Opinion Information Sheet

			

            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                       DIVISION ONE

MARCIA R. MAGEE,                            )       No.  65861-1-I
                                            )
                      Appellant,            )
          v.                                )       ORDER GRANTING MOTION
                                            )       TO PUBLISH
RITE AID,                                   )
                                            )
                      Respondent.           )

       Respondent Department of Labor and Industries of the State of Washington filed a motion 

to publish the opinion filed on January 17, 2012 in the above case.  Respondent Rite Aid and 

appellant Marcia Magee have each filed an answer to the motion.  A majorityof the panel has 

determined that the motion should be granted; 

       Now, therefore, it is hereby

       ORDERED that respondent Department of Labor and Industries of the State of 

Washington's motion to publish the opinion is granted.

       DATED this ____ day of ___________________, 2012.

   FOR THE COURT: 

No. 65861-1-I/2

                                             Judge

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARCIA R. MAGEE,                            )       No. 65861-1-I
                                            )
                      Appellant,            )       DIVISION ONE
          v.                                )
                                            )       UNPUBLISHED OPINION
RITE AID,                                   )
                                            )
                      Respondent.           )       FILED:  January 17, 2012

       Schindler, J.  --  Marcia R. Magee appeals from a 2010 decision and order of the 

Board of Industrial Insurance Appeals (Board) and the order denying her motion to 

vacate.  The Board ruled that even if it erroneously exceeded the scope of review in 

previously deciding that Magee's claim did not constitute an occupational disease, 

because Magee did not challenge that determination in her appeal of the 2006 

Decision and Order, that decision was valid and binding.  We affirm the Board's 

decision and order and the order denying Magee's motion to vacate the conclusion in 

the Board's 2006 Decision and Order that the claim did not constitute an occupational 

disease. 

                                            FACTS

2004 Workers' Compensation Claim

       Marcia Magee began working at Rite Aid in 1987. According to Magee, she 

suffers from autism, dyslexia, and dysgraphia.  In May 2001, Magee quit her job.

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No. 65861-1-I/3

       In September 2001, Magee filed a petition for an anti-harassment order against

her former supervisor at Rite Aid, Alan Woolford.  Magee also filed a sexual 
harassment complaint in 2001 with the Equal Employment Opportunity Commission.1

       On January 23, 2004, Magee filed an application for workers' compensation 

benefits.  An industrial injury claim must be filed "within one year after the day upon 

which the injury occurred." RCW 51.28.050.  An occupational disease claim must be 

filed "within two years following the date the worker had written notice from a physician 

or a licensed advanced registered nurse practitioner." RCW 51.28.055.

       Magee asserted she was entitled to benefits for sexual assaults that occurred in 

2000 and 2001. The Department of Labor and Industries (Department) denied the

claim because it was not filed "within one year after the day upon which the alleged 

injury occurred."  

Appeal to the Board

       Magee appealed the Department's denial of her claim for benefits to the Board.

The Industrial Appeals Judge (IAJ) conducted a telephone conference with the parties

to identify the issues.  The IAJ entered an order identifying the issues as follows:  (1)

"Did the claimant file the application for benefits within one year of the date of injury?"

and (2) "Did the self-insured employer fail to file the claim and/or report an on-the-job 

injury?"

       A number of witnesses testified at the hearing about when Magee notified Rite 

Aid about her claim for workers' compensation benefits. Rite Aid witnesses testified

       1 In addition, in August 2001, Magee filed a complaint with the Bellevue Police Department. 
Following an investigation, the police concluded Magee "never physically attempted to stop the sex acts 
from occurring and she never verbalized her unwillingness except to tell him that the sex was not good 
and that he had caused medical problems with his rough ways." No charges were filed.
                                               3 

No. 65861-1-I/4

that Magee did not mention the alleged sexual assaults by Woolford in her resignation 

letter and that Rite Aid did not receive notice of any job-related injury until Magee filed 

the workers' compensation claim in 2004.

