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2019 significant decisions

Proper citation form for significant decisions

Do not use a middle initial. In re is not followed by a colon. For cases after 1985, the first two numbers of the docket designate the year of the appeal, and the docket numbers do not contain a comma.

In re Edith Colbo, BIIA Dec., 16,117 (1968)
In re Michael Bell, BIIA Dec., 11 15598 (2012)

 

Decisions issued by the Board, which have not been identified as significant, should not be cited as if they were significant. The proper citation form for a Board decision and order not identified is:

In re Injured T. Worker, Dckt. No. 00 00000 (February 1, 1900)

BOARD

Equitable powers

Under the principle of stare decisis, we have previously stated that we will grant equitable relief in cases with such similar facts as to be almost identical to cases that have been passed upon by appellate courts. While we continue to honor stare decisis, we will grant equitable relief where the circumstances are appropriate and within those situations and guidelines set out by our courts; honoring stare decisis does not require we only apply the doctrine in cases with such similar facts as to be almost identical. In doing so, we are not creating equitable remedies, but granting them where our courts have determined them applicable. ….In re Lyle Applegate, BIIA Dec., 18 16730 (2019)

COMMUNICATION OF DEPARTMENT ORDER

Failure to provide order to attending physician

When a closing order is mailed to an attending physician at an incorrect address rather than to that physician's professional address of record, it is not communicated as required by Shafer v. Dep't of Labor & Indus., 166 Wn.2d 710 (2009). ….In re Kenneth Gildon, BIIA Dec., 18 11673 (2019)

Presumptions of mailing and receipt

The presumption of delivery of an order in the due course of the mail cannot be rebutted by a party's deliberate choice to avoid checking his mail or negligent decision to disregard or fail to read an order properly mailed and delivered to the correct address. The presumed date of delivery is the start of the time period in which to appeal or protest and the party's failure to check the mail will not delay the start of that time period. ….In re Mario Malarchick, BIIA Dec., 18 30609 (2019) [dissent]

EVIDENCE

Hearsay statement of non-testifying expert

When no objection is made to a hearsay statement of a non-testifying expert, the statement is admissible as substantive evidence. ….In re Leticia Sanchez Jimenez, BIIA Dec., 18 21048 (2019) [Editor's Note: The Board's decision was appealed to superior court under Franklin County Cause No. 19-2-50226-9.]

Rebuttal—prior inconsistent statements

Claimant's request for rebuttal testimony to show a prior inconsistent statement of a witness is proper rebuttal. The testimony could not have been properly offered during the claimant's case-in-chief, because if a witness has not yet testified, the witness's prior out-of-court statements are inadmissible because there is no testimony to impeach. ….In re Melinda Christopher, BIIA Dec., 18 18038 (2019) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 19-2-02665-06.]

INJURY (RCW 51.08.100)

Psychiatric conditions with pain as primary symptom - WAC 296-14-300(3)

WAC 296-14-300(3) purports to limit coverage of mental conditions that specify pain primarily as a psychiatric symptom (for example, somatic symptom disorder, with predominant pain) or that are characterized by excessive or abnormal thoughts, feelings, behaviors, or neurological symptoms (for example, conversion disorder, factitious disorder) by declaring they are not clinically related to occupational exposure. By using the term occupational exposure in the regulation, the Department made clear its intent that the regulation does not apply to industrial injury claims. ….In re Martha Perez, BIIA Dec., 18 10694 (2019) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 19-2-02372-39.]

OCCUPATIONAL DISEASE (RCW 51.08.140)

Psychiatric conditions with pain as primary symptom - WAC 296-14-300(3)

WAC 296-14-300(3) purports to limit coverage of mental conditions that specify pain primarily as a psychiatric symptom (for example, somatic symptom disorder, with predominant pain) or that are characterized by excessive or abnormal thoughts, feelings, behaviors, or neurological symptoms (for example, conversion disorder, factitious disorder) by declaring they are not clinically related to occupational exposure. By using the term occupational exposure in the regulation, the Department made clear its intent that the regulation does not apply to industrial injury claims. ….In re >Martha Perez, BIIA Dec., 18 10694 (2019) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 19-2-02372-39.]

PERMANENT TOTAL DISABILITY (RCW 51.08.160)

Option II or III benefits under RCW 51.32.067

RCW 51.32.067 is quite clear that the option to receive actuarially reduced benefits for a spouse is a one-time option at the time the injured worker becomes eligible for the payment of permanent total disability benefits. The statute does not provide the discretionary ability to transfer actuarially reduced pension benefits to any and all future spouses. ….In re Patrick Sundberg, BIIA Dec., 18 35409 (2019) [dissent][Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 19-2-04145-39.]

SCOPE OF REVIEW

Willful misrepresentation

The scope of review in willful misrepresentation appeals extends to consideration of the effect of innocent misrepresentations on the worker's entitlement to benefits and whether the Department can recoup any overpayment of them. ….In re Jennifer Bond BIIA Dec., 18 11296 (2019)

TIME LOSS COMPENSATION (RCW 51.32.090)

Undocumented worker

A worker knowingly used a false social security number to obtain employment and the employer is now barred by law from hiring the worker because of the absence of a valid social security number. The worker is not entitled to time-loss compensation benefits even if they are offered a light-duty job they are physically capable of performing. ….In re Patricia Valentin, BIIA Dec., 17 10974 (2019) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 19-2-06090-1.]

TREATMENT

Proper and necessary medical and surgical services (RCW 51.36.010)

The rule for respiratory impairment, WAC 296-20-370, accepts that workers at maximum medical improvement can still be taking maintenance medication. Where the severity and treatment of the condition has changed little over several years, and the medical testimony establishes that the occupational condition is medically fixed and stable, the claim may not remain open solely to provide maintenance medication so long as cessation would not result in dire and certain consequences like a swift and life-threatening exacerbation or job-threatening disability. ….In re Laura Givich, BIIA Dec., 17 21454 (2019) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 19-2-00979-5.]

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