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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

LORENZO THOMAS,                                 No. 72646-3-


                        Appellant,

                v.                              UNPUBLISHED OPINION

DEPARTMENT OF LABOR AND
INDUSTRIES,

                        Respondent.             FILED: February 16, 2016
      Schindler, J. — Under the Industrial Insurance Act, Title 51 RCW, a worker can

file an application to reopen a disability claim 60 days after the Department of Labor and

Industries (Department) closes the claim and the award becomes a final order. In 2001,

Lorenzo Thomas filed an application to reopen his 1995 disability claim. On February

28, 2002, the Department issued a decision to reopen the claim and awarded disability

benefits. Thomas did not appeal the order to reopen. In 2012, Thomas filed another

application to reopen his disability claim. Because the application to reopen was not

"made within seven years from the date [of] the first closing order," the Department

limited the claim to medical treatment.1 On summary judgment, the superior court

dismissed his appeal of the 2012 order on the grounds that res judicata barred Thomas



        RCW51.32.160(1)(a).
No. 72646-3-1/2



from arguing he did not receive the notice in 1996 that the Department closed his

disability claim. We affirm dismissal of the appeal.

                                                  FACTS2

1995 Disability Claim

       In October 1995, Lorenzo Thomas injured his back while working at Brandrud

Furniture Inc. On October 19, 1995, Thomas filed a claim for disability benefits. On

November 2, 1995, the Department of Labor and Industries (Department) issued a

notice of decision that "the claim for injury sustained on 10-17-95 be allowed as an

industrial injury."

       On December 18, 1996, the Department issued an order closing the claim and

awarded Thomas total benefits of $6,257.88 for category 2 "permanent dorso-lumbar

and/or lumbosacral impairments." The order states that it "WILL BECOME FINAL 60

DAYS AFTER YOU RECEIVE IT UNLESS YOU FILE A WRITTEN REQUEST FOR

RECONSIDERATION OR AN APPEAL." After deducting a support enforcement lien,

the Department issued a check for $3,128.94.

       The envelope containing the order closing the claim and the check for $3,128.94

was returned to the Department. The Department mailed the order and the check in an

envelope to a prior address for Thomas. The envelope was not returned.

2001 Application To Reopen

       On May 11, 2001, Thomas filed an "Application to Reopen Claim Due to

Worsening of Condition." The application states, in pertinent part, "NOTE: Persons

making false statements in obtaining industrial insurance benefits are subject to civil

and criminal penalties. I declare that these statement [sic] are true to the best of my

       2 The material facts are not in dispute.
No. 72646-3-1/3


knowledge and belief." Thomas signed the application "declaring] that these

statements] are true to the best of my knowledge and belief."

      The application to reopen the claim for aggravation or worsening of a condition

states that in order to file an application to reopen, the claim must have been closed for

more than 60 days: "Important: Only use this form if your medical condition has

worsened, and your claim has been closed for more than 60 days."3

       In the application to reopen, Thomas states the "fdlate claim closed" was

"12/ /96."4 Thomas states the "[d]ate condition became worse after claim closure" was

"01/01/98."5 In response to the question that asks, "Have you had any new injuries or

illnesses since the date of claim closure," Thomas states, "Same but worse."6 In

response to the question, "Have you received any medical treatment for this condition

since claim closure," Thomas states, "No."7

       On February 28, 2002, the Department issued a decision to reopen his claim for

medical treatment and disability benefits, "This claim is reopened effective 05/11/2001

for authorized medical treatment and benefits as appropriate under the industrial

insurance laws." The February 28, 2002 notice of decision states that ifThomas




       3 (Emphasis added.) The application form states:
       Important: Only use this form if your medical condition has worsened, and yourclaim has
       been closed for more than 60 days. Iftime loss benefits are paid before a decision about
       reopening is made and your claim is not reopened, vou will be required to repay those
       benefits. Please write your claim number above. You will receive information about your
       reopening application within 90 days of the Department's receipt of the reopening
       application. If you have had a new injury at work, complete a new Report of Industrial
       Injury or Occupational Disease form in lieu of this application.
(Emphasis in original.)
      4 Emphasis added.
      5 Emphasis added.
      6 Emphasis added.
      7 Emphasis added.
No. 72646-3-1/4



disagrees with the order, he must file a request for reconsideration or an appeal.

