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Significant decisions subject index

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)


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ABATEMENT (RCW 51.32.040)

ABUSE OF DISCRETION

ACCIDENT REPORT

AGGRAVATION (RCW 51.32.160)

"APPEALABLE ONLY" ORDER

APPEALABLE ORDERS

APPLICATION FOR BENEFITS

APPLICATION TO REOPEN CLAIM

APPORTIONMENT BETWEEN INSURERS

ASSESSMENTS

ATTENDANT SERVICES

ATTENDING PHYSICIAN

ATTORNEY FEES FIXED BY BOARD (RCW 51.52.120)

AUDIOLOGISTS

BENEFICIARIES

BENEFITS PENDING APPEAL

BOARD

BURDEN OF PROOF

CAUSAL RELATIONSHIP

CHIROPRACTORS

COLLATERAL ESTOPPEL

COLLATERAL SOURCE RULE

COMBINED EFFECTS

COMMUNICATION OF DEPARTMENT ORDER

COMPUTATION OF BENEFITS

CORPORATE OFFICERS, DIRECTORS AND SHAREHOLDERS

COSMETIC DEFECT

COURSE OF EMPLOYMENT (RCW 51.08.013; RCW 51.08.180(1))

COVERAGE AND EXCLUSIONS

CRIME VICTIMS COMPENSATION

CUSTODY OF CHILDREN

DENIAL OF APPEAL

DEPARTMENT

Administration costs, self-insurers

Administrative convenience

Agreed examination

Ambiguous orders

Authority of Department not to pursue collection of final assessment

Authority to accept conditions under a claim

Authority to adjudicate claim after closure

Authority to adjudicate claim after closure – medical bills

Authority to bind parties to final disposition - See APPEALABLE ORDERS Department Agreed Exam

Authority to honor support enforcement lien

Authority to issue further adherence order

Authority to issue nunc pro tunc order

Authority to issue order while superior court appeal pending

Authority to issue subsequent order once the period for appeal has passed

Authority to issue subsequent order while appeal pending

Authority to modify order

Authority to recoup overpayment of benefits – See also SELF-INSURANCE Authority to recoup overpayment of benefits

Authority to regulate out-of-state providers – See PROVIDERS

Authority to reimburse travel expenses WAC 296-20-1103

Authority to reject claim for commission of felony RCW 51.32.20

Authority to segregate undiagnosed condition

Delegation of authority to issue Notices and Orders of Assessment – See ASSESSMENTS

Delegation of authority to receive protests and requests for reconsideration – See PROTESTS

Determination of new injury vs. aggravation (WAC 296-14-420) – See also JOINDER Department as necessary party

Employer inclusion in claims administration

Ministerial orders

Providers – See PROVIDERS

Reassumption of jurisdiction (RCW 51.48.131) – See ASSESSMENTS

Reassumption of jurisdiction (RCW 51.52.060)

Reassumption of jurisdiction – WISHA - See SAFETY AND HEALTH Reassumption of jurisdiction by Department

Rules

Void order

DEPOSITIONS

DIMINUTION OF DISABILITY (RCW 51.32.160)

DISCOVERY

DISCRETIONARY DECISIONS

EMPLOYER-EMPLOYEE (RCW 51.08.070; RCW 51.08.180)

EMPLOYER'S FAILURE TO PROVIDE MEDICAL CARE

EQUITABLE POWERS

ETHICS

EVASION OF BURDENS (RCW 51.04.060)

EVIDENCE

EXCLUSIONS FROM COVERAGE

EXEMPTION OF AWARDS (RCW 51.32.040)

EXPERT TESTIMONY

EXTRATERRITORIAL COVERAGE

EYEGLASSES

FIXITY OF CONDITION

FRAUD

HEARING LOSS

HEART ATTACK

INDEPENDENT CONTRACTORS

INJURY (RCW 51.08.100)

INTEREST (RCW 51.52.135)

