Smith v. Wash. State Dep't of Labor & Indus.

512 P.3d 566

Shawn SMITH, Appellant,

v.WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 83417-7-I

Court of Appeals of Washington, Division 1.

FILED June 21, 2022

David Carson, Carson Law Practice, P.O. Box 1855, Sumner, WA, 98390-0400, Shannon M. Kilpatrick, Attorney at Law, 3600 15th Ave. W Ste. 300, Seattle, WA, 98119-1330, for Appellant.

Aryna Anderson, AGO, Wilson Sosa Padilla, Attorney at Law, 1250 Pacific Ave. Ste. 105, Tacoma, WA, 98402-4318, for Respondent.

PUBLISHED OPINION

Dwyer, J.

¶1 Shawn Smith appeals from the superior court's order concluding that Smith did not timely file a request for reconsideration of an order entered by the Department of Labor and Industries (the Department), which rejected his claim for workers’ compensation benefits. Smith contends that the superior court erred in so concluding because the Department did not send a copy of its order to his attorney. Accordingly, Smith asserts, the order was not properly communicated and, in turn, the 60-day statutory deadline for filing a request for reconsideration did not apply.¹ However, Smith did not timely provide the Department with a writing signed by Smith setting forth the name and address of his representative as required by RCW 51.04.080. Therefore, the Department was not required to provide Smith's attorney with a copy of its order. Finding no error in the superior court's analysis, we affirm.

I

¶2 In May 2017, Smith filed a claim with the Department. This claim, designated as "Claim No. BB 76955," alleged that Smith developed an occupational disease—namely, bilateral carpal tunnel syndrome.

¶3 Sometime before filing claim number BB76955, Smith filed a different claim, which was denominated as claim number AZ34855. On July 13, 2017, the Department received a written authorization from Smith stating that David Carson, an attorney, was his representative with regard to claim number AZ34855.

¶4 Also on July 13, 2017, Carson faxed to the Department a letter written by Carson. This letter provided:

RE: Shawn SmithClaim #BB76955

Dear Sir or Madam:Please take note that Shawn Smith is now represented by Carson Law Practice. This notice constitutes a protest to all adverse orders.

Should there be any question regarding this claim please contact: Dave Carson^[2]

¶5 Notably, however, this fax did not include a writing by Smith stating that Carson was his representative with regard to claim number BB76955.

¶6 On July 17, 2017, Jeannie Carlson, a claim manager at the Department, telephoned Carson and informed him that the Department required an authorization from Smith before the Department could consider Carson to be Smith's representative for claim number BB76955. Carson did not provide the Department with such an authorization in response to this advisement. Thus, on July 27, Carlson again telephoned Carson, informing him a second time that the Department required an authorization from Smith in order to treat Carson as Smith's representative on this claim. Once again, Carson did not provide the Department with such an authorization.

¶7 On August 11, 2017, the Department entered an order rejecting claim number BB76955. In so doing, the Department determined that "the diagnosed condition was not found to arise naturally and proximately out of employment."³ That same day, the Department mailed a copy of the order to Smith, his medical provider, his employer, and an employer group. The Department did not mail a copy of the order to Carson.

¶8 Approximately 14 months later, on October 2, 2018, Carson sent a "secure message" to the Department wherein he requested that the Department reconsider its order rejecting claim number BB76955. On October 9, the Department sent Carson a letter, which stated:

Based on the fact that the department does not have a release from Mr. Smith for claim BB76955, your secure message of 10/2/18 cannot be construed as a protest for claim BB76955.

A phone call was made on 7/17/17 informing Dave Carson that a signature from Mr. Smith is necessary in order to obtain attorney authorization on claim BB76955.

¶9 On October 16, 2018, a paralegal at Carson's law firm faxed to the Department a letter, which was signed by Smith. This letter stated:

TO: DEPARTMENT OF LABOR AND INDUSTRIESRE: Claim number BB-76955 All future electronic, written, and oral communications are to my attorney representatives at Carson Law Practice regarding my claim files. Please allow digital access to my complete claim or provide a copy of my claim file to Carson Law Practice at the below address.^{[4 ]}

¶10 Additionally, the fax contained a letter, authored by Carson, which stated that Smith was "represented by Carson Law Practice" and that "[t]his notice constitutes a protest to all adverse orders."⁵

¶11 On November 5, 2018, the Department entered an order refusing to reconsider its August 2017 order. In so doing, the Department explained that Smith's protest was untimely because the protest was not received within 60 days of the August 2017 order being communicated to Smith. This November 2018 order was mailed to Carson's law firm.