      YOUR LEGAL RIGHTS IF YOU DISAGREE WITH THIS ORDER: THIS
      ORDER BECOMES FINAL 60 DAYS FROM THE DATE IT IS
      COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE
      FOLLOWING. YOU CAN EITHER FILE A WRITTEN REQUEST FOR
      RECONSIDERATION WITH THE DEPARTMENT OR FILE A WRITTEN
      APPEAL WITH THE BOARD OF INDUSTRIAL INSURANCE APPEALS.

Thomas did not file a request for reconsideration or an appeal.

       On March 24, 2006, the Department issued an order closing the claim and

awarding Thomas total benefits of $18,773.61 for category 4 "permanent dorso-lumbar

and/or lumbosacral impairments." After deductions, the Department issued a check for

$3,880.26. The March 24, 2006 order states:

       YOUR LEGAL RIGHTS IF YOU DISAGREE WITH THIS ORDER:
       THIS ORDER BECOMES FINAL 60 DAYS FROM THE DATE IT IS
       COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE
       FOLLOWING. YOU CAN EITHER FILE A WRITTEN REQUEST FOR
       RECONSIDERATION WITH THE DEPARTMENT OR FILE A WRITTEN
       APPEAL WITH THE BOARD OF INDUSTRIAL INSURANCE APPEALS.

Thomas did not file a request for reconsideration or an appeal.

2006 Application To Reopen

       On April 2, 2006, Thomas filed another Application to Reopen Claim Due to

Worsening of Condition. On September 11, 2006, the Department denied his

application to reopen. The notice of decision states:

       The Department of Labor and Industries received an application to reopen
       this claim. The medical record shows the conditions caused by the injury
       have not worsened since the final claim closure.

       The application to reopen your claim is denied and the claim will remain
       closed.
No. 72646-3-1/5



The September 11, 2006 notice of decision states:

      YOUR LEGAL RIGHTS IF YOU DISAGREE WITH THIS ORDER: THIS
      ORDER BECOMES FINAL 60 DAYS FROM THE DATE IT IS
      COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE
      FOLLOWING. YOU CAN EITHER FILE A WRITTEN REQUEST FOR
      RECONSIDERATION WITH THE DEPARTMENT OR FILE A WRITTEN
      APPEAL WITH THE BOARD OF INDUSTRIAL INSURANCE APPEALS.

      Thomas filed a written request for reconsideration. On November 9, 2006, the

Department denied his request to reconsider. The notice of decision states, "The

Department of Labor and Industries has reconsidered the order of 09/11/2006. The

department has determined the order is correct and it is affirmed." The notice of

decision states, "ANY APPEAL FROM THIS ORDER MUST BE MADE IN WRITING TO

THE BOARD OF INDUSTRIAL INSURANCE APPEALS . . . WITHIN 60 DAYS ... OR

THE SAME SHALL BECOME FINAL." Thomas did not file an appeal.

2012 Application To Reopen

       On November 21, 2012, Thomas filed an Application to Reopen Claim Due to

Worsening of Condition. The Department issued a decision to reopen the claim but "for
medical treatment only." The decision states Thomas "is not entitled to disability

benefits" because "the reopening application was not received within the time limitation

set by law (... 7 years from first claim closure for all other injuries)."