INTERPRETERS

INTERVENTION

JOINDER

JURISDICTION

LIGHT DUTY

LONGSHOREMEN'S AND HARBOR WORKER'S COMPENSATION ACT

LOSS OF EARNING POWER (RCW 51.32.090(3))

MARITIME CLAIMS

MEDICAL BILLS

MISCELLANEOUS SERVICES AND APPLIANCES - WAC 296-23-165

MINISTERIAL ORDERS

MOTION TO DISMISS

NOTICE OF APPEAL (RCW 51.52.050, RCW 51.52.060)

OCCUPATIONAL DISEASE (RCW 51.08.140)

OFFSETTING PRIVATE INSURANCE BENEFITS AGAINST TIME-LOSS COMPENSATION

PENALTIES (RCW 51.48.017)

PENSION RESERVE

PERMANENT PARTIAL DISABILITY (RCW 51.32.080)

PERMANENT TOTAL DISABILITY (RCW 51.08.160)

PETITIONS FOR REVIEW (RCW 51.52.104; RCW 51.52.106)

PRIMA FACIE CASE

PROCEDURE BEFORE BOARD

PROPERTY DAMAGE AS A RESULT OF "INDUSTRIAL ACCIDENT" (RCW 51.36.020)

PROTEST AND REQUEST FOR RECONSIDERATION (RCW 51.52.050)

PROVIDERS

PROXIMATE CAUSE

PSYCHOLOGISTS

REASSUMPTION OF JURISDICTION (RCW 51.52.060)

REFUSAL TO ATTEND MEDICAL EXAMINATION

RES JUDICATA

RETROACTIVITY OF STATUTORY AMENDMENTS

RETROSPECTIVE RATINGS

SAFETY AND HEALTH

SANCTIONS

SCOPE OF REVIEW

SECOND INJURY FUND (RCW 51.16.120)

SELF-INSURANCE

SOCIAL SECURITY DISABILITY OFFSET (RCW 51.32.220)

SOCIAL SECURITY RETIREMENT OFFSET (RCW 51.32.225)

STANDARD OF PROOF

STANDARD OF REVIEW

STANDING

STARE DECISIS

STATUTES

STATUTES OF LIMITATION

STATUTORY AMENDMENTS

STATUTORY PENSION (RCW 51.08.160)

STAYS ON APPEAL

SUBSEQUENT CONDITION TRACEABLE TO ORIGINAL INJURY

SUCCESSIVE INSURERS

SUICIDE (RCW 51.32.020)

SUMMARY JUDGMENT

SURVIVOR'S BENEFITS

SUSPENSION OF BENEFITS (RCW 51.32.110)

THIRD PARTY ACTIONS (RCW 51.24)

TIME-LOSS COMPENSATION (RCW 51.32.090)

Attending physician's recommendation against return to work

Certification by vocational rehabilitation counselor

Certification for available light work (RCW 51.32.090(4))

Child born after date of injury

Compensation

Eligibility

Eligibility where capable of performing light work

Eligibility while attending medical evaluation

Eligibility while undergoing vocational rehabilitation (RCW 51.32.095(3))

Entitlement beyond date condition becomes fixed

Intermittent employment

Marital status

No presumption of continued eligibility

Orders void ab initio

Provisional time-loss compensation (RCW 51.32.190(3) and RCW 51.32.210)

Recovery of overpayment of benefits (RCW 51.32.240(1)) - See DEPARTMENT Authority to recoup overpayment of benefits

Res judicata – See RES JUDICATA Wages at time of injury

Scope of review – See SCOPE OF REVIEW Time-loss compensation

Seasonal employment – See also Wages – Intermittent/seasonal, full time or other usual wages paid others

Simultaneous loss of earning power and time-loss compensation

Sporadic employability

Stay at work (RCW 51.32.090(4))

Termination from modified position

Voluntary retirement

Wage at time of injury – See RES JUDICATA Wages at time of injury

Wage continuation precludes time-loss compensation (RCW 51.32.090(6))

