* Kathryn Landon, Appellant V. The Home Depot, Respondent

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Filed
Washington State
Court of Appeals
Division Two.
IN THE COURT OF APPEALS OF THE STATE OF WASHIN(ftb%"er 29, 2015
KATHRYN A. LANDON,
V.
THE HOME DEPOT,
DIVISION II
No. 46955 -3 -II
Appellant,
ORDER GRANTING MOTION TO
PUBLISH OPINION
Respondent,
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
Defendant.
Respondent The Home Depot moves this court for publication of the unpublished opinion
filed on November 10, 2015. The court having reviewed the record and files here, now, therefore,
it is hereby
ORDERED, that the final paragraph, reading " 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 pursuant to RCW 2. 06.040, it is so ordered." is deleted. It is further
ORDERED, that the opinion will be published.
DATED this day of o , c._ c , 2015.
elli0i UDGE
 	 	 	 	 	 	 	 	 	 	 	 	 	

Filed
Washington State
Court of Appeals
Division. Two
November 10, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KATHRYN A. LANDON,
MIM
THE HOME DEPOT,
DIVISION. II
No. 46955- 3= II
Appellant,
UNPUBLISHED OPINION
Respondent,
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON
Defendant.
JOHANSON, C.J. — Kathryn Landon appeals the trial court' s order denying her motion to
vacate a jury verdict., Landon argues that the Board of Industrial Insurance Appeals (Board) and
the trial court lacked subject,matter jurisdiction. We hold that the Board and the trial court had
subject matter jurisdiction under the Industrial Insurance Act (IIA)l to. determine whether Landon
had an occupational disease or infection. We affirm.
I' Title 51 RCW:
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46955 -3 -II
FACTS
In. Murch 2012, Landon. applied to the Department of Labor and Industries ( L&I) for
benefits, claiming that she had contracted Lyme disease while working at Home Depot. L& I.
denied her claim as time barred. Landon appealed to the Board. Landon and Home Depot agreed
that her appeal presented two issues:
1. Whether the claim was timely filed within two years of the date the
claimant' s physician or nurse practitioner notified the claimant and [ L& I]
of the occupational disease pursuant to RCW 51. 28;055?
2. Whether. the claimant suffered an occupational. disease which arose
naturally and proximately out of the distinctive conditions of her work,
within the meaning of RCW 51. 08. 140?
Clerk.'s Papers at 35 63.. An industrial appeals judge ( IAJ) heard testimony from. Landon;
Landon' s co- worker, Landon' s care providers, and Home Depot' s doctor about Landon' s
condition. The IAJ concluded that the claim: was timely filed but that Landon' s condition was not
an. occupational disease within the meaning of RCW 51. 08`.140.
Landon petitioned the Board for review of the IAJ' s decision. She again:framed the issue
as to whether she has an occupational disease or infection;, 'The Board denied Landon' s petition
for review and adopted the IAJ' s decision and order. Landon appealed the Board' s decision to the
trial court, which, after a jury trial, entered ,judgment: affirming the Board' s decision in Home
Depot' s favor. In a special verdict,.the jury found thatthe Board correctly concluded that Landon' s
condition was not an occupational disease. arising from her employment at Home Depot.
Landon.moved to vacate the trial court' s judgment. She argued that the Board and the trial
court lacked jurisdiction to decide whether she had an occupational disease or infeciion' because
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No. 46955 -3 -II
L& I never considered that question. The trial court denied Landon' s motion to vacate the
judgment and Landon appeals.
ANALYSIS
I. SUBJECT MATTER JURISDICTION
Landon contends that the Board and the trial court lacked subject matter jurisdiction. to,
decide whether she had an occupational disease .or infection, because L& I had not considered the
issue first. We disagree because under the IIA whether Landon had an occupational disease or
infection .is the type of controversy that the Board and the trial court are authorized to consider.
A. STANDARD OF REVIEW AND RULES OF LAW
We review a, trial court' s decision on a- motion to vacate under, CR 59 for an..abuse of
discretion.. Isla. Verde Int' l Holdings, Inc. v. City,of Camas, 99 Wn. App. 127, 142, 990 P. 2d 429
1999), aff'd, 146 W11. 2d 740, 49 P. 3d 867 ( 2002). A trial court abuses its discretion when its
decision is manifestly unreasonable,; based on untenable: grounds, or made for untenable reasons.
Salasv. Hi -Tech Erectors, 168 Wn.2d 664, 668- 69, 230 P. 3d 583 ( 2010). A decision is made for
untenable reasons or based on untenable grounds if the trial court` applies an, incorrect legal
standard or relies on unsupported facts. Salas, 168 Wn.2d at 669.
Whether the Board or the trial court has subject matter jurisdiction is a question of law we
review de novo. Doughertyv. Dep' t ofLabor & Indus., 1,50 Wn.2d.310, 314; 76'P.3d 1183 ( 2003).