       During Magee's testimony, Rite Aid objected to any testimony about the alleged 

sexual assaults because the question of occupational disease was not an issue before 

the IAJ, and the testimony was not relevant to the question of whether the industrial 

injury claim was timely filed.  Magee's attorney argued that the testimony was relevant

and admissible because Magee was entitled to benefits for both an industrial injury and 

an occupational disease. Magee's attorney argued, in pertinent part:

       We're not claiming just industrial injury.  It also can be found to be an 
       occupational disease for the mental disability that she suffered in this 
       matter.
              . . . And what we're trying to establish in our record is that there 
       was a repeated physical abuse of this woman from October up until June, 
       and then she filed a claim.  And our argument is that those assaults either 
       rose to the level of an occupational disease or an industrial injury and that 
       the Department needs to pass on both of those issues.   We're not just 
       precluding one.

The IAJ overruled Rite Aid's objection and allowed Magee to testify at length about the 

sexual assaults.  

       Following the hearing, the IAJ issued a proposed decision and order affirming 

denial of the workers' compensation claim.  The IAJ concluded that the sexual assaults 

constituted an industrial injury, but Magee did not file a claim for an industrial injury

within the one-year statutory deadline.  The IAJ also concluded that as a matter of law,

the sexual assaults did not constitute an occupational disease under RCW 51.08.140.  

       The proposed decision and order addresses Magee's claim that she was entitled 

                                               4 

No. 65861-1-I/5

to benefits as an occupational disease.  The IAJ identifies one of the issues as follows:  

       Did the sexual assaults on Ms. Magee by her supervisor at her place of 
       employment over a period of months arise naturally and proximately out 
       of distinctive conditions of her employment so as to constitute an 
       occupational disease within the meaning of RCW 51.08.140?

       The proposed decision and order then addresses the authority of the Board to 

decide the question of whether the sexual assaults constitute an occupational disease.

                               II.  OCCUPATIONAL DISEASE
                  A.  AUTHORITY OF BOARD TO DETERMINE ISSUE
              The Board has ruled that the issue of occupational disease 
       properly is before the Board even though the Department's only stated 
       reason for rejecting the claim was that it did not constitute an industrial 
       injury.  In re Susanne Ryan, BIIA Dec., 46,094 (1977).  Where the 
       Department has allowed a claim as an industrial injury and the employer 
       has appealed, the Board has the authority to determine whether the claim 
       should have been allowed as an occupational disease.  In re Joe 
       Callender, Sr., BIIA Dec., 89 0823 (1990). . . .
              . . . Ms. Magee suffered a series of assaults, approximately 15 
       during her employment and at her workplace.  These occurred over a 
       period of three months.  The self-insured employer ultimately had 
       sufficient knowledge of the multiple assaults, and so did the Department.  
       The self-insured employer was not correct in referring to the first assault 
       in October, 2000 as the date "the" industrial injury occurred.
              Too, Ms. Magee has not repetitively insisted that all of her mental 
       and physical conditions stemmed from that one assault.  She has alleged 
       a series of assaults over a three-month period.  That is sufficiently similar 
       to a repetitive injury over time to require consideration of the issue.  It was 
       the self-insured employer which attempted to narrow the issue in its initial 
       request to deny the claim as not timely filed as an industrial injury.  The 
       [In re Roy ]Benson[, BIIA Dec., 53,294 (1980)] facts do not apply to 
       deprive the Board of jurisdiction.
                 B. REQUIREMENTS FOR AN OCCUPATIONAL DISEASE
              An occupational disease must arise naturally and proximately out 
       of distinctive conditions of employment.  RCW 51.08.140.  Dennis[ v. 
       Dep't of Labor & Indus., 109 Wn. 2d 467, 745 P.2d 1295 (1987)], above.  
       Sometimes, a claim could be filed for each of a series of events or as an 
       occupational disease.  Sharon Baxter suffered a series of needle pricks 
       while employed as a dental assistant.  The Board held that the condition 
       had not developed to the extent that it was disabling or required treatment 
       until later, and the need for such treatment after this series of events 

