IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LONG PAINTING COMPANY, INC., ) No. 79752-2-I
)
Appellant, )
) DIVISION ONE
v. )
)
MARK DONKEL, )
) PUBLISHED OPINION
Respondent. )
)
MANN, C.J. — In order to invoke the appellate jurisdiction of the superior court,
RCW 51.52.110 requires that appeals of the decisions of the Board of Industrial
Insurance Appeals (BIIA) be filed in the superior court, and served on necessary
parties, within 30 days of the BIIA’s final decision. Long Painting Company (Long
Painting) electronically filed a notice of appeal with the King County Superior Court on
the last Friday of the 30-day filing period. On Monday, three days later, the superior
court clerk notified Long Painting that its appeal was rejected and filing fee refunded
because the local superior court rules did not allow electronic filings of administrative
appeals. Almost three months later, Long Painting filed a new notice of appeal by hard
copy—which the superior court dismissed for lack of appellate jurisdiction. Long
Painting appeals and contends that it complied with, or substantially complied, with the
filing requirements of RCW 51.52.110. We disagree and affirm.
No. 79752-2-I/2
FACTS
Mark Donkel filed a claim for an occupational injury, alleging that he began
experiencing symptoms of a cervical degenerative disc disease while employed by Long
Painting. The Department of Labor and Industries (Department) denied the claim,
finding that there was no proof of a specific injury during Donkel’s employment, and that
his condition was not an occupational disease as contemplated by RCW 51.08.140. 1
Donkel timely appealed the Department’s denial to the BIIA. An Industrial Appeals
Judge (IAJ) issued a proposed decision and order finding that Donkel’s condition was
an occupational disease under the statute, specifically finding that his diagnosis of
degenerative disc disease arose naturally and proximately from conditions of his
employment with Long Painting. The IAJ reversed and remanded to the Department
with direction to order Long Painting to accept Donkel’s cervical condition as an
occupational disease.
Long Painting appealed the proposed decision and order to the BIIA. The BIIA
amended the findings and conclusions to reflect that Donkel’s employment aggravated,
rather than caused the condition, but otherwise adopted the IAJ’s proposed decision
and order. BIIA sent the decision to Long Painting on May 16, 2018.
On Friday, June 15, 2018, Long Painting electronically filed a notice of appeal in
King County Superior Court. Long Painting mailed the notice of appeal to the Director
of the Department (Director), the BIIA, and Donkel on June 15, 2018. On Monday, June
18, 2018, the superior court clerk notified Long Painting that the notice of appeal was
1
RCW 51.08.140 defines “occupational disease” as “such disease or infection as arises naturally
and proximately out of employment under the mandatory or elective adoption provisions of this title.”
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rejected and that the filing fee would be refunded. The court clerk informed Long
Painting that the notice of appeal should have been designated as an administrative law
review petition, and as such, under local court rules it could not be filed electronically.
After receiving the clerk’s notification, counsel for Long Painting e-mailed
Donkel’s counsel and informed them that the appeal would not proceed. He explained:
“turns out my staff got confused about efiling and so they efiled the appeal but the court
is rejecting the appeal as it allegedly is one that needs to be hand delivered so no
superior court appeal on this one.”
Almost three months later, on September 4, 2018, new counsel for Long Painting
filed a hardcopy notice of appeal. That same day, the superior court issued a case
schedule. The case was set for trial on April 1, 2019.
Donkel moved to dismiss, contending that because Long painting failed to timely
file its appeal, the superior court lacked appellate jurisdiction. 2 The superior court
agreed and dismissed Long Painting’s appeal after determining that Long Painting did
not file its appeal within 30 days of receiving the BIIA decision. The court awarded
Donkel reasonable attorney fees and costs. Long Painting appeals.
DISCUSSION
Long Painting argues that because the original, electronic notice of appeal
reached the superior court, the Director, and the BIIA, Long Painting complied with, or
at least substantially complied with, the filing requirements in RCW 52.51.110, and
therefore properly invoked appellate jurisdiction. We disagree.
2
The parties repeatedly use the incorrect phrase “subject matter jurisdiction” instead of the
proper term, appellate jurisdiction. See, e.g., Boudreaux v. Weyerhaeuser Co., 10 Wn. App. 2d 289, 307,
n.9, 448 P.3d 121 (2019).
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A. Actual Compliance
We first examine whether Long Painting complied with the filing requirements
necessary to invoke the superior court’s appellate jurisdiction. It did not.
Whether a superior court has jurisdiction is a question of law that we review de
novo. Dougherty v. Dep’t of Labor & Indus. for State of Washington, 150 Wn.2d 310,
314, 76 P.3d 1183 (2003). The Industrial Insurance Act provides that the Department
has original jurisdiction over cases involving injured workers and that superior courts
have appellate jurisdiction. Dougherty, 150 Wn.2d at 314; RCW 51.52.110. A party
invokes the superior court’s appellate jurisdiction by filing and serving a notice of appeal
on the Director and the BIIA within 30 days of receiving notice of the BIIA’s final
decision:
within thirty days after the final decision and order of the board upon such
appeal has been communicated to such worker, beneficiary, employer or
other person . . . such worker, beneficiary, employer or other person
aggrieved by the decision and order of the board may appeal to the
superior court. If such worker, beneficiary, employer, or other person fails
to file with the superior court its appeal as provided in this section within
said thirty days, the decision of the board to deny the petition or petitions
for review or the final decision and order of the board shall become final.
