Ochoa v. Department of Labor & Industries

Decision Date23 May 2000
Docket NumberNo. 18599-1-III.,18599-1-III.
Citation100 Wash.App. 878,999 P.2d 633
CourtWashington Court of Appeals
PartiesRichard OCHOA, Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

Michael J. Pontarolo, Michael J. Walker, Delay, Curran, Thompson & Pontarolo, Spokane, for Appellant.

Sheryl L. Gordon, Assistant Attorney General, Spokane, for Respondent.

KATO, J.

Richard Ochoa appeals a decision by the superior court affirming an order of the Board of Industrial Insurance Appeals that denied worker's compensation benefits. Mr. Ochoa contends the Department of Labor & Industries is bound by its earlier decision to award benefits. He also contends he was employed in a capacity covered by industrial insurance at the time of his injury. We affirm.

Mr. Ochoa was a licensed jockey when he was injured while exercising a horse at Playfair Race Course in Spokane on the morning of September 26, 1993. Mr. Ochoa was not riding in a race at the time; he was hired by the horse's owner and trainer, Steve Quionez, to prepare the horse for an upcoming race at Playfair.

Mr. Ochoa filed a claim with the Department after the accident. The Department initially denied the claim on the ground that, as a jockey, Mr. Ochoa was not covered by the industrial insurance system. However, in a decision dated July 22, 1994, the Department reversed itself and agreed Mr. Ochoa was covered. The Department paid Mr. Ochoa $11,550.64 in benefits and charged Playfair Race Course's account for that amount. Playfair protested that Mr. Ochoa was not its employee, and the Department responded by agreeing Playfair had been charged in error.

On February 17, 1995, the Department entered an order finding Mr. Ochoa had been granted benefits improperly, concluding he was not covered because he was a jockey. The Department reversed itself again in an order dated January 25, 1996, holding that the February 17, 1995 order should be set aside and "held for naught." Finally, in an order dated March 20, 1996, the Department reversed itself yet again, holding that its order granting benefits, dated July 22, 1994, was not binding because it was not communicated to Mr. Quionez, Mr. Ochoa's employer at the time of the accident. Another order, dated March 21, 1996, rejected Mr. Ochoa's claim for benefits and demanded repayment of the $11,550.64.

Mr. Ochoa appealed the March 20 and 21 orders to the Board of Industrial Insurance Appeals. An industrial appeals judge issued a proposed decision and order affirming the Department's order of March 20 (which held it was not bound by the July 22, 1994 order), but reversing its order of March 21 (which held Mr. Ochoa was not covered by the industrial insurance system). The three-member board affirmed both of the Department's orders, with one member dissenting.

Mr. Ochoa appealed the board's decision to the superior court, which also affirmed.

Judicial appeal of a decision by the Board of Industrial Insurance Appeals is de novo, but is based solely on the evidence presented to the board. RCW 51.52.115; Romo v. Department of Labor & Indus., 92 Wash.App. 348, 353, 962 P.2d 844 (1998); see Johnson v. Weyerhaeuser Co., 134 Wash.2d 795, 800 n. 4, 953 P.2d 800 (1998)

.

First, we consider whether the Department was bound by its decision, dated July 22, 1994, that Mr. Ochoa was entitled to benefits. RCW 51.52.050 provides in pertinent part:

Whenever the department has made any order, decision, or award, it shall promptly serve the worker, beneficiary, employer, or other person affected thereby, with a copy thereof by mail, which shall be addressed to such person at his or her last known address as shown by the records of the department. The copy, in case the same is a final order, decision, or award, shall bear on the same side of the same page on which is found the amount of the award, a statement ... that such final order, decision, or award shall become final within sixty days from the date the order is communicated to the parties unless a written request for reconsideration ... or an appeal is filed....

This provision expressly gives an employer a right to protest a Department order within 60 days of when the order is "communicated" to the employer. See Kaiser Aluminum & Chem. Corp. v. Department of Labor & Indus., 57 Wash.App. 886, 889, 790 P.2d 1254 (1990)

. "An order is considered `communicated' to a party within the meaning of RCW 51.52.050 upon receipt." Id.

