Thomas v. Dep't of Labor & Indus.

• Decision Date: 16 February 2016
• Docket Number: No. 72646-3-I,72646-3-I
• Parties: LORENZO THOMAS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
• Court: Washington Court of Appeals

LORENZO THOMAS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 72646-3-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

February 16, 2016

UNPUBLISHED OPINION

SCHINDLER, J. — Under the Industrial Insurance Act, Title 51 RCW, a worker can file an application to reopen a disability claim 60 days after the Department of Labor and Industries (Department) closes the claim and the award becomes a final order. In 2001, Lorenzo Thomas filed an application to reopen his 1995 disability claim. On February 28, 2002, the Department issued a decision to reopen the claim and awarded disability benefits. Thomas did not appeal the order to reopen. In 2012, Thomas filed another application to reopen his disability claim. Because the application to reopen was not "made within seven years from the date [of] the first closing order," the Department limited the claim to medical treatment.¹ On summary judgment, the superior court dismissed his appeal of the 2012 order on the grounds that res judicata barred Thomasfrom arguing he did not receive the notice in 1996 that the Department closed his disability claim. We affirm dismissal of the appeal.

FACTS²

1995 Disability Claim

In October 1995, Lorenzo Thomas injured his back while working at Brandrud Furniture Inc. On October 19, 1995, Thomas filed a claim for disability benefits. On November 2, 1995, the Department of Labor and Industries (Department) issued a notice of decision that "the claim for injury sustained on 10-17-95 be allowed as an industrial injury."

On December 18, 1996, the Department issued an order closing the claim and awarded Thomas total benefits of $6,257.88 for category 2 "permanent dorso-lumbar and/or lumbosacral impairments." The order states that it "WILL BECOME FINAL 60 DAYS AFTER YOU RECEIVE IT UNLESS YOU FILE A WRITTEN REQUEST FOR RECONSIDERATION OR AN APPEAL." After deducting a support enforcement lien, the Department issued a check for $3,128.94.

The envelope containing the order closing the claim and the check for $3,128.94 was returned to the Department. The Department mailed the order and the check in an envelope to a prior address for Thomas. The envelope was not returned.

2001 Application To Reopen

On May 11, 2001, Thomas filed an "Application to Reopen Claim Due to Worsening of Condition." The application states, in pertinent part, "NOTE: Persons making false statements in obtaining industrial insurance benefits are subject to civil and criminal penalties. I declare that these statement [sic] are true to the best of myknowledge and belief." Thomas signed the application "declar[ing] that these statement[s] are true to the best of my knowledge and belief."

The application to reopen the claim for aggravation or worsening of a condition states that in order to file an application to reopen, the claim must have been closed for more than 60 days: "Important: Only use this form if your medical condition has worsened, and your claim has been closed for more than 60 days."³

In the application to reopen, Thomas states the "[d]ate claim closed" was "12/ /96."⁴ Thomas states the "[d]ate condition became worse after claim closure" was "01/01/98."⁵ In response to the question that asks, "Have you had any new injuries or illnesses since the date of claim closure," Thomas states, "Same but worse."⁶ In response to the question, "Have you received any medical treatment for this condition since claim closure," Thomas states, "No."⁷

On February 28, 2002, the Department issued a decision to reopen his claim for medical treatment and disability benefits, "This claim is reopened effective 05/11/2001 for authorized medical treatment and benefits as appropriate under the industrial insurance laws." The February 28, 2002 notice of decision states that if Thomasdisagrees with the order, he must file a request for reconsideration or an appeal.

YOUR LEGAL RIGHTS IF YOU DISAGREE WITH THIS ORDER: THIS ORDER BECOMES FINAL 60 DAYS FROM THE DATE IT IS COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE FOLLOWING. YOU CAN EITHER FILE A WRITTEN REQUEST FOR RECONSIDERATION WITH THE DEPARTMENT OR FILE A WRITTEN APPEAL WITH THE BOARD OF INDUSTRIAL INSURANCE APPEALS.

Thomas did not file a request for reconsideration or an appeal.

On March 24, 2006, the Department issued an order closing the claim and awarding Thomas total benefits of $18,773.61 for category 4 "permanent dorso-lumbar and/or lumbosacral impairments." After deductions, the Department issued a check for $3,880.26. The March 24, 2006 order states:

YOUR LEGAL RIGHTS IF YOU DISAGREE WITH THIS ORDER: THIS ORDER BECOMES FINAL 60 DAYS FROM THE DATE IT IS COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE FOLLOWING. YOU CAN EITHER FILE A WRITTEN REQUEST FOR RECONSIDERATION WITH THE DEPARTMENT OR FILE A WRITTEN APPEAL WITH THE BOARD OF INDUSTRIAL INSURANCE APPEALS.