RCW 51.52.110; Corona v. Boeing Co., 111 Wn. App. 1, 8, 46 P.3d 253 (2002)
(appealing party must file and serve notice within the 30-day appeal period).
Under CR 5(e), the filing of pleadings and other papers with the court means
filing with the clerk of the court. CR 5(e) provides that “[t]he clerk may refuse to accept
for filing any paper presented for that purpose because it is not presented in proper form
as required by these rules or any local rules or practices.” (Emphasis added). King
County Superior Court Local General Rule (KCLGR) (30(b)(4)(A)(i) requires that
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administrative law review petitions “must be filed in paper form rather than e-filed.” In
rejecting Long Painting’s original electronic notice of appeal, the superior court clerk
relied on KCLGR 30(b)(4)(A)(i). The clerk acted within its discretion under CR 5(e).
Long Painting failed to file its notice of appeal within the 30-day period for appeal—a
fact it acknowledged to Donkel the day it received notice from the court clerk.
B. Substantial Compliance
Next, we examine whether the doctrine of substantial compliance applies to the
requirement to file a notice of appeal within 30 days. Long Painting urges us to accept
its substantial compliance in this case. We decline.
The Washington Supreme Court has held that “substantial compliance” with
procedural rules can invoke appellate jurisdiction. In re Matter of Saltis, 94 Wn.2d 889,
896, 621 P.2d 716 (1980). “Substantial compliance has been defined as actual
compliance in respect to the substance essential to every reasonable objective of [a]
statute.” City of Seattle v. Pub. Emp’t Relations Comm’n, 116 Wn.2d 923, 928, 809
P.2d 1377 (1991) (quoting In re Application of Santore, 28 Wn. App. 319, 327, 623 P.2d
702 (1981)). Washington has recognized substantial compliance of a statute when the
party had “actual compliance,” although procedurally faulty, with the “substance” of the
statutory requirement. City of Seattle, 116 Wn.2d at 928. The doctrine of substantial
compliance does not save a party from the failure to comply with statutory time limits,
such as the 30-day filing and service requirements of RCW 51.52.110. Krawiec v. Red
Dot Corp., 189 Wn. App. 234, 241, 354 P.3d 854 (2015). “It is impossible to
substantially comply with a statutory time limit in the same way. It is either complied
with or it is not.” City of Seattle, 116 Wn.2d at 928-29.
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Long Painting relies on Graves v. Vaagen Bros. Lumber, 55 Wn. App. 908, 912,
781 P.2d 895 (1989), Black v. Dep’t of Labor and Indus., 131 Wn.2d 547, 933 P.2d
1025 (1997), and Dougherty to argue that because the original electronic notice of
appeal was received by the superior court, the Director, and the BIIA, prior to the
expiration of the 30-day appeal period, Long Painting substantially complied with RCW
51.52.110. Each case is readily distinguishable.
In Graves, the appellant, Timothy Graves, mailed his notice of appeal to the
superior court six days after receiving notice of the BIIA’s decision—well within the
appeal period. The notice, however, was never received by the superior court. 55 Wn.
App. at 909. The BIIA, the Director, and the employer all received copies of the notice.
Graves, 55 Wn. App. at 909. Upon discovery that the court had not received the notice,
Graves mailed a second copy of the notice of appeal. The second notice was filed
outside the 30-day appeal period. Graves, 55 Wn. App. at 909. The superior court
granted the employer’s motion to dismiss because the notice of appeal was not timely
filed under RCW 51.52.110. Graves, 55 Wn. App. at 909. Division Three of this court
reversed, holding that because the original notice of appeal was mailed well within the
30-day limitation, it was addressed to the correct county, and all parties received the
notice within that 30 days, the appellant’s filing was in substantial compliance of the
statute. Graves, 55 Wn. App. at 913-14. 3
In Graves, any error in service was of no fault of the appellant, who properly
postmarked the notice of appeal. There is a presumption that service by properly
3
The holding in Graves is “a very narrow one confined to the facts which hopefully are unique
and unlikely to occur again.” 55 Wn. App. at 913. We do not determine whether Graves was wrongly
decided because it is readily distinguishable from the facts here.
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postmarked mail is complete three days after mailing. Vanderpol v. Schotzko, 136 Wn.
App. 504, 508, 150 P.3d 120 (2007). In contrast, Long Painting did not follow the
requirements for filing, ignoring the clear paper filing requirement of KCLGR 30. While
Graves complied with the rules for filing in superior court, Long Painting did not adhere
to the King County court’s filing requirements. In Graves, any delay in filing occurred
after Graves timely mailed the notice of appeal and was related to issues with mailing
beyond Graves’ control. Here, the superior court’s rejection of Long Painting’s filing
resulted from their failure to comply with the proper filing procedures. Further, where
Graves filed a second copy to the court just after learning that the court did not receive
the original notice of appeal, Long Painting failed to seek to remedy its error and file a
hard copy of its notice of appeal until almost three months later, despite being notified of
the defect three days after filing.
