Opinion
No. 58661-1-I.
October 15, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-34264-1, Jay V. White, J., entered July 10, 2006.
Affirmed by unpublished opinion per Appelwick, C.J., concurred in by Schindler and Dwyer, JJ.
Anthony Gudenau suffered serious injuries from a vehicular assault when he was eight years old. He filed for benefits under the crime victim's compensation act (CVCA) more than five years after reaching the age of majority. The Department of Labor and Industries declined to review the application as untimely. Upon appeal to the Board of Industrial Insurance Appeals, (the Board) Gudenau argued that the filing requirement in the statute should be tolled because of his incapacity. The Board denied the request. The superior court subsequently denied the relief. Gudenau appeals. We affirm the Board's decision to deny benefits.
FACTS
Anthony Gudenau was born on February 23, 1981. When he was eight years old, he sustained substantial injuries from a vehicular assault by a drunk driver. The accident was reported to the police the same day and eventually resulted in criminal conviction of the driver. Anthony spent nine months in the hospital recovering from his injuries, which included head trauma.
After the accident, Gudenau entered special education classes and experienced difficulties with reading, writing, and memory. He graduated from high school through a special education program. Gudenau worked at an auto detailer for about three and a half years before he was fired because of difficulties with paperwork, communication with clients and following procedures. He currently cleans computer parts for a temporary agency. Gudenau also attends classes at Highline Community College, taking reading and writing prerequisites.
The evidence in the record suggests that Gudenau's cognitive difficulties existed prior to the accident. According to the neuropsychologist's report, "Mr. Gudenau was an emotionally neglected child with clear educational and likely cognitive difficulties prior to the hit and run accident."
From age 14 to 21, Gudenau lived with his aunt. Although, he now lives on his own, he still sees his aunt four or five times a week. His aunt testified that she and her daughter help Gudenau with every aspect of his life — from finances to getting to appointments on time.
Gudenau also communicates with his mother on a regular basis. She became concerned about him after he was fired from the auto detailing shop. She wanted to help him, so began making phone calls. She found out about the CVCA. She was told the deadline was fast approaching so she worked quickly to help her son complete his application for benefits. However, he did not file until March 9, 2004. As a result, the Department denied the application as untimely. Gudenau appealed to the Board and then to superior court, both of which affirmed the Department's decision.
DISCUSSION
The procedure for appellate review of administrative actions governs review of decisions concerning the crime victims compensation act. RCW 7.68.110; Stafford v. Dep't of Labor Indus., 33 Wn. App. 231, 234, 653 P.2d 1350 (1982). In reviewing an administrative action, the appellate court sits in the same position as the superior court. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). "An appellate court accepting an appeal from an agency decision applies the proper standard of review directly to the record of the administrative proceedings and not to the findings and conclusions of the superior court." Brandley v. Dep't of Employment Sec., 23 Wn. App. 339, 342, 595 P.2d 565 (1979). Upon review of the agency record, we will review the Board's findings of fact "for substantial evidence, sufficient to persuade a fair-minded person of the declared premise." Dep't of Labor Indus. v. Mitchell Bros. Truck Line, Inc., 113 Wn. App. 700, 704, 54 P.3d 711 (2002); RCW 34.05.570(3)(e). Conclusions of law are reviewed de novo, with substantial weight accorded to the agency interpretation if the subject falls within the agency's area of expertise. Dep't of Labor Indus. v. Denny, 93 Wn. App. 547, 550, 969 P.2d 525 (1999).
This case involves the application of the statute of limitations tolling statute to the filing requirements of the crime victims compensation act. An application for CVCA benefits must be received within two years of report of the crime to the police. RCW 7.68.060(1)(a). The deadline may be extended to five years for "good cause," which is determined on a case-by-case basis. RCW 7.68.060(1)(a). In this case, it is undisputed that the crime occurred on September 19, 1989, and the benefits application was not filed until March 9, 2004. Unless tolling applies, the application was untimely.
Under RCW 4.16.190(1), tolling applies:
[i]f a person entitled to bring an action mentioned in this chapter. . . . be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW . . . the time of such disability shall not be a part of the time limited for the commencement of action.
The statute of limitations is tolled until the age of majority. The Board applied this statute and determined that the filing requirements were tolled by Gudenau's minority at the time of the vehicular assault. Thus, the time period for the benefits filing deadline did not begin to run until Gudenau turned 18 years old on February 23, 1999.
With application of the tolling provision, the deadline for Gudenau's request for CVCA benefits was February 23, 2001 under the regular, two-year provision, or February 23, 2004 under the "good cause" extension. However, the Department did not receive the benefits application until March 9, 2004. Therefore, Gudenau's request is untimely unless the claim is further tolled based on RCW 4.16.190. Gudenau contends that he qualifies for additional tolling due to "incompetency or disability as determined according to chapter 11.88 RCW." RCW 4.16.190(1).
