Arriaga v. Dep't of Labor & Indus. of State
| Decision Date | 30 September 2014 |
| Docket Number | No. 32287–4–III.,32287–4–III. |
| Citation | 183 Wash.App. 817,335 P.3d 977 |
| Court | Washington Court of Appeals |
| Parties | Mario ARRIAGA, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent. |
Dorian Druce Nilsson Whitford, Vail/Cross & Associates, Tacoma, WA, for Appellant.
Kay Allison Germiat, Office of the Attorney General–Tacoma, Tacoma, WA, for Respondent.
¶ 1 When a final industrial insurance order, decision, or award is based upon a medical determination, a physician is deemed an interested party. In such a case, the Department of Labor and Industries (Department) must provide notice of the order, decision, or award both to the physician and the claimant. Failure to provide notice tolls the 60–day appeal period. At issue here is whether a segregation order was communicated to a claimant's physician when the physician did not see the order because of a breakdown in mail handling procedures in his office. We hold that the order was communicated to the physician because the Department properly mailed it to the physician's office, and it was actually delivered to the physician's office. We, therefore, affirm the decision of the trial court, which barred the claimant's untimely appeal of the segregation order.
¶ 2 Mario Arriaga injured his right upper arm, face, and scalp while employed at Oakville Forest Products, Inc. The Department allowed a claim for an industrial injury in December 2005. Justin Sherfey, M.D., D.O., an orthopedic surgeon and osteopathic physician who treats injured workers, became Mr. Arriaga's attending physician.
¶ 3 On October 29, 2008, the Department issued an order segregating a cervical disc degenerative condition from Mr. Arriaga's claim. The order stated, “[t]he Department of Labor and Industries is not responsible for the condition diagnosed as: cervical disck [sic] degenerative, determined by medical evidence to be unrelated to the industrial injury for which this claim was filed,” Board Record (BR) at 28. It is undisputed that the Department mailed the order to the claimant and also to Dr. Sherfey's office on October 29, 2008. It also is uncontested that Dr. Sherfey's office received a copy of the order on October 31, 2008. However, as will be detailed below, Dr. Sherfey apparently was unaware of the order until 2010.
¶ 4 Mr. Arriaga sought legal help with his claim in April 2010. The Department closed Mr. Arriaga's claim on November 23, 2010. In December 2010, someone from Mr. Arriaga's attorney's office contacted Dr. Sherfey about Mr. Arriaga's claim. After discovering the segregation order, Dr. Sherfey protested on Mr. Arriaga's behalf, The Department affirmed the order, stating that it would not reconsider it because the protest was untimely. Mr. Arriaga appealed to the Board of Industrial Insurance Appeals (Board), which granted the appeal to review the timeliness of Dr. Sherfey's protest.
¶ 5 In his deposition, Dr. Sherfey explained that he functions as the attending physician for injured workers and is, therefore, familiar with the rules and regulations of the Department. His office has about 40 employees and he sees 40 to 45 patients per day. Dr. Sherfey's practice includes a department that manages paperwork, including getting authorizations, coordinating depositions, coordinating independent exams, and reviewing “some of those records.” Sherfey Dep. at 23. As to his intraoffice mail handling procedures, Dr. Sherfey explained, “[t]ypically we have a protocol in place that either a hard copy is placed in a mailbox for me or I receive an electronic notification of a new document that I then either have to initial on the hard copy or I have to electronically sign in the medical record.” Sherfey Dep. at 12. Dr. Sherfey stated that he reviewed mail throughout the day, but admitted that he is not necessarily given all the documents that are addressed to him.
¶ 6 Dr. Sherfey testified that for mail to be “communicated” to him, Sherfey Dep. at 16. Dr. Sherfey conceded that some documents are scanned without his “direct visualization.” Sherfey Dep, at 21. He stated that a person in the medical records department decides whether a document is sufficiently important for his review. He explained, “[w]e have no standard protocol in place, except typically paperwork that involves the patient is supposed to come across the physician's desk.” Sherfey Dep. at 23.
¶ 7 Somewhere in this process, the October 29 order never made it to Dr. Sherfey's desk. Dr. Sherfey explained that he had not initialed it, which suggested to him that he had not reviewed it. Although the order had been in Mr. Arriaga's file since 2008, Dr. Sherfey could not recall reviewing it until nearly two years later when Mr. Arriaga's attorney brought it to his attention. He stated that if he had reviewed the order in 2008, he “[l]ikely” would have responded with a letter indicating an additional evaluation was needed in regard to the diagnosis. Sherfey Dep. at 15.
