Appeal from Thurston Superior Court. Docket No: 12-2-01244-7. Judge signing: Honorable Gary R Tabor. Judgment or order under review. Date filed: 02/15/2013.
Dorian Druce Nilsson Whitford (of Vail / Cross & Associates ), for appellant.
Robert W. Ferguson, Attorney General, and Kay A. Germiat, Assistant, for respondent.
Authored by Robert E. Lawrence-Berrey. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.
[183 Wn.App. 818]
¶ 1 When a final industrial insurance order, decision, or award is based upon a medical determination, a physician is deemed an interested party. In such a case, the Department of Labor and Industries (Department) must provide notice of the order, decision, or award both to the physician and the claimant. Failure to provide notice tolls the 60-day appeal period. At issue here [183 Wn.App. 819] is whether a segregation order was communicated to a claimant's physician when the physician did not see the order because of a breakdown in mail handling procedures in his office. We hold that the order was communicated to the physician because the Department properly mailed it to the physician's office, and it was actually delivered to the physician's office. We, therefore, affirm the decision of the trial court, which barred the claimant's untimely appeal of the segregation order.
¶ 2 Mario Arriaga injured his right upper arm, face, and scalp while employed at Oakville Forest Products Inc. The Department allowed a claim for an industrial injury in December 2005. Justin Sherfey, MD, DO, an orthopedic surgeon and osteopathic physician who treats injured workers, became Mr. Arriaga's attending physician.
¶ 3 On October 29, 2008, the Department issued an order segregating a cervical disc degenerative condition from Mr. Arriaga's
claim. The order stated, " The Department of Labor and Industries is not responsible for the condition diagnosed as: cervical disck [sic] degenerative, determined by medical evidence to be unrelated to the industrial injury for which this claim was filed." Bd. Record (BR) at 28. It is undisputed that the Department mailed the order to the claimant and also to Dr. Sherfey's office on October 29, 2008. It also is uncontested that Dr. Sherfey's office received a copy of the order on October 31, 2008. However, as will be detailed below, Dr. Sherfey apparently was unaware of the order until 2010.
¶ 4 Mr. Arriaga sought legal help with his claim in April 2010. The Department closed Mr. Arriaga's claim on November 23, 2010. In December 2010, someone from Mr. Arriaga's attorney's office contacted Dr. Sherfey about Mr. Arriaga's claim. After discovering the segregation order, Dr. Sherfey protested on Mr. Arriaga's behalf. The Department [183 Wn.App. 820] affirmed the order, stating that it would not reconsider it because the protest was untimely. Mr. Arriaga appealed to the Board of Industrial Insurance Appeals (Board), which granted the appeal to review the timeliness of Dr. Sherfey's protest.
¶ 5 In his deposition, Dr. Sherfey explained that he functions as the attending physician for injured workers and is, therefore, familiar with the rules and regulations of the Department. His office has about 40 employees, and he sees 40 to 45 patients per day. Dr. Sherfey's practice includes a department that manages paperwork, including getting authorizations, coordinating depositions, coordinating independent exams, and reviewing " some of those records." Sherfey Dep. at 23. As to his intraoffice mail handling procedures, Dr. Sherfey explained, " [t]ypically we have a protocol in place that either a hard copy is placed in a mailbox for me or I receive an electronic notification of a new document that I then either have to initial on the hard copy or I have to electronically sign in the medical record." Sherfey Dep. at 12. Dr. Sherfey stated that he reviewed mail throughout the day, but admitted that he is not necessarily given all the documents that are addressed to him.
¶ 6 Dr. Sherfey testified that for mail to be " communicated" to him, " [i]t would have to be appropriately received by the medical records or again our L[abor] & I[ndustries] management department. It would then have to be properly routed to me for review. ... [A]fter that it would have to be properly inserted into the medical record." Sherfey Dep. at 16. Dr. Sherfey conceded that some documents are scanned without his " direct visualization." Sherfey Dep. at 21. He stated that a person in the medical records department decides whether a document is sufficiently important for his review. He explained, " [w]e have no standard protocol in place, except typically paperwork that involves the patient is supposed to come across the physician's desk." Sherfey Dep. at 23.
[183 Wn.App. 821] ¶ 7 Somewhere in this process, the October 29 order never made it to Dr. Sherfey's desk. Dr. Sherfey explained that he had not initialed it, which suggested to him that he had not reviewed it. Although the order had been in Mr. Arriaga's file since 2008, Dr. Sherfey could not recall reviewing it until nearly two years later when Mr. Arriaga's attorney brought it to his attention. He stated that if he had reviewed the order in 2008, he " [l]ikely" would have responded with a letter indicating an additional evaluation was needed in regard to the diagnosis. Sherfey Dep. at 15.
¶ 8 Mr. Arriaga ultimately appealed the order in January 2011. However, the Department refused to reconsider the order " because the protest was not received within the 60 day time limitation" of RCW 51.52.060(1)(a). B.R. at 24. The Board accepted review of the appeal concerning the timeliness of Dr. Sherfey's protest of the segregation order. Upon review, it also dismissed the appeal as untimely, finding:
[Mr. Arriaga's] attending physician acknowledges that he did not protest the October 29, 2008 Notice of Decision within 60 days of the date it was communicated to his medical office, as he was unaware of the existence of the document until sometime in 2010. The timely filing of a protest or appeal is a statutorily imposed jurisdictional limitation upon every ...