Michael P. Colasurdo Jr., V Esterline Technologies Corp.

• Court: Court of Appeals of Washington
• Decided: March 14, 2023
• Docket: 56509-9
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two

March 14, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II MICHAEL P. COLASURDO, JR., and the No. 56509-9-II WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES,

Respondents,

v. ORDER GRANTING MOTION TO PUBLISH AND PUBLISHING OPINION ESTERLINE TECHNOLOGIES CORP., also doing business as HYTEK FINISHES CO.,

Appellant.

The unpublished opinion in this matter was filed on January 10, 2023. Respondent,

Department of Labor and Industries, filed a motion to publish on January 27, 2023. Appellant,

Esterline Technologies, Corp., filed an answer to the motion to publish on February 27, 2023.

After consideration, the court grants the motion. It is hereby

ORDERED that the final paragraph of the opinion, which reads “A majority of the panel

having determined that this opinion will not be printed in the Washington Appellate Reports, but

will be filed for public record pursuant to RW 2.06.040, it is so ordered.” is deleted. It is further

ORDERED that this opinion will now be published.

PANEL: Jj. Maxa, Cruser, Veljacic

FOR THE COURT: For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56509-9-II

Cruser, A.C.J.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two

January 10, 2023

DIVISION II

MICHAEL P. COLASURDO, JR., and the No. 56509-9-II WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES,

v. UNPUBLISHED OPINION

ESTERLINE TECHNOLOGIES CORP., also doing business as HYTEK FINISHES CO.,

CRUSER, A.C.J.⎯Michael Colasurdo injured his back while working on February 2,

2014. More than a year later, he filed a claim related to the incident, and the Department of

Labor and Industries (Department) allowed the claim. Colasurdo’s employer, Esterline

Technologies1 (Esterline) did not challenge or protest the order granting Colasurdo’s claim until

more than three years later when it challenged the claim as untimely. The Department issued an

order rejecting the original claim, which the Board of Industrial Insurance Appeals (Board)

affirmed. Colasurdo appealed the Board’s decision to the superior court, which reversed the

rejection order.

1 f/k/a Hytek Finishes Co. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Esterline appeals the superior court’s decision reversing the Board’s decision and

allowing Colasurdo’s claim. Esterline argues that the statutory requirement requiring workplace

injury claims be filed within one year of the injury is a jurisdictional requirement and therefore

the Department’s order granting Colasurdo’s untimely claim was void ab initio. Colasurdo and

the Department respond arguing that the one year filing requirement operates as a statute of

limitations and did not divest the Department of subject matter jurisdiction over Colasurdo’s

claim. They argue, and we agree, that Esterline waived its statute of limitations defense to his

claim by failing for over three years to challenge the Department’s original order granting

Colasurdo’s claim. Accordingly, we affirm the superior court’s decision.

FACTS

On February 4, 2014, Colasurdo injured his low back during the course of his

employment for Esterline Technologies Corp. Over a year later, on August 5, 2015, he submitted

a claim for workers’ compensation benefits. The Department issued an order on June 2, 2016,

allowing the claim for benefits from the February 2014, injury. Esterline did not challenge or

protest the order granting Colasurdo’s claim until more than three years later when it challenged

the claim as untimely on June 13, 2019.

On August 7, 2019, the Department issued an order correcting and superseding its prior

allowance orders and rejecting Colasurdo’s claim because it was not timely filed. Colasurdo

petitioned the Board for review, and the Board affirmed the Department’s August 2019 order

rejecting Colasurdo’s claim. Colasurdo appealed the Board’s decision to superior court.

At trial, the parties stipulated to the facts of the case. The superior court reversed the

Board’s order. It concluded that the Department’s June 2016 order allowing Colasurdo’s claim

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

became final and binding after 60 days passed without protest or appeal. The superior court

concluded that the Department had personal and subject matter jurisdiction over Colasurdo’s

claim and that the Department’s erroneous decision to allow the claim despite it being filed after

the statutory one-year time period to file did not render the order void ab initio.

Esterline appeals the superior court’s decision.

ANALYSIS

RCW 51.28.050 provides, “No 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, except as provided in RCW 51.28.055 and 51.28.025(5).”2

Colasurdo failed to file his claim within a year after he was injured. Therefore, the Department

erred in accepting his claim in June 2016.

