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Black v. Department of Labor and Industries

filed: May 16, 1996.

DALE K. BLACK, APPELLANT,
v.
DEPARTMENT OF LABOR AND INDUSTRIES, OF THE STATE OF WASHINGTON; BOARD OF INDUSTRIAL INSURANCE APPEALS, RESPONDENTS.



(No. 13813-5-III). Appeal from SUPERIOR COURT KITTITAS COUNTY. Superior Court No: 92-2-00269-1. Date filed in Superior Court: 12/30/93. Superior Court Judge signing: MICHAEL COOPER. (No. 14409-7-III). Appeal from SUPERIOR COURT KITTITAS COUNTY. Superior Court No: 94-2-00090-2. Date filed in Superior Court: 10/11/94. Superior Court Judge signing: MICHAEL LEAVITT.

Author: John A. Schultheis, Concurring: Ray E. Munson & Philip J. Thompson

Author: Schultheis

SCHULTHEIS, A.C.J. --The Department of Labor and Industries denied Dale Black's request for worker's compensation benefits and the Board of Industrial Insurance Appeals affirmed. He appealed to Kittitas County Superior Court. The court dismissed the appeal, finding

Mr. Black failed to comply strictly or substantially with a jurisdictional requirement of RCW 51.52.110, that he serve notice of appeal on the director of the Department. When the court denied reconsideration, Mr. Black moved the Board to compel it to provide proof it had mailed a copy of its final order to the Department in compliance with RCW 51.52.106. The Board denied the motion and Mr. Black again appealed to the superior court. The court dismissed the appeal and awarded the Department statutory attorney fees. In these consolidated appeals, Mr. Black contends (1) he substantially complied with RCW 51.52.110 by serving notice on the Department's attorney of record, an assistant attorney general; (2) the Board's failure to show it complied with RCW 51.52.106 tolls the 30-day appeal period until it produces proof of compliance; and (3) the award of statutory attorney fees to the Department was inappropriate. We reverse and remand in part and affirm in part.

No. 13813-5-III

In August 1991 the Department denied Mr. Black's request for worker's compensation benefits. The Board granted his appeal and, in July 1992, an administrative law judge (A.L.J.) issued a proposed decision and order affirming the Department. Mr. Black petitioned the Board for review. On September 14, 1992 the Board issued its order denying review and adopting the proposed order as its final order.

On September 28 Mr. Black's attorney filed notice of appeal in superior court and sent copies of the notice to the A.L.J., the assistant attorney general who had represented the Department, and his client Mr. Black. On October 5 the assistant attorney general, Frances Chmelewski (formerly Wagner), filed a notice of appearance for the Department.

In April 1993 the matter was scheduled for a September 21, 1993 trial. On September 9 Assistant Attorney General

Chmelewski on behalf of the Department filed a motion to dismiss the appeal, alleging the court lacked subject matter jurisdiction because Mr. Black had not served notice on the director of the Department.

The jurisdictional requisites for appealing a Board decision and order are set forth in RCW 51.52.110, which gives a worker 30 days within which to perfect an appeal in superior court, as follows:

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 and on the board. If the case is one involving a self-insurer, a copy of the notice of appeal shall also be served by mail, or personally, on such self-insurer. The department shall, in all cases not involving a self-insurer, within twenty days after the receipt of such notice of appeal, serve and file its notice of appearance and such appeal shall thereupon be deemed at issue.

The notice requirement is a practical one meant to insure that interested parties receive actual notice of appeals of Board decisions; thus, substantial compliance is sufficient to invoke the appellate jurisdiction of the superior court. In re Saltis, 94 Wash. 2d 889, 895-96, 621 P.2d 716 (1980). Substantial compliance occurs if (1) the Director received actual notice of the appeal, or (2) the notice of appeal was served in a manner reasonably calculated to give notice to the director. Id. at 896.

On September 20, 1993, a court commissioner decided service on the Department's attorney constituted substantial compliance and denied the motion to dismiss. The Department moved for revision of the commissioner's ruling. The court granted the motion and dismissed the appeal. Mr. Black moved for reconsideration. The court denied the motion by memorandum ...


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