John D. Kovacs v. Dept. of Labor & Industries, State Of Washington

FILED
JULY 21, 2015
I In the Office of the Clerk of Court
WA State Court of Appeals, Division III
II
l
,
1 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
I JOHN D. KOVACS, )
)
No. 32473-7-111
1 Respondent, )
I )
v. )
)
1 DEPARTMENT OF LABOR &
INDUSTRIES,
)
)
PUBLISHED OPINION
j )
!
j
Appellant.
BROWN, AC.J. -
)
The Department of Labor & Industries (DLI) appeals the
1 superior court's reversal of the Board of Industrial Insurance Appeals' (the Board)
j
decision finding John Kovacs' application for workers' compensation benefits untimely.
DLI contends RCW 51.28.050 bars claims not filed within one year from the date of
injury, arguing Mr. Kovacs filed his application one day late. We agree with DLI, reverse
the superior court, and reinstate the Board's decision.
FACTS
Mr. Kovacs alleged he was injured while working for his employer on September
29,2010. He filed an application for workers' compensation benefits with DLI on
No. 32473-7-111
Kovacs v. Dep't of Labor & Indus.
September 29, 2011.1 DLI initially allowed his claim but later rejected it as untimely
after his employer protested under RCW 51.28.050's one-year statute of limitations.
Treating the matter as a motion for summary judgment based on stipulated facts, the
Board affirmed DLI 's order. Mr. Kovacs appealed to the Spokane County Superior
Court. The superior court reversed the Board's decision and found Mr. Kovacs'
application for benefits was timely filed. DLI appealed.
ANALYSIS
The issue is whether Mr. Kovacs' application for benefits was timely filed under
RCW 51.28.050. DLI contends Mr. Kovacs had to apply for benefits within one year
from the date of his injury, September 29,2010, and argues his application, filed on
September 29,2011, was one day too late.
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." The language in RCW 51.28.050 is
"inflexible," and an untimely application for benefits is void ab initio. Leschner v. Dep't
of Labor & Indus., 27 Wn.2d 911,923-24,185 P.2d 113 (1947). DLI and Mr. Kovacs
disagree on the meaning of the statute. DLI argues RCW 51.28.050 means an
application for benefits must be filed within one year from the date of injury. Mr. Kovacs
argues RCW 51.28.050 means the one-year time limitation begins on the day after the
1 September 29, 2010, was a Wednesday. September 29, 2011, was a
Thursday.
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injury consistent with RCW 1.12.040, the general counting statute for civil actions. If the
statute is ambiguous, we must interpret it.
The facts are stipulated; the question is whether RCW 51.28.050 is reasonably
capable of more than one meaning. If so, we review questions regarding statutory
interpretation de novo. Advanced Silicon Materials, LLC v. Grant County, 156 Wn.2d
84,89, 124 P.3d 294 (2005). The court's "chief goal in analyzing and applying a statute
is to give effect to the legislature's intent, 'and if the statute's meaning is plain on its
face, then the court must give effect to that plain meaning as an expression of
legislative intent.'" Id. (quoting Oep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d
1, 9-10,43 P.3d 4 (2002)). When a statute is unambiguous, its meaning is derived from
the wording of the statute itself. O'Keefe v. Oep't of Labor & Indus., 126 Wash. App. 760,
766, 109 P.3d 484 (2005).
The Industrial Insurance Act (the Act) is "liberally construed for the purpose of
reducing to a minimum the suffering and economic loss arising from injuries ...
occurring in the course of employment." RCW 51.12.010. All doubts about the Act's
meaning are resolved in favor of the injured employee. Shafter v. Oep't of Labor &
Indus., 140 Wn. App. 1,7,159 P.3d 473 (2007). While courts have the ultimate
authority to interpret a statute, substantial weight is given to the Board's interpretation of
the Act. Rose v. Oep't of Labor & Indus., 57 Wash. App. 751, 757, 790 P.2d 201 (1990);
see O'Keefe, 126 Wash. App. at 766 (the Board's significant decisions are nonbinding
persuasive authority).