       Thomas appealed the decision to the Board of Industrial Insurance Appeals

(Board). The Department filed a motion for summary judgment. The Department
argued the record showed Thomas received the December 18, 1996 closing order. The
Department submitted the declaration of claims consultant Tracey Jacobson. The
declaration attaches the 1995 application for benefits, the order allowing benefits, and
the 1996 order closing the claim. Jacobson states, "There is no indication in the
No. 72646-3-1/6


Department file that this closing order was not communicated" to Thomas and "this

check was cashed."8 The Department also argued that as a matter of law, the failure to

timely appeal the February 28, 2002 decision to reopen his claim barred Thomas from

arguing his claim was not "closed prior to that reopening date."

      Thomas submitted a declaration in response and argued that because he never

received the December 18, 1996 order closing his claim, the industrial appeals judge

(IAJ) should reverse the 2012 decision of the Department to deny disability benefits. In

his declaration, Thomas states, "I have never received an Order from the Department

dated December 18, 1996 which closed my claim with a check in the amount of

$3,128.94 for permanent partial disability." Thomas also asserts, "I never cashed a

check in the amount of $3,128.94 for permanent partial disability. I have never received

a cash award or a check for a Category II low back impairment."

       The Department submitted a supplemental declaration of Jacobson. Jacobson

states the 1996 order was not returned and the check was cashed.

       I have reviewed Lorenzo Thomas' claim file under claim P-242614. In the
       claim file there was an envelope with the permanent partial disability
       check. That envelope was returned to the Department. The check was
       then re-mailed to prior address for Mr. Thomas. That address was 7326
       Rainier Drive Apt. 2 Everett WA 98203. Once the check was re-mailed to
       that new address, it was not returned to the Department and the check
       (warrant) was cashed.
             . . . The permanent partial disability check does not show up in the
       Department's system as being an expired warrant. This means that
       someone cashed the check within 180 days of it being issued.

       The Department argued that even ifThomas did not receive the closing order in

1996, the failure to protest or appeal the February 28, 2002 closing order reopening his

claim barred Thomas from arguing the 1996 order was not a final order.


        Emphasis in original.
No. 72646-3-1/7


      The IAJ issued a proposed decision and order. The IAJ granted the

Department's motion for summary judgment and affirmed the order denying disability

benefits. The IAJ ruled there were material issues of fact as to whether Thomas

received the December 18, 1996 order closing his claim but "actions taken by the

Department in the form of determinative orders subsequent to the December 18, 1996

order render the question of communication with respect to the December 18, 1996

order immaterial."


      Specifically, it is undisputed that Mr. Thomas filed a reopening application
      with the Department on May 15, 2001. See Attachment No. 4. In
      response to Mr. Thomas' reopening application, the Department issued an
      order reopening his claim on February 28, 2002. See Attachment No. 5.
      Neither Mr. Thomas nor the employer protested the decision to reopen the
      claim. Consequently, the Department's order dated February 28, 2002 is
      now final and binding and is res judicata under Marlev v. Department of
      Labor & Indus., 125 Wn.2d 533 (1994).

       Based on the undisputed record, the IAJ concluded that even if the February 28,

2002 order was legally erroneous, it was a final and binding order. Because Thomas

did not appeal the decision to reopen the 1995 claim, he was barred from arguing the

1995 claim was not closed.

      The Department's February 28, 2002 order, even if based upon a mistake
      of law, is now final and binding. As this Board has also held, the
      reopening of a claim by necessity precludes the Department from
      administering the claim as if it were never closed and supersedes any
      argument relating to the prior closing order. In re Christopher B. Preiser,
      [Board] Dec, 09 19683 (2010).

      The IAJ rejected the argument that Thomas had no reason to protest or appeal

the February 28, 2002 decision to reopen.

      Although Mr. Thomas argues that he should not be expected to have
      protested and/or appealed the February 28, 2002 reopening order
       because it was favorable to him, this argument is disingenuous.
       Specifically, if Mr. Thomas truly believed that his claim had not been
No. 72646-3-1/8


      closed or that he had not been paid the appropriate permanent partial
      disability impairment award, the February 28, 2002 order by implication
      was unfavorable to him. Had these concerns been truly an issue for Mr.
      Thomas, the time to raise these arguments was when the Department
      acted upon his application to reopen the claim. He did not do so.