Wages (RCW 51.08.178) - Compensation

Wages (RCW 51.08.178) - Compensation for overtime pay

Wages – Intermittent/seasonal, full time or other usual wages paid others

Wages (RCW 51.08.178) - Unemployment compensation

Wage rate

TIMELINESS

TIMELINESS OF APPLICATION TO REOPEN CLAIM (RCW 51.32.160)

TIMELINESS OF CLAIM (RCW 51.28.050; RCW 51.28.055)

TIMELINESS OF NOTICE OF APPEAL

TREATMENT

UNUSUAL EXERTION

VOCATIONAL REHABILITATION

WAGES (RCW 51.08.178)

WAIVER OF BENEFITS (RCW 51.04.060)

WILLFUL MISREPRESENTATION

WISHA

WORKER


ABATEMENT (RCW 51.32.040)

Where the widow died leaving no surviving beneficiaries after the Board had granted the Department's petition for review from a proposed decision and order granting the widow a pension, but before the Board had issued its decision and order, the widow's accrued pension benefits were not payable to her estate.? ….In re Johanna Hoerner, Dec'd, BIIA Dec., 70 575 (1986) [Editor's Note: Consider the effect of 1999 Legislative changes to RCW 51.32.040 which make accrued benefits payable to the estate.? The Board's decision was appealed to superior court under Benton County Cause No. 86-2-00646-7.]

?Where the worker died leaving no surviving beneficiaries after the proposed decision and order granting him a pension had been issued, but before it had been adopted by the Board, the worker's accrued pension benefits were not payable to his estate.? ….In re Leo Gilmore, Dec'd, BIIA Dec., 57,759 (1981) [Editor's Note: Consider the effect of 1999 Legislative changes to RCW 51.32.040 which make accrued benefits payable to the estate.]

?At the time of the worker's death no specific disability rating had been communicated to the Department but all the evidence necessary to rate disability was available through the attending physician, who had found the worker's condition fixed and ratable prior to the worker's death.? The Department should have secured such evidence and, if disability was found, paid the award therefore to the surviving beneficiary. ?….In re Bernard Nickolai, Dec'd, BIIA Dec., 38,266 (1971)

ABUSE OF DISCRETION

See AGGRAVATION, MEDICAL BILLS, SCOPE OF REVIEW, STANDARD OF REVIEW, THIRD PARTY ACTIONS, and VOCATIONAL REHABILITATION

ACCIDENT REPORT

See APPLICATION FOR BENEFITS

AGGRAVATION (RCW 51.32.160)

See also APPLICATION TO REOPEN CLAIM, DIMINUTION OF DISABILITY, OCCUPATIONAL DISEASE, PERMANENT PARTIAL DISABILITY, PERMANENT TOTAL DISABILITY, RES JUDICATA, RETROACTIVITY OF STATUTORY AMENDMENTS, SUBSEQUENT CONDITION TRACEABLE TO ORIGINAL INJURY, and TIMELINESS OF APPLICATION TO REOPEN CLAIM

Applicability of 1988 amendments

The 1988 amendments to RCW 51.32.160 were remedial in nature and apply to any application to reopen a claim filed subsequent to the effective date of the amendments, June 9, 1988.? ….In re Marven Sandven, BIIA Dec., 89 3338 (1990) [Editor's Note: See Campos v. Department of Labor & Indus., 75 Wn. App. 379 (1994) determining that amendment's seven-year limitation does not violate equal protection.]

"Deemed granted" application to reopen claim

Where the Department grants a worker's application to reopen for aggravation, the employer timely protests the reopening order, and the Department holds the reopening order in abeyance, the Department must deny the application to reopen within the time limits set out in RCW 51.52.060 or the application to reopen will be deemed granted.? ….In re Raymond Belden, BIIA Dec., 12?14005 (2013) [Editor's Note: The Board's decision was appealed to Spokane County Superior Court, No. 13-2-01191-8.]

After the Department places in abeyance the terms of an order that extends the time in which to act on an application to reopen the claim, the time to act is no longer extended.? The application to reopen must be deemed granted if not acted on or again extended within 90 days of receipt of the application as required by RCW 51.52.060(4).? ….In re Ingrid Evanoff, BIIA Dec., 08?18344 (2008) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 08-2-02400-5.]

