Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

GLENDA SINGLETARY,                                               No.  40808-2-II

              Plaintiff/Appellant,

       v.

MANOR HEALTHCARE 
CORPORATION, and
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,                                                 PUBLISHED OPINION

              Defendants/Respondents.

       Worswick, A.C.J.  --  Glenda Singletary, an injured worker who previously worked for 

Manor Healthcare Corporation, appeals a superior court order granting summary judgment on her 

appeal of a Department of Labor and Industries (Department) Board of Industrial Insurance 

Appeals (Board) decision. Singletary contends that because she did not receive notice of the 

order closing her claim, the Department, Board, and superior court lacked subject matter 

jurisdiction to further adjudicate her claim.  We affirm. 

No. 40808-2-II

                                            FACTS

       Singletary suffered a shoulder injury on June 16, 2001 during the course of her 

employment with Manor.1, 2  She filed a benefit application with the Department a month later.  

The Department allowed her claim, and Singletary received workers' compensation benefits.  

Then on June 26, 2002, Manor issued an order ending time loss compensation as paid to August 

3, 2002, and closing the claim effective June 26, 2002 without any further award for time loss or 

permanent partial disability.  But Manor incorrectly addressed its closing order, and Singletary 

never received it.

       Despite never receiving Manor's 2002 order closing her claim, Singletary filed an 

application with the Department to reopen her claim for aggravation of her injury on June 20, 

2003.  In her application to reopen her claim, Singletary stated that her claim was closed on June 

27, 2002.  The Department reopened her claim effective June 12, 2003 for treatment.

       Then, two years later, on July 29, 2005, the Department closed the claim with time loss 

compensation as paid to January 23, 2004, but without a further award for time loss or permanent 

partial disability.  Singletary filed a protest and request for reconsideration of this order, which the

Department denied in December 2005.  Singletary filed an appeal with the Board from the 

Department's December order denying reconsideration of its July 2005 closing order.

       The Board scheduled two hearings for early December 2006, to allow Singletary to 

1 Manor is a self-insured employer for workplace injury purposes.

2 Because Singletary appeals an order granting summary judgment, we consider the facts in the 
light most favorable to her in accordance with Jones v. Dep't of Health, 170 Wn.2d 338, 342 n.1, 
242 P.3d 825 (2010).

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No. 40808-2-II

present evidence supporting her appeal.  However, before the scheduled December evidentiary 

hearings, Singletary moved the Board to remand to the Department, claiming that the Board did 

not have jurisdiction to reach the merits of her claim because she never received Manor's 2002 

closing order.  Based on Singletary's motion, the Board scheduled a November 9 jurisdictional 

hearing.  Then, Singletary moved to strike the December evidentiary hearing dates pending the 

outcome of the jurisdictional hearing, which the Board denied.  On interlocutory review, an 

industrial appeals judge (IAJ) found that the Board had jurisdiction over Singletary's appeal of the 

Department's December 2005 order.  The IAJ concluded that Singletary likely received Manor's 

2002 closing order because Manor used the correct zip code, the postal service did not return it to 

Manor, and Singletary closely approximated the actual closing date in her 2003 application to 

reopen her claim.

       Instead of presenting evidence to support her claim at the December evidentiary hearings, 

Singletary notified the Board that she intended to rest on her jurisdictional argument.  Although 

Singletary attended the evidentiary hearings, she declined to present any evidence whatsoever.  

The Board dismissed the appeal because Singletary failed to present any evidence. Singletary 

moved for reconsideration, but the Board denied that request.

       Singletary then appealed the Board's order denying reconsideration to the superior court.  

Manor then filed for summary judgment, and Singletary filed a cross motion.  Manor argued that 

the Board properly dismissed Singletary's appeal.  Singletary argued that, because she never 

received the 2002 order closing her claim, all subsequent Department action was void, and neither 

the Board nor the superior court had jurisdiction to adjudicate a void 2005 Department order.

