IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RONALD CORDOVA, DEC’D, ) No. 81947-0-I ) Appellant, ) DIVISION ONE ) v. ) ) CITY OF SEATTLE and THE ) DEPARTMENT OF LABOR AND ) UNPUBLISHED OPINION INDUSTRIES OF THE STATE OF ) WASHINGTON, ) ) Respondents. )
BOWMAN, J. — A workers’ compensation application need not be formal or
highly technical but it must, within a year of a worker’s injury or death, notify the
Department of Labor and Industries (DLI) that the applicant seeks workers’
compensation benefits. Because Tracy Cordova’s application to the Department
of Retirement Services (DRS) for a one-time death benefit did not notify DLI that
she also sought workers’ compensation, we conclude that the Board of Industrial
Insurance Appeals (BIIA) properly denied her subsequent DLI claim as untimely.
We affirm the superior court’s order on summary judgment affirming the decision
of the BIIA.
FACTS
Ronald Cordova worked for the city of Seattle (City) as a police detective.
He died at home on April 30, 2017 from a ruptured cerebral aneurysm. His wife
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81947-0-I/2
Tracy1 believed “unusual stress” from Ronald’s job led to his aneurysm, so she
timely applied for a “lump sum benefit payment” through DRS under the
Washington Law Enforcement Officers’ and Fire Fighters’ Retirement System Act
(LEOFF), chapter 41.26 RCW. The application titled “One-Time Duty-Related
Death Benefit” bore the DRS logo and “Washington State Department of
Retirement Systems” on the first page and identified DRS on each subsequent
page.
Per statute, DRS sent Tracy’s application to DLI to process on its behalf.2
DLI through its “Pension Adjudicator Section” denied Tracy’s claim. In its
December 2017 order, pension adjudicator Noreen Currier denied the application
for the one-time death benefit “because the cause of death is not related to either
an injury sustained in the course of employment or an occupational disease.”
The order displays DRS claim number “DRS0202.”
Tracy hired an attorney, who wrote a letter in January 2018 protesting the
denial of DRS benefits. The letter identified Tracy’s DRS application by claim
number DRS0202 but described the retirement benefits application as a “Labor
and Industries claim.” The attorney mailed the letter to the general DLI post-
office box address but did not identify the Pension Adjudication Section as the
intended recipient.
1For clarity, we refer to Tracy Cordova and Ronald Cordova by their first names. We intend no disrespect. 2DLI determines an individual’s eligibility for a one-time death benefit claim under RCW 41.26.048 and WAC 415-02-710(3).
2 No. 81947-0-I/3
DLI responded that it was “unable to locate a claim for this injured worker”
and requested Tracy’s attorney add a “current state fund claim number” and
provide a “report of accident.” Tracy’s attorney replied by resending his original
letter with the DRS0202 claim number but added “Attn: Noreen” in the upper right
corner. The DLI Pension Adjudicator Section confirmed receipt of the second
letter and on May 9, 2018, affirmed the December 2017 order denying Tracy’s
claim “for death benefits provided under RCW 41.26.048,” finding Ronald’s death
was not duty-related. Tracy timely appealed the ruling to the BIIA.
Tracy asserts that on September 11, 2018, she realized for the first time
that she had not applied for Title 51 RCW workers’ compensation benefits with
either the City or DLI. So on September 25, 2018, nearly 17 months after Ronald
died, Tracy applied to the City for Title 51 RCW benefits.3 On October 30, 2018,
DLI denied Tracy’s claim because she did not file it within the one-year statutory
period and because she did not establish an employment-related injury.4
Tracy protested the decision and the BIIA assigned her case to an
industrial appeals judge (IAJ). Tracy and the City cross moved for summary
judgment on timeliness grounds. DLI joined the City’s motion. The IAJ granted
summary judgment for the City and DLI. The IAJ also rejected Tracy’s argument
that the BIIA should equitably estop DLI from rejecting her application for Title 51
RCW benefits as untimely.
3 Because Ronald worked for the City, a self-insured employer, the DLI oversees applications for workers’ compensation, though the City is directly responsible for the costs. RCW 51.14.010, .020; RCW 41.26.048. 4 The issue of whether Ronald’s death was employment-related is not before us.
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The BIIA also denied Tracy’s petition for review. Tracy then appealed to
the Snohomish County Superior Court. Tracy and the City again cross moved for
summary judgment on timeliness grounds. DLI responded to both motions,
arguing the court should grant the City’s motion and deny Tracy’s. The superior
court granted summary judgment for the City, affirming the BIIA and dismissing
Tracy’s appeal. The superior court determined that Tracy’s claim was untimely
and such untimeliness “cannot be excused under the doctrine of equity.”
Tracy appeals.