¶12 On November 13, 2018, Smith filed a notice of appeal with the Board of Industrial Insurance Appeals (the Board). On October 4, 2019, an industrial appeals judge entered an order dismissing Smith's appeal. On November 18, Smith petitioned for review of the industrial appeals judge's decision. On December 13, the Board granted Smith's petition for review. On January 24, 2020, the Board entered an order affirming the Department's November 2018 order.

¶13 On January 28, 2020, Smith appealed the Board's decision to the Pierce County Superior Court. On December 18, the superior court entered an order affirming the Board's decision. In so doing, the superior court entered the following conclusions of law:

1. The Department order dated August 11, 2017, was communicated to Shawn R. Smith within the meaning of RCW 51.52.050.

2. The protest to the August 11, 2017 Department order received by the Department on October 16, 2018, was not timely within the meaning of RCW 51.52.050.

3. As of August 11, 2017, attorney David W. Carson was not Shawn R. Smith's representative within the meaning of RCW 51.04.080 for Claim No. BB-76955. The Department of Labor and Industries was not required to send a copy of the August 11, 2017 order to David W. Carson.

4. The order dated November 5, 2018, is correct and is affirmed.

Smith appeals.

II

¶14 Smith contends that the superior court erred by concluding that the Department was not required to send a copy of its order rejecting claim number BB76955 to Carson. This is so, Smith avers, because Carson satisfied the dictates of RCW 51.04.080 by providing the Department with a written notice of appearance for claim number BB76955 before the Department entered its order rejecting this claim. We disagree. RCW 51.04.080 required Smith himself to set forth in writing the name and address of his representative and communicate this to the Department.

A

¶15 Washington's Industrial Insurance Act, Title 51 RCW, governs judicial review of workers’ compensation cases. Rogers v. Dep't of Labor & Indus., 151 Wash. App. 174, 179, 210 P.3d 355 (2009). We review the superior court's decision, not the Board's order. RCW 51.52.140. As with the superior court's review of an administrative appeal, our review is based solely on the evidence and testimony presented to the Board. RCW 51.52.115 ; Bennerstrom v. Dep't of Labor & Indus., 120 Wash. App. 853, 858, 86 P.3d 826 (2004).

¶16 We review the superior court's decision in the same manner as other civil cases. Mason v. Georgia-Pac. Corp., 166 Wash. App. 859, 863, 271 P.3d 381 (2012). Specifically, we review whether substantial evidence supports the superior court's factual findings and whether the superior court's conclusions of law flow from those findings. Rogers, 151 Wash. App. at 180, 210 P.3d 355. We view the record in the light most favorable to the party who prevailed in superior court. Rogers, 151 Wash. App. at 180, 210 P.3d 355. Additionally, the superior court's construction of a statute is a question of law, which we review de novo. Mason, 166 Wash. App. at 863, 271 P.3d 381.

The goal of statutory interpretation is to discern and carry out legislative intent. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 6, 721 P.2d 1 (1986). To determine legislative intent, we first look to the language of the statute. We must give meaning to every word in a statute. In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 767, 10 P.3d 1034 (2000). Absent ambiguity, a statute's meaning is derived from the language of the statute and we must give effect to that plain meaning as an expression of legislative intent. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). If the meaning of a statute is plain on its face, the inquiry ends. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). A statute is ambiguous if susceptible to two or more reasonable interpretations. Armendariz, 160 Wn.2d at 110 [156 P.3d 201]. However, a statute is not ambiguous merely because of different conceivable interpretations. Armendariz, 160 Wn.2d at 110 [156 P.3d 201].

Bennett v. Seattle Mental Health, 166 Wash. App. 477, 483-84, 269 P.3d 1079 (2012).

B

¶17 The statute at issue provides:

On all claims under this title, claimants’ written notices, orders, or payments must be forwarded directly to the claimant until such time as there has been entered an order on the claim appealable to the board of industrial insurance appeals. Claimants’ written notices, orders, or payments may be forwarded to the claimant in care of a representative before an order has been entered if the claimant sets forth in writing the name and address of the representative to whom the claimant desires this information to be forwarded.

RCW 51.04.080.

¶18 Here, the superior court concluded:

As of August 11, 2017, attorney David W. Carson was not Shawn R. Smith's representative within the meaning of RCW

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