voluntary retirement of the department's order. We therefore reverse and grant Mr. Jones attorney fees upon his compliance with RAP 18.1.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and BROWN, J. Concur.