Here, it is undisputed that Mr. Quionez was Mr. Ochoa's employer at the time of the accident. It also is undisputed that the July 22, 1994 order was not "communicated" to Mr. Quionez because the Department incorrectly believed Playfair Race Course was the employer. Because the July 22 order was not "communicated" to the employer, it did not become final and thus had no effect.1

Moreover, Playfair did timely protest the July 22 order, which Mr. Ochoa concedes. He nevertheless argues Playfair protested only that portion of the order charging its account, not its conclusion that Mr. Ochoa was covered by the industrial insurance system. He cites no authority for his contention that a protested order may have some partial final effect. Even if this were possible, Playfair's protest did raise the coverage issue:

Mr. Ochoa did not work for Playfair Race Course as a worker, and Jockey's [sic] are not covered on L & I. When he was working, he was employed by someone else.
Do not charge our account for this claim.

There is no merit to Mr. Ochoa's argument that the July 22, 1994 order became final and precluded further action by the Department. The Board's and the superior court's orders are correct.

Next, we consider whether Mr. Ochoa was covered by the Industrial Insurance Act. Among the employments excluded from coverage of the Industrial Insurance Act are "[j]ockeys while participating in or preparing horses for race meets licensed by the Washington horse racing commission pursuant to chapter 67.16 RCW." RCW 51.12.020(7). The issue here is whether Mr. Ochoa was excluded under this provision when he was injured.

Mr. Ochoa contends that, although he was a jockey licensed under RCW 67.16.020 and WAC 260-32-010, at the time of the accident he was employed as an exercise rider, not a jockey. The Horse Racing Commission's rules define "jockey" as "a race rider, whether a licensed jockey, apprentice or amateur." WAC 260-12-010(14). Mr. Ochoa relies on this definition to argue that, because he was not a "race rider" at the time of his accident, he should not be considered a "jockey" under RCW 51.12.020(7). But applying this narrow definition from the Horse Racing Commission would render meaningless the clear language of RCW 51.12.020(7), which excludes jockeys while "preparing horses for race meets." This stilted construction would violate the principal objective of statutory construction, which is to carry out the intent of the Legislature. National Elec. Contractors Ass'n v. Riveland, 138 Wash.2d 9, 19, 978 P.2d 481 (1999). A statute should be construed in a way that gives effect to all of its language and no part is rendered superfluous. City of Bellevue v. Lorang, 140 Wash.2d 19, 25, 992 P.2d 496 (2000).

The Department's own rules provide a broader...

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5 cases
  • Thomas v. Dep't of Labor & Indus.
    • United States
    • Court of Appeals of Washington
    • February 16, 2016
    ...does not receive a department order, the order does not become final. Shafer, 166 Wn.2d at 719: see also Ochoa v. Dep't of Labor & Indus., 100 Wn. App. 878, 881-82, 999 P.2d 633 (2000) (because order was not "communicated" to the actual employer the order "did not become final and thus had ......
  • Thomas v. Department of Labor and Industries, 72646-3-I
    • United States
    • Court of Appeals of Washington
    • February 16, 2016
    ...order, the order does not become final. Shafer, 166 Wn.2d at 719: see also Ochoa v. Dep't of Labor & Indus., 100 Wn.App. 878, 881-82, 999 P.2d 633 (2000) (because order was not "communicated" to the actual employer the order "did not become final and thus had no effect"). After the 60-day a......
  • Shafer v. Department, 81049-4.
    • United States
    • United States State Supreme Court of Washington
    • August 13, 2009
    ...held that if an affected party does not receive a Department order, the order does not become final. Ochoa v. Dep't of Labor & Indus., 100 Wash. App. 878, 881-82, 999 P.2d 633 (2000), rev'd on other grounds, 143 Wash.2d 422, 20 P.3d 939 (2001). In Ochoa, an injured jockey's actual employer ......
  • Ochoa v. Department of Labor and Industries, 69916-0.
    • United States
    • United States State Supreme Court of Washington
    • April 12, 2001
    ...to the superior court, which affirmed. He then appealed to the Court of Appeals, which also affirmed. Ochoa v. Dep't of Labor & Indus., 100 Wash.App. 878, 999 P.2d 633 (2000). Ochoa petitioned this court for review, which we ANALYSIS The right to workers' compensation is statutory. Harringt......
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