       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

POTELCO, INC.,
                                           I     No. 69219-4-1
                     Appellant,                                                 3&   l"n C3

                                           I     DIVISION ONE
              v.



DEPARTMENT OF LABOR AND
INDUSTRIES,                               )      UNPUBLISHED OPINION

                     Respondent.          )       FILED: November 12,    2013




       Becker, J. — Poteico Inc. challenges the dismissal of its appeal of a

citation for alleged violations of the Washington Industrial Safety and Health Act

of 1973, chapter 49.17 RCW. Poteico appealed the citation three days after the

statutory deadline of 15 working days. The company argues the Board of

Industrial Insurance Appeals erred by failing to equitably toll the deadline and

dismissing its appeal, and the superior court erred by affirming the Board's

dismissal. Because Poteico fails to identify any circumstances that would

warrant equitable tolling, we affirm the dismissal.

       The Washington Industrial Safety and Health Act (WISHA) authorizes the

Department of Labor and Industries to issue citations and assess penalties

against employers for onsite safety violations. RCW 49.17.120, .130, .180. On
No. 69219-4-1/2




December 20, 2010, the Department issued a citation to Poteico for violations of

three safety regulations at its worksite in Bow, Washington. A Department

inspector had found Poteico failed to ensure that the operator of its excavator

machine had a seatbelt (a repeat serious violation), failed to ensure its

employees working in a trench were protected from a cave-in (a serious

violation), and provided data for different hydraulic shoring than what was being

used in the trench. The citation carried a penalty of $1,300. Under RCW

49.17.140(1), the company had 15 working days from receipt of the citation to

appeal it, not including weekends and holidays. The citation informed Poteico of

the 15-day deadline. The Department mailed the citation to Potelco's Sumner

office by certified mail with return receipt requested.

       On December 21, 2010, Poteico receptionist Julia Miles signed the return

receipt. Poteico had 15 working days from that date—that is, until January 13,

2011—to appeal the citation. Miles followed office protocol and placed the

citation in the mailbox of Bryan Sabari, Potelco's director of safety at the time.

Miles could not recall whether Sabari was in the office on December 21.

       Sabari testified before an industrial appeals judge that he was the only

Poteico employee responsible for handling citations. He was away from the

Sumner office from sometime before Christmas until at least January 10, 2011,

on vacation and business trips. He could not recall when exactly he returned to
No. 69219-4-1/3




the office, but it was sometime during the week of January 10. During his

absence, his mail had exceeded the capacity of his inbox and "they had just

started to pile all my mail and documents on top of my desk." No one was

assigned to go through Sabari's mail for citations and notices while he was away.

Sabari testified that the citation at issue here "was at the bottom of all the piles of

mail that took me several days to go through." When he discovered the citation,

he sent it immediately to Potelco's counsel at Riddell Williams. The firm filed an

appeal that same day, January 19, 2011, which was three working days after the

statutory deadline.

       On February 16, 2012, Industrial Appeals Judge Michael Metzger held a

timeliness hearing at which he considered testimony from Sabari and Potelco's

receptionist, Miles. On March 16, the judge issued a proposed decision and

order dismissing Potelco's appeal as untimely and rejecting the argument that

the time limit of RCW 49.17.140(1) should be equitably tolled. Poteico petitioned

for review before the Board of Industrial Insurance Appeals. The Board denied

the petition and adopted Judge Metzger's proposed decision as its final decision

and order. Poteico appealed to Skagit County Superior Court. The Department

filed a motion for summary judgment, arguing that Potelco's appeal was time

barred. Poteico filed a cross motion for summary judgment, arguing that under

the circumstances of this case, the Board should have applied equitable tolling
No. 69219-4-1/4




and considered the merits of its appeal. The superior court affirmed the Board's

decision and granted the Department's motion for summary judgment dismissal.

Poteico appeals.

       Summary judgment is properly granted when the pleadings, affidavits,

depositions, and admissions on file demonstrate there is no genuine issue of

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

56(c); Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298

(1993). Here, the material facts are undisputed. The only question is whether

the Board erred by failing to equitably toll the statutory deadline and dismissing

Potelco's appeal as untimely.

