FILED COURT OF APPEALS DIV I

STATE OF WASHINGTON Z0IUAN2I AHIIs U8

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON MICHAEL SMITH, Appellant,

DEPARTMENT OF LABOR & INDUSTRIES, and EASTSIDE GLASS & SEALANTS, Respondents. No. 69408-1-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: January 21, 2014 Schindler, J. — Michael Smith challenges dismissal of his appeal ofthe decision and order ofthe Board of Industrial Insurance Appeals. Because Smith did not comply withthe mandatory statutory service requirements ofRCW 51.52.110, we affirm. FACTS The facts are undisputed. On December 19, 2011, the Board of Industrial Insurance Appeals (Board) issued a decision and order denying Smith's requestfor 

### worker compensation benefits. Smith's attorney received a copy of the Board's decision and order on December 21, 2011. Smith filed a notice of appeal in the superior court on 

### January 20, 2012. Smith mailed a copy of the notice ofappeal to the Department of Labor and Industries (Department), the Board, and the Attorney General's Office (AGO), with a postmark of January 23, 2012.No. 69408-1-1/2 

### The Departmentfiled a motion to dismiss for failure to perfectthe appeal. The Department argued that Smith did not comply withthe statutory requirement to serve a copy ofthe notice ofappeal on the Department and the Board within 30 days afterthe Board's decision and order as required by RCW 51.52.110. The Department provided copies ofthe envelopes with a postmark ofJanuary 23, 2012 that were sent to the Department, the Board, and the AGO. In opposition, Smith submitted a declaration from his attorney and the attorney's paralegal. The paralegal stated that she had "no specific recollection ofthe filing or mailing" ofthe notice of appeal but, based on the certificate of service, believed that she had mailed the notice ofappeal "insealed envelopes, with postage prepaid" to the Department, the Board, and the AGO on January 20, 2012. Smith's attorney stated that 

### "[i]n the week leading up to January 20, 2012, the region suffered from severe winter

snow and ice storms" but "we did not lose power and were open for business." 

### The superior court scheduled an evidentiary hearing on service. Witnesses for 

### the Board, the Department, and the AGO testified that they did not receive the notice of appeal until January 25, 2012. Smith's paralegal testified that "[according to my 

### Certificate ofService itsays Imailed it on January 20th and that's all Ican rely on." The 

### paralegal was not able to explain why the envelopes were postmarked January 23, 2012. The paralegal did not recall snow or ice causing her any problems that day. Atthe conclusion ofthe hearing, the court found that Smith did not timely serve 

### the notice of appeal: "[W]hatwas consistentwith each of the State's witnesses is thatNo. 69408-1-1/3 they recall receiving only one envelope, all those envelopes were dated January 23rd, there's no record of any envelopes dated January 20th." However, the court reserved ruling on the motion to dismiss pending submission ofadditional briefing on whetherthe court had discretion to allow the appeal to proceed despite untimely service. Following submission of additional briefing, the court granted the motion to dismiss and entered findings of fact and conclusions of law. The findings state: 1.1 On December 21, 2011, Plaintiff's counsel received the Board of Industrial Insurance Appeals' Decision and Order dated December 19,2011. 1.2 Plaintiffs 30-day time limitto file and serve his notice ofappeal expired on January 20, 2012. 

### 1.3 On January 20, 2012, Plaintifffiled an appeal to the December 19, 2011 Decision and Orderwith the King County Superior Court. 1.4 Plaintiffserved the Board, the Department, and the Attorney General's Office on or after January 23, 2012. 

### The court concluded that Smith's appeal had not been perfected as required by RCW 51.52.110. Smith appeals. ANALYSIS 

### On appeal, Smith does notchallengethe court'sfindings.1 Smith concedes he did not serve the notice ofappeal on the Board, the Department, or the AGOwithin the 

### 30-daytimelimit as required byRCW 51.52.110. Nevertheless, Smith asserts that the superior court erred in failing to recognize it had the discretion to allow his appeal to proceed despite untimely service.

1Unchallenged findings areverities onappeal. In reMarriage ofVanderVeen, 62Wn. App. 861, 865, 815 P.2d 843 (1991).No. 69408-1-1/4
We review de novo a superior court's dismissal of an action for insufficient service ofprocess. Witt v. Port ofOlvmpia. 126 Wn. App. 752, 757, 109 P.3d 489 (2005). RCW 51.52.110 establishes the exclusive means ofappealing from a decision ofthe Board: Within thirty days after a decision ofthe board to deny the petition or petitions for review upon such appeal has been communicated to such worker, beneficiary, employer or other person, or within thirty days after the final decision and order ofthe board upon such appeal has been communicated to such worker, beneficiary, employer or other person, or within thirty days afterthe appeal is denied as herein provided, such worker, beneficiary, employer or other person aggrieved bv the decision and order ofthe board mav appeal to the superior court....

