FILED FEBRUARY 28, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
OLGA KOZUBENKO, ) ) No. 35893-3-III Appellant, ) ) v. ) ) DEPARTMENT OF LABOR & ) UNPUBLISHED OPINION INDUSTRIES, ) ) Respondent. )
SIDDOWAY, J. — Olga Kozubenko, appearing pro se, appeals the superior court’s
dismissal of her petition for judicial review of a decision of the Washington State Board
of Industrial Insurance Appeals (Board). She makes seven assignments of error, six of
which complain of decision making by the Board. The seventh complains of events
transpiring in the superior court, confusing this case with a separate action in which she
prematurely sought judicial review of the same proceeding.
The response of the Department of Labor and Industries (Department)
demonstrates that the superior court properly dismissed Ms. Kozubenko’s petition for
lack of jurisdiction. The dismissal is affirmed. No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
FACTS AND PROCEDURAL BACKGROUND
On July 19, 2017, the Board adopted a proposed decision and order that had been
issued by an industrial appeals judge (IAJ) on June 21, 2017, in a workers compensation
appeal filed by Ms. Kozubenko. No petition for review of the proposed decision and
order had been filed by either party so, as stated in the Board’s order, it “adopts the order
and it becomes the Decision and Order of the Board.” Clerk’s Papers (CP) at 28.
Ms. Kozubenko then submitted a late challenge to the IAJ’s proposed decision and
order, arguing that the time for challenging it should run from July 1, 2017, the date she
allegedly received a Russian translation. She was notified by the Board by a letter dated
July 28, 2017, that it considered her challenge untimely, but if she believed the Board’s
order adopting the proposed decision was erroneously issued, she could move the Board
for relief from the order.
Rather than move the Board for relief from the order, on August 28, Ms.
Kozubenko filed a notice of appeal in superior court “from [the Board’s] Decision which
was entered on July 28, 2017.” CP at 36. She thereafter received a civil case schedule
order in the case that had been signed by Judge Tony Hazel on September 29.
On December 11, the Department filed a motion to dismiss her appeal, identifying
four grounds: first, that she had failed to seek timely review of the IAJ’s proposed
decision and order; second, that she had failed to seek timely review in superior court of
the Board’s July 19, 2017 order adopting the proposed decision and order; third, that she
2 No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
had failed to serve the Board with her petition for judicial review; and fourth, that she had
failed to serve the Department with the petition. The Department simultaneously filed a
note for motion, setting its motion for hearing on January 19, 2018, at 9:00 a.m.
On the same day that it filed the motion to dismiss the action below, the
Department moved to dismiss a separate, premature appeal that Ms. Kozubenko had filed
in the superior court. Its basis for moving to dismiss the other case—Spokane County
Superior Court cause no. 17-2-03213-6—was that Ms. Kozubenko failed to serve the
Department with her petition for judicial review in that case as well. See Olga
Kozubenko v. Dep’t of Labor & Indus., No. 35892-5-III, slip. op. at 2 (Wash. Ct. App.
Feb. 28, 2019) (unpublished), http://www.courts.wa.gov/opinions/. The Department set
both of its dismissal motions for hearing on January 19, although the motion in that
matter was set later in the day, at 2:30 p.m. See id.
At the date and time set for hearing the Department’s motion to dismiss this case,
the assistant attorney general representing the Department appeared before Judge John
Cooney, as did an interpreter for Ms. Kozubenko. The court noted Ms. Kozubenko’s
absence, stating:
This matter was scheduled for hearing this morning at nine o’clock. It looks like she was provided notice. There’s an affidavit of mailing in the file that was sent out December 11th. It’s now ten minutes after nine and she hasn’t appeared.
3 No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
Report of Proceedings at 2. It observed that there were “three different bases for the
Court to grant the motion,” all jurisdictional, and that Ms. Kozubenko had not responded
with any information that would answer the issues raised. Id. The court signed the
Department’s proposed order, modifying it to make clear that Ms. Kozubenko had not
been present or participated in the hearing.
Ms. Kozubenko appeals.
ANALYSIS
Assignments of Error 1 - 6
Ms. Kozubenko makes seven assignments of error, the first six of which complain
about the Board’s decision making. If the superior court lacked jurisdiction to hear her
appeal, however, none of those issues are properly before us. We turn to the
jurisdictional issues.