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The Board's authority directly addressing the issue at hand is the significant
decision of In re Carey, No. 03 13790 (Wash. Bd. of Indus. Ins. Appeals Mar. 30, 2005).
The employee was injured on November 20, 2001, and filed an application for benefits
on November 20,2002. In re Carey, No. 03 13790 at 1-2. The Carey Board relied
principally on Nelson v. Department of Labor & Industries, 9 Wash. 2d 621, 115 P .2d 1014
(1941), in finding the employee's application untimely under RCW 51.28.050 as it was
filed one day late. In re Carey, No. 03 13790 at 4-6.
The Nelson court stated: "This court has established the rule that the one year
period in which the claim must be filed commences to run on the day of the accident."
Nelson, 9 Wash. 2d at 632; see also Crabb v. Dep't of Labor & Indus., 186 Wash. 505,
508,58 P.2d 1025 (1936) (stating the issue was whether reporting a fall which resulted
in a sprained ankle complied with RCW 51.28.040 such that an additional application
after the lapse of one year from the date of injury for other injuries from the same fall
were permitted); Beels v. Dep't of Labor & Indus., 178 Wash. 301,307,34 P.2d 917
(1934) (finding 'a claim for benefits timely iffiled not from within one year from the date
of injury to spouse but rather within one year from the time of death of a spouse);
Sandahl v. Dep't of Labor & Indus., 170 Wash. 380, 381-84, 16 P.2d 623 (1932) (in
determining whether a claim was filed in time, the legislature intended the claim be filed
within one year from the date of the injury); Read v. Dep't of Labor & Indus., 163 Wn.
251,252, 1 P.2d 234 (1931) (finding a claim untimely when not presented within one
year from the date of the accident). While this rule interpreted Rem. Rev. Stat. §
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Kovacs v. Dep't of Labor & Indus.
7686(d) that provided "[n]o application shall be valid or claim thereunder enforceable
unless filed within one year after the day on which the injury occurred or the rights of
dependents or beneficiaries accrued," the operative language of RCW 51.28.050 is
identical. Nelson, 9 Wash. 2d at 631-32. Moreover, Nelson and the cases cited therein
involved a determination of whether the claim was timely filed; thus, contrary to Mr.
Kovacs' assertion, the respective discussions regarding when RCW 51.28.050 begins to
run are not dicta.
One case, Wilbur v. Department of Labor & Industries, 38 Wash. App. 553, 686
P.2d 509 (1984), seems to supports Mr. Kovacs' position. There, Division Two of this
court summarily stated the employee, who was injured on August 5, 1977, had to file his
claim for benefits "on or before Monday, August 7, 1978 (August 5, 1978, one year after
the injury, fell on a Saturday)." Id. at 556. But in so stating, the Wilbur court did not
discuss either RCW 51.28.050 or RCW 1.12.040. Moreover, the issue before the
Wilbur court was not whether the application was timely filed under RCW 51.28.050;
rather, the issue was what the term "filing" meant and/or whether the employee's
untimely filing was excused by a rule of law or equity. Wilbur, 38 Wash. App. at 556.
Thus, it is the language in Wilbur that is dictum. The two cases discussing RCW
51.28.050 after the Wilbur decision reiterate the rule that the one-year statute of
limitations begins to run on the date of the accident. See Elliott v. Dep't of Labor &
Indus., 151 Wash. App. 442, 448-50,213 P.3d 44 (2009) (finding application for benefits
untimely where employee who witnessed a coworker die failed to file within one year
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Kovacs v. Dep't of Labor & Indus.
from the date of the incident even though the employee's symptoms did not immediately
appear); Rectorv. Dep'tofLabor& Indus., 61 Wash. App. 385, 390-91, 810 P.2d 1363
(1991) (finding application for benefits untimely where employee failed to file a claim
within one year of when the accident occurred).
Two additional factors strengthen OLl's argument. First, despite the Washington
Supreme Court's interpretation of RCW 51.28.050 as starting the limitations period on
the day of the injury, the legislature has not changed this language. See Sandahl, 170
Wash. at 382-84 (comparing the language of predecessor statute with RCW 51.28.050).
