Kovacs v. Dep't of Labor & Indus.

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purposes a previously “unpublished” opinion.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For more information about precedential (published) opinions, nonprecedential

(unpublished) opinions, slip opinions, and the official reports, see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.

             

/F'fi:E"'

Ill CLERKS OFFICE

8UI'MME CCURT, STATE OF \IIASHING'I1lM

I· 2~

-

Supreme court Clerk

. IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JOHN D. KOVACS, )

) No. 92122-9

Petitioner, )

)

v. ) EnBanc

)

DEPARTMENT OF LABOR & )

INDUSTRIES OF STATE OF )

WASHINGTON, )

) Filed J!Jl 1 J1 2016

Respondent. )

__________________ )

GONZALEZ, I.--Applications for workers' compensation benefits must

be filed "within one year after the day upon which the injury occurred."

RCW 51.28.050. Generally, the day of injury is excluded from time

calculations. RCW 1.12.040; CR 6(a). We must decide whether the

legislature intended to include the day of injury in calculating the time to file

a worker's compensation claim. We conclude it did not. Accordingly, we

hold the one-year statute of limitations begins to run the day after the injury

and reverse.

             

Kovacs v. Dep 't of Labor & Indus., No. 92122-9

FACTS

John Kovacs injured his back while working for Pro Heating & Air

Conditioning Inc. on September 29, 2010. Kovacs filed an application for

benefits on September 29, 2011. The Department ofLabor and Industries

initially found that Kovacs qualified for benefits, which he began to receive.

Kovacs's employer challenged the award, arguing that Kovacs's application

was not timely under Nelson v. Department ofLabor & Industries, 9 Wn.2d

621, 115 P.3d 1014 (1941). Nelson suggested that the statute oflimitations

for workers' compensation claims began to run the day of injury. Id. at 632.

In response, the department reversed its decision, rejected the claim, and

ordered Kovacs to pay back the benefits already paid to him. Kovacs

appealed to the Board of Industrial Insurance Appeals, which affirmed the

department's decision that the application was untimely.

Kovacs appealed again to the superior court, which reversed the

board's decision, held that Kovacs's claim was "timely within the meaning

ofRCW 51.28.050," entered judgment for Kovacs, and granted Kovacs's

motion for attorney fees. Clerk's Papers at 21-23. By divided opinion, the

Court of Appeals reversed the superior court. Kovacs v. Dep 't ofLabor &

Indu~., 188 Wn. App. 933,934,355 P.3d 1192 (2015). The Court of

Appeals concluded that "RCW 51.28.050 unambiguously means Mr. Kovacs

2

             

Kovacs v. Dep 't of Labor & Indus., No. 92122-9

had one year to file his application for benefits from the day of his injury,

September 29, 201 0; his application filed on September 29, 2011, was

untimely." Id. at 939 (citing Nelson, 9 Wn.2d 621; In re Carey, No. 03

13790, at 4 (Wash. Bd. oflndus. Ins. Appeals Mar. 30, 2005)).

We granted Kovacs's petition for review. Kovacs v. Dep 't of Labor &

Indus., 184 Wn.2d 1026 (2016).

ANALYSIS

We are asked to determine the meaning of a statute, RCW 51.28.050.

The meaning of a statute is a question of law reviewed de novo. Dep 't of

Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)

(citing State v. Breazeale, 144 Wn.2d 829, 837,31 P.3d 1155 (2001)). "The

court's fundamental objective is to ascertain and carry out 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.

at 9-10 (citing State v. J.M, 144 Wn.2d 472, 480, 28 P.3d 720 (2001)). To

determine this plain meaning, we look to "all that the Legislature has said in

the statute and related statutes which disclose legislative intent about the

provision in question," including existing statutes. I d. at 11 (citing 2A

NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION§ 48A:16, at

809-10 (6th ed. 2000)).