In Dougherty, the worker, Daniel Dougherty, filed his notice of appeal in the
Skagit County Superior Court, where his attorney resided, rather than Whatcom County
Superior Court, where the injury occurred. 150 Wn.2d at 313. The superior court
dismissed his case for lack of appellate jurisdiction. Dougherty, 150 Wn.2d at 313. The
Washington Supreme Court held that because the appeal was timely filed in a superior
court, although incorrect, the superior court’s jurisdiction was still invoked.
Dougherty, 150 Wn.2d at 320. The court concluded that “[f]iling an appeal from a
decision of the Board in the wrong county does not defeat subject matter jurisdiction
and can be cured by a change of venue.” Dougherty, 150 Wn.2d at 320. This case
differs from Dougherty, because the holding there was strictly limited to venue, while
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Long Painting’s case centers on filing. Unlike in Dougherty, Long Painting failed to
timely file its notice of appeal in any superior court.
In Black, the worker, Dale Black, sought review of a BIIA decision by mailing the
notice of appeal to the superior court, the BIIA, and to an assistant attorney general who
represented the Department in the case. 131 Wn.2d at 549. The Department alleged
that the worker failed to serve the notice of appeal on the Department’s director as
required by statute. The superior court agreed and dismissed the appeal, finding that
serving the assistant attorney general did not substantially comply with the statutory
requirements of RCW 51.52.110. Black, 131 Wn.2d at 550. Our Supreme Court
reversed, concluding that “service on the assistant attorney general assigned to handle
the case is reasonably calculated to give notice to the interested party, the Department,”
and there was no prejudice. Black, 131 Wn.2d at 555.
In contrast, this case does not concern a claim that Long Painting served the
wrong party. Instead, this case concerns the separate requirement that the notice of
appeal must be filed within 30 days. Long Painting failed to meet the statutory
requirement to file its notice of appeal timely. “Noncompliance with a statutory mandate
is not substantial compliance.” Petta v. Dep’t of Labor & Indus., 68 Wn. App. 406, 409-
10, 842 P.2d 1006 (1992).
This case is far more similar to the facts in Petta. In Petta, worker Thomas
Petta’s attorney directed a process server to serve separate notices of appeal on the
Office of the Attorney General, the Board, and the Director of the Department. 68 Wn.
App. at 407. The server failed to serve the BIIA or the Director, a fact that the Petta’s
attorney did not discover until almost seven months later. Petta, 68 Wn. App. at 407-08.
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The superior court denied the Department’s motion for summary judgment based on
lack of jurisdiction. This court, however, reversed, holding that the appeal should have
been dismissed. Petta, 68 Wn. App. at 407. The court held
in the absence of actual notice, substantial compliance cannot be deemed
to have occurred if notice was not in fact served in a manner reasonably
calculated to reach the party on whom the statute requires service. The
test articulated in Saltis considers whether or not service was made in a
manner reasonably calculated to succeed, not whether non-service was
reasonably calculated to succeed.
Petta, 68 Wn. App. at 409. Similarly, Long Painting did not, in fact, file its notice of
appeal timely as required by the statute.
Although Long Painting contends that its notice of appeal still reached the court
within 30 days, our substantial compliance analysis does not try to assess the
substance of a party’s intentions, but examines if the requirements of RCW 51.52.110
were met. Petta, 68 Wn. App. at 410, n.2. Long Painting incorrectly e-filed the appeal,
leading to the court rejecting the appeal and returning the filing fee. Because the
doctrine of substantial compliance does not save a party from its failure to comply with
statutory time limits, the court properly rejected Long Painting’s appeal.
For these reasons, we decline to apply the doctrine of substantial compliance. A
failure to file the notice of appeal with the superior court within the 30-day appeal period
neither complies, nor substantially complies with the requirements of RCW 51.52.110.
C. Attorney Fees on Appeal
Donkel seeks his reasonable attorney fees on appeal. Under RAP 18.1, a party
may request reasonable attorney fees on appeal if an applicable law grants the party
the right to recover. Attorney fees may be awarded only when authorized by a contract
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provision, a statute, or a recognized ground in equity. King County v. Vinci Constr.
Grands Projets/Parsons RCI/Frontier-Kemper, JV, 188 Wn.2d 618, 625, 398 P.3d 1093
(2017).
RCW 51.52.130(1) provides:
If, on appeal to the superior or appellate court from the decision and order
of the board . . . 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 allows a worker to recover attorney fees when the worker did not
appeal, and the worker’s right to relief is sustained. Because we affirm the superior
court’s dismissal of the appeal, we award Donkel reasonable attorney fees on appeal,
subject to compliance with RAP 18.1.
Affirmed.
WE CONCUR:
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