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Fria v. Washington State Department of Labor and Industries12/13/2004
Concurring: Ann Schindler, Marlin J. Appelwick
PUBLISHED OPINION - Motion to Publish Granted January 24, 2005
Richard Fria received worker's compensation for an injury, and he received additional funds as the result of a successful third party tort claim arising from the same injury. The Department of Labor and Industries asserts a right, in the event that Fria ever reopens his claim, to offset any payment of worker's compensation against his third party recovery. We reject Fria's contention that the statutory offset provision violates constitutional protections. The trial court's order dismissing his claim on summary judgment is affirmed.
The facts are undisputed. Fria injured himself on November 7, 1995 when, while working, he slipped and fell outside of a Banana Republic store. Fria applied for and received workers compensation. He also filed a third party lawsuit against Banana Republic, and in June 2000 informed the Department that he had recovered $37,000 in settlement. Upon being informed of the settlement, the Department closed the claim and issued a final order. The final order showed the Department's calculation of the statutory distribution of the settlement funds, and required Fria to reimburse the Department in the amount of $3,209.77 for worker compensation payments Fria had received. The order stated an 'excess' amount that Fria would have to pay before the Department would make further payments should Fria's claim be reopened in the future:
IT IS FURTHER ORDERED no benefits or compensation will be paid to or on behalf of the claimant until such time the excess recovery totaling $6,279.14 has been expended by the claimant for costs incurred as a result of the condition(s) covered under this claim.
Fria appealed the Department's final order. He challenged the constitutionality of RCW 51.24.060(1)(e), under which the Department made the determination of the excess recovery. The Board of Industrial Insurance Appeals affirmed the order on the basis it did not have the authority to declare a statute unconstitutional. See Bare v. Gorton, 84 Wn.2d 380, 526 P.2d 379 (1974).
Fria took an appeal to the superior court and challenged the constitutionality of the excess recovery statute in a motion for summary judgment. At oral argument, the court asked Fria whether there was an existing or known future worker's compensation claim for relief based on his injury. Fria acknowledged that there was not, but stated that his constitutional challenge was in the context of declaratory relief. On its own motion, the trial court decided there was no justiciable controversy without an actual claim of injury, and dismissed Fria's case. He appeals.
The Department now concedes that the trial court erred when it decided that the claim was not justiciable. Res judicata precludes review of Labor and Industries orders once they have become final and are not appealed within the statutorily allotted timeframe. Marley v. Dep't of Labor and Indus., 125 Wn.2d 533, 886 P.2d 189 (1994).
The Department does not concede that there is any constitutional defect in the challenged statute, RCW 51.24.060(1)(e), which mandates an offset for any future payments. That question was not addressed by the superior court. But because the issue can easily be resolved as a matter of law, for the sake of judicial economy we will reach the merits rather than remanding the issue to the superior court.
Washington's Industrial Insurance Act is the result of the 'great compromise' that allows government to restrict an employee's rights to tort recovery for injuries sustained while in the scope of employment in ex
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