Under RCW 51.52.110 a decision and order from the Board can be appealed if a
party follows the necessary steps. The statute provides that within 30 days after a Board
decision is communicated, an aggrieved party may appeal to superior court, and:
Such appeal shall be perfected by filing with the clerk of the court a notice of appeal and by serving a copy thereof by mail, or personally, on the director and on the board.
RCW 51.52.110. The statute has been construed to require both filing and service within
30 days. Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 198, 796 P.2d 412 (1990).
4 No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
“An appeal from an administrative tribunal invokes the appellate, rather than the general,
jurisdiction of the superior court.” Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit
County, 135 Wn.2d 542, 555, 958 P.2d 962 (1998) (citing Union Bay Pres. Coal. v.
Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 617, 902 P.2d 1247 (1995)). “Acting in
its appellate capacity, the superior court is of limited statutory jurisdiction, and all
statutory procedural requirements must be met before jurisdiction is properly invoked.”
Id. Pro se litigants are held to the same standards as attorneys and are bound by the same
rules of procedure and substantive law. In re Marriage of Olson, 69 Wn. App. 621, 626,
850 P.2d 527 (1993); Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411,
936 P.2d 1175 (1997).
In moving for dismissal of the appeal, the Department submitted affidavits of
employees of the Department and the Board establishing that neither was served with Ms.
Kozubenko’s petition to the superior court. It submitted copies of Board orders and other
materials, authenticated by the assistant attorney general’s declaration, demonstrating that
Free access — add to your briefcase to read the full text and ask questions with AI
FILED FEBRUARY 28, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
OLGA KOZUBENKO, ) ) No. 35893-3-III Appellant, ) ) v. ) ) DEPARTMENT OF LABOR & ) UNPUBLISHED OPINION INDUSTRIES, ) ) Respondent. )
SIDDOWAY, J. — Olga Kozubenko, appearing pro se, appeals the superior court’s
dismissal of her petition for judicial review of a decision of the Washington State Board
of Industrial Insurance Appeals (Board). She makes seven assignments of error, six of
which complain of decision making by the Board. The seventh complains of events
transpiring in the superior court, confusing this case with a separate action in which she
prematurely sought judicial review of the same proceeding.
The response of the Department of Labor and Industries (Department)
demonstrates that the superior court properly dismissed Ms. Kozubenko’s petition for
lack of jurisdiction. The dismissal is affirmed. No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
FACTS AND PROCEDURAL BACKGROUND
On July 19, 2017, the Board adopted a proposed decision and order that had been
issued by an industrial appeals judge (IAJ) on June 21, 2017, in a workers compensation
appeal filed by Ms. Kozubenko. No petition for review of the proposed decision and
order had been filed by either party so, as stated in the Board’s order, it “adopts the order
and it becomes the Decision and Order of the Board.” Clerk’s Papers (CP) at 28.
Ms. Kozubenko then submitted a late challenge to the IAJ’s proposed decision and
order, arguing that the time for challenging it should run from July 1, 2017, the date she
allegedly received a Russian translation. She was notified by the Board by a letter dated
July 28, 2017, that it considered her challenge untimely, but if she believed the Board’s
order adopting the proposed decision was erroneously issued, she could move the Board
for relief from the order.
Rather than move the Board for relief from the order, on August 28, Ms.
Kozubenko filed a notice of appeal in superior court “from [the Board’s] Decision which
was entered on July 28, 2017.” CP at 36. She thereafter received a civil case schedule
order in the case that had been signed by Judge Tony Hazel on September 29.
On December 11, the Department filed a motion to dismiss her appeal, identifying
four grounds: first, that she had failed to seek timely review of the IAJ’s proposed
decision and order; second, that she had failed to seek timely review in superior court of
the Board’s July 19, 2017 order adopting the proposed decision and order; third, that she
2 No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
had failed to serve the Board with her petition for judicial review; and fourth, that she had
failed to serve the Department with the petition. The Department simultaneously filed a
note for motion, setting its motion for hearing on January 19, 2018, at 9:00 a.m.
On the same day that it filed the motion to dismiss the action below, the
Department moved to dismiss a separate, premature appeal that Ms. Kozubenko had filed
in the superior court. Its basis for moving to dismiss the other case—Spokane County
Superior Court cause no. 17-2-03213-6—was that Ms. Kozubenko failed to serve the
Department with her petition for judicial review in that case as well. See Olga
Kozubenko v. Dep’t of Labor & Indus., No. 35892-5-III, slip. op. at 2 (Wash. Ct. App.
