Shafer v. Department of Labor & Indus.

• Decision Date: 11 June 2007
• Docket Number: No. 58454-5-I.,58454-5-I.
• Citation: 140 Wn. App. 1,159 P.3d 473
• Court: Washington Court of Appeals
• Parties: Kelly L. SHAFER, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

159 P.3d 473

140 Wn. App. 1

Kelly L. SHAFER, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

No. 58454-5-I.

Court of Appeals of Washington, Division 1.

June 11, 2007.

Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, Corey L Endres, Vail, Cross-Euteneier & Associates, Tacoma, MRS Sidney Charlotte Tribe, Seattle, Counsel for Appellants.

Pat L. De Marco, Attorney Generals Office, Dilek F. Aral-Still, Attorney Generals Office, Tacoma, Counsel for Respondents.

ELLINGTON, J.

¶ 1 We must decide whether an order closing an industrial insurance claim becomes final where the order is based upon the opinion of a physician hired by the Department of Labor and Industries, and the closure is not communicated to the worker's treating physician. We hold that under the circumstances here, the order is not final.

BACKGROUND

¶ 2 Kelly Shafer worked as a waitress at AMF Sports World. In October 1998, she heard her back "snap or crack" as she lifted a keg of beer.¹ Her back pain increased during the following months, and her physician referred her to Dr. Elizabeth Cook, a physician certified in physical medicine and rehabilitation with a subspecialty in musculoskeletal problems, particularly spinal problems. Dr. Cook was "very certain" that Shafer's work accident caused her back pain.² Dr. Cook treated Shafer regularly from March 1999 through November 1999, and again in 2000. With Dr. Cook's assistance, Shafer filed a workers' compensation claim with the Department of Labor and Industries (the Department). The Department approved the claim, but authorized only some of the treatments recommended by Dr. Cook.

¶ 3 On behalf of the Department, Dr. Kenneth Briggs also examined Shafer. After his second examination, in July 2000, Dr. Briggs concluded that Shafer's condition was "fixed and stable," such that no further treatment was available that would improve her condition.³

¶ 4 Dr. Cook had received notice of other events in Shafer's claim, and had filed reports on Shafer's behalf. She did not, however, receive a copy of Dr. Briggs' report, despite Department policy that all independent medical examination reports are sent automatically to the treating physician. When the Department asked Dr. Cook to evaluate Dr. Briggs' report, she replied that she had never seen it. She also informed the Department that she did not consider Shafer's condition fixed and stable. The Department still did not send her a copy of Dr. Briggs' report.

¶ 5 Two months later, on October 19, 2000, in reliance upon Dr. Briggs' report, the Department closed Shafer's claim. Shafer received a copy of the order, but Dr. Cook did not. Shafer did not request reconsideration or file an appeal with the Bureau of Industrial Insurance Appeals (BIIA). Dr. Cook later attested that had she been aware of the decision to close Shafer's claim, she would have requested reconsideration because she did not believe Shafer's condition was fixed and stable.

¶ 6 After the claim was closed, Shafer stopped seeing Dr. Cook because she could not afford the treatments. Two-and-a-half years later, in March 2003, she returned complaining of worsening back pain. Based upon review of an MRI, Dr. Cook recommended that Shafer apply to reopen her claim on the grounds that her condition had deteriorated after the claim was closed.

¶ 7 The Department denied the application, finding that Shafer's condition had not objectively worsened. Dr. Cook timely requested reconsideration. The Department affirmed. Shafer timely appealed. Proceedings before the BIIA stretched on for a year.

¶ 8 In a telephonic hearing before an industrial appeals judge in January 2004, Shafer contended that the October 2000 closing order never became final, because Dr. Cook had not received a copy. The industrial appeals judge rejected that argument in an interlocutory order. Eventually the BIIA found that Schafer's condition had not objectively worsened after her claim was closed in October 2000.

¶ 9 Shafer appealed to superior court. She again contended that the closing order had never become final, but nothing in the record suggests any ruling was made. The case was tried to a jury, which found that the BIIA correctly decided that Shafer's condition had not objectively worsened.