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No. 40808-2-II

       After hearings on the matter, the trial court ultimately entered an order reversing the 

Board's order dismissing Singletary's appeal for failing to present evidence and remanding the

case to the Board to allow Singletary to present additional evidence on her entitlement to benefits 

for the period of time between the date Manor said her claim was closed in 2002 and the effective 

date her claim was reopened for treatment in 2003.  In making this order, the superior court 

acknowledged that Singletary "did not previously seek benefits for the time post-closing order to 

June 2003 and since the closing order was not properly communicated to her, [Singletary] would 

still be entitled to seek benefits from that time until the time when the claim was reopened."  

Clerk's Papers (CP) at 100. Singletary now appeals.  Neither Manor nor the Department filed a 

cross appeal.

                                          ANALYSIS

       Singletary raises two primary arguments on appeal.  First, she argues that Manor's failure 

to properly communicate the closing order to her deprived the Department of jurisdiction over all 

future related claims.  Second, as an extension of the jurisdictional argument, she disagrees with 

the trial court's order giving her the opportunity to present evidence to the Board on her 

entitlement to benefits for the time period between the closing of her original claim and its 

reopening in 2003.  Singletary asks us to reverse the superior court and to remand to the 

Department with instructions for it to properly communicate the 2002 closing order to her.  The 

Department, although it did not file a cross appeal, encourages us to reverse the trial court and

simply affirm the Board's decision that found jurisdiction and dismissed Singletary's claim for 

failure to present evidence.  Because the Department did not cross-appeal, we decline to grant the 

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No. 40808-2-II

Department's request for affirmative relief in accordance with RAP 2.4(a).  Rather, we affirm the 

superior court order.

                                     I.  Standard of Review

       When a superior court reviews a board decision, it relies only on the certified board record 

but considers issues de novo.  Malang v. Dep't of Labor and Indus., 139 Wn. App. 677, 683, 162 

P.3d 450 (2007).  On review in superior court, the party challenging the board's decision bears 

the burden of proof because the board's decision is presumed correct.  Ruse v. Dep't of Labor 

and Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).  Because this dispute was resolved by 

summary judgment in which the material facts are undisputed, the questions presented are all 

questions of law.  See Hill v. Dep't of Labor and Indus., 161 Wn. App. 286, 292, 253 P.3d 430 

(2011).  Since the issues on appeal are limited to questions of law, our review is de novo.  Hill,

161 Wn. App. at 292.

                                        II.  Jurisdiction

       Singletary first contends that the Department, Board, and superior court all lacked subject 

matter jurisdiction because Manor failed to properly communicate its June 26, 2002 closing order 

to her.  She argues that all action on her claim after 2002 was void.3  We disagree.

       The Department concedes that Manor's failure to properly communicate the 2002 closing 

order to Singletary means that the 2002 closing order is not a final order.  We accept the 

3 Manor counters that Singletary lacks standing to make this argument.  As the Department 
correctly observes, a party aggrieved by agency action has standing and Manor fails to support its 
assertion that Singletary was not aggrieved by the superior court's disposition of her appeal.  
Thus, we do not further address this issue.

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No. 40808-2-II

Department's concession.4

       Under the Industrial Insurance Act (IIA),5 the Department errs if it reopens a workers'

compensation claim for further treatment based on worsening of the injury before there is a final 

order closing the worker's claim.  See Reid v. Dep't of Labor and Indus., 1 Wn.2d 430, 436-38, 

96 P.2d 492 (1939).  However, even if the Department enters a legally incorrect order, that order 

becomes final and binding on all parties if they do not appeal it within the specified time frame.  

Marley v. Dep't of Labor and Indus., 125 Wn.2d 533, 542-43, 886 P.2d 189 (1994).