¶ 8 Mr. Arriaga ultimately appealed the order in January 2011. However, the Department refused to reconsider the order “because the protest was not received within the 60 day time limitation” of RCW 51.52.060(1)(a). BR at 24. The Board accepted review of the appeal concerning the timeliness of Dr. Sherfey's protest of the segregation order. Upon review, it also dismissed the appeal as untimely, finding:
[Mr. Arriaga's] attending physician acknowledges that he did not protest the October 29, 2008 Notice of Decision within 60 days of the date it was communicated to his medical office, as he was unaware of the existence of the document until sometime in 2010. The timely filing of a protest or appeal is a statutorily imposed jurisdictional limitation upon every claimant's ability to get relief from a Department order and upon the Board's authority to hear an appeal. There is simply no legal precedent for excusing Mr. Arriaga from performing his statutory duty to file a timely protest or appeal. The result does not change even though he relied upon his attending physician to monitor correspondence from the Department of Labor & Industries.
¶ 9 Mr. Arriaga appealed to the Thurston County Superior Court, which also dismissed his appeal as untimely, finding that Dr. Sherfey received a copy of the Department's order on October 31, 2008, and that he did not protest the order within 60 days of its receipt. In its oral ruling, the court stated, “[m]y take on this is that the statute that requires communication was met when this order was clearly conveyed to the physician's office.” Report of Proceedings (RP) at 18. It elaborated:
It is my take that “communication” means that it was received as addressed, that is to the physician. If the Department had misaddressed this, if there had been some showing that a postal worker was not delivering the mail and threw it all in the back of a station wagon ... that might be a different situation, but it is clear that it was time stamped two days after it was mailed. It was received.
¶ 10 Mr. Arriaga appeals.
¶ 11 The issue before us is whether the trial court erred in concluding that the October 29, 2008, order was “communicated” to Dr. Sherfey's office when it was properly addressed and received by his office.
¶ 12 Washington's Industrial Insurance Act (IIA), Title 51 RCW, includes judicial review provisions that are specific to workers' compensation claims. Rogers v. Dep't of Labor & Indus., 151 Wash.App. 174, 179, 210 P.3d 355 (2009). In particular, the IIA provides that the judicial review of a decision by the Board is de novo, but is limited to the evidence and testimony presented to the Board. RCW 51.52.115 ; Rabey v. Dep't of Labor & Indus., 101 Wash.App. 390, 393, 3 P.3d 217, review granted, 142 Wash.2d 1007, 16 P.3d 1266 (2000). The superior court presumes the Board's findings and conclusions are “prima facie correct.” RCW 51.52.115. We review the findings of the superior court's decision de novo to determine whether substantial evidence supports them and whether its conclusions of law flow from the findings. Rogers, 151 Wash.App. at 180, 210 P.3d 355 (quoting Watson v. Dep't of Labor & Indus., 133 Wash.App. 903, 909, 138 P.3d 177 (2006) ).
”
¶ 13 Mr. Arriaga argues that even though Dr. Sherfey's office received the order on October 31, 2008, the order was not “communicated” within the meaning of RCW 51.52.060 due to a breakdown in mail handling procedures, which resulted in the order being placed in Mr. Arriaga's file without Dr. Sherfey's knowledge. Mr. Arriaga contends the word “communicated” denotes actual possession and availability, and that because Dr. Sherfey did not have knowledge of the order's existence in October 2008, it was not available to him. Citing Board decisions, Mr. Arriaga contends it would be “unjust to Mr. Arriaga and contrary to legislative intent to hold that the Department order of October 29, 2008 had been communicated to Dr. Sherfey simply because it was received in his office on October 31, 2008.” Br. of Appellant at 13. Accordingly, Mr. Arriaga contends the 60–day period to appeal under RCW 51.52.060 was tolled until Dr. Sherfey actually was aware of the order's existence.
¶ 14 The Department counters that an order or letter is “communicated” under RCW 51.52.060 when it is received and that Dr. Sherfey received the order when it was delivered to his correct mailing address. It contends that a breakdown in office procedures or communication does not excuse an untimely appeal, and that it is incumbent upon a party or agency to ensure that it has a system in place regarding distribution of its mail. It also contends Mr. Arriaga's proposal...
To continue reading
Request your trial
- Arriaga v. Dep't of Labor & Indus. of State
-
Dept. of Labor & Indus. v. Simmons
...977 (2014). The case involved RCW 51.52.060, which expressly stated that a 60-day appeals period begins when an order is "communicated." Id. at 823. We held that "[i]t is well settled under Washington law that an order is 'communicated' to a party . . . upon receipt." Id. at 825. As such, w......