The Board disagreed.
I. Chapter 11.88 RCW Crime Victim's Compensation Act Filing Requirements
The Department now concedes that prior adjudication of legal incompetence by a superior court is unnecessary based on Rivas v. Eastside Radiology Assoc., 134 Wn. App. 921, 143 P.3d 330 (2006). The Department properly concedes this issue. In Rivas, the court stated, "no petition for nor prior determination of incapacity is required to trigger tolling under RCW 4.16.190." 134 Wn. App. at 923. Instead of adjudication under chapter 11.88 RCW, the tolling statute requires that "the plaintiff must show that a guardianship would have been appropriate had one been sought when the cause of action accrued." Id. at 927. As a result, Gudenau does not need to show prior declaration of legal incapacity. He only needs to demonstrate that he meets the criteria for guardianship under chapter 11.88 RCW.
II. Tolling for Incompetency
The filing deadline can be tolled for "incompetency or disability as determined according to chapter 11.88 RCW." RCW 4.16.190(1). The party asserting entitlement to tolling bears the burden of proof. Rivas, 134 Wn. App. at 927. "[P]laintiff's alleged incapacity must be evaluated on the basis set forth in the guardianship statutes." Id. at 928. Two separate bases exist for incapacitation as defined by RCW 11.88.010(1):
(a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.
(b) For purposes of this chapter, a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.
The person asserting incompetence must provide clear, cogent and convincing evidence of incapacity. RCW 11.88.045(3); Rivas, 134 Wn. App. at 927-28. "There must be substantial evidence from which a rational trier of fact could find the necessary facts by clear, cogent, and convincing evidence." In re Guardianship of Stamm, 121 Wn. App. 830, 842, 91 P.3d 126 (2004).
The Board tailored its factual findings to the language of RCW 11.88.010(1). "Mr. Gudenau suffers from a cognitive disorder, with memory and problem-solving difficulties. He is able to adequately provide for his own nutrition, health, housing, and physical safety. He is able to adequately manage his property and financial affairs. He is able to understand the nature of the proceedings at the Board." We review this finding of fact for substantial evidence.
To contradict this finding, Gudenau claims that "[h]e is only able to provide for his own food and shelter with the assistance of other capable individuals." For example, his aunt helps him with "[p]retty much everything from . . . organizing his finances, money coming in, money going out, making sure and reminding about due dates on bills, helping him keep his checking account straight, enrolling in school, doing things on time . . . anything that we do as adults as far as just managing our daily lives." She often calls to wake him up for work since he does not always remember to set the alarm clock or wake up when the alarm goes off. Gudenau was terminated from his auto detailing job because he had difficulty with paperwork, communication and following procedures. He has difficulties with reading, understanding written instructions, and expressing himself. He needed his mother's help to fill out the application for CVCA benefits. He was unsure of what he needed to write and become frustrated and wanted to throw away the application. His mother then outlined the statement for him and helped revise the drafts that he wrote. Gudenau testified that he probably would not have been able to complete the application without his mother's help.
The neuropsychologist, Alan Breen, Ph.D., described Gudenau's ability to care for himself.
So, my sense was that he was an individual who, left to his own devices, struggles. Money management, taking care of himself, finding work, dealing with problems. His aunt has been a very significant force for the good and from what I was able to gather had she not been there this is a guy who's going to end up in an institution, on the street in a troublesome way, just not able to manage for himself.
Breen also related the details of Gudenau's initial visit. "He ended up coming late, he couldn't find the place. He drove his car but he didn't have any money for parking meters, he was pretty disorganized and he had really no plan of action other than to hopefully find the building and assume something would happen." Breen said that once Gudenau understood what he needed to do, he was able to follow through. However, "clearly he was not able to anticipate what might be easily expected kind of problems." There is evidence of learning disabilities relating to reading, writing, and math. "[T]he data suggest at least mild deficits in information processing." In addition, Gudenau suffers from depression and possible post-traumatic stress disorder. All these problems combine to make it "unlikely that he would consider or seek appropriate assistance, even if he knew about available resources."
According to the neuropsychologist's evaluation, Gudenau has average intellectual abilities, but suffers from difficulty with attention, concentration, complex problem-solving, and memory. Dr. Breen also testified that "there was some indication that perhaps he did not exert his full effort at all times." While Gudenau may need significant help, Breen's final conclusion was that "[w]ith prudent advice he can take care of himself."