RCW 51.52.050(1) provides that a copy of Department’s order must state that the order

becomes final 60 days after it is communicated to the parties unless a written request for

reconsideration or appeal is filed. Esterline failed to appeal the Department’s order allowing

Colasurdo’s claim for three years, long after the Department’s order became final under RCW

51.52.050(1). Nonetheless, Esterline argues that the allowance order was void ab initio and could

be challenged at any time because Colasurdo’s claim was not filed within the one year

requirement under RCW 51.28.050. Esterline argues that because Colasurdo failed to timely file

2 Neither identified exception applies to this case. RCW 51.28.055 involves the time frame to file an occupational disease claim, and .025(5) involves delays due to claim suppression.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

his claim for benefits, the Department did not have subject matter jurisdiction over the claim.3

We disagree.

We review de novo a trial court’s decision on a question of subject matter jurisdiction

and on questions of law. Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310, 314, 76 P.3d

1183 (2003). The Department has original and exclusive jurisdiction of all cases involving

injured workers. Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 544, 886 P.2d 189 (1994);

Abraham v. Dep’t of Labor & Indus., 178 Wash. 160, 163, 34 P.2d 457 (1934). Jurisdiction “is

the power and authority of the court to act.” Dougherty, 150 Wn.2d at 315 (quoting 77 AM. JUR.

2D Venue § 1, at 608 (1997)). “Jurisdiction does not depend on procedural rules.” Id. (citing 14

LEWIS H. ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE: TRIAL PRACTICE CIVIL § 41, at

118 (5th ed.1996)).

“A court’s ‘subject matter jurisdiction’ is frequently confused with its ‘authority’ in a

particular case.” Landon v. Home Depot, 191 Wn. App. 635, 640, 365 P.3d 752 (2015) (quoting

Marley, 125 Wn.2d at 544). “Subject matter jurisdiction is the authority to adjudicate the type of

controversy at issue.” Marley, 125 Wn.2d at 544. “Type of controversy” means the general

category of case “without regard to the facts of the particular case.” Dougherty 150 Wn.2d at

317. “ ‘If the type of controversy is within the subject matter jurisdiction, then all other defects

or errors go to something other than subject matter jurisdiction.’ ” Id. (internal quotation marks

omitted) (quoting Marley, 125 Wn.2d at 539). “A court or agency does not lack subject matter

3 Esterline also argues in passing that the Department lacked personal jurisdiction over Colasurdo’s claim. It does not, however, offer any argument or authority to support its contention. RAP 10.3. We do not address it further.

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

jurisdiction solely because it may lack authority to enter a given order.” Marley, 125 Wn.2d at

539.

In Marley, the Supreme Court clarified that where an aggrieved party has not appealed a

final Department order deciding a claim within the applicable appeal period, that party is

precluded from challenging the claim unless the order was void when entered. 125 Wn.2d at 542.

The court held that a Department order is not void unless the Department lacked personal

jurisdiction over the parties or subject matter jurisdiction over the claim. Id. at 539.

There, the Department denied Marley widow’s benefits after her husband died during the

course of employment. Id. at 536. Marley did not appeal that decision until seven years later

when she argued that the decision was void because it was contrary to statutory mandate. Id. The

Supreme Court rejected Marley’s argument, stating that the Department has subject matter

jurisdiction over all workers’ compensation claims. Id. at 539. Having determined that the

Department had subject matter jurisdiction over the claim, the Supreme Court held that even

where the decision by the Department may have been erroneous as a matter of law, the

unappealed decision was final and binding. Id. at 543.

Esterline attempts to distinguish this case from Marley by emphasizing that the original

claim in Marley was timely filed and erroneously denied on the merits. But the Marley court’s

holding that Marley could not successfully challenge the denial of her claim years after the order

became final did not hinge on the fact that Marley’s original claim was timely filed. It was the

fact that the Department made a determination on a claim over which it had subject matter

jurisdiction—based on the nature of the controversy, not the timeliness of the original claim.

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Esterline urges us to instead rely on the 70-year-old case Wheaton v. Department of

Labor & Industries, 40 Wn.2d 56, 240 P.2d 567 (1952). Factually, Wheaton bears similarity to

this case. Wheaton was injured in the course of his employment and did not file an application

for compensation for over three years. Id. The supervisor granted treatment and closed the claim.

Id. at 56-57. Wheaton later applied to reopen his claim for aggravation, which was granted. Id. at

57. The employer did not appeal either of the orders until after the time for appeal had expired.

Id. at 57. The Board reversed the order allowing the claim and the superior court affirmed the

Board. Id. at 57. Wheaton appealed and the Supreme Court held that the timely filing of a claim

is a limitation on the right to receive compensation, and once the right to receive compensation is

extinguished, the Department loses the power to allow a claim. Id. at 58.