3

             

Kovacs v. Dep 't of Labor & Indus., No. 92122-9

Washington's statute of limitations for filing workers' compensation

claims says in relevant part: No application shall be valid or claim

thereunder enforceable unless filed within one year after the day upon which

the injury occurred." RCW 51.28.050 (emphasis added). As a general rule,

'

"[t]h~ 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. Kovacs contends that the general rule applies. The department

contends that there is a different rule for workers' compensation claims and

that the one-year time limit on workers' compensation claims includes the

date of the injury. We must decide whether the legislature intended to treat

the statute of limitations for workers' compensation claims differently from

other statutes of limitations.

The workers' compensation statute of limitations has not substantially

changed since 1911. See LAws OF 1911, ch. 74, §12(d). Read in isolation, it

does not clearly establish whether the statute oflimitations begins to run on

the day of the injury or the next day. Washington's general statute on

computing time specifically excludes the date of injury:

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.

4

             

Kovacs v. Dep't ofLabor & Indus., No. 92122-9

RCW 1.12.040; see also CR 6(a) ("In computing any period of time

prescribed ... by any applicable statute, the day of the act, event, or default

from which the designated period of time begins to run shall not be

included."). This statute has also not substantially changed since 1854 and

was in force when RCW 51.28.050 was enacted in 1911. See LAWS OF

1854, § 486, at 219; LAWS OF 1911, ch. 74, § 12(d). While not

determinative, we find this strong evidence that the legislature intended the

workers' compensation statute of limitations to begin to run the day after the

lnJUry.

The department argues that RCW 1.12.040 is not controlling because

it is a general statute. Certainly, if the statute oflimitations for a workers'

compensation claim plainly started to run the day of injury, the department

would be correct. But the workers' compensation statute of limitations does

not plainly do that. We find this argument unavailing.

Next, the department argues that we must affirm based on language in

a prior case, Nelson, 9 Wn.2d 621. Nelson was injured on the job when a

tree fell on him, knocking him hard to the ground and breaking his ankle.

!d. at 623. He promptly and successfully filed a claim for the ankle injury.

Id. Almost two years later, he sought to reopen the claim, arguing that he

had also suffered a back injury in the original accident that had worsened

5

             

Kovacs v. Dep 't ofLabor & Indus., No. 92122-9

progressively. Id. at 625. The Nelson case raised two issues: (1) whether an

intervening statute, known as the "present jury act," deprived the superior

court of jurisdiction and (2) whether the discovery rule applied. I d. at 626

(citing LAWS OF 1939, ch. 184, § 1, at 579), 632. We concluded the court

could hear the claim and the discovery rule applied. I d. at 632-33 (citing

Crabb v. Dep'tofLabor &Indus., 186 Wash. 505,58 P.2d 1025 (1936)),

636. In our discussion of the discovery rule, we observed in passing that

"[t]his 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." Id. at

632. The court cited three cases for that proposition: Sandahl v. Department

ofLabor & Industries, 170 Wash. 380, 16 P.2d 623 (1932) (claim filed year

and half after injury); Ferguson v. Department ofLabor & Industries, 168

Wash. 677, 13 P.2d 39 (1932) (claim filed six years after injury); and Read

v. Department ofLabor & Industries, 163 Wash. 251, 1 P.2d 234 (1931)

(claim filed five years after injury). But none of these cases "establish the

rule" or even discuss whether the statute "commences to run on the day of

the accident" as the Nelson court seemed to suggest. More importantly,

given the issues before the Nelson court, its statement that the period

commences on the day of the accident is dicta. Neither it nor the cases it

relied on turned on whether the statute began to run the day of the accident

6

             

Kovacs v. Dep't ofLabor &Indus., No. 92122-9

or the day after. Dictum is not a holding of this court. See Pierson v.

Hernandez, 149 Wn. App. 297, 305,202 P.3d 1014 (2009) (quoting DCR,

Inc. v. Pierce County, 92 Wn. App. 660, 683 n.l6, 964 P.2d 380 (1998)).

