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Kingery v. Department of Labor and Industries

May 22, 1997


Appeal from Superior Court, Grays Harbor County; 93-2-00232-3. Honorable Gordon L. Godfrey, Judge.

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

The opinion of the court was delivered by: Talmadge


TALMADGE, J. -- Marie Kingery seeks vacation of an unappealed 1983 Department of Labor and Industries (Department) order denying her widow benefits for her husbands on-the-job death. She seeks equitable relief in court eight years after issuance of the Departments original order, upon discovery of new evidence regarding the cause of her husbands death.

Mrs. Kingerys failure to timely appeal the 1983 order precludes her from re-arguing the same claim unless the order was void when entered. Because the order was not void when it was entered and she has not demonstrated equitable grounds for otherwise excusing her failure to appeal the 1983 order, we affirm the Court of Appeals decision and uphold the decision of the Department and the Board of Industrial Insurance Appeals (Board) denying her benefits.


1. Does Title 51 RCW confer authority on the Department, Board, or superior court to set aside an unappealed Department order?

2. If the authority to set aside an unappealed Department order exists, should it be exercised where the claimant, dissatisfied with the Departments denial of widows benefits to her, asserts her claim eight years after her husbands death on the basis of new evidence?


On August 22, 1983, Willard J. Kingery died at work in the course of his employment with Boyd Zepp Logging Company while operating a road grader. He was found at the work site under one of the grader wheels with massive head, neck and chest injuries. He was survived by his widow, Marie Kingery.

At the direction of John Bebich, the Grays Harbor County Coroner, an autopsy was performed on Mr. Kingery by Dr. Robert Addison. On August 31, 1983, Mrs. Kingery filed her initial claim for widows benefits with the Department. Dr. Addison issued his report on September 12, 1983, concluding Mr. Kingery had died of an acute myocardial infarction (heart attack) with head, neck and chest injuries occurring post-mortem when he fell out of the grader, landing under one of the wheels. *fn1 The Department rejected Mrs. Kingerys claim for widows benefits because her husbands death was due to natural causes, not an industrial injury. The Department order denying benefits included a notice she had 60 days to appeal the order.

Mrs. Kingery, through her attorney, filed a timely request for reconsideration with the Department, but the Department issued an order affirming its earlier denial order. This order again included a notice Mrs. Kingery had 60 days to appeal. Mrs. Kingerys attorney then withdrew, indicating she would have to handle any appeal to the Board on her own. Mrs. Kingery did not appeal either order to the Board within 60 days and she requested no further action of the Department for eight years.

The record indicates divergent reasons for Mrs. Kingerys failure to seek further Department action for eight years. Her declaration indicates she believed her husbands workplace injuries caused his death and she allegedly made repeated requests to the coroners office for a copy of the autopsy report around the time of the Departments denial of benefits to her in October 1983. That office refused her requests, allegedly on the grounds the report was too gory and she would not understand it. Board Record (BR) at 112-13. *fn2 On several occasions, she also attempted to obtain other legal representation, without success. She asserts she contacted the office of Congressman Al Swift in 1990 and asked him to assist her in getting a copy of the autopsy report. With his intervention, she states she was finally able to get a copy of the report from the coroner in February 1990.

On the other hand, Coroner Bebichs declaration indicates a hiatus in the case between 1983, when he signed Mr. Kingerys death certificate, and February 1990, when he received Mrs. Kingerys request for the autopsy report, which he promptly honored. There is no indication intervention by Representative Swifts office ever occurred, or was needed.

After receiving the report in February 1990, Mrs. Kingery asked Bebich in May 1991 to reopen the investigation on her husbands death, which he promptly agreed to do. Bebich sent the autopsy records to medical examiners Dr. William J. Brady of Portland and Dr. Emmanuel Q. Lacsina of Tacoma, who concluded Mr. Kingery had not died of a heart attack, but rather from his head, neck and chest injuries. *fn3

Bebich informed Mrs. Kingery of the results of these reviews in August 1991 and also submitted an affidavit to the Department of Health, requesting correction of Mr. Kingerys death certificate. The Department of Health issued a corrected certificate on July 31, 1992, stating the true cause of Mr. Kingerys death was his industrial injury.

On November 4, 1991, Mrs. Kingery reapplied for widows benefits, but the Department denied reconsideration of its 1983 denial order for lack of jurisdiction since the protest was not received within the statutory time limitations and the 1983 order was final and binding. Mrs. Kingery then appealed to the Board.

Both Mrs. Kingery and the Department sought summary Disposition of the case. In a Proposed Decision and Order, the Boards industrial appeals Judge affirmed the Departments 1991 order, concluding neither the Department nor the Board had subject matter jurisdiction because the Departments 1983 denial order was final and binding. The Proposed Decision and Order also noted the Board did not have jurisdiction to consider Mrs. Kingerys appeal because it was brought beyond the one-year time limitation imposed by CR 60(b)(3) which deals with newly discovered evidence. BR at 17-31. Mrs. Kingery filed a Petition for Review to the Board on January 13, 1993, asserting CR 60(b)(3), CR 60(b)(11), and CR 60(c) as grounds for relief, but the full Board denied the Petition.

Mrs. Kingery then appealed to Grays Harbor County Superior Court and moved for summary judgment, contending she was entitled to relief under CR 60(b)(11) or CR 60(c). Upon motions by Mrs. Kingery and the Department, the trial court, the Honorable Gordon Godfrey, entered an order granting Mrs. Kingerys motion, denying the Departments motion, vacating the Departments 1983 order, and remanding the case to the Department for a determination on the merits, from which the Department timely appealed. Division Two of the Court of Appeals reversed the trial courts order. Kingery v. Department of Labor & Indus., 80 Wash. App. 704, 910 P.2d 1325(1996). We granted review.


A. Title 51 Affords No Remedy to ...

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