Feb. 28, 2019) (unpublished), http://www.courts.wa.gov/opinions/. The Department set
both of its dismissal motions for hearing on January 19, although the motion in that
matter was set later in the day, at 2:30 p.m. See id.
At the date and time set for hearing the Department’s motion to dismiss this case,
the assistant attorney general representing the Department appeared before Judge John
Cooney, as did an interpreter for Ms. Kozubenko. The court noted Ms. Kozubenko’s
absence, stating:
This matter was scheduled for hearing this morning at nine o’clock. It looks like she was provided notice. There’s an affidavit of mailing in the file that was sent out December 11th. It’s now ten minutes after nine and she hasn’t appeared.
3 No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
Report of Proceedings at 2. It observed that there were “three different bases for the
Court to grant the motion,” all jurisdictional, and that Ms. Kozubenko had not responded
with any information that would answer the issues raised. Id. The court signed the
Department’s proposed order, modifying it to make clear that Ms. Kozubenko had not
been present or participated in the hearing.
Ms. Kozubenko appeals.
ANALYSIS
Assignments of Error 1 - 6
Ms. Kozubenko makes seven assignments of error, the first six of which complain
about the Board’s decision making. If the superior court lacked jurisdiction to hear her
appeal, however, none of those issues are properly before us. We turn to the
jurisdictional issues.
Under RCW 51.52.110 a decision and order from the Board can be appealed if a
party follows the necessary steps. The statute provides that within 30 days after a Board
decision is communicated, an aggrieved party may appeal to superior court, and:
Such appeal shall be perfected by filing with the clerk of the court a notice of appeal and by serving a copy thereof by mail, or personally, on the director and on the board.
RCW 51.52.110. The statute has been construed to require both filing and service within
30 days. Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 198, 796 P.2d 412 (1990).
4 No. 35893-3-III Kozubenko v. Dep’t of Labor & Indus.
“An appeal from an administrative tribunal invokes the appellate, rather than the general,
jurisdiction of the superior court.” Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit
County, 135 Wn.2d 542, 555, 958 P.2d 962 (1998) (citing Union Bay Pres. Coal. v.
Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 617, 902 P.2d 1247 (1995)). “Acting in
its appellate capacity, the superior court is of limited statutory jurisdiction, and all
statutory procedural requirements must be met before jurisdiction is properly invoked.”
Id. Pro se litigants are held to the same standards as attorneys and are bound by the same
rules of procedure and substantive law. In re Marriage of Olson, 69 Wn. App. 621, 626,
850 P.2d 527 (1993); Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411,
936 P.2d 1175 (1997).
In moving for dismissal of the appeal, the Department submitted affidavits of
employees of the Department and the Board establishing that neither was served with Ms.
Kozubenko’s petition to the superior court. It submitted copies of Board orders and other
materials, authenticated by the assistant attorney general’s declaration, demonstrating that
Ms. Kozubenko had not timely sought review of the IAJ’s proposed decision and order
and that the Board order whose substance Ms. Kozubenko challenged was entered on
July 19, 2017, not July 28, 2017. Ms. Kozubenko provided no evidence to the contrary.
Because the superior court lacked jurisdiction, dismissal was proper. None of Ms.
Kozubenko’s challenges to the Board’s action can be raised in this appeal.
5 No. 35893-3-111 Kozubenko v. Dep 't ofLabor & Indus.
Assignment of Error 7
Ms. Kozubenko's seventh assignment of error states: "Superior Court erred in its
decision not to review case records, while ignoring Kozubenko' s brief, unlawfully
change judge and failing to make sure that Ms. Kozubenko was informed by Department
of upcoming hearings, Departments' motions and Court's decisions." Br. of Appellant
at 7. Her brief devotes only a little more than a page to argument of this alleged error,
with no citations to the record as required by RAP 10.3(a)(5) and (6). She appears to be
confusing the facts of this case with those of her separate, premature appeal.
If she is not confused, but is simply making the same arguments in this case, those
arguments fail for the reasons explained in our decision in Kozubenko v. Department of
Labor & Industries, No. 35892-5-III, slip. op. at 4-6.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
JIM Fearing,~\ d'.