Relying on Nelson, the Washington Board of Industrial Insurance

Appeals (Board) also found that the statute of limitations began to run on the

day of the injury. In re Carey, 2005 WL 1658424, at 2. In In re Carey, the

Board considered the timeliness of an industrial injury claim. Carey was

injured on November 20, 2001 and filed her claim on November 20, 2002.

Based on Nelson, the Board abandoned years of department precedent and

dismissed the claim as untimely. Id. at 3-4 (citing Nelson, 9 Wn.2d 621).

While we give appropriate deference to the Board's expertise in its special

area oflaw, it has no particular expertise in interpreting statutes of

limitations and seems to have been led astray by dicta in Nelson. See

Superior Asphalt & Concrete Co. v. Department ofLabor & Industries, 84

Wn. App. 401, 405, 929 P.2d 1120 (1996); Waste Mgmt. ofSeattle, Inc. v.

Utils. & Transp. Comm 'n, 123 Wn.2d 621, 627-28, 869 P.2d 1034 (1994).

The Court of Appeals, in an opinion that appears to have overlooked

the dicta in Nelson, concluded that the statute of limitations began to run the

day after the injury in Wilbur v. Department ofLabor & Industries, 38 Wn.

App. 553, 556, 686 P.2d 509 (1984). In Wilbur, the department rejected the

7

             

Kovacs v. Dep't of Labor & Indus., No. 92122-9

claimant's claim on the basis that the application was untimely since it was

not filed "within 1 year of the date of the accident." Id. at 555. In that case,

the claimant was injured on August 5, 1977, and filed his claim on August 8,

1978. Id. at 553, 556. The court found that Wilbur's claim had to be filed

on or before August 5, 1978, but, since that was a Saturday, he had until

Monday, August 7, 1978. Id. As a result, the court found that Wilbur was

one day too late in filing his claim, one year after the injury. I d. Impliedly,

the court found that the statute of limitations began to run the day after the

injury.

We find the Wilbur approach sound. Read in light ofthe general

counting statute and rule, we conclude that the statute of limitations begins

to run the day after the injury. See RCW 1.12.040; CR 6(a).

We turn now briefly to Kovacs's belated request for attorney fees.

Under the Industrial Insurance Act,

[i]f, on appeal to the superior or appellate court from the decision and

order of the board, said decision and order is reversed or modified and

additional relief is granted to a worker ... , a reasonable fee for the

services of the worker's or beneficiary's attorney shall be fixed by the

court.

RCW 51.52.130(1). Kovacs's employer challenged the department's award

of benefits based only on the timeliness of his application. The superior

court found the claim was timely filed, reversed the decision to deny

8

             

Kovacs v. Dep't o.f Labor & Indus., No. 92122-9

benefits, and awarded attorney fees. Given that the State did not object to

the late request for attorney fees, and given that attorney fees were granted

to Kovacs at the trial court, Kovacs's request for attorney fees is granted. 1

CONCLUSION

We hold that the statute of limitations on filing workers'

compensation claims begins to run on the date following injury.

Accordingly, we reverse the Court of Appeals, reinstate the superior court's

decision affirming the timeliness of Kovacs's claim, and remand back to the

superior court for any further proceedings necessary consistent with this

opm10n.

1

At oral argument, cotmsel suggested that Kovacs's eligibility for benefits is still under

review at the department. The record before us demonstrates only a challenge to

Kovacs's eligibility for benefits based on the timeliness of his claim. Our attorney fee

decision rests on this record. If in fact there is a properly raised challenge to Kovacs's

eligibility that is before us, the fee decision may have to be revisited by the trial court, but

that issue is not properly before us at this time. See RCW 51 .52.130(1 ).

9

             

Kovacs v. Dep 't of Labor & Indus., No. 92122··9

WE CONCUR:

cs~ ,.<;2

U'ft':~

10