                                               5 

No. 65861-1-I/6

       allowed the condition to be considered an occupational disease.  Ms. 
       Baxter worked in a profession in which the use of needles was a factor of 
       her employment distinctive from the exposure to needles in the general 
       workplace and the exposure of the general public, so her exposure to 
       needles constituted a distinctive condition of her employment.  In re 
       Sharon Baxter, BIIA Dec., 92 5897 (1994).
              Ms. Magee's exposure to sexual assault at Rite Aid does not meet 
       the test for being a distinctive condition of employment.  There was 
       nothing in her workplace that distinguished her vulnerability to sexual 
       assault there from the vulnerability of workers to such assaults in all 
       employments in general or in everyday life.  Thereby, Mr. Woolford's 
       series of sexual assaults on Ms. Magee from October, 2000 through 
       January, 2001 cannot constitute an occupational disease.  Dennis.

       The conclusions of law in the IAJ proposed decision and order state, in pertinent 

part:

              5.   The series of Mr. Woolford's physical and sexual assaults on 
       Marcia R. Magee at the downtown Bellevue, Washington Rite Aid Store 
       between October, 2000 and January, 2001 did not constitute "distinctive 
       conditions of employment" within the meaning of Dennis v. Dep't of Labor 
       & Indus., 109 Wn.2d 467 (1987).
              6.   The series of Mr. Woolford's physical and sexual assaults on 
       Marcia R. Magee at the downtown Bellevue, Washington Rite Aid Store 
       between October, 2000 and January, 2001 did not constitute an 
       occupational disease within the meaning of RCW 51.04.140.

       Magee filed a petition for review of the proposed decision and order with the 

Board. In the petition for review, Magee states that the issue is whether she "put her 

employer, Rite Aid, on notice that she had suffered an injury or occupational disease."

       After filing the petition for review, Magee and Rite Aid later entered into a 

stipulation "regarding the scope of the Board's review." The stipulation states that the 

issue on appeal is limited to timeliness and "any determinations regarding whether the 

alleged events constituted an industrial injury or occupational disease were left, by the 

Department, for its consideration at a later date and time, but would not be considered 

                                               6 

No. 65861-1-I/7

as part of these appeals."

       On August 1, 2006, the Board issued a decision and order.  The Board denied

Magee's claim for benefits as an industrial injury because the claim was not filed within 

the statutory deadline.  The Board also concluded that her claim did not constitute an 

occupational disease under RCW 51.08.140. The findings in the 2006 Decision and 

Order state, in pertinent part:

              Insofar as the contact with Mr. Woolford was the basis for Ms. 
       Magee's claim, her filing is not timely.  The time allowed for filing and the 
       consequences of an untimely filing are codified in RCW 51.28.050 which 
       states:
              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, except as provided in RCW 
              51.28.055.
              "The timely filing of the worker's claim is a statutorily imposed 
       jurisdictional limitation upon his right to receive compensation and upon 
       the Department's authority to accept the worker's claim for benefits."  
       Wilbur v. Department of Labor & Indus., 38 Wn. App. 553[, 556, 686 P.2d 
       509] (1984), Rev. denied, 103 Wn.2d 1016 (1985), [citing] Wheaton v. 
       Department of Labor Indus., 40 Wn.2d 56[, 240 P.2d 567] (1952).
              . . . .
              Finally, we turn to the claimant's argument that she may have a 
       claim for an occupational disease.  An occupational disease is defined in 
       RCW 51.08.140 as a disease or infection that arises naturally and 
       proximately out of employment under the mandatory or elective adoption 
       provisions of this title.  A series of assaults inflicted upon a worker does 
       not constitute an occupational disease.

