Opinion
No. 59341-2-I.
January 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-14562-3, Charles W. Mertel, J., entered January 19, 2007.
Affirmed by unpublished per curiam opinion.
When an individual fails to file an appeal from an industrial insurance decision within 60 days, the order becomes final. Because Carl Knight failed to comply with the statutory requirement and no equitable exception applies, we affirm the superior court decision granting summary judgment and remanding Knight's fraud claim to the Department of Labor and Industries (Department).
Carl Knight sustained back and neck injuries after an on-the-job accident on February 16, 1998. Knight filed a claim with the Department on May 21, 2004. The Department issued an order on June 17, 2004, denying Knight's claim because he did not file it within one year of the injury, as required by statute. The order stated that it would become final in 60 days unless Knight filed a written request for reconsideration or an appeal within that time.
Knight filed a protest on August 17, 2004. The Department reconsidered the June 17 order and issued an order affirming it on October 4, 2004. This order stated that it would become final 60 days after Knight received it unless he filed a written appeal within that time.
Knight did not file an appeal until January 2005. In a letter dated January 12, 2005, the Department stated that it had received a protest or request for reconsideration and was forwarding it to the Board of Industrial Insurance Appeals (Board) as a direct appeal. Industrial Appeals Judge Mitchell Harada conducted a conference on April 7, 2005, and determined that he should hold an initial hearing solely on the issue of the timeliness of the appeal. The judge stated that if he found jurisdiction, he would hold a hearing the same day on the other issue Knight raised, the timeliness of the original claim.
At the initial hearing, Knight did not assert that he had filed a timely appeal or protest. Instead, he argued that he was mentally impaired during the months following the October 4 order, and that this excused his failure to comply with the 60 day requirement. He requested the Board use its equitable power to set aside the order and allow the appeal.
Knight testified that he understood he had 60 days to respond to the October 4 order when he received it. But his blood sugar levels were extremely high between October and December 2004, he was experiencing sleep deprivation because he had to get up to use the restroom several times a night, and he had a lot of other activities going on. In addition, he was taking the maximum amount and frequency of a muscle relaxant and a narcotic pain medication for lower back and neck pain resulting from the accident. As a result, Knight felt that his mind was "not quite sharp" and he "wasn't able to keep up with a lot of things that were going on in [his] life at the time." But he also admitted that during a visit to his doctor in November, he said that he had to respond to a worker's compensation case.
The Board affirmed the prior decision and dismissed the action. Knight appealed to superior court. The court granted King County's motion for summary judgment but remanded the issue of fraud that Knight raised for the first time in the November 2005 hearing. Knight appeals.
Knight first contends that the superior court erred in making findings of fact in a summary judgment order. In the context of a summary judgment ruling, findings of fact are superfluous and we do not consider them because our review is de novo.Hemenway v. Miller, 116 Wn.2d 725, 731, 807 P.2d 863 (1991).
Knight raised two issues before the Board: whether he timely filed an appeal of the initial ruling denying benefits, and whether he timely filed an appeal or requested reconsideration from the October 4, 2004, order. The Board first determined that because Knight failed to file an appeal within 60 days, it had no jurisdiction and dismissed the action. The superior court affirmed this decision, but also remanded a new fraud claim to the Department. This court reviews a decision on summary judgment in an industrial appeals action de novo, basing our review "solely on the evidence and testimony presented to the" Board. Bennerstrom v. Dep't of Labor Indus., 120 Wn. App. 853, 858, 86 P.3d 826 (2004).
The Board first considered whether Knight timely filed his appeal after the October 4 order. RCW 51.52.060(1)(a) requires that an injured party must file an appeal to the Board within 60 days from the day the order was communicated to the injured party. Generally, "[a]n unappealed Department order is res judicata as to the issues encompassed within the terms of the order, absent fraud in the entry of the order." Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 169, 937 P.2d 565 (1997). Knight admits that he did not comply with the 60 day requirement. He asserts that three cases support his argument that the trial court should have used its equitable power to allow the appeal because he was mentally impaired.
In Ames v. Department of Labor Industries, 176 Wash. 509, 30 P.2d 239 (1934), the superior court declared Ames insane within days after he suffered an industrial accident. The court found reason to avoid the 60 day period because Ames was insane and without a guardian, and the Department denied his appeal because it was untimely even though it knew of his incapacity. In Rodriguez v. Department of Labor Industries, 85 Wn.2d 949, 540 P.2d 1359 (1975), a farm worker suffered an injury and filed a claim. In previous communication with the Department, he had relied on an interpreter because he did not read or understand English. Although the Department knew Knight had previously relied on an interpreter, the Department mailed him a written order closing the claim.
Knight also cites a dissenting opinion and a concurring opinion in Kingery, 132 Wn.2d 162, for the proposition that, given the statutory purpose to benefit workers, the court's equitable powers should not be limited to cases where an individual is essentially incompetent, but should be exercised where an individual is harmed by circumstances largely beyond his control. But the majority in Kingery concluded that she had not timely filed an appeal, and that the very narrow and rarely used equitable exception did not apply because she was competent when she received the Department's order denying her claim. The Kingery court stated that it has refused to broaden the narrow Ames-Rodriguez equitable exception; we follow the majority decision.
A review of the record shows that Knight's memory was affected to some extent by his diabetes and medication. Yet, he admitted that he knew he was supposed to respond to the order within 60 days; that he stated as much while in his doctor's office in November; and that he was competent. Given this record, we conclude that the superior court did not err in granting the motion for summary judgment.
Knight raised fraud for the first time in his attempted appeal to the Board. Based on the finding regarding timeliness, the Board determined that it did not have jurisdiction and did not reach any other issue. The superior court remanded the fraud claim to the Department when it granted the summary judgment motion, and King County does not object to the remand. Knight argues that the superior court erred in remanding the fraud claim. Apparently, he now seeks remand to the superior court to determine this issue. But given the statutory scheme, remand to the Department, was the only means of allowing Knight to raise the claim, if he could at all. RCW 51.52.060(1)(a) requires an individual to bring his case to the Board before he may bring it to the courts. In cases under the Industrial Insurance Act, the courts have limited, statutory jurisdiction. Dils v. Dep't of Labor Indus., 51 Wn. App. 216, 218, 752 P.2d 1357 (1988). The superior court did not err in refusing to consider the fraud claim on summary judgment.
Affirmed.