When the legislature amends statutes, it is presumed to have acted with knowledge of
the existing judicial construction placed on those statutes; where it does not change the
statute, the legislature is deemed to have acquiesced to the judicial interpretation. See
id. at 383-84; Buchanan v. Int'l Bd. Of Teamsters, Chauffeurs, Warehousemen and
Helpers, 94 Wash. 2d 508, 511, 617 P.2d 1004 (1980). Second, statutes with similar
language have been interpreted similarly. RCW 25.15.303, which states dissolution of a
limited liability company does not affect any claim against that company unless the
action "is not commenced within three years after the effective date of dissolution," has
been interpreted to mean "there is a three-year limitations period from the date of
dissolution in which to commence suit against a limited liability company." Chadwick
Farms Owners Ass'n v. FHC LLC, 166 Wn.2d 178,193,207 P.3d 1251 (2009)
(emphasis added). In relation to retirement benefits, RCW 41.40.200(1 )(c) requires an
application for a disability retirement allowance from the Public Employees' Retirement
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Kovacs v. Oep't of Labor & Indus.
System, Plan I be filed within two years from the date that the injury occurred. See
Marler v. Oep't of Ret, Sys., 100 Wash. App. 494, 499,997 P.2d 966 (2000) (stating
employee's claim was untimely where he did not file his application within two years of
December 6, 1988, the date of injury).
Mr. Kovacs argues RCW 51.28.050 does not control over RCW 1.12,040. RCW
1.12.040 provides: "The time within which an act is to be done, as herein provided, shall
be computed by excluding the first day, and including the last, unless the last day is a
holiday, Saturday, or Sunday, and then it is also excluded," When two applicable
statutes irreconcilably conflict, "the more specific statute will prevail, unless there is
legislative intent that the more general statute controls," Hallauer v. Spectrum Props.,
Inc., 143 Wash. 2d 126, 146, 18 P.3d 540 (2001). As RCW 51.28.050 is more specific
than RCW 1.12.040 and there is no contrary legislative intent, RCW 51.28.050 prevails.
RCW 51.28.050 unambiguously means Mr. Kovacs had one year to file his
application for bene'flts from the day of his injury, September 29, 2010; his application
filed on September 29, 2011, was untimely. A year is "a cycle in the Gregorian calendar
having 365 or 366 days divided into 12 months beginning with January and ending with
December." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2648 (1993). With
September 29,2010, counted as the first day, the year ends on September 28,2010. 2
2 This computation of one year is in accord with the Board's interpretation of a
year. Carey, No. 03 13790 at 4 ("Each calendar year begins on January 1 and ends on
December 31 .... [I]n order for an application filed on November 20,2002, to be
timely, the one-year limitation period could not have begun to run until November 21,
2001, the day after the alleged injury."); accord Irving v. Irving, 209 III. App. 318, 320
(1918) (calculating a year by ascertaining "the day numerically corresponding to that
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Kovacs v. Dep't of Labor & Indus.
If we were to accept Mr. Kovacs' argument, we would have to ignore the meaning of
"within" found in RCW 51.28.050 and accept a strained interpretation. Plus, we would
have to ignore the clear rule stated in Nelson that is not dicta.
Nevertheless, Mr. Kovacs argues his claim should be allowed because when
there is a doubt as to the meaning of RCW 51.28.050, all doubts about the meaning of
the Act are to be liberally construed in favor of the injured worker. See Cockle v. Dep't
of Labor & Indus., 142 Wash. 2d 801, 211,16 P.3d 583 (2001). "'But it is fundamental that,
when the intent of the legislature is clear from a reading of the statute, there is no room
for construction.'" Elliott, 151 Wash. App. at 450 (quoting Johnson v. Dep't of Labor &
Indus., 33 Wash. 2d 399, 402, 205 P.2d 896 (1949». In sum, RCW 51.28.050 requires a
worker to file a claim within one year from the day of injury.
Reversed.