ANALYSIS
Timeliness
Tracy argues the superior court erred in granting the City’s summary
judgment motion because the BIIA erred by rejecting her claim for Title 51 RCW
benefits as untimely. She claims the “information and documents [she] submitted
to DRS and delivered to DLI, along with her counsel’s subsequent letters to DLI,”
amount to a timely application for workers’ compensation benefits under RCW
51.28.020. We disagree.
We review a superior court’s grant of summary judgment de novo,
engaging in the same inquiry as the superior court. Hill v. Dep’t of Labor &
Indus., 161 Wn. App. 286, 292, 253 P.3d 430 (2011); Rabey v. Dep’t of Labor &
Indus., 101 Wn. App. 390, 393-94, 3 P.3d 217 (2000). A party is entitled to
summary judgment when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. CR 56(c). The
moving party must establish its right to judgment as a matter of law, and we view
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the facts in the light most favorable to the nonmoving party. Romo v. Dep’t of
Labor & Indus., 92 Wn. App. 348, 354, 962 P.2d 844 (1998). In our review, we
rely exclusively on the certified BIIA record. Watson v. Dep’t of Labor & Indus.,
133 Wn. App. 903, 909, 138 P.3d 177 (2006); RCW 51.52.115. We accept the
BIIA’s decision as prima facie correct, and the party challenging the decision
must support its challenge by a preponderance of the evidence. Watson, 133
Wn. App. at 909; Hill, 161 Wn. App. at 291.
Title 51 RCW governs claims for industrial insurance and workers’
compensation. Under RCW 51.28.030, a party making a workers’ compensation
claim “shall make application for the same . . . accompanied with proof of death
and proof of relationship showing the parties to be entitled to compensation.”
Under RCW 51.28.050, “[n]o application shall be valid or claim thereunder
enforceable unless filed within one year after the day upon which the injury
occurred or the rights of dependents or beneficiaries accrued.”
We construe Title 51 RCW liberally “for the purpose of reducing to a
minimum the suffering and economic loss arising from injuries and/or death
occurring in the course of employment.” RCW 51.12.010. In that regard, we
have determined that an application for Title 51 RCW benefits need not be as
formal and highly technical as a pleading. Magee v. Rite Aid, 144 Wn. App. 1, 8,
182 P.3d 429 (2008). Any writing seeking Title 51 RCW benefits “filed with the
Industrial Commission that challenges its attention, and causes it to act, is
sufficient to put in motion the process of the Industrial Commission to see that
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compensation is paid.” Magee, 144 Wn. App. at 9 (citing Nelson v. Dep’t of
Labor & Indus., 9 Wn.2d 621, 630, 115 P.2d 1014 (1941)).
Citing Nelson, Tracy argues her May 4, 2017 DRS LEOFF application
along with her attorney’s letters notified DLI that she was also seeking workers’
compensation benefits. In Nelson, a logger broke his ankle and fell on his neck
and upper back while working in the forest. Nelson, 9 Wn.2d at 623. The logger
timely applied for workers’ compensation related to his broken ankle and DLI
approved his claim. Nelson, 9 Wn.2d at 623. Less than a year after his injury,
the logger petitioned DLI for a rehearing, seeking additional compensation for
“increasing pain in his spine and head, dizziness and weakness in his back due
to said injury and the fall upon his back.” Nelson, 9 Wn.2d at 624-25.5
Our Supreme Court held that the logger’s petition amounted to an
application for additional Title 51 RCW benefits. Nelson, 9 Wn.2d at 628-29. It
reasoned that the petition was a writing “filed with the department” that
“reasonably directs its attention to the fact that an injury with its particulars has
been sustained and that compensation is claimed.” Nelson, 9 Wn.2d at 629.
Because the logger first notified DLI of his injuries within the one-year statute of
limitations, he timely “challenged the attention of the department.” Nelson, 9
Wn.2d at 629-30.
Tracy’s claim is distinguishable from the petition in Nelson. In Nelson, the
logger petitioned for additional compensation in an existing Title 51 RCW claim.
But here, Tracy had no existing Title 51 RCW claim. Her May 2017 application
was titled “One-Time Duty-Related Death Benefit” and bore either the DRS logo
5 Emphasis omitted.
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and/or “Department of Retirement Systems” on each page. It made no mention
of workers’ compensation benefits and sought only an LEOFF one-time death
payout—a separate benefit from a different government agency.
Neither did the protest letters sent by Tracy’s attorney notify DLI that she
was also claiming workers’ compensation.6 Though her attorney asserted that
he “represents Tracy . . . with regard to the Labor and Industries claim referenced
above,” the “claim referenced” was DRS0202, the case number DRS assigned to
her one-time death benefit application. In trying to clarify the discrepancy, DLI
told the attorney that it was “unable to locate a claim for this injured worker” and
requested a current state fund claim number and a copy of an accident report.
