                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          July 21, 2020


              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

    PAUL UMINSKI,                                                   No. 53007-4-II

                               Respondent,

         v.

    CLARK COUNTY,                                             UNPUBLISHED OPINION

                               Appellant.

        CRUSER, J. – Clark County (County), a self-insured employer, appeals from the superior

court’s order denying the County’s motion to dismiss Paul Uminski’s appeal to the superior court

of the denial of his worker’s compensation claim against the County. Because the record does not

establish that the Director of the Department of Labor and Industries (Director) was served with

or had actual notice of Uminski’s appeal, we reverse the superior court’s denial of the County’s

motion to dismiss and remand this matter to the superior court to dismiss the appeal.1

                                              FACTS

                                         I. BACKGROUND

        Paul Uminski was working as a deputy sheriff in Clark County when he was diagnosed

with carpal tunnel syndrome. Uminski filed a workers’ compensation claim with the Department




1
 Because we reverse based on no proof of actual notice, we do not address the County’s arguments
regarding fortuitous knowledge, attorney of record, or the inapplicability of substantial compliance
for statutory timelines.
No. 53007-4-II


of Labor and Industries (Department). The Department denied the claim, and the Board of

Industrial Insurance Appeals (Board) affirmed the Department’s decision.

       Uminski filed a notice of appeal with the superior court. Uminski’s certificate of service

stated that he served the notice of appeal on the Board’s counsel and on the County’s counsel. The

certificate of service did not show service on the Director, the Department, or the Department’s

counsel. The parties do not dispute that Uminski did not serve the Director, the Department, or the

Department’s counsel.

                                 II. COUNTY’S MOTION TO DISMISS

       The County moved to dismiss the appeal, arguing that superior court lacked jurisdiction

because Uminski had not served the Director as required under RCW 51.52.110. In support of the

motion to dismiss, the County attached an affidavit from Roxanne Yaconetti, the “correspondence

liaison for the Director.” Clerk’s Papers (CP) at 19. Yaconetti described the normal process for

processing appeals from Board decisions. She stated that there was no record of the Director having

received a notice of appeal to the superior court in this matter.

       Uminski opposed the motion to dismiss. Although he admitted that he had not served the

notice of appeal in a manner reasonably calculated to give the Director notice, Uminski argued

that the Director had actual notice of the appeal. Uminski asserted that there was proof of actual

notice because Assistant Attorney General (AAG) James Johnson “filed the Department’s Notice

of Non-Participation with Clark County superior Court” and that actual notice to the AAG was

sufficient. CP at 22.

       In support of his argument, Uminski attached a declaration from Johnson. Johnson stated

that he was “an [AAG] assigned to the Labor and Industries Division of the Attorney General’s

Office [(AGO)].” CP at 23. On June 14, 2018, “the Labor and Industries Division of the [AGO]



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No. 53007-4-II


received” a copy of the notice of appeal filed by Uminski. CP at 23. Johnson did not explain how

the AGO obtained a copy of the notice of appeal.2

          Johnson further stated,

          The Department does not appear and participate in all superior court appeals
          involving self-insured employers. Therefore, that same day, June 14, 2018, AGO
          staff forwarded to me and other attorneys copies of [notice of appeal] so we could
          decide whether the Department of Labor and Industries would actively participate
          in the case. By June 15, 2018, we had decided not to participate.

CP at 23-24. Johnson commented, “The decision not to participate meant that I was the attorney

of record assigned to the appeal, and would file a notice of non-participation, as I later did.” CP at

24.

          The County responded that Uminski had not established substantial compliance with the

service requirement under RCW 51.52.110 because substantial compliance requires an actual

attempt to comply with the service requirement, not just the incidental actual notice that occurred

here. The County also asserted that notice to an AAG was not the same as the Director receiving

notice.

          The superior court denied the County’s motion to dismiss:

                  Well, the issue is whether I have jurisdiction because of the substantial
          compliance because that term is used in various cases, including Black vs. Labor &
          Industries[,131 Wn.2d 547, 555, 933 P.2d 1025 (1997)]. It’s not whether there’s
          any prejudice. Apparently, it’s not a standing issue. It’s basically a subject matter
          jurisdiction issue because the person raising it did receive notice within the time
          limits and everybody else received it. So, it’s just a question of whether under these
          circumstances where the claimant, or the person filing the appeal, didn’t serve the
          documents, but the documents got over to the attorneys that were in the position to
          make the decision, whether that constitutes substantial compliance for jurisdictional
          purposes under Black. I find that it does; I deny the Motion to Dismiss.




2
 At the hearing on the motion to dismiss, the County asserted that the Board had forwarded a copy
of the notice of appeal to the AGO.


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No. 53007-4-II


RP at 5; CP at 36.

        The County sought discretionary review. We granted review.

                                             ANALYSIS

        The County argues that the superior court erred in denying the motion to dismiss because

Uminski failed to demonstrate that he served the Director as required by RCW 51.52.110. Because

the record does not contain any evidence that the Director had actual notice of the appeal, we hold

that Uminski has not established substantial compliance with the service requirement, and

therefore, the trial court erred in denying the County’s motion to dismiss.

                                         I. LEGAL PRINCIPLES

        When reviewing a Board decision, the superior court acts in its limited appellate capacity.

Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 197, 796 P.2d 412 (1990). Thus, the appealing party

must comply with RCW 51.52.110 for the superior court to have jurisdiction over an appeal from

a Board decision. Fay, 115 Wn.2d at 198. “Whether a court has subject matter jurisdiction is a

question of law reviewed de novo.” Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310, 314,

76 P.3d 1183 (2003) (citing Crosby v. Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999).

        Under RCW 51.52.110, the party appealing the Board’s decision must file his or her notice

of appeal with the clerk of the court and serve the Director, the Board, and the self-insured party

within 30 days of a final order or notice of the final order. Generally, if the appealing party fails to

timely serve the Director, dismissal of the appeal is required. See Krawiec v. Red Dot Corp., 189

Wn. App. 234, 239, 354 P.3d 854 (2015).




                                                   4
No. 53007-4-II


       But “the modern preference of courts [is] to interpret their procedural rules to allow

creditable appeals to be addressed on the merits absent serious prejudice to other parties.”3 Graham

Thrift Grp., Inc. v. Pierce Cty., 75 Wn. App. 263, 268, 877 P.2d 228 (1994). Thus, “[s]ubstantial

compliance with the terms of RCW 51.52.110 is . . . sufficient to invoke the superior court’s

appellate jurisdiction.” Hernandez v. Dep’t of Labor & Indus., 107 Wn. App. 190, 195, 26 P.3d

977 (2001) (citing In re Saltis, 94 Wn.2d 889, 895-96, 621 P.2d 716 (1980)).

       “‘Substantial compliance is generally defined as actual compliance with the substance

essential to every reasonable objective of a statute.’” Krawiec, 189 Wn. App. at 241 (quoting

Hernandez, 107 Wn. App. at 196 (internal quotation marks omitted). The objective of RCW

51.52.110’s service requirement “is a practical one meant to insure that interested parties receive

actual notice of appeals of Board decisions.” Saltis, 94 Wn.2d at 895.

       Substantial compliance with RCW 51.52.110 occurs when “(1) the [D]irector received

actual notice of appeal to the superior court; or (2) the notice of appeal was served in a manner

reasonably calculated to give notice to the [D]irector.” Saltis, 94 Wn.2d at 896. Our Supreme Court

has also held that service on the AAG assigned to represent the Department in the matter being




3
  Citing Graham Thrift Group, Uminski appears to contend that the superior court had jurisdiction
despite the defect in service because the lack of service was not prejudicial to the Department. But
Graham Thrift Group merely recognizes that “the modern preference of courts to interpret their
procedural rules to allow creditable appeals to be addressed on the merits absent serious prejudice
to other parties.” 75 Wn. App. at 268. RCW 51.52.110 is not, however, a court’s procedural rule,
nor does Graham Thrift Group stand for the proposition that failure to comply or substantially
comply with a jurisdictional service requirement is irrelevant as long as a party is not prejudiced
by lack of service. The substantial compliance doctrine itself is an acknowledgment of the modern
preference of allowing appeals to proceed despite service issues—the preference does not,
however, require that the courts entirely ignore statutory service requirements. Black, 131 Wn.2d
at 552-53.


                                                 5
No. 53007-4-II


appealed “is reasonably calculated to give notice to the interested party.” Black, 131 Wn.2d at 555

(following Vasquez v. Dept. of Labor & Indus., 44 Wn. App. 379, 722 P.2d 854 (1986)).

                       II. NO PROOF OF THE DIRECTOR’S ACTUAL NOTICE

       Here, although, under Black, service on the AAG might have been sufficient to establish

that Uminski served the notice of appeal in a manner reasonably calculated to give notice to the

Director, there was no service on the AGO or Johnson, and Uminski does not argue that he served

the notice of appeal in a manner reasonably calculated to give notice to the Director. Instead,

Uminski argues that he has established that the Department, the real party in interest, had actual

notice of the appeal because Department determined that it would not participate in the appeal.

       To establish actual notice, there had to be some evidence that the Director, actually received

notice of the appeal. At best, the record shows that Johnson, who later became the Department’s

attorney of record in this matter, had actual notice of the appeal and that he and other attorneys

played a role in deciding whether the Department would participate in the appeal.

       As noted above, Johnson’s declaration stated,

       The Department does not appear and participate in all superior court appeals
       involving self-insured employers. Therefore, that same day, June 14, 2018, AGO
       staff forwarded to me and other attorneys copies of [notice of appeal] so we could
       decide whether the Department of Labor and Industries would actively participate
       in the case. By June 15, 2018, we had decided not to participate.

CP at 23-24 (emphasis added). This statement establishes that Johnson and “other attorneys” were

involved in deciding whether the Department would participate. But Johnson does not mention

that the Department or Director actually participated in this decision. And there is nothing in the

record establishing that the Department or Director are routinely consulted when the decisions

about whether to participate in a case are made by the AGO.




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No. 53007-4-II


          It is mere conjecture that any direct communication with the Director about the notice of

appeal occurred. Without something in the record affirmatively establishing that the Director

participated in the decision, Uminski fails to show that the Director had actual knowledge of the

appeal.

          We note that Uminski cites no authority establishing that an AAG’s knowledge can be

imputed to the Director, and we assume there is no such authority. Hood Canal Sand & Gravel,

LLC v. Goldmark, 195 Wn. App. 284, 296-97, 381 P.3d 95 (2016) (quoting DeHeer v. Seattle

Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). And although Black is similar to

this case in many ways, it is not helpful because it addressed whether the notice of appeal was

served in a manner reasonably calculated to give notice to the Director and it does not address

whether an AAG’s actual notice would alone be sufficient to show that the Director had actual

notice.




                                                  7
No. 53007-4-II




          Because Uminski fails to show that the Director had actual notice of the appeal, we reverse

the superior court’s denial of the County’s motion to dismiss and remand for dismissal of the

appeal.

          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                       CRUSER, J.
 We concur:



 MAXA, J.




 LEE, C.J.




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