Department of Labor and Industries v. Cook

• Decision Date: 30 April 1954
• Docket Number: No. 32496,32496
• Court: Washington Supreme Court
• Parties: DEPARTMENT OF LABOR AND INDUSTRIES, v. COOK.

Page 671

44 Wn.2d 671

269 P.2d 962

DEPARTMENT OF LABOR AND INDUSTRIES, v. COOK.

No. 32496.

Supreme Court of Washington, en Banc.

April 30, 1954.

Don Eastvold Atty. Gen., Henry Heckendorn, Richard F. Broz, Asst. Attys. Gen., for appellant.

Walthew, Oseran & Warner, Seattle, for respondent.

Clarence J. Coleman, Thomas G. McCrea, Everett, amici curiae.

HAMLEY, Justice.

The only question before us in this case is whether the department of labor and industries has the right to appeal to the superior court from an adverse decision of the board of industrial insurance appeals.

On June 20, 1949, the department paid Eula A. Cook the sum of $2400, as a lumpsum settlement of a claim for permanent total disability. Nearly a year later, on May 8, 1950, Cook disputed the department's calculation of the settlement, and requested an additional $300. The department denied his request, and Cook appealed to the board of industrial insurance appeals, hereinafter referred to as the board. After a hearing, the board entered an order sustaining claimant's contention and remanding the claim to the department, with directions to award claimant an additional $300.

The department appealed to the superior court from this adverse decision by the board. Claimant moved to dismiss the appeal on the ground that the superior court had no jurisdiction to hear the appeal. The trial court granted the motion and dismissed the appeal. The department thereupon appealed to this court.

The jurisdiction of the superior court to review orders entered by state agencies is vested only in the manner specified by law. Woodard v. Department of Labor & Industries, 188 Wash. 93, 61 P.2d 1003. It follows that the superior court may entertain appeals from the decisions of the board only when taken by persons to whom the act has expressly, or by necessary implication, given that right.

There are three sections of the act which make reference to the persons who may take an appeal to the superior court from an adverse decision of the board. The first of these is RCW 51.52.050, the second paragraph of which reads as follows:

'Whenever the department has taken any action or made any decision relating to any phase of the administration of this title the workman, beneficiary, employer, or other person aggrieved thereby may appeal to the board and any such person aggrieved by the decision and order of the board may thereafter appeal to the superior court, as prescribed in this chapter.' (Emphasis supplied.)

Appellant makes no contention that the above-quoted statute confers upon the department a right to appeal to the superior court. It is plain, from the use of the word 'such' in this section, that the only person who is there given a right of appeal is a workman, beneficiary, employer, or other person aggrieved by any action taken or any decision made by the department. The department could not be aggrieved by its own order, and so is not 'such' person who is there given a right of appeal.

RCW 51.52.060 reads in part as follows:

'Any workman, beneficiary, employer or other person aggrieved by an order, decision or award of the department must, before he appeals to the courts, file with the board and the director of labor and industries * * * a notice of appeal to the board * * *.' (Emphasis supplied.)

For the same reason as given above with regard to RCW 51.52.050, the persons referred to in RCW 51.52.060 as having a right of appeal to the courts do not include the department. Appellant does not contend otherwise.

The remaining statutory provision, and the one relied upon by appellant, is RCW 51.52.110, which reads in part as follows:

'Within thirty days after the final decision and order of the board upon such appeal has been communicated to such workman, beneficiary, employer or other person, or within thirty days after the appeal is deemed denied as herein provided, such workman, beneficiary, employer or other person aggrieved by the decision and order of the board may appeal to the superior court. * * * Such appeal shall be perfected by filing with the clerk of the court a notice of appeal and by serving a copy thereof by mail, or personally, on the director of labor and industries and on the board. The department shall, within twenty days after receipt of such notice of appeal, serve and file its notice of appearance and such appeal shall thereupon be deemed at issue. The board shall serve upon the appealing party, the director of labor and industries and any other party appearing at the board's proceeding, and file with the clerk of the court before trial, a certified copy of the board's official record * * *.' (Emphasis supplied.)

It is appellant's contention that, in the event of a decision by the board adverse to the position taken by the department, the latter is the 'other person aggrieved by the decision and order of the board', within the meaning of the above-quoted statute. Accordingly, it is argued, the department is, by this statutory provision, expressly given a right of appeal to the superior court.

In support of this contention, appellant first asserts that the department is a party to the board proceedings. It is then argued that the department, as a party to the proceedings before the board, is obviously aggrieved by any decision of the board adverse to the department's position. From this, it is reasoned that the department fits the description of 'other person aggrieved' by the decision and order of the board.

In view of RCW 51.52.100 and 51.52.102, there can be no doubt that the department is a party to the board proceedings. Nor can it be denied that, as such party, the department is aggrieved by any adverse ruling of the board. The statute in question, however, does not use the term 'other party aggrieved.' Instead, it uses the words 'workman, beneficiary, employer or other person aggrieved'. These are the identical words which, in RCW 51.52.050 and 51.52.060, admittedly exclude the department, as noted above.

All three of these statutory sections deal with the question of who is entitled to appeal from board decisions. It is therefore difficult to see why the set of words under discussion should be given a different meaning in one of the sections, RCW 51.52.110, than it is given in the other two, RCW 51.52.050 and 51.52.060. The result of doing so, moreover, is to produce an inconsistency between the three sections. RCW 51.52.050 and 51.52.060 purport to limit the right of appeal to persons other than the department. RCW 51.52.110 would, under appellant's construction, extend this right to the department. Since all three sections were amended in 1951, Laws of 1951, chapter 225, §§ 5, 6 and 14, it is especially difficult to justify an interpretation which produces such a result.

But there are also other difficulties in accepting the construction proposed by appellant. The first paragraph of RCW 51.52.050 (not quoted above) begins with the words, 'Whenever the department of labor and industries, hereinafter called the 'department,' has made any order * * *.' Following this scheme, the word 'department' is used in every section of the act, RCW 51.52.050 to 51.52.150, dealing with appeals and court procedure, except RCW 51.52.095, 51.52.102 and 51.52.106, where the term 'party' is used; RCW 51.52.090, where neither term is used; and RCW 51.52.115, 51.52.120 and 51.52.130, where both terms are used. The term 'department' is used in the very section on which appellant relies, RCW 51.52.110, but in a different connection and not with reference to what persons may appeal. In the clause on which appellant relies, neither 'department' nor 'party' is used.

In view of the foregoing, it would appear that the legislature would have used the term 'department' or 'party' in the portion of RCW 51.52.110 in question, had it been intended to refer to the department. The words which are used--'other person aggrieved'--are not used elsewhere in the act to denote the department, and, as we have seen, definitely exclude the department, as used in RCW 51.52.050 and 51.52.060.

The language of RCW 51.52.110 immediately following that portion shown in italics, as quoted above, gives rise to additional difficulties in accepting appellant's theory. If the italicized language is intended to give the department a right of appeal, why is it provided that such appeal is to be perfected by serving a copy of the notice of appeal on the director of labor and industries? It does not seem reasonable to suppose that the legislature intended that an appellant should serve a notice of appeal upon himself. Yet we have previously held that failure to comply with the statutory requirement relative to service of notice of appeal deprives the superior court of jurisdiction. Lidke v. Brandt, 21 Wash.2d 137, 150 P.2d 399.

The fact that the perfecting of an appeal requires that notice thereof be served upon the department rather convincingly demonstrates that the legislature did not intend to give the department itself the right to initiate an appeal. If it be assumed, contrary to the plain implications of this language, that the department was to have the right of appeal to the superior court, there would still be the problem of how it would...