?The employer's ability under RCW?51.52.060(5) to appeal a deemed-granted application to reopen on the merits does not create a comparable ability to protest a deemed-granted application to reopen.? ….In re Stephen Murphy, BIIA Dec., 02?12603 (2003)

?The 1995 amendment to RCW 51.52.060 reduced the time the Department has to place in abeyance the terms of orders involving applications to reopen claims.? If an application to reopen is filed before the effective date, the statutory changes do not apply to the application to reopen.? Additionally, even if the 1995 amendments could be applied, the failure of the Department to act within the proscribed time period will not result in the application being "deemed granted."? ….In re Elois Short, BIIA Dec., 95 4522 (1996) [dissent]

?When there has been an appeal of an order closing the claim and an application to reopen filed while the appeal is pending, the Department has 90 days from the final order of the Board or Court to issue an order on the application or the application will be deemed granted.? The Department should not act upon an application to reopen the claim when the appeal from the claim closure is still pending in light of Reid v. Department of Labor & Indus., 1 Wn.2d 430 (1939). Distinguishing Marley v. Department of Labor& Indus, 125 Wn.2d 533 (1995).? ….In re Greg Ackerson, BIIA Dec., 94 1135 (1995) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 95-2-00808-5.? The Board has partially overruled this decision to the extent the decision relies on the concept of subject matter jurisdiction.? In re Betty Wilson, BIIA Dec., 02 21517 (2004), In re Jorge Perez-Rodriquez, BIIA Dec., 06 18718 (2008).]

?Where the Department received a copy of a Superior Court judgment regarding the appeal of the last order closing the claim and the time for acting on the application to reopen the claim has passed, resulting in the application being deemed granted, the consequence is that the claim is considered to have been reopened for temporary worsening or aggravation--the worker must still prove entitlement to further benefits.? ….In re Margaret Casey, BIIA Dec., 90 5286 (1992) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 92-2-04909-6.]

The Department's failure to respond to a physician's submission of office notes recommending further treatment within the time prescribed by RCW 51.32.160, the application to reopen is deemed granted, notwithstanding the provisions of WAC 296-14-400.? WAC 296-14-400 is invalid to the extent it is an attempt to delay the running of the 90-day period within which the Department is required to act following the filing of an application to reopen a claim for aggravation of condition. ?….In re Wallace Hansen, BIIA Dec., 90?1429 (1991) [Editor's Note: Cf. Tollycraft Yachts v. McCoy, 122 Wn.2d 426, 433 (1993).]

?An order extending the time in which the Department must act on an application to reopen the claim must be entered before the initial time allowed by RCW?51.32.160 has passed.? An order purporting to further extend the time, entered after the first extension period has passed, is ineffective, since at the time such order was entered the application to reopen the claim had already been "deemed granted" by operation of RCW 51.32.160.? ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990)

?Where the last order closing the claim has been appealed and is not yet final the Department is not under any obligation to act upon a subsequent application to reopen the claim until a final order has been entered by either the Board or the Court, as the case may be.? Under the circumstances of this case the time within which the Department had to? act on the application to reopen the claim could not begin any sooner than the date upon which the Department received a conformed copy of the Superior Court's Stipulated Order of Dismissal.? Reid v. Department of Labor& Indus., 1 Wn.2d 430 (1940).? ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990)? [Editor's Note: Consider impact, if any, of Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1995) See In re Greg Ackerson, BIIA Dec., 94 1135 (1995).]

The Department may not deny an application to reopen a claim and then promptly enter an abeyance order, on its own motion pursuant to RCW?51.52.060, thereby attempting to give itself up to 180 additional days to act on the application.? To allow such action would render the time limitations of RCW?51.32.160 completely illusory. ?Where the Department has entered such an abeyance order but has not made a final decision to deny the application within the time allowed by RCW?51.32.160, the application to reopen the claim is deemed granted.? ….In re John Aitchison, BIIA Dec., 90 4447 (1990); In re Donald Schroeder, BIIA Dec., 90 3177 (1990); In re Virginia Watts, BIIA Dec., 90 3816 (1990) [Editor's Note:? Rule reversed by Tollycraft Yachts v. McCoy, 122 Wn.2d 426 (1993).]