      The proposed decision and order conclusions of law state:

      1.     The Board of Industrial Insurance Appeals has jurisdiction over the
             parties and subject matter of this appeal.

      2.     Regardless of whether the December 18, 1996 closing order
             became final and binding, the Department had subject matter
             jurisdiction to issue the February 28, 2002 order reopening Mr.
             Thomas' claim.


      3.     The failure of Mr. Thomas to protest and/or appeal the February 28,
             2002 reopening order rendered it final and binding on him. There
             are no facts or circumstances that justify relieving him from the res
             judicata effect of the order.

      4.     Because Mr. Thomas did not appeal the Department's February 28,
             2002 order, it is res judicata that his claim was first closed
             sometime before the February 28, 2002 reopening order. Since it
             is res judicata that Mr. Thomas' claim was first closed sometime
             before the February 28, 2002 reopening order, it is immaterial
             whether the Department communicated its December 18, 1996
             closing order to Mr. Thomas. . . .

      5.     The Department of labor and Industries is entitled to a decision as a
             matter of law as contemplated by CR 56.

      6.     The Department order dated April 8, 2013, is correct and is
             affirmed.

      Thomas appealed the proposed decision and order. The Board denied the

appeal and adopted the IAJ proposed decision and order as the decision and order of

the Board.

      Thomas filed an appeal in superior court. The court granted the Department's

motion for summary judgment. The order states the undisputed facts establish Thomas

filed his 2012 application to reopen more than seven years after the claim was first


                                            8
No. 72646-3-1/9



closed in 1996. The order granting the Department's motion for summary judgment

states, in pertinent part:

       The undisputed factual record establishes that:
              Mr. Thomas filed an application for benefits with the Department for
       an injury to his low back. On November 2, 1995, the Department issued
       an order allowing Mr. Thomas; [sic] claim for an injury occurring on
       October 17, 1995. On December 18, 1996 the Department issued an
       order which closed Mr. Thomas' claim with a Category II permanent
       impairment rating. On May 15, 2001, the Department received an
       application to reopen Mr. Thomas' claim. The reopening application was
       signed by Mr. Thomas on May 11, 2011. On February 28, 2002, the
       Department issued an order reopening Mr. Thomas [sic] claim effective
       May 11, 2001. Mr. Thomas did not protest or appeal this order within 60
       days of the order being communicated to him. Mr. Thomas' application to
       reopen his claim which was received by the Department on November 21,
       2012 was filed beyond seven years from the date of first claim closure.

       The court concluded that because Thomas did not appeal the order reopening

his claim, the 2002 order was final and binding, and res judicata barred Thomas from

arguing the 1996 order was not a final order.

       Regardless of whether the December 18, 1996 closing order was
       communicated to Mr. Thomas, the closing order became final and binding
       when Mr. Thomas failed to protest or appeal the February 28, 2002 order
       reopening his claim within 60 days of that order being issued. Because
       Mr. Thomas did not protest or appeal the Department's February 28, 2002
       order, it is res judicata that his claim was closed sometime before
       February 28, 2002. Since it is res judicata that his claim was closed prior
       to February 28, 2002 it is immaterial whether the Department
       communicated the December 18, 1996 closing order to Mr. Thomas.

       The court affirmed the decision and order of the Board. Thomas appeals.

                                       ANALYSIS

       Thomas seeks reversal of summary judgment dismissing the appeal of the

decision to deny his 2012 claim for disability benefits. Thomas asserts the court erred

in ruling that because he did not appeal the 2002 order reopening his claim, res judicata

bars him from arguing the 1996 order closing his 1995 claim was not a final order.
No. 72646-3-1/10


      In an appeal from the Board, the superior court acts in an appellate capacity and

reviews the decision de novo "based solely on the evidence and testimony presented to

the Board." Leuluaialii v. Dep't of Labor & Indus., 169 Wn. App. 672, 677, 279 P.3d 515

(2012); Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).

