FILED
JUNE 23, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JEREMY MATSON, ) No. 36567-1-III
)
Appellant, )
)
v. )
)
CLEAN GREEN SPOKANE, )
) UNPUBLISHED OPINION
Defendant, )
)
and )
)
THE DEPARTMENT OF LABOR & )
INDUSTRIES OF THE STATE OF )
WASHINGTON, )
)
Respondent. )
PENNELL, C.J. — Jeremy Matson appeals a wage order issued under the Industrial
Insurance Act, Title 51 RCW. We affirm.
FACTS
Jeremy Matson suffered an industrial injury and applied for benefits from the
Department of Labor and Industries. The Department allowed Mr. Matson’s claim and
No. 36567-1-III
Matson v. Clean Green Spokane
issued a wage order of $955.15 per month on September 29, 2011.1 The September 2011
order informed Mr. Matson he had up to 60 days to file a protest, otherwise the decision
would become final. Mr. Matson filed a timely protest. In it, he challenged the
Department’s wage calculation.
The Department issued a corrected wage order On May 7, 2012, lowering Mr.
Matson’s monthly wage to $776.29.2 That order reflected the Department’s conclusion
that Mr. Matson’s wages stemmed solely from commissions. The May 2012 order also
restated the 60-day deadline for filing a protest. Mr. Matson did not respond. The
Department closed Mr. Matson’s claim on July 19, 2013.
On June 4 and 7, 2012, two of Mr. Matson’s physicians forwarded treatment
records to the Department. The records referenced Mr. Matson’s employment status as
full time. They also documented Mr. Matson’s medical circumstances, progress, and
treatment plan. None of the records referenced Mr. Matson’s wages or the May 7, 2012,
wage order. Nor did they suggest the Department should take any action inconsistent with
the terms of the May 7 order.
1
The order also stated Mr. Matson’s marital status was single, and he had one
child. This was relevant to the benefit calculation under RCW 51.32.060 and .090.
2
Again, the order stated Mr. Matson was single with one child.
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More than three years later, on August 3, 2015, Mr. Matson filed an application
with the Department to reopen his claim. He then asked the Department to reconsider the
May 2012 wage order. The Department declined, reasoning the protest period had passed.
Mr. Matson unsuccessfully appealed the Department’s denial of reconsideration to
the board of industrial insurance appeals and then to superior court. He argued the June
2012 treatment records from his doctors to the Department constituted a timely protest.
Neither the board nor the superior court agreed.
Mr. Matson appeals.
ANALYSIS
The sole issue on appeal is whether Mr. Matson was barred from challenging the
May 2012 wage order based on the failure to file a timely protest under RCW 51.52.050
and .060.
Washington’s Industrial Insurance Act requires a party aggrieved by a department
order to protest the order within 60 days. RCW 51.52.050(1), .060(1)(a). The Act does
not require protests to take any particular form; to be considered a protest,
a communication need not contain magical words such as “protest” or “request for
reconsideration.” Boyd v. City of Olympia, 1 Wn. App. 2d 17, 29, 403 P.3d 956 (2017).
Nor must a protest be submitted by the worker instead of a third party. RCW
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Matson v. Clean Green Spokane
51.52.050(2)(a) (A protest may be filed by the worker, beneficiary, employer, or other
aggrieved person.). Rather, a communication qualifies as a protest if it reasonably puts the
Department on notice that the worker is taking issue with some aspect of the
Department’s decision. Boyd, 1 Wn. App. 2d at 30-31.
The June 2012 treatment records do not qualify as protests. Though the records
mentioned in passing that Mr. Matson had worked full time, this was insufficient to
constitute a notice of protest. To side with Mr. Matson, we would have to rule the
Department should have inferred that: (1) because Mr. Matson was working full time in
June 2012, he was also working full time at the time of his injury, and (2) a wage order of
$726.29 was insufficient to account for full-time work, even at minimum wage. This
requires too many inferential leaps to meet the standard for reasonable notice. Even under
the generous standard for protests under the Act, the treatment records submitted in Mr.
Matson’s case were insufficient to qualify as protests. Accordingly, we hold Mr. Matson
failed to protest the May 2012 wage order within 60 days.
To overcome that failure, Mr. Matson cites to Somsak v. Criton Technologies/Health
Tecna, Inc., 113 Wn. App. 84, 52 P.3d 43 (2003). He claims that, as in Somsak, his wage
order did not include information he needed to understand the Department’s basis for its
decision. Mr. Matson’s reliance on Somsak is misplaced. Somsak turned on the
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Matson v. Clean Green Spokane
Department’s failure to include information used to calculate the worker’s wages in its
initial orders, followed by revelation of this information in a subsequent order. The worker
in Somsak filed a timely protest when she received the Department’s final order and the
information therein. Id. at 93. Here, there was no newly disclosed information for Mr.
Matson to protest. His window for challenging the Department’s May 2012 order therefore
expired 60 days after issuance.
CONCLUSION
The order on appeal is affirmed. Mr. Matson’s request for attorney fees is denied.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Fearing, J.
______________________________
Lawrence-Berrey, J.
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