The provisions of RCW 51.32.160, as amended in 1988, which render an application to reopen a claim "deemed granted" if an order denying the application is not issued within 90 days of receipt of the application, do not apply where the Department denied the application within the time allowed but, following the filing of an appeal, reassumed jurisdiction over the claim and held its order denying the application in abeyance.? ….In re Edna Shore, BIIA Dec., 89 5898 (1990) [Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 91-2-00740-6.]

Discretionary reopening by Director

When an application to reopen is filed more than seven years after the first closing order became final, the reopening of the claim for aggravation is not at the discretion of the director.? Only the decision to award time-loss compensation or other disability benefits are committed to the director's discretion.? ….In re Michael Bell, BIIA Dec., 11 15598 ?(2012)

?In an appeal of Director's letter refusing to waive the time limit for filing an application to reopen the claim, the standard of review is whether the decision not to waive the time limit constitutes an "abuse of discretion."? ….In re Ernest Therriault, BIIA Dec., 90 0876 (1990)

?The Director has discretion to waive the seven year limitation for filing an application to reopen a claim provided there are sufficient facts to support a finding that an aggravation of disability has occurred.? The required factual basis is not within the determination vested in the discretion of the Director and the Board therefore has jurisdiction to decide whether the worker's condition worsened between the terminal dates. ?….In re Merle Fugate, BIIA Dec., 86?1526 (1987) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 87-2-22610-7.]

Once the Director exercises the discretion to reopen a claim which otherwise could not be reopened due to the time limitations of RCW 51.32.160, the worker is entitled to benefits under the Act to the same extent as if there had been no time limitation bar.? ….In re Bernard James, BIIA Dec., 04,394 (1955) [Editor's Note: See later statutory amendments, Laws of 1988, ch. 161, § 11.]

Effect of abeyance order on "deemed granted" provisions (RCW 51.32.160)

The prohibition contained in RCW 51.52.060(4) that precludes the Department from issuing an order holding in abeyance the terms of an order issued pursuant to RCW 51.32.160 does not apply when the Department has been requested to reconsider the order under the authority of RCW 51.52.050.? ….In re Joseph Brown, BIIA Dec., 96 4577 (1996)

RCW 51.52.060(4) as amended in 1995 prohibits the Department from issuing an order that holds in abeyance the terms of an order issued under RCW 51.32.160 when more than 90 days have passed since an application to reopen has been filed.? ….In re Nancy Stumbaugh, BIIA Dec., 95 7068 (1996)

Where the Department elects to hold an order in abeyance pursuant to RCW 51.52.060, not in response to a protest or an appeal, the time limitations for action set forth in RCW?51.32.160 still apply.? ….In re Clyde McCoy, BIIA Dec., 91 0701 (1991) [Editor's Note: Reversed, Tollycraft Yachts v. McCoy, 122 Wn.2d 426, 433 (1993.)]

Extension of time to act on application to reopen claim

An order extending the time in which the Department must act on an application to reopen the claim must be entered before the initial time allowed by RCW?51.32.160 has passed.? An order purporting to further extend the time, entered after the first extension period has passed, is ineffective, since at the time such order was entered the application to reopen the claim had already been "deemed granted" by operation of RCW 51.32.160.? ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990)

?An order extending the time for acting on an application to reopen the claim which is not timely appealed is final and binding and has res judicata effect.? Worker cannot collaterally attack the unappealed extension decision in a later appeal of an order denying reopening of the claim.? ….In re Clara Morton, BIIA Dec., 89 5897 (1990)