The conclusions of law in the Decision and Order state, in pertinent part:

       1.     The Board of Industrial Insurance Appeals has jurisdiction over the 
              parties to and the subject matter of these appeals.
       2.     The claimant's application for benefits alleging an industrial injury 
              as a result of sexual contact with her immediate supervisor that 
              occurred between October 2000 and June 2001, filed on January 
              23, 2004, was not timely within the meaning of RCW 51.28.055. 
       3.     The sexual contact that the claimant had with her immediate 
              supervisor between October 2000 and June 2001, does not 

                                               7 

No. 65861-1-I/8

              constitute an occupational disease within the meaning of RCW 
              51.08.140.
       4.     The self-insured employer, Rite Aid, did not violate the terms of 
              RCW 51.25.025 by failing to report an injury or occupational 
              disease to the Department prior to January 23, 2004.
       5.     The Department order dated June 3, 2004, in which the 
              Department denied the claimant's request for a penalty against the 
              self-insured employer, is correct and is affirmed.  (Docket No. 04 
              20029).
       6.     The Department order dated July 9, 2004, in which the Department 
              denied the claim because it was not timely filed, is correct and is 
              affirmed.  (Docket No. 04 19326).

Appeal of 2006 Decision and Order

       Magee appealed the 2006 Decision and Order of the Board to superior court and 

challenged "the whole and each and every part of" the Board's decision.  However, in 

her motion for summary judgment, Magee only argued that the Board erred in denying 

her claim for benefits for an industrial injury as untimely. The superior court affirmed 

the Department's decision.  On appeal, we affirmed the Decision and Order of the 

Board denying Magee's claim for benefits.  Magee v. Rite Aid, 144 Wn. App. 1, 182 

P.3d 429 (2008).  The supreme court denied the petition for review.  Magee v. Rite Aid, 

164 Wn.2d 1036, 197 P.3d 1185 (2008).  

2010 Decision and Order and Order Denying Motion to Vacate

       On December 9, 2008, Magee asked the Department to determine whether she

was entitled to benefits as an occupational disease for sexual assaults in 2000 and 

2001.  Magee claimed that because the parties entered into a stipulation limiting the 

issues in the previous administrative appeal, the Board did not have the authority to 

conclude that the sexual assaults did not constitute an occupational disease.  

       On February 6, 2009, the Department denied Magee's request, stating that 

                                               8 

No. 65861-1-I/9

because the Board's conclusion in the 2006 Decision and Order was "not reversed or 

vacated by any later court decision, it is now a final and binding conclusion that the 

department must follow."

        Magee appealed the decision to the Board.  Magee also filed a motion to vacate 

the conclusion of law in the 2006 Decision and Order that the sexual assaults do not 

constitute an occupational disease under the statute.  Magee argued that the 

conclusion of law was void because the Board did not have jurisdiction to decide the 

question of occupational disease.  

       On November 9, 2009, the IAJ issued a proposed decision and order. In the 

proposed order and decision, the IAJ concluded the Board's 2006 Decision and Order

was a final and binding decision, and affirmed the Department's decision.

       The Conclusion of Law No. 3 as contained in the Board's Decision and 
       Order dated August 1, 2006 is final and binding and becomes res judicata 
       as to the parties to this appeal, pursuant to the provisions of Marley v. 
       Department of Labor & Indus., 125 Wn.2d 533 (1994) and In re Orena A. 
       Houle, BIIA Dec., 00 11628 (2001).

       Magee appealed to the Board.  In an order denying petition for review, entered 

on December 29, 2009, the Board denied Magee's appeal and adopted the proposed 

decision and order of the IAJ as the Decision and Order of the Board.  In an order 

dated January 20, 2010, the Board denied Magee's motion to vacate the conclusion of 

law in the 2006 Decision and Order rejecting her claim as an occupational disease.  

Assuming the conclusion of law exceeded the scope of review, the Board ruled that the 

2006 Decision and Order was final and binding because Magee did not "address the 

scope of review error in the court of appeals." The Order Denying Motion to Vacate

                                               9 

No. 65861-1-I/10

states, in 

                                              10 

No. 65861-1-I/11

pertinent part:

