INJURED WORKMAN'S MAIL

INJURED WORKMAN'S MAIL

An injured workman has the right to compel the department of Labor and Industries to address all orders and mail in care of his attorney, after an application to reopen his claim is made pursuant to subdivision (h) Rem. Rev. Stat. Supp., 7679.

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                                                                 October 2, 1950

Honorable Clyde J. Miller
State Representative
Route 3, Box 356
Kelso, Washington                                                                                                              Cite as:  AGO 49-51 No. 352

Dear Sir:

            You have asked our opinion as to whether or not an injured workman has the right to compel the department to address all orders and mail in care of his attorney after an application to reopen his claim is made pursuant to subdivision (h) of section 7679, Rem. Rev. Stat. Supp.

                                                                     ANALYSIS

            The scope of your inquiry does not compel us to determine whether or not under all circumstances an injured workman has the right to have his mail sent in care of his attorney.  The right exists except as it has been expressly denied him by the legislature in unmistakable terms.  The only statute touching this subject is the first sentence of section 1 of chapter 56 of the Laws of 1947 which, so far as material, is as follows:

            "On all claims under this act or under the medical aid act, the Division of Industrial Insurance shall not forward claimants' written notices, orders and warrants to, or in care of, any representative of the claimant, but shall forward such notices, orders and warrants directly to the claimant until such time as the Supervisor of Industrial Insurance shall have entered an order on the claim appealable to the joint board.  * * *"

            Resort to construction is unnecessary unless the meaning is doubtful.  By its plain terms, the legislature in the quoted provision of the statute has not undertaken to restrict the valuable right of the injured workman to have his mail sent in care of his counsel after an appealable order has been made, and the reason is not far to seek.

            After an appealable order has been made, no injured workman under the Washington Industrial Insurance Act can safely proceed without the advice of competent legal counsel, and of this hazard the legislature was undoubtedly aware.

             [[Orig. Op. Page 2]]

            Prior to the entry of an appealable order, the departmental proceedings are informal and divorced from the harsh rules of the common law.  InStertz v. Industrial Insurance Commission, 91 Wash. 588, 591, this court caustically observed nearly thirty-five years ago in referring to the Industrial Insurance Act:

            "By the working class the new legislation was craved from a horror of lawyers and judicial trials.  * * *"

            Nevertheless, the intervening years have brought into the Washington Industrial Insurance System all of the horrors and technicalities from which labor sought to escape.  (No reflection is here intended as to the present administrators of the act.  It is merely a situation inherited by them.)  Prior to the entry of an appealable order, there is nothing for a lawyer to do, but after that event in order to avoid the pitfalls and technicalities employed, the workman who proceeds without the advice of competent counsel, or any employer for that matter (Long v. Thompson, 177 Wash. 296), does so at his peril.

            It is unnecessary to enumerate all of the pitfalls to which an injured workman is exposed upon the entry of an appealable order in his compensation claim because the res adjudicata rule, now fully applicable to industrial insurance proceedings, abundantly illustrates the reason.

            The Supreme Court of Washington, in line with all other enlightened courts, has from the beginning declared the law to be that an injured workman is entitled to compensation for an injury which lights up or makes active a latent or dormant disease or injury.  The cases are too numerous to mention but are collected in the Washington Digest under the title "Workmen's Compensation, Key No. 552-566."  A fair statement of the law is found in the quoted passage from Miller v. Department of Labor & Industries, 200 Wash. 674, 682:

            "If this be true with respect to a weakened physical condition resulting from disease, it must likewise be true with respect to a similar infirmity resulting from some structural weakness of the body.  As we have many times stated, the provisions of the workmen's compensation act are not limited in their benefits to such persons only as approximate physical perfection, for few, if any, workmen are completely free from latent infirmities originating either in disease or in some congenital abnormality.  It is a fundamental principle which most, if not all, courts accept, that, if the accident or injury complained of is the proximate cause of the disability for which compensation is sought, the previous physical condition of the workman is immaterial and recovery may be had for the full disability independent of any preexisting or congenital weakness;  [[Orig. Op. Page 3]] the theory upon which that principle is founded is that the workman's prior physical condition is not deemed the cause of the injury, but merely a condition upon which the real cause operated.  * * *"

            However, in some instances "segregation orders" have been entered (usually based on medical reports) denying full, legal compensation and awarding only the amount which would be allowed one in perfect health sustaining the same injury while continuing the monthly payments until the time for appeal from the "segregation order" has expired.  See:

            Kuhnle v. Department of Labor & Industries, 15 Wash. (2d) 427;Karlson v. Department of Labor & Industries, 26 Wash. (2d) 311; LeBire v. Department of Labor & Industries, 14 Wash. (2d) 409;Nagel v. Department of Labor & Industries, 189 Wash. 631;Carlson v. Department of Labor & Industries, 200 Wash. 553.

            When the compensation is terminated the injured workman for the first time consults legal counsel and then learns, albeit too late, that he is beyond legal relief, for under the decisions above noticed, no appeal having been taken from the so-called segregation order, the injured workman is forever denied an opportunity to contest the validity of such a "segregation order."

            It was for this reason that the legislature declined to limit the right of an injured workman to effectively direct the department to address his mail in care of his lawyer after an appealable order was entered.

            You are therefore advised that in the circumstances mentioned, that is, after a claim has been closed which is an appealable order and an application made under subdivision (h) of section 7679, Rem. Rev. Stat. Supp., to reopen the claim, that the department may not refuse to send the mail of an injured workman to any address designated by the injured workman, and that the matter is controlled by the first sentence of section 6 of chapter 219 of the Laws of 1949, which is as follows:

            "Whenever the Department of Labor and Industries has made any order, decision or award, it shall promptly serve the claimant, employer or other person affected thereby, with a copy thereof by mail, which shall be addressed to such claimant, employer or person at his last known address as shown by the records of the Department.  * * *"

            Until the order is sent to the address so designated by the injured workman the time for appeal from that order does not start to run.

Very truly yours,

SMITH TROY
Attorney General