A Spokane attorney says he will ask the Washington State Supreme Court to review a Spokane appellate court finding that his client’s worker-injury claim, submitted to the Washington state Department of Labor and Industries, was invalid because it was filed one day too late.

The statute of limitations for filing such elaborate claims is one year, says attorney Thomas “Tod” Doran. At issue: What constitutes a year?

“It’s accepted that if you were born on Feb. 23 then you’re not going to celebrate your birthday on Feb. 22,” Doran says. “But essentially that’s what the appeals court has ruled.” 

By a 2-1, vote, the state Division III court of appeals panel ruled that Doran’s client, Spokane resident John Kovacs, was a day late in filing his worker-injury claim on Sept. 29, 2011,  after claiming to have suffered an injury on Sept. 29, 2010, court records say.

Spokane County Superior Court Judge Mike Price earlier had ruled in favor of Kovacs’ application for worker’s compensation benefits, overruling a Board of Industrial Insurance Appeals decision to deny his claim. The board had ruled Kovacs’ claim wasn’t filed within the legally prescribed one year from the date of injury.

In response to Price’s decision, the Department of Labor and Industries appealed the decision to the appellate court.

“We agree with the DLI, reverse the superior court, and reinstate the Board’s decision,” the appellate court panel wrote in its decision last month.

Court papers say Kovacs, now 47, claims he was injured while working at PRO Heating & Air Conditioning on Sept. 29, 2010. Doran says Kovacs was a journeyman sheet metal employee who had been with the company, located at 4808 N. Rebecca in Spokane, for almost a decade. Kovacs says he injured his back while swinging a pick ax as part of a building expansion project to which he was assigned.

The company is now Pro Mechanical Services Inc. 

It was purchased by Jon Vanos, who bought out former owner Rick Schrader. Vanos was previously its vice president of operations when Kovacs says his injury occurred. While the timing of the filing is at issue and not the injury itself, Vanos disputes the fact that Kovacs ever became injured on the job.

“Before he quit on us in the middle of a project, he told some employees that he worked with that he hurt his back trying to remove a tree stump out of his yard,” Vanos says. “I haven’t had a chance to see everything that has happened in court. To us it’s not a matter of whether or not he filed within a year, the issue to us is—this never happened.”

Doran claims Kovacs says he told the company of his back pain and sought medical treatment from his doctor. Over time, his back condition deteriorated. Doran says the company wasn’t receptive to Kovacs’ physical situation. “The doctor said ‘no climbing on ladders,’ the company would then put him on ladders,” Doran contends.

Vanos says Kovacs never informed the company of his back pain. Kovacs finally left the company, and on the anniversary of the injury he submitted his worker’s compensation claim, Doran says, adding, “The company told Kovacs not to file the claim.”

“I was told by my employer’s shop foreman not to file a claim with the state of Washington,” Kovacs wrote. “Today is the last day that I can file. I will get the doctor’s portion filled out right away.”

The appeals court noted that RCW, 51.28.500 states: “No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred.”

“DLI and Mr. Kovacs disagree on the meaning of the statute. DLI argues RCW 51.28.050 means an application for benefits must be filed within one year from the date of injury. Mr. Kovacs argues RCW 51.28.050 means the one-year time limitations begins on the day after the injury consistent with RCW 1.12.040, the general counting statute for civil actions,” the appeals court wrote.

The appellate court cited a 1941 case and 2001 case in which compensation claims were deemed to be untimely as they were each filed on the anniversary date of the injury.