              The claimant argues that the Board exceeded its scope of review in 
       entering this conclusion of law denying the claim as an occupational 
       disease, when the issue before the Board was whether the worker filed a 
       timely application for an industrial injury claim.  Accepting that the 
       conclusion of law exceeded our scope of review, the consideration 
       becomes whether such an error is correctable at this stage of 
       proceedings.  It clearly is not.  When the Board exceeds its scope of 
       review, it has committed an error of law.  In re Orena Houle, BIIA Dec., 00 
       11628 (2001).  Entering a conclusion of law beyond our scope of review is 
       not a jurisdictional error making the conclusion void.  Marley v. 
       Department of Labor & Indus., 125 Wn.2d 533 (1994).  An error of law 
       must be addressed in an appeal, it may not be corrected through a motion 
       filed under CR 60.  Burlingame v. Consolidated Mines and Smelting Co.[, 
       Ltd.], 106 Wn.2d 328[, 722 P.2d 67] (1986).  The erroneous conclusion 
       should have been addressed in the subsequent court appeals.  The 
       failure to adequately address the scope of review error in the court 
       appeals is dispositive of the issue.  CR 60 does not provide an avenue for 
       relief from the offending conclusion of law after the appellate remedies 
       have been exhausted.

       Magee filed an appeal in superior court.  Rite Aid and Magee filed cross motions

for summary judgment. Magee argued the Board did not have jurisdiction to determine 

whether sexual assaults meet the statutory definition for an occupational disease. The 

Department argued that because Magee did not appeal the determination that her

claim did not constitute an occupational disease, the 2006 Decision and Order is a final 

and binding decision.

       The superior court affirmed the Decision and Order denying Magee's request to 

determine whether her claim constitutes an occupational disease, and the order 

denying her motion to vacate the conclusion of law in the 2006 Decision and Order.  

The order states, in pertinent part: 

              This Order is based upon the decisions in Marley, 125 Wn.2d 533 
       (1994) and In re Houle, 2001 WL 395827 (BIIA).  The Board's decision in 
       August 2006 may well have exceeded the scope of review as to 

                                              11 

No. 65861-1-I/12

       Conclusion of Law [(COL)] # 3 but the Board had subject matter 
       jurisdiction to decide/reach conclusions on the issue of occupational 
       disease.  When Magee failed to appeal COL #3, it became final.  

                                          ANALYSIS

       Magee challenges the conclusion in the 2006 Decision and Order that her claim 

constitutes an occupational disease. Magee asserts that because the Board did not 

have subject matter jurisdiction, that determination is void.  Magee contends the Board

only had the authority to address whether her industrial injury claim was untimely.  

       Subject matter jurisdiction is a question of law that we review de novo.  

Dougherty v. Dep't of Labor & Indus., 150 Wn.2d 310, 314, 76 P.3d 1183 (2003).  The 

court in Marley v. Department of Labor & Industries, 125 Wn.2d 533, 886 P.2d 189 

(1994) held that the doctrine of claim preclusion applies to a final judgment by the 

Department, and in order to prove the final decision is void, "a party must show that the 

Department lacked either personal or subject matter jurisdiction."  Marley, 125 Wn.2d at 

537.      

       In Marley, the Department concluded that Marley was not entitled to benefits 

because she and her husband were separated at the time of his death.  Marley, 125 

Wn.2d at 536. The Board affirmed the Department's decision. Nearly seven years 

later, Marley appealed.  Marley argued that the Board did not have subject matter 

jurisdiction to decide whether she was entitled to benefits and, therefore, the Decision 

and Order was void.  Marley, 125 Wn.2d at 536. The supreme court concluded that 

although the Department may have made an erroneous decision, because the 

Department "has subject matter jurisdiction to adjudicate all claims for workers'

                                              12 

No. 65861-1-I/13

compensation," and Marley did not appeal, the Decision and Order was valid and 

binding.  Marley, 125 Wn.2d at 542-43.  

       The court held that a tribunal lacks subject matter jurisdiction only when it 

attempts to decide a type of controversy over which it has no authority to adjudicate.  

Marley, 125 Wn.2d at 539.  