First closure based on medical recommendation

Under the 1988 amendments to RCW 51.32.160, closing orders which were issued prior to July 1, 1981 need not be based on medical recommendation, advice or examination in order to serve as the starting point for the seven year period in which the worker is entitled, as a matter of right, to apply to have the claim reopened for payment of additional disability benefits.? ….In re Marven Sandven, BIIA Dec., 89 3338 (1990); In re Mike Streubel, BIIA Dec., 89 4867 (1990)

First terminal date:? effect of Board's determination of effective date of closure

A Department order issued in response to an Order Adopting Proposed Decision and Order is a ministerial order and the effective date of the closure of the claim is the effective date recited in the Board's order.? It is not the date of the Order Adopting Proposed Decision and Order.? ….In re Donald Workman, BIIA Dec., 00?24102 (2001)

First terminal date: effect of subsequent ministerial order

The issuance of a Department order pursuant to the terms of a Board Order on Agreement of Parties is merely a ministerial act.? It does not adjudicate the merits of the claim beyond the date of the Department order which was the subject of the Board order.? Therefore, the date of the Department order appealed, and not the date of the subsequent ministerial order, is the first terminal date of subsequent aggravation period. (Karniss v. Department of Labor & Indus., 39 Wn.2d 898 (1952)).? ….In re Jimmy Storer, BIIA Dec., 86?4436 (1988) [Editor's Note: The Board's decision was appealed to superior court under Stevens County Cause No. 88-2-00328-7.]

First terminal date: Order on Agreement of Parties

When an agreement back dates the effective date of claim closure, the effective date of claim closure need not be the same date that the Department last adjudicated the merits of the claim. The date the Department last adjudicated the merits of the claim is relevant to determination of the first terminal date. ….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.]

Because the parties agreed in an Order on Agreement of Parties that the Department should adjudicate the claim through December 3, 2009, December 3, 2009, became the first terminal date.? ….In re Ernest Kish, BIIA Dec., 12 20993 (2014) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 14-2-10478-8.]

First terminal date findings

An Order on Agreement of Parties on the first terminal date, based on an examination by a particular physician, establishes the findings which must serve as the basis of comparison to determine if worsening has occurred between the terminal dates.? ….In re John?Jensen(I), BIIA Dec., 16,316 (1964)

Last closing order not final

After the Department's decision to reopen the claim for aggravation becomes final, even if based on a mistake of law, the decision defeats any argument relating to the finality of the prior closing order and the reopening order sets the date upon which further benefits can be considered.? ….In re Christopher Preiser, BIIA Dec., 09?19683 (2010) [dissent] [Editor's Note:?The Board's decision was appealed to superior court under Snohomish County Cause No. 10-2-09709-9.]

The Department's failure to properly close a claim before denial of an application to reopen a claim is not jurisdictional; the failure is an error of law and the subsequent denial of an application to reopen that becomes final is res judicata that the claim is closed as of the date of that denial.? ….In re Jorge Perez-Rodriguez, BIIA Dec., 06?18718 (2008)

When the Department fails to properly communicate the original closing order, but reopens a claim in response to an application to reopen and provides benefits, the Board obtains jurisdiction over an appeal of an order that re-closes the claim despite the Department's failure to communicate the original closing order.? Distinguishing In re Ronald Leibfried, BIIA Dec.,?88?2274 (1990).? ….In re Glenda Singletary, BIIA Dec., 06?12195 (2007) [Editor's Note: Reversed on other grounds Singletary v. Manor Health Care Corp., 116 Wn. App. 774 (2012).]

When there has been an appeal of an order closing the claim and an application to reopen filed while the appeal is pending, the Department has 90 days from the final order of the Board or Court to issue an order on the application or the application will be deemed granted.? The Department should not act upon an application to reopen the claim when the appeal from the claim closure is still pending in light of Reid v. Department of Labor & Indus., 1 Wn.2d 430 (1939). Distinguishing Marley v. Department of Labor& Indus, 125 Wn.2d 533 (1995).? ….In re Greg Ackerson, BIIA Dec., 94 1135 (1995) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 95-2-00808-5.? The Board has partially overruled this decision to the extent the decision relies on the concept of subject matter jurisdiction.? In re Betty Wilson, BIIA Dec., 02 21517 (2004), In re Jorge Perez-Rodriquez, BIIA Dec., 06 18718 (2008).]