       A citation that is not timely appealed "shall be deemed a final order of the

department and not subject to review by any court or agency." RCW

49.17.140(1); Erection Co. v. Dep't of Labor & Indus.. 121 Wn.2d 513, 517, 852

P.2d 288 (1993). If Potelco's appeal—filed three working days after the statutory

deadline—was untimely, "the citation became final" and Poteico "lost all rights to

appeal it to the Board." Panzer v. Dep't of Labor & Indus., 104 Wn. App. 307,

317, 16 P.3d 35 (2000), review denied, 143 Wn.2d 1020 (2001).

       Citing Panzer, Poteico argues the Board should have equitably tolled the

timeframe to appeal and considered the merits of its appeal. In Panzer, a

manufacturer employer asked the court to apply the doctrine of equitable tolling
No. 69219-4-1/5




to extend the statutory deadline for filing an appeal of a citation. "The doctrine of

equitable tolling permits the court, under 'appropriate circumstances,' to allow an

action to proceed even though a statutory time limit has elapsed." Panzer. 104

Wn. App. at 318, citing Millav v. Cam. 135 Wn.2d 193, 206, 955 P.2d 791 (1998).

"The predicates for equitable tolling are bad faith, deception, or false assurances

by the defendant and the exercise of diligence by the plaintiff." Millav. 135 Wn.2d

at 206. "In Washington equitable tolling is appropriate when consistent with both

the purpose of the statute providing the cause of action and the purpose of the

statute of limitations." Millav, 135 Wn.2d at 206.

       The Panzer court recognized that no Washington cases had applied

equitable tolling in the context of appealing WISHA citations. But citing federal

cases under the federal Occupational Safety and Health Act, the court suggested

that WISHA's statutory deadline might be extended under circumstances that

justify equitable tolling, that is, "ifthe employer could show that the delay in filing

was caused by the agency's deception, the agency's failure to follow proper

procedures, or other agency actions that misled or confused the petitioner."

Panzer, 104 Wn. App. at 318-19, citing Sec'v of Labor v. Barretto Granite Corp.,

830 F.2d 396, 399 (1st Cir. 1987); Capital City Excavating Co. v. Ponovan. 679

F.2d 105, 110 (6th Cir. 1982).

       As in Panzer, Poteico can point to no Pepartment action that deceived or
No. 69219-4-1/6




confused the company into missing the deadline. Nor can Poteico show the

diligence required by Millav. Sabari, Potelco's director of safety, testified that he

was familiar with the timeframe for appealing citations because during his seven

years with the company, Poteico had appealed every citation it received, about

20 total. He was aware of the inspection that led to the citation at issue here,

and thought he was present at the closing conference on the citation.

Nonetheless, Sabari and Poteico failed to arrange for someone to review

Sabari's mail for citations during his extended absence from the office. Upon his

return, it took Sabari several days to discover the citation "at the bottom of all the

piles of mail." This does not amount to diligence. As in Panzer, "there is no

basis to apply the doctrine of equitable tolling in this case." Panzer, 104 Wn.

App. at 319.

       Poteico recognizes that "'Courts typically permit equitable tolling to occur

only sparingly, and should not extend it to a garden variety claim of excusable

neglect.'" City of Bellevue v. Benvaminov. 144 Wn. App. 755, 761, 183 P.3d

1127 (2008) (internal quotation marks omitted) (quoting State v. Robinson. 104

Wn. App. 657, 667, 17 P.3d 653 (2001)), review denied, 165 Wn.2d 1020 (2009).

Nevertheless, the company argues for an extension of the equitable tolling

doctrine to situations where "(1) a statute of limitations is an extremely short time

period, and (2) a party files an appeal shortly thereafter, and (3) allowing the
No. 69219-4-1/7




appeal will serve the purposes of the underlying statute," even where there is no

evidence of bad faith or diligence. We decline Potelco's invitation to fashion a

new rule that would apply to its "'garden variety claim of excusable neglect.'"

Benvaminov. 144 Wn. App. at 761 (internal quotation marks omitted) (quoting

Robinson, 104 Wn. App. at 667).

       Because the circumstances do not justify equitable tolling, Potelco's

appeal was correctly dismissed as untimely.

      Affirmed.




WE CONCUR:




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