      Our review of the superior court's decision is governed by RCW 51.52.140.

RCW 51.52.140 states that an "[a]ppeal shall lie from the judgment of the superior court

as in other civil cases." See also Rogers v. Dep't of Labor & Indus., 151 Wn. App. 174,

179-81, 210 P.3d 355 (2009). We review the superior court decision on summary

judgment de novo. Pearson v. Dep't of Labor & Indus., 164 Wn. App. 426, 431, 262

P.3d 837 (2011). Summary judgment is proper when there is no genuine issue of

material fact and the moving party is entitled to summary judgment as a matter of law.

CR 56(c).

      A worker injured in the course of their employment is entitled to compensation

under the Industrial Insurance Act (MA), Title 51 RCW. RCW 51.32.010; Tobin v. Dep't

of Labor & Indus.. 145 Wn. App. 607, 613, 187 P.3d 780 (2008). If a worker's "total

disability is only temporary," the MA directs the Department to make payments "so long

as the total disability continues." RCW 51.32.090(1). Temporary total disability ends

"as soon as the claimant's condition has become fixed and stable." Hunter v. Bethel

Sch. Dist., 71 Wn. App. 501, 507, 859 P.2d 652 (1993). When a condition is fixed, the

Department makes a permanent partial disability award and closes the claim. Dep't of

Labor & Indus, v. Slauqh, 177 Wn. App. 439, 446, 312 P.3d 676 (2013): see also Pvbus

Steel Co. v. Dep't of Labor & Indus., 12 Wn. App. 436, 436-37, 530 P.2d 350 (1975);

Robbins v. Dep't of Labor & Indus., 187 Wn. App. 238, 244, 349 P.3d 59 (2015).




                                           10
No. 72646-3-1/11


       A department order "shall become final within sixty days from the date the order

is communicated to the parties unless a written request for reconsideration is filed with

the department... or an appeal is filed with the board of industrial insurance appeals."

RCW 51.52.050(1). "Communicated" means the order, decision, or award is received

by the party. Shafer v. Dep't of Labor & Indus., 166 Wn.2d 710, 717, 213 P.3d 591

(2009). If a party does not receive a department order, the order does not become final.

Shafer, 166 Wn.2d at 719: see also Ochoa v. Dep't of Labor & Indus., 100 Wn. App.

878, 881-82, 999 P.2d 633 (2000) (because order was not "communicated" to the actual

employer the order "did not become final and thus had no effect"). After the 60-day

appeal period has expired and the department order becomes final, it cannot be

appealed. RCW 51.52.050, .060(1).

       Under RCW 51.32.160, an injured worker may seek to reopen the claim to

receive additional medical treatment. Eastwood v. Dep't of Labor & Indus.. 152 Wn.

App. 652, 654, 656-57, 219 P.3d 711 (2009). But a worker may seek to reopen a claim

for "aggravation" of the disability only after the award is final. RCW 51.32.160(1 )(a)

provides, in pertinent part:

       If aggravation, diminution, or termination of disability takes place, the
       director [of the Department] may, upon the application of the beneficiary,
       made within seven years from the date the first closing order becomes
       final, or at any time upon his or her own motion, readjust the rate of
       compensation in accordance with the rules in this section provided for the
       same, or in a proper case terminate the payment: PROVIDED, That the
       director may, upon application of the worker made at any time, provide
       proper and necessary medical and surgical services as authorized under
       RCW 51.36.010.

       Therefore, an order closing a claim is a condition precedent to filing an

application to reopen that claim. See State ex rel. Stone v. Olinger, 6 Wn.2d 643, 647,



                                             11
No. 72646-3-1/12



108 P.2d 630 (1940) ("A 'reopening' of a claim connotes a former closing."); Reid v.

Dep't of Labor & Indus., 1 Wn.2d 430, 437, 96 P.2d 492 (1939) ("It is a condition

prerequisite to the reopening of a claim for additional compensation by reason of

aggravation of disability that there be a determination as to the disability and the rate of

compensation to be awarded therefor."); Eastwood, 152 Wn. App. at 654.

