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Ill CLERKS OFFICE
8UI'MME CCURT, STATE OF \IIASHING'I1lM
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-
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 ).
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Kovacs v. Dep 't of Labor & Indus., No. 92122··9
WE CONCUR:
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