Department of Labor and Industries v. Moser

• Decision Date: 27 June 1983
• Docket Number: No. 5608-9-II,5608-9-II
• Citation: 665 P.2d 926,35 Wn.App. 204
• Parties: The DEPARTMENT OF LABOR AND INDUSTRIES, Respondent, v. George E. MOSER, Appellant.
• Court: Washington Court of Appeals

Page 204

35 Wn.App. 204

665 P.2d 926

The DEPARTMENT OF LABOR AND INDUSTRIES, Respondent, v. George E. MOSER, Appellant.

No. 5608-9-II.

Court of Appeals of Washington Division 2.

June 27, 1983.

Anton Miller, Tacoma, for Moser.

Carol Newell Pidduck, Edwin J. McCullough, Asst. Attys. Gen., Seattle, for Dept. of Labor and Industries.

PETRICH, Chief Judge.

George Moser fell into a shingle saw in 1955 and suffered severe cuts to the upper part of his left arm. In 1957 the Department of Labor and Industries (Department) determined he was permanently and totally disabled as a result of that injury and placed him on the pension rolls. Between 1969 and 1972, Moser nevertheless worked as a sawyer and millwright and earned wages without telling the Department--in fact, while certifying to the Department that he was both unable to work and not working. In 1972, Mr. Moser sustained another injury to his left arm and shoulder while working for a shingle mill under an alias. He applied for disability benefits but later withdrew his request. The Department investigated the matter and, in September of 1975, removed him from the pension rolls retroactively to 1969, demanded a refund of the pension paid from 1969 to 1975, and ruled that his present inability to work was because of the injury in 1972.

Mr. Moser appealed that order to the Board of Industrial Insurance Appeals (Board), whose hearing examiner recommended reversal. The Board did reverse the Department's order, ruling, inter alia, that the Department could not reclassify Moser's disability solely because of his return to gainful employment, without reliance upon any medical testimony showing that his physical condition had improved by 1969. The Department appealed to Superior Court, contending that the Board's decision was erroneous as a matter of law. The court reversed the Board and reinstated the Department's order. Moser then brought this appeal. We reverse.

The dispositive issue is whether a total disability pensioner's return to gainful employment is, by itself, sufficient as a matter of law to enable the Department to reduce the pensioner's permanent total disability rating. We hold that it is not, and that medical evidence must be adduced to show improvement in the injury that resulted in the original classification. Preliminarily, however, we address some procedural issues.

First, Moser argues that because the original injury occurred in 1955, when the law was that the Department had no right to seek review of a Board decision, the Superior Court was required to dismiss the Department's appeal. However, we note that in 1957 the Legislature amended RCW 51.52.110 to provide:

whenever the board has made any decision and order reversing an order of the supervisor of industrial insurance on questions of law or mandatory administrative actions of the director, the department shall have the right of appeal to the superior court. [Laws of 1957, ch. 70, § 61.]

As a general rule, the rights of parties under the workers' compensation statutes are governed by the law in force when the injury occurred. Bodine v. Department of Labor and Indus., 29 Wash.2d 879, 190 P.2d 89 (1948). Newly enacted statutes or newly adopted rules ordinarily operate prospectively. However, when a statute or rule not explicitly made retroactive is remedial in nature, it can operate retroactively. Yellam v. Woerner, 77 Wash.2d 604, 464 P.2d 947 (1970). An act is remedial when it relates to practice, procedure, or remedies and does not affect a substantive or vested right. Yellam v. Woerner, supra; Nelson v. Department of Labor and Indus., 9 Wash.2d 621, 115 P.2d 1014 (1941).

The right of appeal conferred upon the Department by the statutory amendment applies to any Board decision on "questions of law or mandatory administrative actions of the director." It does not affect Moser's substantive right to a pension, but only the Department's procedural right to seek a remedy for what it perceives as an erroneous Board decision. The Board reversed the Department's diminution of Moser's disability status. Giving the Department a right to appeal that decision does not per se impair a worker's rights or status; rather, it provides the means for seeking a remedy from a higher forum. Because the right of appeal is remedial in nature, we hold that it is available in cases where the worker's injury predates the legislative enactment.

Moser also argues, preliminarily, that the Superior Court should have dismissed the Department's appeal because the Department took no timely appeal to the Board from the hearing examiner's proposed decision. The pertinent facts begin with the examiner's decision dated May 24, 1979 and mailed May 30, 1979. Although the decision was mainly favorable to Moser, he petitioned for review because, he says, he disagreed with some of the examiner's findings and conclusions and wanted to preserve his right to challenge them in the event the Department were to file a petition for review within the time period allowed by RCW 51.52.104. The Department obtained two brief extensions of time and then did petition for review on July 6. Moser's attorney on July 9 orally, and on July 10 in writing, asked the Board to dismiss his own petition. However, the Board on July 10 issued an order accepting both petitions for review.

The Board, at the Department's request made within the 20-day period, did extend the time for filing the Department's petition. Within the time of the extension but beyond the 20 days from the proposed order, the Department requested and received from the Board an additional extension. The petition was filed within the time of the second extension. Claimant contends that since the second request for extension was made beyond the 20-day time limit, the Department's petition was not timely; the proposed order became the order of the Board; and judicial review is precluded by RCW 51.52.104.

We hold that the Board acquired jurisdiction. RCW 51.52.104, as amended in 1971 permitted review of the examiner's proposed decision when a petition for review is filed within 20 days of communication of the decision "or such further period as the Board may allow on written application" filed within the 20-day period. ¹ Laws of 1971, 1st Ex.Sess., ch. 289, § 22. This court has held that the 20-day rule is not jurisdictional, and that noncompliance does not preclude the Board from fulfilling its statutory duty to interpret testimony and make the final decision in all appealed cases. Department of Labor and Indus. v. Tacoma Yellow Cab Co., 31 Wash.App. 117, 639 P.2d 843 (1982), citing RCW 51.52.020; accord, Martinez v. Department of Labor and Indus., 31 Wash.App. 221, 640 P.2d 732 (1982). Therefore, the fact that the request for the second extension was not made within 20 days of the examiner's proposed decision did not deprive the Board of jurisdiction under the statute as then written.

We next consider what is the correct standard of review in this context. In any court proceeding, the findings and decision of the Board are prima facie correct until found incorrect by the superior court, by a fair preponderance of the evidence. Lloyd's of Yakima Floor Center v. Department of Labor and Indus., 33 Wash.App. 745, 662 P.2d 391 (1982). Court of Appeals review is governed by RCW 51.52.140, which provides that "the practice in civil cases shall apply to appeals prescribed in this chapter. Appeal shall lie from the judgment of the superior court as in other civil cases." Our role is to determine whether the trial court's findings of fact, to which error is assigned, are supported by substantial evidence, and whether its conclusions of law flow therefrom. Lloyd's of Yakima Floor Center, supra.

With these principles in mind, we perceive that the trial court's findings and conclusions raise two legal issues: (1) Do RCW 51.08.160 and 51.32.160 permit the Department to terminate Moser's total permanent disability benefits based solely on the fact that he is gainfully employed? (2) Did the Board, in contradicting the Department's legal basis for requiring the claimant to submit semi-annual declarations of entitlement to benefits, misconstrue the legal effect of those...