Brown, A.C.J.
day in the following year ... and the calendar year expires on that day, less one");
Charles v. Big Jim Coal Co., 237 S.W.2d 68 (Ky. 1951) (claim made on December 10,
1948, was one day too late when cause of action arose on December 10, 1947).
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No. 32473-7-111
LA WRENCE-BERREY, 1. (concurring) - The lead opinion is correct in reversing
the trial court. Nelson v. Department ofLabor & Industries, 9 Wash. 2d 621, 632,
115 P .2d 1014 (1941) explicitly states, "This court has established the rule that the
one year period in which the claim must be filed commences to run on the day of
the accident." The statutory language interpreted in Nelson is the exact same
language oftoday's RCW 51.28.050. As an intermediate court, we are bound by
Nelson.
I add this concurrence because I disagree with our reliance on the board's
significant decision in In re Carey, No. 03 13790 (Wash. Bd. of Indus. Ins.
Appeals March 30, 2005). It is true that we give deference to an administrative
agency's interpretation of the statutes it administers. The purpose (and therefore
the limitation) of this deference is explained in Thurston County v. Cooper Point
Association: '" [I]t is well settled that deference is appropriate where an
administrative agency's construction of statutes is within the agency's field of
No. 32473-7-III
Kovacs v. Dep't ofLabor & Indus. (Concurrence)
expertise.'" 148 Wash. 2d 1, 15, 57 P.3d 1156 (2002) (quoting City ofRedmond v.
Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash. 2d 38, 61, 959 P.2d 1091 . (1998)). Because the statute of limitations is not a field of the Department of
Labor and Industries' expertise, we need not give any deference to Carey. Rather,
we are bound by Nelson.
I CONCUR:
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No. 32473-7-111
FEARING, J. (dissenting)­
What a difference a day makes. Twenty-four little hours. "What a Diffrence a
Day Makes!" Dinah Washington hit song (1959).
The Department of Labor and Industries (DLI) ignores a critical word in the
controlling statute, snubs a companion statute, promotes old bad dicta rather than new
good dicta, and shuns the liberality intended for worker compensation statutes. I would
affirm the trial court's ruling and therefore dissent. Principles of statutory construction
and the public policy of protecting injured workers compel a ruling that John Kovacs
timely filed his worker compensation claim when he filed for benefits on September 29,
2011 for an injury sustained on September 29, 2010.
RCW 51.28.050 controls and imposes a one year statute oflimitations for filing a
worker compensation claim. The statute reads:
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 ....
The question on appeal is when did the one year commence to run. Two interpretations
compete for dominance. First, "within one year after the day upon which the injury
occurred" means the injured worker must apply for benefits on the day before the
anniversary of the injury. Second, the statutory language permits an application for
32473-7-III
Kovacs v. Dep 't Labor & Indus. (dissent)
benefits on the anniversary of the injury. The difference lies in whether we count both
the day of the injury and the date of filing an application for benefits.
Based on stray remarks in Nelson v. Department ofLabor & Industries, 9 Wash. 2d
621,115 P.2d 1014 (1941), DLI argues that RCW 51.28.050 required John Kovacs to file
his claim by September 28, 2011, a day before the anniversary of his injury. In Nelson,
our high court wrote:
This court has established the rule that the one year period in which
the claim must be filed commences to run on the day of the accident. Read
v. Department ofLabor & Industries, 163 Wash. 251,1 P.2d 234 [1931];
Ferguson v. Department ofLabor & Industries, 168 Wash. 677, 13 P.2d 39
[1932]; Sandahl v. Department ofLabor & Industries, 170 Wash. 380, 16
P.2d 623 [1932].
9 Wash. 2d at 632. Remarkably, the Read, Ferguson, and Sandahl decisions, upon which
Nelson relies, utter no statement that the period runs on the day of the accident. The
Nelson language is not only dicta, but specious dicta.
