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2018 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)

AGGRAVATION

First terminal date: Order on Agreement of Parties

When an agreement back dates the date of claim closure, the effective date of claim closure will nevertheless be the date the Department last adjudicated the merits of the claim. ….In re Saioloa Muasau, BIIA Dec., 17 12438 (2018) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 18-2-09825-0.]

ASSESSMENTS

Effect of failure to allow inspection of records (RCW 51.48.040)

A firm's failure to produce business records at an initial meeting with a Department investigator does not constitute a refusal to allow adequate inspection under RCW 51.48.040. ….In re Mountain Terrace Builders, BIIA Dec., 18 10226 (2018)

BOARD

Reassignment of Industrial Appeals Judge

* Affidavit of prejudice

Parties to an appeal may file an affidavit of prejudice to disqualify an industrial appeals judge assigned to conduct hearings, but after the hearings have been completed by one judge, the parties may not disqualify a judge who was reassigned solely for the purpose of issuing a Proposed Decision and Order. ….In re Gail Gomez, BIIA Dec., 17 15610 (2018) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 19-2-00765-6 KNT.]

DEPARTMENT

* Authority to accept conditions under a claim

Symptoms will not be allowed as an accepted condition under a claim and are distinguishable from diagnosable medical conditions. ….In re Kamil Nemr, BIIA Dec., 15 24606 (2018)

Authority to issue subsequent order while appeal pending

The Department may further adjudicate a claim when an appeal of an order segregating a condition is pending. To the extent the decision in In re Betty Wilson, BIIA Dec., 02 21517 (2004) determined it was erroneous as a matter of law to continue to adjudicate the claim, that decision is overruled. ….In re David Spitzner, BIIA Dec., 17 24346 (2018)

* Authority to segregate undiagnosed condition

The Department's segregation of a condition without evidence that the worker has been diagnosed with the condition is improper. ….In re Juan Rodriguez, BIIA Dec., 17 14084 (2018); ….In re Dennis Johnson, BIIA Dec., 17 18840 (2018)

JOINDER

Single claim, multiple possible employers/insurers

It is not necessary to join all potential responsible insurers to determine allowance of an occupational disease claim. Evidence that distinctive conditions of employment within Washington caused an occupational disease is sufficient to allow the claim and remand to the Department to determine the responsible insurer. ….In re Maria Gomez, BIIA Dec., 16 23157 (2018)

RETROSPECTIVE RATINGS

Relief from retrospective rating assessment

A retrospective rating group will not be relieved of an obligation to pay assessments based on a plan it believed would result in refunds. Retrospective ratings involve the assessment of risk and retrospective rating group must accept that plan choice and claims costs can negatively impact premiums. ….In re Washington State Farm Bureau, BIIA Dec., 15 23088 (2018) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 18-2-06281-8.]

SAFETY AND HEALTH

* Knowledge requirement

"Employee misconduct" defense

Although a supervisor's knowledge may be imputed to the employer for purposes of establishing a violation of a safety standard, an employer may nevertheless be able to establish the affirmative defense of employee misconduct when the supervisor's misconduct was the basis of the violation. ….In re Tyson Fresh Meats, BIIA Dec., 17 W1079 (2018) [Editor's Note: The Board's decision was appealed to superior court under Walla Walla County Cause No. 19-2-00050-4.]

WAGES

* Kept on salary (RCW 51.32.090(8))

A worker's wages at the time of injury as determined by the final Department order determines the adequacy of wages paid under the kept on salary provisions of RCW 51.32.090(8). ….In re Miguel Escorcia, BIIA Dec., 17 12979 (2018) [Editor's Note: The Board's decision was appealed to superior court under Cowlitz County Cause No. 18-2-00757-8.]

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