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Black v. Department of Labor and Industries

April 3, 1997

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



Appeal from Superior Court, Kittitas County. 92-2-00269-1. Honorable Michael E. Cooper, Judge.

Authored by Richard B. Sanders. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge.

The opinion of the court was delivered by: Sanders

En Banc

SANDERS, J.-The question in this case is whether service of notice of appeal on the assistant attorney general assigned to represent the Department of Labor and Industries substantially complies with RCW 51.52.110's requirement that the Department be served through its director. Under these facts, we conclude service substantially complied with RCW 51.52.110 and accordingly affirm the Court of Appeals and remand for a hearing on the merits.

FACTS

Dale Black was injured in a work-related car accident. *fn1 He sought workers' compensation benefits. The Department of Labor and Industries (Department) denied benefits. The Board of Industrial Insurance Appeals (Board) affirmed. Black then appealed the administrative decision to the Kittitas County Superior Court by filing a notice of appeal in superior court. He mailed one copy of the notice of appeal to the Board and one to Assistant Attorney General Frances Chmelewski.

Chmelewski worked in the Labor and Industries Division of the Office of the Attorney General. She represented the Department in the Black proceedings before the Board below and continued to represent the Department in the superior court. *fn2 Chmelewski immediately filed a general notice of appearance which stated "the Washington State Department of Labor and Industries through Kenneth O. Eikenberry, Attorney General, and the undersigned Assistant Attorney General, hereby appears in this action." Clerk's Papers at 2. There is no indication in the record when or if the director of the Department ever received actual notice.

A year later, after appearing and scheduling a trial date and fewer than two weeks before that trial date, Chmelewski filed a motion to dismiss, alleging Black never served notice of appeal on the Department's director as required by statute. *fn3 The superior court dismissed the appeal, finding service by mail on the assistant attorney general did not substantially comply with the statutory requirements of RCW 51.52.110. Black sought reconsideration and was denied.

While Black's motion for reconsideration was pending he initiated a second action alleging that the 30-day period within which his appeal had to be perfected had not even begun to run because of an alleged defect in the Board's issuance of its final decision. Black argued that because the Board had sent its final decision to the Department by interagency mail rather than by U.S. mail as apparently required, the Board had never rendered a "final decision" and thus the appeal period had not begun. Black made this argument even though he received the final decision by mail and instituted his appeal accordingly. The Board denied the motion as frivolous. Black appealed said denial to the superior court in an action separate from his substantive appeal. The superior court dismissed the appeal as frivolous and awarded the Department $125 in statutory attorneys' fees.

Black appealed both issues to the Court of Appeals. In a consolidated opinion, the Court of Appeals reversed the dismissal, finding service on the assistant attorney general assigned to the case substantially complied with the notice statute, but affirmed that the Board had rendered a final decision and affirmed the attorneys' fees to the Department associated with Black's appeal thereof in superior court. Black v. Department of Labor & Indus., 81 Wash. App. 722, 731, 915 P.2d 1170, review granted, 130 Wash. 2d 1007, 928 P.2d 414 (1996). Both parties sought review in this court.

PERFECTION OF NOTICE OF APPEAL

The issue here is whether service of notice of appeal on the assistant attorney general assigned to represent the Department in the case substantially complies with the requirement that service be made on the Department through its director.

RCW 52.51.110, the provision in question, governs the procedures for filing an appeal in superior court from a final decision of the Board of Industrial Insurance Appeals regarding a workers' compensation award or denial thereof. In the case of an aggrieved worker appealing such final decision, the statute gives the worker 30 days to appeal and makes a distinction between "filing" an appeal and "perfecting" one:

If such worker . . . fails to file with the superior court its appeal as provided in this section within said thirty days, the decision of the board to deny the petition or petitions for review or the ...


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