(dissenting) — The Department of Labor and Industries (Department) has established a dispute resolution process for contesting employability determinations. WAC 296-18A-470. To initiate this process, an injured worker must dispute the Department's determination in writing within 15 days of receipt of the determination, and must include the reasons why the determination is disputed. WAC 296-18A-470(2). The Department also enacted a fail-safe provision, which allows it to extend these time limits "when good cause is shown". WAC 296-18A-470(1). The effect of the majority's decision is to render the Department's own rules a nudity. Thus, I respectfully dissent.
Marvin Dalman failed to file a timely dispute.4 Moreover, as the parties concede, there was no showing of "good cause". Despite this, the majority abrogates normal notice-and-comment rulemaking and rewrites the Department's own rule to eliminate the "good cause" requirement. The majority's reading also implies that an agency may alter its own rules merely through violation or disregard.
The majority contends that the legislative intent here is to grant the Department unfettered discretion to consider claims at any time. The specific legislative pronouncement the majority depends upon reads:
The director may, in his or her sole discretion and upon his or her own initiative or at any time that a dispute arises under this section, promptly make such inquiries as circumstances require and take such other action as he or she considers will properly determine the matter and protect the rights of the parties.
ROW 51.32.095(6). Admittedly, this is a broad grant of discretionary authority to the Department, and were this the sole basis for deciding the dispute before us, I would agree with the majority that the Department has the authority to consider disputes at any time.
*812However, this grant of authority has been bounded by the Department's own rules. The Department has seen fit to limit its discretion by enacting procedural rules to govern such disputes. See, e.g., Wilson v. Nord, 23 Wn. App. 366, 373, 597 P.2d 914 (agency's discretion limited by constitution, statutes and regulations), review denied, 92 Wn.2d 1026 (1979). The majority's rebanee on the enabling statute is misplaced. The dispute here is governed by specific and unambiguous rules promulgated by the agency itself. Dalman did not contest the Department's determination within the required 15 days, nor did he make any good cause showing to excuse his delay.5 WAC 296-18A-470. Moreover, the Department itself did not make any finding that good cause existed. Rather, the Department cavalierly stated that the dispute "was filed in a timely manner." Certified Appeal Board Record, at 91. There is no basis in either fact or law for this belief.
The majority's explanation of how WAC 296-18A-470 and RCW 51.32.095(6) can be "reconciled" is also nonsensical. The majority reads the rule and the statute to mean that:
Review by the Director is assured if brought within the 15-day period, although the decision to investigate or not ultimately rests with the Director. After the 15-day period, review may occur by two different means. One, the Director may exercise discretion to review a case on his or her sole initiative. RCW 51.32.095(6); see WAC 296-18A-470(1), (2). Alternately, a case may be heard after the 15-day period has elapsed upon a request by the claimant to the Department showing cause why the 15-day limit was exceeded.
(Footnote omitted.) Majority, at 808-09. This explanation fails to recognize that the "good cause" requirement is still eliminated from the rule. Since the Department can exercise unlimited discretion upon its own initiative to review a late-filed case, there is no reason the Department would ever rely upon good cause being shown. The better, and more straightforward, reading of the statute is that the good cause require*813ment of WAC 296-18A-470 provides a necessary limitation on the broad language of RCW 51.32.095(6). The Department has authority to review a timely filed complaint, but after the ruiming of the 15-day period, review will only be undertaken if the aggrieved party makes a showing of good cause.
Finally, the majority's reading of these regulations goes. against the spirit, if not the very letter, of our recently published decision in Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513, 852 P.2d 288 (1993). In that case, The Erection Company timely notified the Department of its intent to appeal a citation and penalty. The Department reassumed jurisdiction over the dispute, but failed to complete its redetermination within 30 days, as mandated by RCW 49.17.140(3). This court found that use of the word "shall" in the statute created a mandatory, jurisdictional requirement. Erection Co., at 519. Similarly, in this case the rule states that:
The director must receive a dispute of the employability determination or formal plan, in writing, within fifteen calendar days from receipt of notification to the worker or employer. The dispute must include reasons for the request.
(Italics mine.) WAC 296-18A-470(2). Although a legislative pronouncement was at issue in Erection Co., there is no principled reason to treat an administrative rule more leniently. Indeed, agencies make their own rules, and can easily amend such rules through normal notice-and-comment rulemaking if they find them to be too unwieldy. Cf. State ex rel. Carpenter v. Everett Bd. of Adj., 7 Wn. App. 930, 936-37, 503 P.2d 1141 (1972) (rules cannot be rescinded or changed merely by their violation). There is no reason for this court to supersede the rule-making process.
The Department's rules are clear and unambiguous, and should be interpreted as such. In order for the Department to accept a late-filed dispute, good cause must be shown. Such a reading fulfills the Department's own goal of "avoid[ing] delay in the vocational rehabilitation process and . . . allow[ing] resolution of disputes . . .." WAC 296-18A-470(1). *814Permitting the uncontrolled late filing of disputes delays the rehabilitation process and makes needlessly uncertain the Department's own decisions. Under the rules as they are written, employers and employees are able to begin the rehabilitation process soon after the Department's determination, secure in the knowledge that, except under stated circumstances, the Department's determination is final if no dispute is filed. Disputes that are filed, being promptly raised, can be resolved while the case is still fresh. Under the majority's reading, employers and employees will no longer be able to depend on the Department's determinations, as they can be disputed long after they are made, indeed even after the rehabilitation process itself has begun.6 All that the petitioner asks is that the Department be made to follow its own rules. I see no reason to deny that request.
Andersen, C.J., and Guy and Madsen, JJ., concur with Durham, J.
Dalman had to dispute the Department's determination within 15 calendar days of the date of receipt of the Department's letter. Dalman's attorney received the letter on January 16, 1987, which made the deadline for filing a dispute January 31, 1987. As this was a Saturday, the deadline was extended to February 2, pursuant to WAC 263-12-175. It is uncontested that Dalman did not file his dispute until February 5, 1987.
Nor can he plead mere ignorance of the Department's own rules, as the 15-day time limit was clearly noted on the employability determination sent to him by the Department.
The majority's interpretation will also impact other regulatory deadlines in the workers' compensation system. See, e.g., WAC 296-18A-445 (submission deadlines for self-insured reports); WAC 296-18A-460 (48 hours’ advance notice for audits); WAC 296-18A-500 (submission and review deadlines for rehabilitation plans, explicitly incorporating WAC 296-18A-470). The implication of the majority is that the Department can arbitrarily ignore such regulatory deadlines by depending on its broad grant of statutory power.