Still, Tracy’s attorney made no effort to explain that Tracy was seeking both
LEOFF and Title 51 RCW benefits. Instead, he sent his original protest letter
again but wrote “Attn: Noreen”—the first name of the DLI pension adjudicator
who processes DRS death benefit claims—on the upper right corner. As a
result, DLI forwarded the letter to their Pension Adjudication Section and
processed the claim for only DRS benefits.
We agree with DLI that this case is more like Magee. In that case, Rite
Aid employee Magee claimed her supervisor sexually assaulted her. Magee,
144 Wn. App. at 4. She petitioned for an antiharassment order against her
supervisor and sued him civilly. Magee, 144 Wn. App. at 4-5. Rite Aid was not a
named party to either civil action but it received copies of the antiharassment
6 As much as Tracy argues that applications for an LEOFF payout and workers’
compensation benefits are coextensive, her argument is unsupported by citation to legal authority, so we do not consider it. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (argument unsupported by reference to the record or citation to authority will not be considered).
7 No. 81947-0-I/8
order and Magee’s answer to the supervisor’s counter suit and participated in
settling the lawsuit. Magee, 144 Wn. App. at 5-6. Magee later sought workers’
compensation for her injuries and claimed that Rite Aid’s receipt of the
antiharassment order and her answer was sufficient timely notice that she would
be seeking workers’ compensation under Title 51 RCW.7 Magee, 144 Wn. App.
at 9. We concluded that under Nelson, the documents did not amount to an
application for Title 51 RCW benefits. Magee, 144 Wn. App. at 11.8 Because
the documents sought only civil damages for Magee’s injuries, Rite Aid could not
“reasonably infer that a claim for workers’ compensation [wa]s being made.”
Magee, 144 Wn. App. at 11.
Like the documents in Magee, Tracy’s DRS application did not notify DLI
that she was seeking workers’ compensation. She filed her application with DRS
seeking an LEOFF one-time death benefit. Nothing in the application would
reasonably cause DLI in their role as DRS pension adjudicator to conclude that
Tracy was also seeking workers’ compensation benefits.
Tracy argues that Magee “is readily distinguishable” because notice of the
claim there was “wholly unrelated to statutory benefits,” while her application
sought a specific, though different, statutory benefit. But she fails to explain how
notice of Ronald’s death in the form of a DRS application for a one-time death
benefit differs in any meaningful way from notice of Magee’s injury in the form of
7 Rite Aid was a self-insured employer under RCW 51.14.020. Magee, 144 Wn. App. at 13. 8 We expressed our concern that the notice requirement established in Nelson is
outdated given “the many changes to workers’ compensation law that have taken place over the past seven decades” and urged legislative review of the statutory scheme to prevent future similar outcomes. Magee, 144 Wn. App. at 15-16 (Dwyer, J., concurring). To date, neither the Supreme Court nor the legislature has acted.
8 No. 81947-0-I/9
a civil lawsuit seeking money damages. Neither notifies the insurer of a claim for
Title 51 RCW benefits. We conclude that the BIIA properly determined that the
sum of Tracy’s communications with DLI did not amount to an application for
workers’ compensation benefits and the superior court did not err in granting the
City’s summary judgment motion.
Equitable Estoppel
Tracy argues that even if the information she submitted to DRS did not
amount to an application for benefits under Title 51 RCW, “DLI should be
[equitably] estopped from denying that her claim was timely made.” We
disagree.
The trial court has broad discretion, exercised in light of the facts and
circumstances of a particular case, to determine whether a party is entitled to
equitable relief. Rabey, 101 Wn. App. at 396; Heckman Motors, Inc. v. Gunn, 73
Wn. App. 84, 88, 867 P.2d 683 (1994). In industrial insurance cases, a trial court
may grant equitable relief only in the limited circumstances where (1) a claimant’s
competency to understand orders, procedures, and time limits affects the
communication process and (2) DLI engaged in misconduct. Rabey, 101 Wn.
App. at 395 (citing Kingery v. Dep’t of Labor & Indus., 132 Wn.2d 162, 174, 937
P.2d 565 (1997)); Lynn v. Dep’t of Labor & Indus., 130 Wn. App. 829, 839, 125
P.3d 202 (2005); Harman v. Dep’t of Labor & Indus., 111 Wn. App. 920, 924, 47
P.3d 169 (2002). We review a superior court’s decision whether to fashion an
equitable remedy for an abuse of discretion. Harman, 111 Wn. App, at 923.
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Tracy contends that DLI engaged in misconduct because it failed to notify
her of her rights under RCW 51.28.010. That statute compels DLI to notify
workers or beneficiaries of their statutory rights after receiving an accident report
from an employer:
(1) Whenever any accident occurs to any worker it shall be the duty of such worker or someone in his or her behalf to forthwith report such accident to his or her employer . . . and of the employer to at once report such accident and the injury resulting therefrom to [DLI] . . . . (2) Upon receipt of such notice of accident, [DLI] shall immediately forward to the worker or his or her beneficiaries or dependents notification, in nontechnical language, of their rights under this title.