Where the last order closing the claim has been appealed and is not yet final the Department is not under any obligation to act upon a subsequent application to reopen the claim until a final order has been entered by either the Board or the Court, as the case may be.? Under the circumstances of this case the time within which the Department had to? act on the application to reopen the claim could not begin any sooner than the date upon which the Department received a conformed copy of the Superior Court's Stipulated Order of Dismissal.? Reid v. Department of Labor & Indus., 1 Wn.2d 430 (1940).? ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990) [Editor's Note: Consider impact, if any, of Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1995) See In re Greg Ackerson, BIIA Dec.,? 941135 (1995).]

Where a prior closing order was not communicated to the claimant it was improper to construe a further order denying a subsequent application to reopen the claim as an order affirming the order closing the claim.? The issues before the Department on an application to reopen the claim are different from those involved when closing the claim.? In this case, the Board therefore directed the Department to treat the application to reopen the claim as a protest and to issue a further determinative order concerning the closure of the claim.? ….In re Ronald Leibfried, BIIA Dec., 88?2274 (1990) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 91-2-00015-4. ?Although this decision correctly determines an application to reopen can be treated as a protest, consider the effect of In re Jorge Perez-Rodriquez, BIIA Dec., 06 18718 (2008) on the effects of the denial of an application to reopen that becomes final when the original closing order was not communicated.]

Non-network provider authorized to file application to reopen

The provision of WAC 296-14-400 that allows only a network provider to file an application to reopen a claim is an interpretive rule and not a binding legislative rule, and RCW 51.36.010 does not limit the filing of an application to reopen to network providers.? ….In re Ronald Ma'ae, , BIIA Dec., 14?21595 (2015)[dissent] [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 15-2-14529-6.]

Objective evidence requirement

Consistently positive Tinel's sign and positive Phalen's test constitute objective physical or clinical findings of worsening and are not merely subjective complaints or symptoms.? ….In re Peggy Anderson, BIIA Dec., 09?11986 (2010)

Some medical conditions cannot be measured by the independent observation of a physician, and where that is the case, the worker's subjective report of worsening coupled with a physician's opinion that supports the worker's report is sufficient to establish worsening.? ….In re Charles Lewis, BIIA Dec., 07?16483 (2008)

A worker's subjective description of increased pain is not sufficient to establish that the condition causally related to the industrial injury worsened or became aggravated between the relevant terminal dates since there must be some objective findings to support the complaints of increased pain and loss of function.? ….In re John Anderson, BIIA Dec., 91?6315 (1992) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 93-2-00001-3.]

Under the 1988 amendments to RCW 51.32.160, the time limitation is removed for applying to reopen a claim to obtain additional medical services.? However, in order to show entitlement to additional medical services, a worker must still establish, by a preponderance of the evidence, that the condition causally related to the industrial injury worsened or became aggravated on an objective basis between the relevant terminal dates.? ….In re Marven Sandven, BIIA Dec., 89 3338 (1990)

ER 703 does not eliminate the substantive rule requiring objective medical evidence of worsening.? ….In re Earl Blake, BIIA Dec., 51,928 (1980) [Editor's Note: But see Price v. Department of Labor & Indus., 101 Wn.2d 520 (1984).]