       The only way a claimant can avoid an unappealed final order is if that order was void 

when entered.  Marley, 125 Wn.2d at 539-41.  Legal errors in unappealed orders do not render 

that order void.  Kingery v. Dep't of Labor and Indus., 132 Wn.2d 162, 170, 937 P.2d 565 

(1997).  Orders are only void when entered if the Department, Board, or court lacked either 

personal or subject matter jurisdiction.6  Marley, 125 Wn.2d at 541.

       A tribunal lacks subject matter jurisdiction only if it ventures to decide a "type of 

controversy" over which it lacks authority.  Marley, 125 Wn.2d at 539.  The type of controversy 

over which an agency or tribunal has subject matter jurisdiction refers to the general category of 

controversies it has authority to decide and is distinct from the facts of any specific case.  

4 Orders become final under the Industrial Insurance Act after they are "communicated." RCW 
51.52.050(1).  An order is communicated when the injured worker receives it.   Shafer v. Dep't of 
Labor and Indus., 140 Wn. App. 1, 8, 159 P.3d 473 (2007), aff'd,166 Wn.2d 710, 722, 213 P.3d 
591 (2009).  Because Singletary never received Manor's 2002 closing order, it was not 
communicated to her and, thus, is not a final order.

5 Title 51 RCW.

6 Singletary only contests the Board's and superior court's subject matter jurisdiction, thus we do 
not address personal jurisdiction.

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No. 40808-2-II

Dougherty v. Dep't of Labor and Indus., 150 Wn.2d 310, 317, 76 P.3d 1183 (2003).   Moreover, 

neither the Department nor a tribunal "lack subject matter jurisdiction solely because it may lack 

authorityto enter a given order."  Marley, 125 Wn.2d at 539.  "Obviously the power to decide [a 

type of controversy] includes the power to decide wrong, and an erroneous decision is as binding 

as one that is correct."  Marley, 125 Wn.2d at 543 (quoting Dike v. Dike, 75 Wn.2d 1, 8, 448 

P.2d 490 (1968)).

       In establishing subject matter jurisdiction, our inquiry focuses on the "type of controversy"

because, if it is within the tribunal's given subject matter jurisdiction, all other errors "go to 

something other than subject matter jurisdiction."  Dougherty, 150 Wn.2d at 316 (quoting

Marley, 125 Wn.2d at 539); Sprint Spectrum, LP v. Dep't of Revenue, 156 Wn. App. 949, 964-

65, 235 P.3d 849 (2010) (Becker, J. concurring), review denied, 170 Wn.2d 1023 (2011).  The 

Department enjoys broad subject matter jurisdiction to adjudicate all claims for workers'

compensation benefits.  Marley, 125 Wn.2d at 539-40.  The Department's broad subject matter 

jurisdiction to adjudicate all workers' compensation claims includes applications to reopen a 

closed claim.  See Shafer v. Dep't of Labor and Indus., 140 Wn. App. 1, 7, 159 P.3d 473 (2007), 

aff'd, 166 Wn.2d at 722 (2009).  The Board has broad subject matter jurisdiction to review 

Department actions.  RCW 51.52.050(2)(a); Shafer, 140 Wn. App. at 7.  Superior courts have 

subject matter jurisdiction to review appeals from Board decisions.  RCW 51.52.050(2)(c).  Thus, 

although the Department errs if it adjudicates an application to reopen a claim that is not first 

subject to a final closing order, that error neither deprives the Department of subject matter 

jurisdiction to adjudicate that application nor deprives the Board or a superior court of subject 

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No. 40808-2-II

matter jurisdiction to review those Department adjudications. 7  Shafer, 140 Wn. App. at 6-7.8

       Here, Singletary never received Manor's 2002 order closing her claim.  Because she never 

received it, the 2002 closing order was not communicated and, thus, is not final.  Since the 

Department adjudicated Singletary's reopening application in 2003, even though her claim was 

not closed, that adjudication was legally erroneous.  Nonetheless, because the Department has 

broad subject matter jurisdiction to adjudicate applications to reopen workers' compensation 

claims, it had subject matter jurisdiction to adjudicate Singletary's reopening application. Because 

the Department had subject matter jurisdiction when it entered its 2003 order reopening 