A court' s " subject matter jurisdiction" is frequently confused with its " authority" in a particular,
case. Marley v. Dep' t ofLabor & Indus., 125 Wn.2d 533, 539, 886 P. 2d 189 ( 1994). " A tribunal
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46955 -3 -II
lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has
no authority to adjudi.cate." Marley, 125 Wn.2d at 539. The " type of controversy" refers to the
nature of a case or the relief sought" and, where the controversy is within L& I's subject matter,
jurisdiction, "`then, all other defects or errors [ in the Board' s decision] go to something other than
subject matter jurisdiction."' Magee v. Rite Aid, 167 Wn. App. 60, 72- 73, 277 P.3d 1 ( 2012)
internal quotation marks oini.tted) ( quoti.ng Marley, .125 Wn.2d at 539). The Board and the trial.
court do not lack subject matter jurisdiction simply because they may lack authority to enter a
particular order. Marley, 125 W11.2d at 539.
L&I has " broad subject matter jurisdiction over claims for workers' compensation.
benefits under the.IIA.,which include occupational disease or infection claims. Marley; 1.25 Wn.2d
at 539- 40; RCW 51-.08. 1.40. Similarly, the Board has " broad subject matter j urisdiction" to review
L&I' s actions. Matthews v. Dep' t ofLabor & Indus..;171 Wn. App. 477, 490,"288 P. 3d'630 (2012),
review' denied, 176 Wn2d 1026 ( 2013); see also RCW 51. 52. 050(2)( a). The trial court' s review
is de :novo and is limited to the issues that the " administrative tribunals previously determined,"
based on. only the record before the Board. Matthews, 17.1, Wn. App:, at 491; RCW 51. 52. 1,15,
B. THE BOARD AND THE TRIAL COURT HAD SUBJECT MATTER JURISDICTION
Here; any error in the Board' s. decision goes to something, other than subject: matter
jurisdiction because L&I has broad subject matter, jurisdiction over the occupational disease or,
infection issue and the Board has broad,jurisdiction. to review L&I.'s actions. Marley, 125. Wn..2d
at 539; Magee; 167 Wn.. App. at. 72-73; RCW 51. 52;.050( 2)( a). Whether Landon had an
occupational. disease or infection as defined in the IIA is the " type of controversy" that the Board..
and the trial court have jurisdiction to consider. See, e.g., Magee, 167 Wn. App. at 76 (".Here, as
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No. 46955 -3 -II
in Marley, we hold that the question of whether Magee was entitled to workers' compensation
benefits for an occupational disease is the type of controversy the Board is authorized to decide
under the IIA.")
Landon,contends that'L&I' s order denying her claim as time barred and her notice of appeal
define the Board' s jurisdiction. Landon unpersuasively relies on two cases to;suppoither argument
that the. Board and the trial court lacked subject matter jurisdiction: Hanquet v. Department of
Labor & Industries, 75 WA. App. 657, 879 P. 2d 326 ( 1,994); and Lenk v. Department ofLabor &
Industries,'3 Wn. App. 977, 478' P.2d 761. (1970). Her reliance on these cases.i:smisplaced,because
they address the Board' s- scope of review and do not hold that L& Ps order and.the notice of appeal.
define the Board' s: subject :matter jurisdiction.
In Hanquet, the workers' compensation claimant never asked the court to decide whether
the Board and,the trial court lacked subject matterjurisdiction. Instead, the issue was whether the
Board and the trial court exceeded their scope of review when they considered an exclusion .from
IIA.coverage thatthe W and L& Inever addressed.. 75 Wt.:App. at 660- 64. Therefore, Hanquet
does not support Landon' s' position that'the issue here is jurisdictional and instead supports Home.
Depot' s argument that the issue,is the Board' s scope of'review. 75 Wn. App. at 660- 64
Lenk is also unpersuasive. Contrary to Landon' s contention, Division One of this court did
not hold that when the Board considers an issue that L&I may not :have first decided, the Board
lacks subject :matter jurisdiction. Lentz,, 3 Wn. App. At 9.82. Instead, the court stated that " the
notice [ of appeal] cannot enlarge the :scope of inquiry before the board beyond the matters
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No. 46955 -3 - II
considered and passed upon by the department" Lenk, 3 Wn. App. at 985. The court was careful
to use the words " scope of inquiry" -and did not conclude that the issue was jurisdictional.
Home Depot persuasively relies on Matthews. We concluded there that the Board and the
trial court had subject matterjurisdiction based solely on the language of the statute. Matthews,
171 Wn. App. at 490- 91. The Board had jurisdiction to consider the issues raised in,the notice of
appeal because those issues were the " type of controversy" that fit within the Board' s broad,
statutory authority. Magee, 167 Wn. App. at 76; Adarley, 125 Wn,2d at 539 ( emphasis added).
We hold that the. Board and the trial court; had subject matter jurisdiction because whether
Landon had an occupational disease or infection is the type of controversy that they are authorized
to decide. The' tri.al court, th.erefore, did not abuse its discretion. when it denied Landoi' s motion
to vacate.
II. ATTORNEY FEES
Under RCW 51. 52. 130( 1); Landon requests reasonable attorney fees incurred in. the trial
court, before the Board, and here. In an appeal of the Board"s decision either to the triall court or,
here, if 'said decision and order is reversed or modified and additional relief is granted to a<worker
or beneficiary... . . a reasonable fee for the services of the. worker' s or beneficiary' s attorney shall
be fixed by the court" RCW 51, 52. 130( 1). Landon is not entitled. to attorney fees because the
Board' s decision was not reversed or modified either here or in the trial court.
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No. 46955 -3 -II
We affirm.
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.
We concur:
MAXA,
MELNICK, I
HANSON, C.J.
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