       Washington courts view an industrial insurance claim broadly as one cause of

action for purposes of res judicata. See Dinnis v. Dep't of Labor & Indus., 67 Wn.2d

654, 657, 409 P.2d 477 (1965) (res judicata applied to disability determination in a

closing order to preclude worker from arguing his disability at the time his claim closed

was greater than the Department had awarded).

       The doctrine of claim preclusion applies to a final order of the Department "as it

would to an unappealed order of a trial court." Marlev v. Dep't of Labor & Indus., 125

Wn.2d 533, 537, 886 P.2d 189 (1994). "An unappealed Department order is res

judicata as to the issues encompassed within the terms of the order." Kingery v. Dep't

of Labor & Indus., 132 Wn.2d 162, 169, 937 P.2d 565 (1997).

       Assuming Thomas did not receive the 1996 order closing his claim and the order

was not a final order, the Department erred in issuing the February 28, 2002 order

reopening his claim. However, because Thomas did not protest or appeal the 2002

order reopening his claim, res judicata bars Thomas from arguing the 1995 claim was

not closed in 1996. "The failure to appeal an order, even one containing a clear error of

law, turns the order into a final adjudication, precluding any reargument of the same

claim." Marlev, 125 Wn.2d at 538.




                                             12
No. 72646-3-1/13


       The Department asserts the facts in this case are indistinguishable from

Singletarv v. Manor Healthcare Corp., 166 Wn. App. 774, 271 P.3d 356, review denied

175 Wn.2d 1008, 285 P.3d 885 (2012). We agree.

       In Singletarv, Singletary filed an application for worker's compensation benefits in

2001. The Department allowed the claim. Singletarv. 166 Wn. App. at 778. The

Department closed the claim in 2002 but Singletary never received the order.

Singletarv, 166 Wn. App. at 778. However, in June 2003, Singletary filed an application

to reopen her claim for aggravation of her injury. In the application, Singletary stated

her claim was closed on June 27, 2002. Singletary, 166 Wn. App. at 778. The

Department reopened the claim. Singletarv, 166 Wn. App. at 778. Two years later, the

Department closed the claim "with time loss compensation as paid to January 24, 2004

but without a further award for time loss or permanent partial disability." Singletarv, 166

Wn. App. at 778-79.

       Singletary appealed the decision to the Board. Singletarv, 166 Wn. App. at 779.

Singletary argued the Board did not have jurisdiction to reach the merits of her claim

because she never received the order closing her claim in 2002. Singletarv, 166 Wn.

App. at 779. The Board rejected her argument. Singletarv, 166 Wn. App. at 779. The

superior court affirmed. Singletarv, 166 Wn. App. at 779-80.

       On appeal, we concluded that because Singletary never received the 2002 order

closing her claim, the decision of the Department to reopen her claim was legally

erroneous. Singletarv, 166 Wn. App. at 781-82. Nonetheless, because the Department

had subject matter jurisdiction to adjudicate and enter the order, the order became "final

and binding on all parties" when "they [did] not appeal itwithin the specified time frame."



                                             13
No. 72646-3-1/14


Singletarv. 166 Wn. App. at 784, 782. We held that because Singletary did not appeal

the order reopening, "it is res judicata that her claim was closed sometime before the

Department's 2003 order reopening it," and "it is immaterial whether [the employer]

communicated its 2002 closing order to Singletary." Singletarv, 166 Wn. App. at 784.

       Thomas claims that even if Singletarv controls, under Ashenbrenner v.

Department of Labor & Industries, 62 Wn.2d 22, 380 P.2d 730 (1963), the decision does

not apply retroactively. Ashenbrenner does not support his argument.