RCW 51.28.010. But DLI did not receive an accident report from Ronald’s
employer. Instead, it received notice of his death in the form of an application for
DRS benefits provided to its Pension Adjudication Section. As a result, the
application did not trigger the notice requirement under RCW 51.28.010. And
even if we construed the statute so broadly as to trigger a duty to notify on
receipt of a report of injury from any source, DLI’s failure to interpret the statute
likewise does not amount to misconduct.
Tracy also asserts that DLI engaged in misconduct by obscuring from her
its role in processing DRS applications. The record does not support her
assertion.
DLI’s letter accompanying its order denying Tracy’s application for LEOFF
benefits identifies Noreen Currier as the “Pension Adjudicator” and explains that
DLI “received your application for death benefits through the Department of
Retirement Systems.” It then explains that DLI “determines eligibility for the
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death benefit you have filed for.” And the order itself states that “[t]he application
for the death benefit provided under RCW 41.26.048 . . . is hereby denied.” The
order displays DRS claim number DRS0202. And it includes addresses for both
the “Dept. of Retirement Systems LEOFF” and “Dept. of Labor and Industries
Pension Adjudicator Section.” The record shows that DLI adequately identified
its role as Pension Adjudicator for DRS when communicating with Tracy.
Because Tracy’s DRS application did not also amount to an application for
Title 51 RCW benefits and she was not entitled to equitable relief, the BIIA did
not err in concluding her application for workers’ compensation was untimely.
We affirm the superior court order granting the City’s summary judgment motion
to dismiss Tracy’s appeal.
I CONCUR:
11 Cordova v. City of Seattle, No. 81947-0-I
DWYER, J. (concurring and dissenting) — More than a dozen years ago, in
a case referenced in the majority opinion, I expressed my dismay at the state of
the law concerning the requirement that a writing be filed with the Department of
Labor and Industries in order to pursue a workers’ compensation claim. See
Magee v. Rite Aid, 144 Wn. App. 1, 12, 182 P.3d 429 (2008) (Dwyer, J.,
concurring). My premise then was simple: the legislature had not chosen to
define a “claim” or to delineate that which was required to constitute a “claim,”
and the Supreme Court’s formulations of such requirements as explicated in
Nelson v. Dep’t of Labor & Industries, 9 Wn.2d 621, 115 P.2d 1014 (1941), were
anti-worker, inconsistent with the evolution of workers’ compensation law, and
unjust. I urged that either the legislature cure the problem by statute or that the
Supreme Court ride to the rescue and alter its Nelson decision.
As with most such exhortations by intermediate appellate court judges, my
jurisprudential call to arms failed to inspire legislative rescue. And the Justices
remained dismounted.
As to the content of the notices given to the Department of Labor and
Industries herein, the majority imposes an injustice by correctly applying the law.
As I observed 13 years ago, “[t]hus, with a reluctance outweighed only by my
obligation to the law, I concur”1 in that decision.
1 Magee, 144 Wn. App. at 16 (Dwyer, J., concurring). No. 81947-0-I/2
However, there is more to this case. Both the Board of Industrial
Insurance Appeals and the superior court ruled that Tracy Cordova did not file a
writing with the Department of Labor and Industries within one year of Detective
Ronald Cordova’s death, as required by statute. See RCW 51.28.050. To reach
its decision, the majority does not need to address this issue and understandably
does not do so.
But I disagree with both the Board and the superior court on this question.
And here is why.
The statutory requirement is merely that a writing be filed with the
Department of Labor and Industries. See RCW 51.28.010. As conceded at oral
argument in this court, any employee of the Department of Labor and Industries
can be the recipient of the filing. The statute does not provide otherwise.
Moreover, to “file” the writing does not require action akin to service of process in
a civil action. To the contrary, the writing can be mailed to anyone employed by
the Department of Labor and Industries or to the Department itself.
Here, such a filing happened twice. It first happened when an employee
of the Department of Retirement Systems transmitted documents sent to them by
Tracy Cordova to the Department of Labor and Industries for claim handling. It
happened a second time when Tracy Cordova’s attorney wrote and mailed his
January 2018 letter, which was received by an employee of the Department of
Labor and Industries.
I recognize that the majority rejects these filings as insufficient in their
content—but that is a separate question. Tracy Cordova unquestionably filed—
twice—a writing with the Department of Labor and Industries in a timely manner.
Her claims were timely even if their content was insufficient under the Nelson
requirements.
It is important that we recognize this distinction. Widows are not
supposed to have to hire lawyers in order to receive widow’s benefits. This area
of law is confused enough without conflating the issues at hand.
Both the Board and the superior court erred in their rulings on this
question.