Singletary's claim, that order was not void when entered and it became final and binding on all 

parties when Singletary did not appeal it.  Thus, because Singletary did not appeal the 

Department's 2003 order reopening her claim, it is res judicata that her claim was closed 

sometime before the Department's 2003 order reopening it.  Since it is res judicata that 

Singletary's claim was closed sometime before the Department's 2003 reopening order, it is 

immaterial whether Manor communicated its 2002 closing order to Singletary.  Because 

7 Under analogous facts to Singletary's appeal, the Board issued a significant decision stating that 
the Department retains subject matter jurisdiction to adjudicate a reopening application even if it 
makes an error of law by adjudicating a reopening application on a claim for which there is no 
final closing order.  In re Jorge C. Perez-Rodriguez, No. 06 18718, 2008 WL 1770918, at *1 
(Wash. Bd. of Indus. Ins. Appeals Feb 13, 2008).  Further, the Board concluded that because the 
Department retained subject matter jurisdiction to adjudicate the reopening application, the 
unappealed orders the Department issued relating to the reopening application were not void 
when entered and were final and binding on the parties.  2008 WL 1770918 at *1-2.  Thus, those 
unappealed final orders precluded relitigation of the same claim.  2008 WL 1770918 at *1-2, 8.  
Although this Board decision is not binding on us, we agree with the Board's analysis.

8 Although the Washington Supreme Court affirmed Division One in Shafer, the parties did not 
address this jurisdictional question before that court.  166 Wn.2d at 718 n.2. 

                                               8 

No. 40808-2-II

Singletary did not appeal the 2003 reopening order, she cannot now claim that all action on her 

claim after 2002 was void.

       Moreover, because the Department has broad subject matter jurisdiction to adjudicate 

workers' compensation claims, it had subject matter jurisdiction to issue its 2005 orders closing 

her claim and denying reconsideration of that closure.  Because the Department had subject 

matter jurisdiction to close Singletary's claim and deny reconsideration of that closure in 2005, 

the order on appeal was not void when entered.  Since the order was not void when entered, the 

Board, superior court, and our court have subject matter jurisdiction to consider this appeal.  

Thus, Singletary's arguments fail.  Even though Manor failed to communicate its 2002 closing 

order to Singletary, the Department retained subject matter jurisdiction to further adjudicate her 

workers' compensation claim.

                                   III.  Interlocutory Review

       Singletary also asks us to make a public policy determination that both of Singletary's 

interlocutory appeals to an IAJ were improperly denied because they were decided quickly and 

they do not contain findings of fact and conclusions of law because an injured worker should be 

able to resolve jurisdictional questions without simultaneously going through the expense of 

presenting evidence on the merits at the Board level.  We decline to do so.

       Aside from In re Santos Alonzo, No.  56833, 1981 WL 375946 (Wash. Bd. of Indus. Ins. 

Appeals Dec. 9, 1981), which does not stand for the proposition for which it is cited, Singletary 

cites no statutory or case law authority for her proposition that an IAJ's denial of interlocutory 

review must include the IAJ's rationale and specific findings.9 Instead, she argues that public 

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No. 40808-2-II

policy requires an IAJ to include their rationale and specific findings. But as the Department 

points out, the IIA does not guarantee interlocutory review, nor does it guarantee injured workers 

the right to a written interlocutory review decision containing the IAJ's analysis and specific 

findings, nor does it specify a minimum amount of time during which the IAJ must consider the 

request. See RCW 51.52.

