Porter v. Department of Labor and Industries

• Court: Washington Supreme Court
• Writing for the Court: HILL
• Citation: Porter v. Department of Labor and Industries, 271 P.2d 429, 44 Wn.2d 798 (Wash. 1954)
• Decision Date: 01 June 1954
• Docket Number: No. 32849
• Parties: PORTER, v. DEPARTMENT OF LABOR & INDUSTRIES.

Page 798

44 Wn.2d 798

271 P.2d 429

PORTER, v. DEPARTMENT OF LABOR & INDUSTRIES.

No. 32849.

Supreme Court of Washington, Department 2.

June 1, 1954.

Rehearing Denied July 8, 1954.

Lester Stritmatter, Hoquiam, for appellant.

Don Eastvold, Atty. Gen., Edwin R. Roberts, Seattle, Holman, Mickelwait, Marion, Black & Perkins, by Fred S. Merritt, for Rayonier, Inc., Seattle, for respondent.

HILL, Justice.

We are here called upon to construe the statutory requirements that a copy of any order, decision, or award of the department of labor and industries shall be mailed to the workman, beneficiary, employer, or other person affected thereby, and if the same is a final order, decision, or award, there shall be printed thereon a statement

'* * * that such final order, decision, or award must be appealed to the board of industrial insurance appeals, Olympia, within sixty days, or the same shall become final.' RCW 51.52.050, Laws of 1951, chapter 225, § 5;

and that:

'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 [of industrial insurance appeals] and the director of labor and industries, by mail or personally, within sixty days from the day on which such copy of such order, decision, or award was communicated to such person, a notice of appeal to the board * * *.' (Italics ours.) RCW 51.52.060, Laws of 1951, chapter 225, § 6.

Martha Amelia Porter applied to the department of labor and industries for a widow's pension, and her application was rejected by an order dated January 26, 1953. That order, as it appears in the departmental record, has typewritten on it, 'Mailed Jan. 26, 1953.'

Mrs. Porter appealed to the board of industrial insurance appeals, the notice of appeal being acknowledged by her March 6, 1953, and filed with the board April 8, 1953. The board entered the following order April 16, 1953:

'It is the Board's opinion that the appeal * * * was not filed within the sixty days time limit prescribed by law, and that the appeal is therefore denied.

'It is therefore ordered that the appeal * * * be and the same is hereby denied.'

She appealed to the superior court from this order. The department of labor and industries, appearing specially, challenged the jurisdiction of the superior court for the reason that the appeal to the board of industrial insurance appeals had not been timely filed. The superior court sustained the challenge and dismissed the appeal. Mrs. Porter then appealed to this court.

Appellant urges that she has never yet received proper notice that her application for a widow's pension was rejected. The basis of this contention is the following statement, which was printed on the copy of the order of the department rejecting her application:

'No Protest Relative To This Order Or Appeal Therefrom Can Be Recognized Unless Made Within 60 Days From The Date Of Claimant's Receipt Of This Order,'

which does not conform to the statutory requirement that there shall be printed on the copy of the order, decision, or award mailed to the workman, beneficiary, employer, or other person affected thereby a statement that it '* * * must be appealed to the board of industrial insurance appeals, Olympia, within sixty days, or the same shall become final.' RCW 51.52.050.

This statement is not statutory notice of the action of the department to the person to whom it is mailed. The copy of the order, decision, or award is itself the notice of the action taken; and the statement required to be printed on the copy thereof is merely a warning of the statutory requirement that an appeal must be taken within sixty days, and does not affect the validity of the communication of the 'order, decision, or award of the department' to the person who receives it. In the absence of a showing that the workman or person aggrieved by the action of the department was misled to his prejudice in the preparation or prosecution of his appeal, the variation from the language specified in the statute, while not to be approved, is not particularly important.

It is not contended that the appellant here was in any wise misled by the department's violation of the requirements of the statute as to the phraseology of the warning relative to the time and place of appeal. Hence the only serious question before us is whether the board of industrial insurance appeals was justified in dismissing the appeal as not having been filed within sixty days, as provided by RCW 51.52.060.

The sixty-day period within which a person aggrieved by an order, decision, or award of the department must appeal to the board of industrial insurance appeals begins the day on which a copy of such order, decision, or award is communicated to that person. RCW 51.52.060. The date of the communication of a copy of such order, decision, or award is not established by the date of the order or by the date on which the departmental...