Washington Court Says Proof of Service Need Not Be Filed Within 30-Day Time Frame
A Washington state appellate court held that with regard to an employee’s appeal from a decision of the state’s Board of Industrial Insurance Appeals, while the clear language of Wash. Rev. Code § 51.52.110 required that the notice of appeal be filed with the clerk of the court and served on the parties within 30 days, there was no similar language requiring that proof of service be filed with the clerk within that same 30 days [Aguirre v. Kroger, Inc., 2020 Wash. App. LEXIS 1419 (May 19, 2020)]. Accordingly, where the employee’s attorney initially filed a defective proof of service [see CR 5(b)(2)(B)] and then, well after the 30-day period had passed, he filed a proof of service that complied with the rules, it was error for the superior court to dismiss the appeal.
Background
On February 28, 2018, the Board affirmed a Department of Labor and Industries (Department) order relating to the employee’s industrial injury claim against his self-insured employer. On March 22, the claimant’s attorney filed a notice of appeal of the Board’s decision in the superior court. The notice of appeal was also addressed to the employer, the Board, and the Department. That same day, the attorney sent the employer’s counsel a letter containing a conformed copy of the notice of appeal, which the employer’s counsel’s office stamped as received on March 26.
On April 2, the employee’s counsel filed a proof of service stating that he had served copies of the notice of appeal on the Board, the Department, and Kroger by mail on March 22. The employee’s counsel signed the proof of service, but the document did not contain the certification language set out in CR 5(b)(2)(B), nor was it signed under penalty of perjury.
Four months later, the employer moved to dismiss the appeal under CR 41(b). In its motion, the employer argued that the superior court should dismiss the appeal because the employee failed to substantially comply with RCW 51.52.110 by not providing proof of service that complied with the civil rules.
Employee’s Counsel Files Additional Proof of Service
On August 24, before responding to the employer’s motion to dismiss, the employee’s counsel filed a second proof of service with the superior court stating that he had served the Board, the Department, and Kroger on March 22. The attorney signed this proof of service under penalty of perjury. Two months later, the employee responded to the employer’s motion to dismiss, arguing that the appeal was properly filed.
Superior Court Dismisses Appeal
The superior court stated that the “crux” of the issue was whether the employee could “add that [c]ertification language after the passage of the [30] days” and that the core issue was whether the employee was required to provide a certified proof of service within 30 days. The court then took the matter under advisement. Three months later, the superior court granted the employer’s motion to dismiss and dismissed the employee’s appeal with prejudice. The court’s order noted only that the matter was dismissed “for failure to properly serve all necessary parties in accordance with RCW 51.52.110 and Civil Rule 5(b)(2)(B).” The superior court did not further explain its reasoning.
Appellate Court Decision
The appellate court noted that the plain language of RCW 51.52.110 required that the notice of appeal be filed with the clerk of the court and served on the parties within 30 days, but there was no similar language requiring that proof of service be filed with the clerk of the court within that same 30 days. Thus, the plain language of RCW 51.52.110 did not require filing of the proof of service within a specific time-frame. The appellate court stressed that it could not add words or clauses to an unambiguous statute when the legislature had chosen not to include that language.
The court continued that while the employer had asserted that a certificate of service must be filed when the notice of appeal is filed in order to perfect the appeal, it had not directed the court to any authority requiring that the proof of service be filed with the notice of appeal or within 30 days of the Board decision. Nor had the employer cited to any authority countering the court’s plain language interpretation.
Brief Comment
The wheels of justice do grind exceedingly slow, it seems. I recognize that a lot goes on in a case that is never discussed in an appellate decision and so I’m not going to blame either party or the superior court (or appellate court, for that matter). Still, more than two years of water flowed beneath the bridge between the initial appeal of the Board’s decision until the appellate court’s order sending the case back for decision on the merits.
I do note that the employee’s attorney requested attorney’s fees regarding the appeal, but the appellate court stressed that its decision had not reversed or modified the Board’s order, nor had it granted the employee additional relief. Attorney’s fees were not, therefore, appropriate.