Despite the evidence that Gudenau requires assistance in managing his daily adult life, it is not clear, cogent and convincing evidence that he is incapacitated under the chapter 11.88 RCW criteria. He had previously held a job for more than three years and has secured a new job. He has lived by himself for two years, and attends community college classes. The record shows that he can adequately provide for "nutrition, health, housing, or physical safety." RCW 11.88.010(1)(a). He has a rudimentary financial system, and provides no evidence of late or unpaid bills. He has not shown "a demonstrated inability to adequately manage property or financial affairs." RCW 11.88.010(1)(b). While Gudenau may need considerable help from his aunt, substantial evidence supports the finding that he is not legally incapacitated under the chapter 11.88 RCW criteria. As a result, the CVCA benefit filing requirements would not be tolled under RCW 4.16.190(1).
III. Equitable Relief
Gudenau also argues for equitable relief from the strict filing deadlines of the CVCA, claiming that "[t]he courts have recognized in the past, in the context of reviewing Board and Department decisions, that individuals laboring under a cognitive disability or language impairment may be excused from strict adherence to the statutory limitations for filing documents." To support this contention, Gudenau relies on Ames v. Dep't of Labor Indus., 176 Wash. 509, 30 P.2d 239 (1934) and Rodriguez v. Dep't of Labor Indus., 85 Wn.2d 949, 540 P.2d 1359 (1975). In both Ames and Rodriguez, the court allowed injured workers to pursue appeals despite missing the notice of appeal deadlines. These decisions were based on equitable principles that, while not contained in the applicable statutes, "the legislature must have had in mind that equity would relieve in all proper cases from the hardships which otherwise would occur in enforcing the strict letter of the statute." Ames, 176 Wash. at 514. Gudenau requests similar treatment.
However, this equitable remedy is rarely exercised. Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 173, 937 P.2d 565 (1997). "Courts have granted this extraordinary relief in only two cases, Ames v. Department of Labor Industries and Rodriguez v. Department of Labor Industries. In each case, two elements were present: (1) the claimant was unable to understand the order and the appellate process, and (2) LI committed some misconduct in communicating the order." Lynn v. Labor Indus., 130 Wn. App. 829, 839, 125 P.3d 202 (2005). Ames and Rodriguez are distinguishable from the case at hand.
In Ames, the Department knew that the claimant had been committed to Western State Hospital for the insane because the injury report showed this information on its face. 176 Wash. at 510. The notice or the claimant's rejection for workman's compensation benefits was mailed to his home address, despite the Department's knowledge that he was hospitalized. Id. The Department then rejected the notice of appeal of the denial on the grounds of the statute of limitations. Id. at 512. The court granted relief from the statute of limitations because the Department acted ex parte while it knew the claimant was insane and in no condition to appeal. Id. at 514.
In Rodriguez, the claimant spoke only Spanish and was illiterate in both Spanish and English. 85 Wn. 2d at 950. A letter closing his injury claim was written in English. Id. All previous communication between the claimant and the Department required an interpreter, who was ill and unable to interpret the letter for him. Id. Rodriguez did not understand the import of the notice for several months. Id. The court determined that proceeding with the appeal would not substantially prejudice the Department and that "appellant was extremely illiterate and himself unable to ascertain or understand the nature and contents of the order communicated and the [D]epartment knew or should have known of appellant's illiteracy at the time it closed his claim." Id. at 955. As a result, the court granted equitable relief.
The Department rightly argues that equitable relief is limited in scope to cases in which the Department had knowledge of the claimant's limitations and took advantage of those limitations. The circumstances in this case differ. While it appears that nobody ever informed Gudenau or his family about the availability of CVCA benefits, the evidence does not show that the Department was aware of Gudenau's problems and used them to its advantage. Equitable remedies have not been applied to relieve the claimant of statute of limitation requirements without Department wrongdoing. Such remedies are not applicable here.
Gudenau also urges the court to consider the language of RCW 7.68.060, that "[i]n making determinations as to reasonable time limits, the department shall give the greatest weight to the needs of the victim." However, this legislative directive only applies to the filing deadlines for two specific scenarios.
In the first situation, RCW 7.68.060(1)(b) instructs the department to give weight to the victim's needs when the criminal act was not reported to the police within twelve months of the occurrence of the crime or when the report could reasonably have been made. The consideration of victim's needs when determining reasonable time limits also applies to victims of repressed memory and allows for the rights of adult victims of childhood acts to accrue "at the time the victim discovers or reasonably should have discovered the elements of the crime." RCW 7.68.010(1)(b)(3). This directive does not apply to deadlines outside of these two specific scenarios. Since the assault on Gudenau was reported the day it occurred and he is not a victim of repressed memory, the reasonableness weighing is not applicable.
We affirm.
WE CONCUR: