Monte D. Moore v. Gordon Trucking, Inc
48306-8
| Wash. Ct. App. | Oct 24, 2017Background
- In 2012 Moore injured his right shoulder at work; Department of Labor & Industries closed his claim on Oct 23, 2014, finding the aggravation temporary.
- Moore protested and requested reconsideration on Nov 11, 2014; the Department issued an affirming order on Nov 17, 2014.
- Moore filed a notice of appeal with the Board on Dec 18, 2014 referencing the Oct 23 order (and attaching it); the Board denied that appeal as premature on Jan 12, 2015.
- Moore moved for reconsideration (Jan 22, 2015) and, after denial (Mar 19, 2015), moved (Mar 27, 2015) to amend his Dec 18 notice to refer to the Nov 17 order; the Board denied the amendment (May 13, 2015).
- Moore appealed to superior court; the superior court affirmed the Board. On consolidated appeal, the Court of Appeals reversed, holding the Board should have allowed the amendment and remanding for further proceedings. The court denied Moore’s motion for attorney fees as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board should have allowed Moore to amend his Dec 18, 2014 notice of appeal to reference the Nov 17, 2014 order | Moore: amendment corrects scrivener error and seeks review of the Department’s final affirming order; no prejudice to Gordon | Gordon: amendment would disturb finality and prejudice employer; December 18 filing was a valid notice of appeal to the Oct 23 order | Court: Grant amendment — denial was error because employer showed no prejudice; remand to Board to permit amendment |
| Whether the Dec 18, 2014 filing tolled the finality of the Nov 17, 2014 order / timeliness of later filings | Moore: Dec 18 filing should be treated as tolling or as a protest/reconsideration alternative | Gordon: Dec 18 filing was a notice of appeal to Oct 23 order and did not toll or substitute for a timely appeal from Nov 17 order | Court: Resolution left to remand proceedings; but court rejected employer’s prejudice argument tied to finality because Moore could still appeal Board denials within statutory windows |
| Standard of review applicable to Board’s denial of amendment | Moore: superior court should review de novo under RCW 51.52.115 (or, alternatively, abuse of discretion) | Gordon: Board’s denial reviewed for abuse of discretion | Court: de novo review of superior court’s summary judgment; held denial reversible on the merits (would be reversed under either standard) |
| Entitlement to attorney fees on appeal under RCW 51.52.130 | Moore: prevailing on this appeal entitles him to fees | Gordon: fees not warranted absent additional relief | Court: Fees premature — Moore must obtain "additional relief" (benefits, treatment, or award) before fees are authorized |
Key Cases Cited
- Wilson v. Horsley, 137 Wn.2d 500 (1999) (prejudice to nonmoving party is the touchstone for denying amendment)
- Clauson v. Dep’t of Labor & Indus., 130 Wn.2d 580 (1996) (ambiguities in Industrial Insurance Act resolved in favor of injured worker)
- Sacred Heart Medical Center v. Knapp, 172 Wn. App. 26 (2012) (attorney fees under RCW 51.52.130 require obtaining additional relief beyond procedural reversal)
- Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174 (2009) (superior court reviews Board determinations de novo under RCW 51.52.115)