Wilbur v. Department ofLabor & Industries, 38 Wash. App. 553, 686 P.2d 509
(1984) is the more recent and best dicta. Leroy Wilbur sustained injury in a car accident
on August 5, 1977, while returning from a remote road construction job. He filed his
application for worker compensation benefits on August 8, 1978. DLI and the superior
court denied his claim because DLI did not receive his application within one year. This
court affirmed the dismissal, but wrote:
In the case at bench, Wilbur's claim had to be filed on or before
Monday, August 7, 1978 (August 5, 1978, [one] year after the injury, fell
on a Saturday).
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Kovacs v. Dep 't Labor & Indus. (dissent)
Wilbur v. Dep't ofLabor & Indus., 38 Wash. App. at 556. Thus, this court recognized that
filing one year later fulfilled the statutory limitation period. Such a reading comes
naturally.
DLI argues that Wilbur v. Department ofLabor & Industries is dicta since the
quoted language was not necessary to the case's holding. I readily agree. Nelson is also
dicta, since the court's ruling that the limitation period started running on the date of the
injury contributed nothing to the ruling. In Nelson v. Department ofLabor & Industries,
9 Wash. 2d at 623 (1941), the worker applied for benefits one year and eleven days after the
injury. The Supreme Court still ordered payment of benefits.
The cases cited in Nelson are the same. In each case, the worker applied beyond
the anniversary of the injury. In Sandahl v. Department ofLabor & Industries, 170
Wash. 380, 16 P.2d 623 (1932), the worker applied for benefits a year and a half after the
injury. In Ferguson v. Department ofLabor & Industries, 168 Wash. 677, 13 P.2d 39
(1932), the worker filed his claim six years after his work injury. In Read v. Department
ofLabor & Industries, 163 Wash. 251, 1 P.2d 234 (1931), the worker applied for benefits
four years after his injury. In another case relied on by DLI, Rector v. Department of
Labor & Industries, 61 Wash. App. 385, 386, 810 P.2d 1363 (1991), the injured laborer
filed for benefits seventeen years after the injury.
DLI argues that the Washington legislature amended RCW 51.28.050 after Nelson
v. Department ofLabor & Industries without modifying the statute. DLI argues that the
failure to amend the statute equates to the legislature adopting the Nelson dicta.
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Kovacs v. Dep 't Labor & Indus. (dissent)
Reenactment on several occasions of the statute can be legislative approval and adoption
of a court holding. Ellis v. Dep't ofLabor & Indus., 88 W n.2d 844, 848, 567 P .2d 224
(1977). Nevertheless, I doubt that a busy legislature spent any time reflecting and
consciously deciding to approve Nelson's dicta. That is why the rule of statutory
interpretation is not one of absolute binding force. Ellis v. Dep't ofLabor & Indus., 88
Wash. 2d at 848. In Ellis, the Supreme Court refused to follow a holding in another Nelson
worker compensation case, Nelson v. Industrial Insurance Department, 104 Wash. 204,
176 P. 15 (1918), despite legislative reenactment of the statute, because of the lack of
analysis by the earlier court.
Assuming a legislature's silence is tantamount to approval, the Washington
legislature also amended RCW 51.28.050 in 2007, thirteen years after the 1984 Wilbur
decision. If we follow the rule of parliamentary quietude, the latest silence should
control. Under DLI's contention, the Washington legislature adopted the Wilbur dicta by
its adopting a new version of RCW 51.28.050 in 2007.
RCW 1.12.040 also controls our decision. The statute reads:
The time within which an act is to be done, as herein provided, shall
be computed by excluding the first day, and including the last, unless the
last day is a holiday, Saturday, or Sunday, and then it is also excluded.
RCW 1.12.040 is of general application and applies to statutory time limits. State
ex reI. Earley v. Batchelor, 15 Wash. 2d 149, 130 P.2d 72 (1942); State v. Levesque, 5
Wash. 2d 631, 635,106 P.2d 309 (1940); State ex rei. Evans v. Superior Court, 168 Wash.
176, 178-79, 11 P.2d 229 (1932); Allen v. Morris, 87 Wash. 268, 274, 151 P. 827 (1915).
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Kovacs v. Dep 't Labor & Indus. (dissent)
Early in our state's history, our high court accepted the statute as general and
comprehensive of all questions involving a computation of time. State ex ret. Evans v.
Superior Court, 168 Wash. at 180 (1932). DLI argues that RCW 51.28.050 is a specific
statute and RCW 1.12.040 is a general statute and thus the former must control over the
latter. A specific statute supersedes a general statute. Johnson v. Cent. Valley Sch. Dist.
No. 356,97 Wn.2d 419,428,645 P.2d 1088 (1982). Such an argument assumes that
RCW 51.28.050 contains no ambiguity. John Kovacs's interpretation of the statute is a
reasonable interpretation and thus there need not be any inconsistency between RCW
51.28.050 and RCW 1.12.040.
DLI's reading ofRCW 51.28.050 ignores a word implanted in the statute. RCW
51.28.050 refers to "one year after the day upon which the injury occurred." (Emphasis
added.) If the statute read "within one year a/the day" of injury, DLI's argument would
improve. (Emphasis added.) Assuming any ambiguity in the statute, the term "after"
should clarifY the legislature's intent that filing a claim exactly one year to the day of the
injury suffices. "After" connotes that the one year begins to run the day following or
"after" the injury. Thus, RCW 51.28.050 is consistent with the general statute RCW
1.12.040. DLI's failure to recognize the word "after" in the statute violates the principle
that we interpret statutes to give effect to all the language used. Cornu-Labat v. Hasp.
Dist. No.2, 177 Wn.2d 221,231,298 P.3d 741 (2013).
To illustrate DLI's strained reading of RCW 51.28.050, I note that DLI wrote in
its appeal brief that September 29,2011 is one year and a day after September 29,2010.
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Kovacs v. Dep 't Labor & Indus. (dissent)
Br. of Appellant at 18-19. Washingtonians do not think in such terms. September 29,
2011 is one year after September 29, 2010, not a year and a day. If it were otherwise, a
Washingtonian born on December 16 would celebrate her birthday on December 15.
I am mindful ofDLI's significant decision, in In re Carey, No. 03 13790 (Wash.
Bd. Ins. Appeals Mar. 30, 2005), which rejected a claim filed on the one year anniversary
of the injury. Carey should be rejected because the Board ofIndustrial Insurance
Appeals (Board) based its decision on the bad dicta of Nelson v. Department ofLabor &
Industries. The Board hypocritically characterized Wilbur as mere obiter dictum, while
impliedly proclaiming Nelson is something more than dicta. The Board's decision also
failed to analyze the critical word "after" in RCW 51.28.050.
We accord substantial weight to an agency's legal interpretation to the extent that
it falls within the agency's expertise in a special area of the law. Superior Asphalt &
Concrete Co. v. Dep 't ofLabor & Indus., 84 Wn. App. 401,405, 929 P.2d 1120 (1996).
The application of a statute of limitations is not within DLI's expertise, nor is a limitation
period a special area of the law. The ultimate authority to interpret a statute rests with the
courts. Waste Mgmt. ofSeattle, Inc. v. Utilities & Transp. Comm'n, 123 Wash. 2d 621, 627­
28, 869 P.2d 1034 (1994).
The Washington legislature enacted the worker compensation act to ensure that
injured workers were adequately compensated. Rector v. Dep't ofLabor & Indus., 61
Wash. App. 385, 390, 810 P.2d 1363 (1991). Worker compensation acts are considered
remedial in character, the provisions of which should be construed broadly and liberally
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Kovacs v. Dep 't Labor & Indus. (dissent)
in order to effectuate their purpose, which, among other things, is to benefit the working
man and woman. Nelson v. Dep't ofLabor & Indus., 9 Wash. 2d at 628 (1941).