... Such appeal shall be perfected bv filing with the clerk ofthe 

### courtanotice ofappeal and bv serving acopythereofbv mail, or personally, on the director and on the board.[] 

### The statute is clear and unambiguous. Inorderto perfect an appeal of a Board decision and order, the appellant "shall" serve a copy ofthe notice ofappeal inperson 

### or by mail on the Board and the Department. RCW51.52.110. Such service must be accomplished within 30 days ofthe Board's decision and order being communicated to the appellant. RCW51.52.110; Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 198, 796 P.2d 412 (1990). The word "shall" in a statute imposes a mandatory duty unless a contrary 

### legislative intent is apparent. State v. Krall, 125 Wn.2d 146,148, 881 P.2d 1040 (1994). By contrast, where a statute says that a matter "may" be dismissed for failure to substantially complywith the service requirement, dismissal is discretionary and we review a superior court's decision to dismiss for abuse ofthat discretion. Spokane
(Emphasis added.)No. 69408-1-1/5 

### County v. E. Wash. GrowthMgmt. Hearings Bd.. 173 Wn. App. 310, 323-24, 293 P.3d 1248(2013). 

### We conclude the legislature's use ofthe word "shall" indescribing the appellant's duty to perfect the appeal imposes a mandatory obligation to serve the notice ofappeal on the Board and the Departmentwithinthe 30-day time limit. RCW 51.52.110. Because there is no dispute Smith did not comply with RCW 51.52.110, the superior court did not err in dismissing his appeal. Sprint Spectrum, LP v. Department of Revenue, 156Wn. App. 949, 235 P.3d 849 (2010), is analogous and supports our conclusion. Sprint Spectrum involved the service requirements for an appeal of an administrative agency's final order underthe Administrative Procedure Act (APA), chapter 34.05 RCW. RCW 34.05.542(2) requires that "[a] petition for judicial review ofan order shall be filed with the court and served on the agency, the office ofthe attorney general, and all parties ofrecord within thirty days 

### afterservice ofthefinal order."3 Theappellant in Sprint Spectrum served copies ofits notice ofappeal on the Department of Revenue but did not serve the Board ofTax Appeals. Sprint Spectrum, 156 Wn. App. at 952. On appeal, we held that under the 

### plain and unambiguous language ofthe statute, the failure to timely serve a copy of the notice ofappeal on the Board ofTax Appeals supported the superiorcourt's dismissal ofthe appeal. Sprint Spectrum. 156 Wn. App. at 953-55.

3(Emphasis added.)No. 69408-1-1/6 

### Smith attempts to distinguish Sprint Spectrum on two grounds. First, Smith argues that unlike the APA,the Industrial Insurance Act (MA), Title 51 RCW, is to be "liberallyconstrued" inthe employee's favor. See RCW 51.12.010; Dennis v. Dep't of 

### Labor &Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). Accordingly, "where reasonable minds can differoverwhat Title 51 RCW provisions mean, inkeeping with the legislation's fundamental purpose, the benefit ofthe doubt belongs to the injured worker." Cockle v. Dep't ofLabor &Indus.. 142 Wn.2d 801, 811, 16 P.3d 583 (2001). But here, because the requirement to perfect an appeal of a decision and order under the IIA is not ambiguous, reasonable minds cannot differ. Smith also claims that Sprint Spectrum held that dismissal of the appeal was appropriate because the failure to comply withthe statutory requirements deprived the superior court ofsubject matterjurisdiction. Citing ZDl Gaming, Inc. v. Washington State Gambling Commission, 173 Wn.2d 608, 268 P.3d 929 (2012), Smith argues that "the existence ofsubject matterjurisdiction is a matter of law and does not depend on procedural rules." ZDJ, 173 Wn.2d at 617. But Sprint Spectrum did not affirmdismissal ofthe appeal onjurisdictional grounds. The court held that the "failure to timely serve a 

### copy of the petition on the Board was a failure to comply withthe express terms of the statute," and "noncompliance with the service requirements ofthe statute supports the 

### superiorcourt's dismissal ofthe petition." Sprint Spectrum. 156 Wn. App. at 955, 963.No. 69408-1-1/7
Because the uncontroverted facts establish that Smith did not comply with the 

### mandatory statutory requirements under RCW 51.52.110to perfect his appeal ofthe Board's decision and order, we affirm. 

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WE CONCUR: 

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