       In Ashenbrenner, the Department awarded the claimant disability benefits

according to the statutory rate in effect at the time of her injury. Ashenbrenner, 62

Wn.2d at 23. The claimant argued she was entitled to benefits under an amended

statute in effect on the date the Department determined she was permanently disabled.

Ashenbrenner, 62 Wn.2d at 23. The Washington Supreme Court held that absent clear

legislative intent to the contrary, the law in effect on the date of the injury controls, and

affirmed. Ashenbrenner, 62 Wn.2d at 26-27.

               "It is a fundamental rule in this state that a statute will be presumed
       to operate prospectively only, and that it will not be held to apply
       retrospectively in the absence of language clearly indicating such
       legislative intent. [Citing cases.]
               "It is also the general rule in this state that awards payable under
       the workmen's compensation act are governed by the law in effect at the
       time the injury to the workman occurred. [Citing cases.]"

Ashenbrenner, 62 Wn.2d at 259 (quoting Lynch v. Dep't of Labor & Indus., 19 Wn.2d

802, 807, 145 P.2d p. 265 (1944)).

       Here, unlike in Ashenbrenner, Thomas does not challenge the retroactive

application of a statute. Because the court in Singletarv relied on established legal

precedent, we reject the argument that Singletarv does not apply.

       9 Alterations in original.


                                              14
No. 72646-3-1/15


        Thomas also relies on Somsak v. Criton Technologies/Heath Tecna, Inc., 113

Wn. App. 84, 52 P.3d 43 (2002), to argue the doctrine of res judicata does not apply. In

Somsak, the claimant received four orders regarding her benefits. Somsak did not

appeal the first three orders closing her claim. Somsak, 113 Wn. App. at 92-93. But

Somsak appealed the fourth order. The fourth order issued by the Department

explained the basis of the rate calculation for the first time. Somsak, 113 Wn. App. at

89. We held res judicata did not bar the appeal of the first three orders because those

orders "failed to clearly advise her of time-loss compensation's underlying factual basis."

Somsak. 113 Wn. App. at 92-93.

        Finally, Thomas claims his right to due process was violated because he did not

receive the 1996 order closing his claim. Due process requires notice that is

" 'reasonably calculated, under all the circumstances,'" to apprise the party of the

pendency of the action and afford an opportunity to present objections. Kustura v. Dep't

of Labor & Indus., 142 Wn. App. 655, 675-76, 175 P.3d 1117 (2008) (quoting Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L Ed. 865

(1950)). There is no due process violation if a party had actual notice. In re Petition of

City of Seattle to Acguire Land & Other Prop., 56 Wn.2d 541, 545, 353 P.2d 955

(I960).10 Here, the undisputed record shows that when Thomas filed his application to

reopen in 2001, he had actual notice that his claim had been closed in December 1996.



        10 See, ej^, Pub. Util. Dist. No. 2 of Grant County v. N. Am. Foreign Trade Zone Indus.. LLC, 159
Wn.2d 555, 585, 151 P.3d 176 (2007) (no due process violation where landowner received actual notice);
In re Welfare of Aschauer, 93 Wn.2d 689, 698, 611 P.2d 1245 (1980) (no due process violation where
actual notice of parenting deficiencies); Ord v. Kitsap County, 84 Wn. App. 602, 607-08, 929 P.2d 1172
(1997) (due process arguments "without merit" where party received actual notice); Lehnerv. United
States, 685 F.2d 1187, 1190-91 (9th Cir. 1982) (no due process violation despite appellant's allegation
that notice of foreclosure sale was mailed to wrong address where appellant "clearly . . . knew the
foreclosure sale was imminent").


                                                    15
No. 72646-3-1/16


In his 2001 application to reopen, Thomas unequivocally states the date the claim

closed was "12/    /96."


         We affirm the superior court order dismissing the appeal of the order of the

Board.




                                               ^Mwpq,:
WE CONCUR:




          1XoKe>j| ^                                   r??ci<& £ .




                                              16