       A judgment may properly be rendered against a party only if the court has 
       authority to adjudicate the type of controversy involved in the action.  
       (Italics ours.) We italicize the phrase "type of controversy" to emphasize 
       its importance.  A court or agency does not lack subject matter jurisdiction 
       solely because it may lack authority to enter a given order.
                      The term "subject matter jurisdiction" is often confused with 
              a court's "authority" to rule in a particular manner.  This has led to 
              improvident and inconsistent use of the term.
                      . . . .
                      . . . Courts do not lose subject matter jurisdiction merely by 
              interpreting the law erroneously.  If the phrase is to maintain its 
              rightfully sweeping definition, it must not be reduced to signifying 
              that a court has acted without error.
Marley, 125 Wn.2d at 5392 (quoting Restatement (Second) of Judgments § 11 (1982); 

In re Marriage of Major, 71 Wn. App. 531, 534-35, 859 P.2d 1262 (1993)).  

       The critical question is whether the type of controversy is within the subject 

matter jurisdiction of the Board.  Marley, 125 Wn.2d at 539; see also Cole v. 

Harveyland LLC, 163 Wn. App. 199, 258 P.3d 70 (2011).  "Type of controversy" means 

the general category without regard to the particular facts of the case, and refers to the 

nature of a case or the relief sought.  Marley, 125 Wn.2d at 539; Dougherty, 150 Wn.2d 

at 317.  If the type of controversy is within the subject matter jurisdiction of the 

Department, " 'then all other defects or errors go to something other than subject matter

jurisdiction.' "  Marley, 125 Wn.2d at 539 (quoting Robert J. Martineau, Subject Matter 

       2 (Internal quotation marks omitted) (italics in original).

                                              13 

No. 65861-1-I/14

Jurisdiction as New Issue on Appeal:  Reining in an Unruly Horse, 1988 B.Y.U. L. Rev. 1, 

28).  Where the Department has both personal and subject matter jurisdiction over the 

claim, even an error in the Department's unappealed order does not render it void.  
Kingery v. Dep't of Labor & Indus., 132 Wn.2d 162, 170, 937 P.2d 565 (1997).3  

       Under the Industrial Insurance Act (IIA), chapter 51 RCW, the Department has

broad authority to decide claims for workers' compensation, including claims for 

industrial injuries and occupational disease.  RCW 51.04.020; Marley, 125 Wn.2d at 

542.  When a claimant appeals the Department's order denying a claim for benefits, the 

IAJ issues a proposed order and decision that includes findings and conclusions based 

on the record.  RCW 51.52.104.  A party can file a petition for review of the proposed 

order and decision to the Board.  RCW 51.52.104.  The appealing party "shall be 

deemed to have waived all objections or irregularities not specifically set forth" in the 

petition for review to the Board. RCW 51.52.104.  

       The Board has the authority to review the record, enter findings of fact and 

conclusions of law as to each contested issue of fact and law, and issue a final order.  

RCW 51.52.106.  A party may appeal the final order of the Board to superior court.  
RCW 51.52.110.4  Marley, 125 Wn.2d at 538.  But where, as here, a claimant does not 

appeal an adverse ruling, the ruling is treated as the final decision of the Department.  

RCW 51.52.110; Marley, 125 Wn.2d at 537, n.2.  

       Magee relies on Hanquet v. Department of Labor & Industries, 75 Wn. App. 657, 

879 P.2d 326 (1994) to argue that the Board did not have subject matter jurisdiction to 

       3 Magee does not contend the Board did not have personal jurisdiction.
       4 Likewise, the superior court reviews the record before the Board.  RCW 51.52.115.  

                                              14 

No. 65861-1-I/15

decide whether her claim qualified as an occupational disease.  But in Hanquet, we 

were not asked to decide subject matter jurisdiction, and the opinion does not address 

                                              15 

No. 65861-1-I/16

either subject matter jurisdiction or type of controversy.5  

       In Hanquet, the Department denied Hanquet's claim for workers' compensation 

on the ground that he was a sole proprietor.  Hanquet, 75 Wn. App. at 660.  Hanquet 

appealed.  The sole issue addressed at the hearing before the IAJ was whether 

Hanquet was a "worker" under RCW 51.08.180 or qualified as a "sole proprietor" under 

RCW 51.12.020(5). Hanquet, 75 Wn. App. at 660.  Nonetheless, in the appeal from 

the IAJ decision, the Board denied Hanquet's claim based on a different ground -- the 

"private home" exemption, a "highly fact-specific" issue neither party had raised or 

addressed. Hanquet, 75 Wn. App. at 660-63. 