¶ 10 Shafer appeals. She first contends that the order closing her claim was never final. She also argues that substantial evidence does not support the jury's finding on her petition to reopen the claim, and that the trial court abused its discretion when it ordered a CR 35 mental examination at the Department's behest.

ANALYSIS

¶ 11 If the closing order never became final, that issue is dispositive. We therefore address it first.

¶ 12 The Department argues Shafer waived this argument by failing to raise it in her petition for review before the BIIA. Although the issue was argued in proceedings before the industrial appeals judge, the Department is correct that Shafer did not expressly raise it in her petition to the Board. RCW 51.52.104 requires that a petition for review "set forth in detail the grounds therefor and the party or parties filing the same shall be deemed to have waived all objections or irregularities not specifically set forth therein." Shafer's petition sought Board review of all interlocutory orders, but this is technically not enough to satisfy RCW 51.52.104. But neither did the Department timely object, as required by RAP 2.5(a), when Shafer raised the argument before the superior court.⁴ The issue has been fully briefed by both parties, here and below. We elect to resolve it pursuant to our inherent power to address issues necessary to a proper decision.⁵

¶ 13 As a threshold matter, we disagree with the parties about the nature of the argument. Shafer contends that because Dr. Cook did not receive a copy of the closing order, it never became final, and thus the BIIA lacked "jurisdiction" over her subsequent application to reopen the claim.⁶ The Department responds that the fact Dr. Cook never received the closing order "is not a jurisdictional defect and does not relieve an injured worker of the [statutory] requirement [to file] a protest or appeal within 60 days of the worker's receipt of the Department order."⁷

¶ 14 Jurisdiction is not the issue here. "A tribunal lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate. The focus must be on the words `type of controversy.'"⁸ A determination to close a claim or to deny an application to reopen a claim falls squarely within the Department's authority to decide claims for workers' compensation⁹ and the BIIA's authority to review Department actions.¹⁰ The Department had jurisdiction over the claim, and the BIIA had jurisdiction to review its decisions.

¶ 15 This is properly a question of statutory interpretation. We must decide whether the legislature intended to require the Department to notify the claimant's treating physician before finally closing a claim.

¶ 16 In interpreting statutes, we first attempt to effectuate the plain meaning of the words used by the legislature.¹¹ We examine each provision in relation to other provisions and seek a consistent construction of the whole.¹² The Industrial Insurance Act, Title 51 RCW, is "liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment."¹³ All doubts as to the meaning of the Act are resolved in favor of the injured employee.¹⁴

¶ 17 RCW 51.52.050 sets forth the requirements for notice, finality, and appeal of Department orders:

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 . . . . [S]uch 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 is filed with the department of labor and industries, Olympia, or an appeal is filed with the board of industrial insurance appeals, Olympia. . . .

Whenever the department has taken any action or made any decision relating to any phase of the administration of this title the worker, beneficiary, employer, or other person aggrieved thereby may request reconsideration of the department, or may appeal to the board.¹⁵

An order is "communicated" upon receipt.¹⁶ An order not communicated to a party does not become final, and the party is not subject to the 60-day limitation for requesting reconsideration or filing an appeal.¹⁷

¶ 18 Shafer contends that because Dr. Cook is a "person affected" by the closing order who should have received a copy of the order, and a "person aggrieved thereby" who had the right to appeal, Dr. Cook must also be a "party" to whom the order must be communicated before finality can ensue. The Department concedes Dr. Cook is a "person affected" and should have received a copy of the closing order. But the Department argues its failure to provide her with a copy had no effect upon finality, because the treating physician is not a party, and only parties must receive copies before an order becomes final.

¶ 19 Neither argument is fully persuasive. The legislature chose different terms for different sections of the statute, presumably for a reason, and meeting two designations does not necessarily mean the third is satisfied. It is, however, suggestive of legislative intent. The Department's assertion that the physician is not a party begs the question, which is whether the legislature intended treating physicians to receive a copy of a claimant's closing order when the order is based on an independent medical examination before the order can become final—in which case, the legislature included the physician in the "party" category for that purpose.

¶ 20 Where a statute...