But the reasoning in Wheaton was effectively overruled by Marley. Marley specifically

addressed Division Three of this court’s decision in Fairley v. Department of Labor &

Industries, 29 Wn. App. 477, 627 P.2d 961 (1981). In Fairley, the Department miscalculated the

claimant’s benefits based on a misconstruction of the statute. 29 Wn. App. at 481 (citing Booth v.

Dep’t of Labor & Indus., 189 Wash. 201, 64 P.2d 505 (1937)). When the claimant later sought

reconsideration of the order after the time for appeal had passed, the Board denied her appeal as

time barred, but the superior court reversed that decision. Id. On appeal, the court explained that

the Department’s award “being outside the statutory mandate, was therefore void. Being a void

order no appeal from the initial decision was necessary.” Id. This is precisely the reasoning used

in Wheaton and which Esterline urges us to apply here.

But the Marley court acknowledged Fairley and the cases Fairley relied on and expressly

found it to be “an incorrect statement of the law” and overruled the opinion. Marley, 125 Wn.2d

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at 541. The court explained that such reasoning “would transform the Department’s mistakes in

statutory construction, errors of law, into jurisdictional flaws.” Id. Relying on Restatement

(Second) of Judgments (Am. Law Inst. 1982), the Marley court identified the danger of

classifying errors of law as jurisdictional flaws:

“[treating an error of law as a jurisdictional issue] transforms it into one that may be raised belatedly, and thus permits its assertion by a litigant who failed to raise it at an earlier stage in the litigation. The classification of a matter as one of jurisdiction is thus a pathway of escape from the rigors of the rules of res judicata. By the same token it opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment.”

Id. (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 12, CMT. B (Am. Law Inst. 1982)). The

Marley holding was clear: “An order from the Department is void only when the Department lacks

personal or subject matter jurisdiction.” Id. at 542.

Marley expressly held that the Department has subject matter jurisdiction of all workers’

compensation claims. Id. Under Marley there is no question that the Department holds exclusive

jurisdiction over Colasurdo’s workers’ compensation case, including sub-issues within the case

such as timeliness. Any error in the Department’s decision goes to something other than subject

matter jurisdiction because the Department has broad subject matter jurisdiction over workers’

compensation cases. Indeed, because the Department had jurisdiction over Colasurdo’s claim as

a workers’ compensation case, it was obligated to determine the timeliness of the claim.

Timely filing is necessary for a claim to be allowable, not for it to be adjudicated. The

Department had subject matter jurisdiction to make the decision on benefits for Colasurdo’s

workers’ compensation claim. The Department lacked authority to award benefits on an untimely

claim, but it retained subject matter jurisdiction to determine timeliness. Its determination that

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

the claim was allowable was an error of law that Esterline could have successfully challenged by

timely protesting the order. It failed to do so.

Department allowance orders—even those containing errors of law—become final and

binding 60 days after the Department communicates the order to the worker. RCW 51.52.050(1);

Marley, 125 Wn.2d at 541-42. The “failure to appeal an order, even one containing a clear error

of law, turns the order into a final adjudication, precluding any reargument of the same claim.”

Id. at 538. Esterline waited three years to appeal the Department’s order allowing Colasurdo’s

claim. By doing so, the Department’s order—erroneous as it may have been—became final, and

Esterline waived its timeliness defense.4

This result is consistent with the Industrial Insurance Act’s provision for “sure and

certain relief” to workers. RCW 51.04.010. Basic principles of fairness and res judicata would be

violated if employers were entitled to retroactively challenge a worker’s claim for benefits years

after it became final. See Dougherty, 150 Wn.2d at 319 (“ ‘A party’s ability to raise procedural

defects at any time could result in abuse and cause a huge waste of judicial resources.’ ” (quoting

Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wn.2d 769, 790, 947 P.2d 732

(1997)).

4 Esterline contends that recent cases “superseded by statute” Marley’s holding regarding the finality of unappealed Department orders. Br. of Appellant 16. It cites Birrueta v. Department of Labor & Industries, 186 Wn.2d 537, 549, 379 P.3d 120 (2016) and Peterson v. Department of Labor & Industries, 17 Wn. App. 2d 208, 234, 458 P.3d 338 (2021). Neither of these cases have the impact Esterline contends. Birrueta interpreted a legislative amendment to the statute providing a means for a worker to recover underpaid benefits, and Peterson involved the Department’s ability to seek reimbursement when a claimant later receives maritime benefits.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Cruser, A.C.J. We concur:

Maxa, J.

Veljacic, J.