Thomas did not file a request for reconsideration or an appeal.

2006 Application To Reopen

On April 2, 2006, Thomas filed another Application to Reopen Claim Due to Worsening of Condition. On September 11, 2006, the Department denied his application to reopen. The notice of decision states:

The Department of Labor and Industries received an application to reopen this claim. The medical record shows the conditions caused by the injury have not worsened since the final claim closure.

The application to reopen your claim is denied and the claim will remain closed.

The September 11, 2006 notice of decision states:

YOUR LEGAL RIGHTS IF YOU DISAGREE WITH THIS ORDER: THIS ORDER BECOMES FINAL 60 DAYS FROM THE DATE IT IS COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE FOLLOWING. YOU CAN EITHER FILE A WRITTEN REQUEST FOR RECONSIDERATION WITH THE DEPARTMENT OR FILE A WRITTEN APPEAL WITH THE BOARD OF INDUSTRIAL INSURANCE APPEALS.

Thomas filed a written request for reconsideration. On November 9, 2006, the Department denied his request to reconsider. The notice of decision states, "The Department of Labor and Industries has reconsidered the order of 09/11/2006. The department has determined the order is correct and it is affirmed." The notice of decision states, "ANY APPEAL FROM THIS ORDER MUST BE MADE IN WRITING TO THE BOARD OF INDUSTRIAL INSURANCE APPEALS . . . WITHIN 60 DAYS . . . OR THE SAME SHALL BECOME FINAL." Thomas did not file an appeal.

2012 Application To Reopen

On November 21, 2012, Thomas filed an Application to Reopen Claim Due to Worsening of Condition. The Department issued a decision to reopen the claim but "for medical treatment only." The decision states Thomas "is not entitled to disability benefits" because "the reopening application was not received within the time limitation set by law ( . . . 7 years from first claim closure for all other injuries)."

Thomas appealed the decision to the Board of Industrial Insurance Appeals (Board). The Department filed a motion for summary judgment. The Department argued the record showed Thomas received the December 18, 1996 closing order. The Department submitted the declaration of claims consultant Tracey Jacobson. The declaration attaches the 1995 application for benefits, the order allowing benefits, and the 1996 order closing the claim. Jacobson states, "There is no indication in theDepartment file that this closing order was not communicated" to Thomas and "this check was cashed."⁸ The Department also argued that as a matter of law, the failure to timely appeal the February 28, 2002 decision to reopen his claim barred Thomas from arguing his claim was not "closed prior to that reopening date."

Thomas submitted a declaration in response and argued that because he never received the December 18, 1996 order closing his claim, the industrial appeals judge (IAJ) should reverse the 2012 decision of the Department to deny disability benefits. In his declaration, Thomas states, "I have never received an Order from the Department dated December 18, 1996 which closed my claim with a check in the amount of $3,128.94 for permanent partial disability." Thomas also asserts, "I never cashed a check in the amount of $3,128.94 for permanent partial disability. I have never received a cash award or a check for a Category II low back impairment."

The Department submitted a supplemental declaration of Jacobson. Jacobson states the 1996 order was not returned and the check was cashed.

I have reviewed Lorenzo Thomas' claim file under claim P-242614. In the claim file there was an envelope with the permanent partial disability check. That envelope was returned to the Department. The check was then re-mailed to prior address for Mr. Thomas. That address was 7326 Rainier Drive Apt. 2 Everett WA 98203. Once the check was re-mailed to that new address, it was not returned to the Department and the check (warrant) was cashed.

. . . The permanent partial disability check does not show up in the Department's system as being an expired warrant. This means that someone cashed the check within 180 days of it being issued.

The Department argued that even if Thomas did not receive the closing order in 1996, the failure to protest or appeal the February 28, 2002 closing order reopening his claim barred Thomas from arguing the 1996 order was not a final order.

The IAJ issued a proposed decision and order. The IAJ granted the Department's motion for summary judgment and affirmed the order denying disability benefits. The IAJ ruled there were material issues of fact as to whether Thomas received the December 18, 1996 order closing his claim but "actions taken by the Department in the form of determinative orders subsequent to the December 18, 1996 order render the question of communication with respect to the December 18, 1996 order immaterial."

Specifically, it is undisputed that Mr. Thomas filed a reopening application with the Department on May 15, 2001. See Attachment No. 4. In response to Mr. Thomas' reopening application, the Department issued an order reopening his claim on February 28, 2002. See Attachment No. 5. Neither Mr. Thomas nor the employer

...