Mud Bay Logging Co. v. Department of Labor & Industries

On Rehearing. Simpson, J. The Departmental opinion in this case appears in 189 Wash. 285, 64 P. (2d) 1054. A rehearing was granted and arguments thereon presented to the court sitting En Banc on two subsequent occasions. After a full consideration, a majority of the court adhere to the views expressed in the original opinion. At the last hearing, there was presented, for the first time, the question of the employer’s right to appeal to the courts from the decision of the appellant’s joint board. We feel it desirable to state definitely our position on that question. The legislature of 1911 passed the first workmen’s compensation act (chapter 74, Laws of 1911, p. 345). Section one contained a declaration of the police power, at the end of which section it stated, in reference to civil causes of action for personal injuries to workmen, “. . . all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.” As a reflection of that exception, § 20 of the act, p. 368, provided: “Any employer, workman, beneficiary, or person feeling aggrieved at any decision of the department affecting his interests under this act may have the same reviewed by a proceeding for that purpose, in the nature of an appeal, initiated in the superior court of the county of his residence. . . .” *277 In the case of Brewer v. Department of Labor & Industries, 143 Wash. 49, 254 Pac. 831, we assumed the employer has the right of appeal. In Seattle Can Co. v. Department of Labor & Industries, 147 Wash. 303, 265 Pac. 739, the employer appealed from an order of the department, and its right to appeal was not questioned. We recognized the right of the employer to appeal in Hama Hama Logging Co. v. Department of Labor & Industries, 157 Wash. 96, 288 Pac. 655, stating therein as follows: “From the order of the department rejecting the claim, the logging company appealed, as was its right under § 8, ch. 310, Laws of 1927, p. 850, to the superior court for Thurston county.” In the case of State ex rel. Crabb v. Olinger, 191 Wash. 534, 71 P. (2d) 545, we cited Rem. Rev. Stat., § 7697 [P. C. § 3488], and pointed out that: “This section provides that any claimant, employer, or other person aggrieved by any order of the department of labor and industries must, before appealing to the courts, apply to the joint board of the department for a rehearing. It is provided that, within thirty days after the determination of the joint board has been communicated to the applicant, an appeal may be taken from an adverse ruling to the superior court.” We further observed: “The workmen’s compensation act itself recognizes the employer’s interest in the pending claim of one of his employees for compensation, and his right to challenge an order of the supervisor by an application to the board for rehearing. The employer is, of course, vitally interested, because he is a contributor to the fund out of which claims are paid, and his assessments to sustain the fund are materially affected by the allowance of compensation to any of his employees.” *278 In the recent case of Albrecht v. Department of Labor & Industries, filed December 8, 1937, 192 Wash. 520, 74 P. (2d) 22, we recognize the right of an appeal by an employer. Thus, so far as appeals were concerned, the employer and employee were virtually placed upon a parity. It is manifest that no distinction is made between employer and employee, except where an employer appeals from an order made under and by virtue of Rem. Rev. Stat., § 7683 [P. C. § 3477], in which case the employer must furnish a bond that he will fully comply with the judgment. Notwithstanding a number of amendments, this right of appeal from departmental decisions has never been abridged, and the same section as finally amended, being Rem. Rev. Stat., § 7697, provides for appeal from any order, decision or award made by the department, and this right is extended specifically to any employer aggrieved by any such order, decision or award. As evidence of the legislative intent to allow employers an appeal, we notice the following sections relative to aid for workmen: Rem. Rev. Stat., § 7712 [P. C. § 3501], relative to rating or classification for medical aid; § 7724 [P. C. §3513], which also relates to medical aid contracts; § 7674 [P. C. § 3469], providing for a hearing to determine whether or not an occupation is extrahazardous; §7715 [P. C. § 3504], relating to the power to promulgate rules, regulations and practice with the furnishing and care of treatment and services to injured workmen; § 7720 [P. C. § 3509], which deals with appeals from the orders of medical aid boards; and § 7676 [P. C. § 3471], relating to classification of premium ratings, all contain provisions recognizing the right of the employer to appeal to the courts and in each of these sections reference is made to the general statute, § 7697, supra, *279 providing the method of appeal. Thus there are seven sections providing for appeals by employers, one, § 7697, being general in character and the remaining six being specific. It is urged that the only right of appeal given to an employer is by virtue of the Laws of 1917, chapter 120, p. 477, § 2, Rem. Rev. Stat, § 7676. This section, it will be observed, refers to the fixing of rates to be charged the employer, the rates being based to a large extent on the number and kind of accidents that occur to the workmen of such employers. Should it be held that the employer has no right of appeal except by the provisions of the above section, he would find himself charged with certain accidents which would add to his cost experience without being given an opportunity to contest the same. Certainly, the employer could not dispute the rates under Laws of 1917, chapter 120, p. 474, on the ground that the original charge to his cost experience on account of his workmen having been injured was improper. Under such circumstances, the department would be in a position to answer that the claims had been allowed after a proper hearing and the amounts so allowed paid to the workmen. A claim passed upon by the department becomes final after the time for appeal has expired. If an appeal is not prosecuted within the time- fixed by statute, the appeal will not lie. Nafus v. Department of Labor & Industries, 142 Wash. 48, 251 Pac. 877. In Ek v. Department of Labor & Industries, 181 Wash. 91, 41 P. (2d) 1097, we said: “The rejection of the claim by the department was a final judgment; and when the time for appeal expired, that judgment became a complete and final adjudication, binding not only upon the then claimant Charles Ek, but also upon all persons who might thereafter claim by, through or under him. Therefore, as to the *280 workman and as to his wife, who afterwards became his widow, and as to all others who might so claim, that adjudication finally and judicially established, that there was no ground for recovery under the act.” In Luton v. Department of Labor & Industries, 183 Wash. 105, 48 P. (2d) 199, this court stated: “The facts as to the nature of the employment having been determined by the department, its finding's were reviewable only by appeal, and its judgment, resting upon the findings made, was final and conclusive upon both the department and the respondent, unless set aside on an appeal authorized by the statute, or unless fraud, or something of like nature, which equity recognizes as sufficient to vacate a judgment, has intervened.” In Albrecht v. Department of Labor & Industries, supra, we said: “. . . when the joint board hears an appeal on the question presented and makes a final order on the merits of the case, that case is closed.” If an employer was not given the right of appeal from a decision of the appellant’s joint board, such decision would then, upon a hearing for the purpose of fixing rates, be held res adjudicata as to such claims, and the employer would be bound to have them charged against his cost experience. Such was not the intention of the legislature. We conclude, therefore, that the employer does have a right of appeal to the courts, and that the opinion of the department in affirming the judgment of the lower court was correct. Steinert, C. J., Main, Beals, Millard, Geraghty, and Robinson, JJ., concur.