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AGO 1951 No. 135 - September 26, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

PAYMENT OF AWARDS OF THE BOARD

When the Department of Labor and Industries or an employer appeals to the superior court from an award of the Board of Industrial Insurance Appeals, payment of the award of the Board should not be made until final adjudication by the court.  However, when neither the Department nor an employer files an appeal from an award of the Board, but the only appeal to the superior court is by the claimant seeking an increase of award granted, the Board's award should be promptly paid when the time for further appeal by any interested party has elapsed.

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                                                              September 26, 1951

Honorable A. M. Johnson, Director
Department of Labor and Industries
State of Washington
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 135

Attention:  Messrs. Shaughnessy and McLean

Dear Sir:

            The opinion of this office has been requested concerning whether payment should be made to a claimant of an additional award granted by order of the Board of Industrial Insurance Appeals when (1) such order has been further appealed to the superior court by the claimant without appeal by the employer or the Department of Labor and Industries, or (2) such order has been appealed to the superior court by the employer concerned or the Department of Labor and Industries regardless of whether or not the claimant has also appealed to the superior court seeking an increased award.  Also, if in any instance, the award of the Board of Industrial Insurance Appeals should be paid while an appeal is pending to the superior court, at what time should such payment be made?

            Our conclusions may be summarized as follows:

             [[Orig. Op. Page 2]]

            When neither the Department of Labor and Industries nor the employer concerned files an appeal from an award of the Board, but the only appeal to the superior court is by the claimant who is seeking an increase of the additional award granted by the Board, the Board's award should be promptly paid when the time for further appeal by any interested party has elapsed, i.e., the 31st day after final decision of the Board has been communicated to all interested parties.  However, when an employer or the Department of Labor and Industries files an appeal to the superior court from an order of the Board, the Department should not make payment to the claimant of the Board's additional award until final adjudication by the court.

                                                                     ANALYSIS

            The questions presented concern an interpretation of that portion of RCW 51.52.110, which provides as follows:

            "* * * No bond shall be required on appeals to the Superior Court or on appeals to the Supreme Court, except that an appeal by the employer from a decision and order of the board under 51.48.070 RCW, shall be ineffectual unless, within five days following the service of notice thereof, a bond, with surety satisfactory to the court, shall be filed, conditioned to perform the judgment of the court.  Except in the case last named an appeal shall not be a stay."  (Emphasis ours)

            The progenitor of the above quoted statute (Rem. Rev. Stat., section 7697) has upon two occasions been specifically construed by our supreme court.  In the case of State ex rel. Crabb v. Olinger, 196 Wash. 308, the court held that an employer, by reason of the provisions of the statute, could not upon appeal to the superior court stay the payment of an award granted by the Joint Board.  However, in the case ofSt. Paul & Tacoma Lumber Company v. The Department of Labor and Industries, 19 Wash. (2d) 639, the court specifically overruled its former decision and with reference to the power of superior courts to stay the operation of departmental orders the court stated:

            "At the common law, a writ of error operated per se as a supersedeas and prevented the issuance of execution.  While the matter is now covered by statutory provision prescribing what judgments and orders may be superseded and upon what  [[Orig. Op. Page 3]] conditions, and, generally speaking, an appeal which does not fall within any of those statutes does not operate as a stay, it should be borne in mind that the superior courts of this state, in the exercise of their appellate jurisdiction, have all of the powers inherent in reviewing courts at the common law; hence, in its discretion a superior court may suspend the operation of a departmental order which it is reviewing in the exercise of its appellate jurisdiction.

            We held inState ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 317, 67 Am.St. 706 [[67 Am.St. Rep. 706]], 40 L.R.A. 317, that to maintain the existing status and to preserve the fruits of the litigation to an appellant (respondent employer in the case at bar has a material interest, as it is concerned in preservation of the accident fund), we have, under section 4 of Art. IV of the state constitution, in aid of our appellate jurisdiction and in the exercise of our discretion, authority to grant a supersedeas pending the determination of an appeal, and that we may do so although the appellant is not, as a matter of right, entitled to a supersedeas under any existing statute.  This constitutional power cannot be wholly taken away by statute.

            The superior court, on an appeal to it from the department, is a reviewing court.  In the exercise of that appellate jurisdiction, the superior court has inherent power‑-no constitutional grant of such power is necessary‑-to suspend the operation of the department's order pending disposition of an appeal therefrom to the superior court."  (Emphasis ours)

            Therein the court did not hold all statutes pertaining to supersedeas meaningless, but rather held that in such instances where the fruits of litigation might be lost to an appellant unless the departmental order bestayed, the superior courts in the exercise of their appellate jurisdiction may stay such judgments or orders.  Thus, though an appellant employer or the Department  [[Orig. Op. Page 4]] of Labor and Industries is not, as a matter of right, entitled to a stay of an order of the Board, we may infer that upon appeal to the superior court by either an employer or the Department the court would upon application exercise its discretion and suspend the operation of the Board's order.  Therefore, when an employer or the Department files an appeal to the superior court, the Department should not make payment to the claimant of the Board's additional award.  However, when neither the Department nor the employer files an appeal, but the only appeal to the superior court from the order of the Board is by the claimant who is seeking an increase of the additional award made by the Board, the Board's award should be paid even though an appeal to the superior court is pending for there is no challenge to the award of the Board and there is no party appellant who might seek to invoke the discretion of the court to stay the operation of the Board's order.

            RCW 51.52.110 provides that appeal may be taken from an order of the Board of Industrial Insurance Appeals within 30 days after the final decision and order of the Board has been communicated to the interested parties.  Therefore, as soon as the period during which an appeal may be taken by any party has elapsed without the Department or an employer appealing further to the superior court, the award of the Board of Industrial Insurance Appeals should be promptly paid, for as previously stated, there is no party appellant who might seek to invoke the discretion of the court to stay the operation of the Board's order even though a claimant appeal is pending.

            It is, therefore, the opinion of this office that when an employer or the Department files an appeal from an order of the Board of Industrial Insurance Appeals, the additional award granted by the order of the Board should not be paid until final adjudication by the court.  However, when neither the Department nor the employer files an appeal, but the only appeal to the superior court from the order of the Board is by the claimant who is seeking an increase of the additional award granted by the Board, the Board's award should be promptly paid when the time for appeal by all interested parties has elapsed.

Very truly yours,

SMITH TROY
Attorney General

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