       On appeal, Hanquet argued that the Board's decision exceeded the scope of 

review.  Hanquet, 75 Wn. App. at 661.  We concluded that if Hanquet had notice that a 

different statutory exclusion would be considered as a ground for denying coverage, 

"he might have been able to present additional evidence or argument bearing on the 

question and the outcome may well have been different."  Hanquet, 75 Wn. App. at 662-

63.  We held that the superior court decision affirming the Board "on an issue not 

properly before the Board . . . exceeded the proper scope of review." Hanquet, 75 Wn. 

App. at 663.  

       Here, unlike Hanquet, the notice of appeal of the proposed decision and order 

that Magee filed with the Board states that the issue is whether she "put her employer, 

Rite Aid, on notice that she had suffered an injury or occupational disease." Although 

Magee and Rite Aid entered into a stipulation seeking to limit the scope of review in the 

       5 Likewise, Lenk v. Dep't of Labor & Indus., 3 Wn. App. 977, 978-81, 478 P.2d 761 (1970) is a 
direct appeal challenging the Board's scope of review.
                                              16 

No. 65861-1-I/17

appeal to the Board, parties cannot stipulate to jurisdiction or create limitations on 

review.  Barnett v. Hicks, 119 Wn.2d 151, 161, 829 P.2d 1087 (1992) (citing Folsom v. 

County of Spokane, 111 Wn.2d 256, 261-62, 759 P.2d 1196 (1988)).  Subject matter 

jurisdiction does not turn on an agreement or stipulation, either the court has subject 

matter jurisdiction or it does not.  Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 

730, 254 P.3d 818 (2011).    

       Magee also claims that the superior court erred in relying on a significant 

decision published by the Board, In re Orena A. Houle, BIIA Dec. 00 11628 (2001).  We 

disagree.  While not binding, significant decisions published by the Board are 

persuasive authority.  O'Keefe v. Dep't of Labor & Indus., 126 Wn. App. 760, 766, 109 

P.3d 484 (2005).  

       In Houle, the Board followed the decision in Marley.  The Board concluded that it 

exceeded the scope of review in deciding an issue that was not addressed by the 
Department.  Houle, BIIA Dec. 00 11628, at 3.6  However, because the decision was 

affirmed in an appeal to superior court, the Board ruled that the decision was a final 

and binding order and the claimant could not, years later, challenge the order denying 

the claim.  Houle, BIIA Dec. 00 11628, at 2, 7.  

       Here, as in Marley, we hold that the question of whether Magee was entitled to 

workers' compensation benefits for an occupational disease is the type of controversy 

       6 Scope of review serves to limit the issues the Board has authority to consider, 
       restricting the Board to those matters already passed upon by the Department of Labor 
       and Industries.  However, we believe Marley supports the conclusion that the scope of 
       review is not jurisdictional, per se.  
              When the Board exceeds the scope of its review, it commits an error of law by 
       passing on an issue or issues not properly before it.  
Houle, BIIA Dec. 00 11628, at 5-6. 

                                              17 

No. 65861-1-I/18

the Board is authorized to decide under the IIA.  Assuming the Board exceeded the scope of 

review by addressing whether Magee's claim constituted an occupational disease, 

because Magee did not challenge that conclusion of law in the appeal of the 2006 

Decision and Order, that decision is final and binding.  

       We affirm the Board's Order Denying Petition for Review and the Order Denying 
Motion to Vacate.7

WE CONCUR:

       7 We reject Rite Aid's request to impose sanctions for filing a frivolous appeal.  Streater v. White, 
26 Wn. App. 430, 434-35, 613 P.2d 187 (1980).
                                              18