The worker compensation law was particularly framed to avoid legal terminology
and the technicalities of law pleading. Nelson v. Dep 't ofLabor & Indus., 9 Wash. 2d at
629. The law was intended so that working people themselves could make and file
claims and give the notice of injury without the expense of employing attorneys. Nelson
v. Dep't ofLabor & Indus., 9 Wash. 2d at 629. DLI places a technical construction on
RCW 51.28.050 that creates a snare for working people, since DLI's reading conflicts
with an interpretation given by a lay person. Litigants are entitled to know that a matter
as basic as time computation will be carried out in an easy, clear, and consistent manner,
thereby eliminating traps for the unwary who seek to assert or defend their rights. Stikes
Woods Neighborhood Ass 'n, v. City ofLacey, 124 Wn.2d 459,463, 880 P.2d 25 (1994);
Christensen v. Ellsworth, 134 Wash. App. 295, 301, 139 P.3d 379 (2006), rev'd on other
grounds, 162 Wn.2d 365,173 P.3d 228 (2007).
In Crabb v. Department ofLabor & Industries, 186 Wash. 505,58 P.2d 1025
(1936), the claimant fell and sprained his ankle on December 20, 1932. He obtained
worker compensation benefits for the injury and DLI closed his claim on March 15, 1933.
On July 18, 1934, the claimant petitioned to reopen his claim on the basis that the fall
also injured his neck but he was not aware of the neck injury until recently. In deciding
whether to direct DLI to reopen the claim, the court needed to choose between two
competing rules from other jurisdictions. The court, "[h]aving in mind the well-known
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Kovacs v. Dep 't Labor & Indus. (dissent)
spirit and purpose of our industrial insurance act," adopted the liberal view and ordered
reopening. Crabb v. Dep't ofLabor & Indus., 186 Wash. at 512. Assuming two
competing readings of RCW 51.28.050 exist, this court should adopt the liberal view and
affirm the trial court.
In the end, this court must fulfill the intent of the Washington State legislature.
The court's duty in statutory interpretation is to discern and implement the legislature's
intent. Lowy v. PeaceHealth, 174 Wn.2d 769,779, 280P.3d 1078 (2012). Any statute of
limitations period is arbitrary in nature, but DLI gives no reason as to why the
Washington legislature would wish a rule calculating time to be different in the context of
worker compensation law from the general rule found in RCW 1.12.040. DLI forwards
no reason why our legislature would demand that an injured worker apply for benefits the
day before the anniversary of the injury rather than on the anniversary of the injury.
Many foreign decisions address the statutory language of "within one year" and
support this dissent. The Fair Debt Collection Practices Act requires that suit be brought
"within one year" of the statute's violation. 15 U.S.C. § 1692k(d). In Johnson v. Riddle,
305 F.3d 1107, 1114 -15 (10th Cir. 2002), the court held that a suit filed on the one year
anniversary of the violation was timely.
Ohio maintained a statute that allowed a party, whose previous lawsuit was
dismissed on grounds other than the merits, to initiate a new action "within one year
after" the date of dismissal. In Schon v. National Tea Co., 19 Ohio App. 2d 222,250
N.E.2d 890 (1969), the court held timely a refiling of the lawsuit on May 11, 1968 after it
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Kovacs v. Dep 't Labor & Indus. (dissent)
had been dismissed on May 11, 1967. Three hundred sixty six (366) days elapsed
between the dismissal and refiling because of a leap year.
A California statute barred a personal injury suit unless brought "within one year"
of the injury. In Wixtedv. Fletcher, 192 Cal. App. 2d 706,13 Cal. Rptr. 734 (1961), the
plaintiff instituted action on February 5, 1960 to recover damages for personal injuries
suffered on defendant's premises on February 5, 1959. The appeals court held the suit to
be timely.
Oklahoma adopted a savings statute that required suits to recover real property be
filed within one year of the effective date of the statute, April 18, 1949. In S. J. Sarkeys
v. Martin, 286 P.2d 727 (Okla. 1955), plaintiff filed suit on April 18, 1950. The
Oklahoma Supreme Court held the suit timely.
Rogers v. Etter, 67 Tenn. 13 (1874) illustrates the timelessness of the timeliness
rule advocated by John Kovacs. Under the Tennessee code, a woman could bring suit
against a husband's executor "within one year" of discoverture. Eliza Rogers' husband
died on November 9, 1869, and she brought suit on November 9, 1870. The Tennessee
high court held her suit timely.
I respectfully dissent:
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