       RCW 51.52.060 delineates the appeals process before the Board.  This statutory provision 

does not mention interlocutory review and instead directs the Board to consider appeals within a 

certain time frame.  See RCW 51.52.060.  Our administrative code does create a narrow right to 

an interlocutory appeal before an IAJ but it does not create any procedural requirements for the 

IAJ's decision.  WAC 263-12-115(6). Although the WAC's narrow interlocutory review 

provision specifically requires the party seeking interlocutory review to make its request in writing 

and support the request with an affidavit "setting forth the grounds for the request, including the 

reasons for the necessity of an immediate review," the WAC allows great flexibility in the IAJ's 

response:

       Within ten working days of receipt of the written request [for interlocutory 
       review], the chief industrial appeals judge, or designee, may decline to review the 
       ruling based upon the written request and supporting affidavit; or, after such 
       review as he or she deems appropriate, may either affirm or reverse the ruling, or 
       refer the matter to the industrial appeals judge for further consideration.  

WAC 263-12-115(6)(a). Thus, a party's narrow right to an interlocutory appeal before an IAJ 

does not include the right to have a detailed explanation of the IAJ's rationale and specific 

findings.  Further, an IAJ has great discretion in considering a request for interlocutory review.  

9 RAP 10.3(a)(6).

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No. 40808-2-II

Although the IAJ may decline interlocutory review within ten working days after receiving the 

request, there is no minimum duration during which the IAJ must consider the request.  Thus, 

there is no legal support for Singletary's argument urging us to impose a framework under which 

an IAJ must consider a request for interlocutory review for a certain minimum period of time and 

then augment their decision with an explanation of their rational and specific findings.

       Moreover, as the Department points out, the policy behind the industrial insurance claims 

system is for a more expedient resolution of claims.  See Dept. of Labor & Indus. v. Fankhauser, 

121 Wn.2d 304, 315, 849 P.2d 1209 (1993); RCW 51.04.010.  This purpose would not be served 

by imposing detailed procedural requirements on the form of an IAJ's decision on interlocutory 

review because such a procedure would prolong the interlocutory review process. Thus, we 

decline to sanction any procedural requirements for an IAJ to issue decisions under the

interlocutory appeals process.

                                          IV.  Remedy

       Singletary also contends that the trial court erred in remanding her case to the Board to 

give her an opportunity to present evidence for the time period between the closing of her claim in 

2002 and its reopening in 2003.  The Department requests that we reverse the trial court's order 

allowing Singletary the opportunity to present evidence to the Board of her entitlement to benefits 

between Manor's 2002 closing order and the Department's 2003 reopening order.  The 

Department asks us to affirm the Board's order dismissing Singletary's appeal.  Because the 

Department did not cross-appeal, we affirm the trial court.

       A respondent requests affirmative relief if it seeks anything other than an affirmation of the 

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No. 40808-2-II

lower court's ruling.  State v. Sims, 171 Wn.2d 436, 442, 256 P.3d 285 (2011).  Respondents 

must cross-appeal to obtain affirmative relief.  Sims, 171 Wn.2d at 442-43.  Although appellate 

courts may grant affirmative relief to a respondent who did not file a cross appeal "if demanded by 

the necessities of the case," we are unaware of any published case reversing the trial court in favor 

of the respondent absent a cross appeal.  RAP 2.4(a).  Thus, although receptive to the 

Department's arguments, we affirm the trial court.

                                      ATTORNEY FEES

       Lastly, Singletary requests fees and costs under RCW 51.52.120.  But RCW 51.52.120 

governs fee award requests before the Board itself, not following review by the superior or 

appellate courts.  Presumably, Singletary intended to reference RCW 51.52.130, which does 

authorize this court to award attorney fees on appeal:

       If, 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 or beneficiary, or in cases where a party other than the worker 
       or beneficiary is the appealing party and the worker's or beneficiary's right to relief 
       is sustained, 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). Because Singletary has not prevailed on appeal, we decline to award her fees 

and costs.

       Affirmed.

                                                                Worswick, A.C.J.
We concur:

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No. 40808-2-II

Armstrong, J.

Quinn-Brintnall, J.

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