Over seven years after initial closure (RCW 51.32.160)

When an application to reopen is filed more than seven years after the first closing order became final, the reopening of the claim for aggravation is not at the discretion of the director.? Only the decision to award time-loss compensation or other disability benefits are committed to the director's discretion.? ….In re Michael Bell, BIIA Dec., 11 15598 (2012)

The Director abused her discretion when she failed to consider whether the worker was unable to work because of the industrial injury and based her decision to deny benefits solely on the basis that the worker had not been working.? ….In re Robert Dorr, Jr., BIIA Dec., 07?23982 (2009)

Where a worker files an application to reopen more than seven years after the first closing order became final, such application is not timely within the meaning of RCW?51.32.160 but the worker is entitled to a determination of worsening and entitlement to proper and necessary treatment as authorized by RCW 51.36.010.? ….In re Carol Allen, BIIA Dec., 91?1837 (1992)

Pensions

RCW 51.32.160 does not apply after the worker has been found to be permanently totally disabled. An order placing the worker on a pension is not a closing order as contemplated by RCW 52.32.160. ….In re Robert Dwyer, BIIA Dec., 13 19440 (2014)

Permanent total disability

While it is not necessary to show an increase in category of impairment to establish an aggravation of condition resulting in permanent total disability, the worker must still show an increase in loss of bodily function demonstrated by objective medical findings.? ….In re Jean Wassmann, BIIA Dec., 69 953 (1986)

Proximate cause of worsened condition: new injury vs. aggravation

An incident at work can be both a new industrial injury and an aggravation of an earlier industrial injury.? Because the Department administered the new injury under the earlier claim does not mean that the Department rejected the new claim.? ….In re Howard Jones, BIIA Dec., 13 20776 (2014)

In considering the Department's requirement under WAC 296-14-420 to issue a joint order concerning whether a condition is the responsibility of a new claim or an aggravation of an existing claim, the Department cannot be made to issue a joint order if a determination rejecting the new claim has become final.? ….In re Douglas Lenz, BIIA Dec., 00 21329 (2002)

Where a self-insured employer asserts that a worker's condition was the result of a new injury rather than an aggravation of the condition causally related to the industrial injury for which the employer was responsible, a Department order which included only the signature of the claims manager does not comply with WAC 296-14-420.? To meet the requirements of WAC 296-14-420, the Department order must reflect that it is a single determination made jointly by the assistant directors for claims administration and self-insurance.? ….In re Bennie Johnson, BIIA Dec., 91 4040 (1992)

The occurrence of a new injury and an aggravation of a preexisting condition are not mutually exclusive.? Whether a worker's worsened condition is a result of a new incident or constitutes an aggravation of the original injury depends upon whether the new incident is a supervening cause, independent of the original injury.? The real question is one of proximate cause, i.e., whether "but for" the original injury the worker would not have sustained the subsequent condition.? ….In re Robert Tracy, BIIA Dec., 88 1695 (1990)

Where a new traumatic event was wholly and independently responsible for the worker's worsened low back condition and the accepted industrial injury was not a proximate cause of the later occurring symptoms, the McDougle (64 Wn.2d 640) reasonableness test was inapplicable.? ….In re William Dowd, BIIA Dec., 61,310 (1983) [Editor's Note: Consider continued application in light of In re Robert Tracy, BIIA Dec., 88 1695 (1990).]

McDougle (64 Wn.2d 640) does not hold that a new accident identifiable in time and place, adversely affecting an area of the body previously injured in an industrial injury, should be considered an aggravation of that previous injury.? The aggravation of the worker's condition is the result of the new and independent traumatic occurrence, not the industrial injury.? ….In re Alfred Swindell, BIIA Dec., 53,792 (1980) [Editor's Note: Consider continued application in light of In re Robert Tracy, BIIA Dec., 88 1695 (1990).]

Although the worker's initial low back condition was due to the industrial injury, the subsequent aggravation was due to a new, intervening and independent cause, and was not a proximate result of the industrial injury.? The application to reopen the claim was therefore properly denied.? ….In re Marian Roberts, BIIA Dec., 17,096 (1963) [Editor's Note: Consider continued application in light of In re Robert Tracy, BIIA Dec., 88 1695 (1990).]

Proximate cause of worsened condition: new occupational disease vs. aggravation

Whether a carpal tunnel condition resulting from employment activities which give rise to a need for surgery is an aggravation of an occupational disease for which prior claims were filed, or a new occupational disease, is a question of proximate cause.? A claim of aggravation of a prior condition and a claim for a new occupational disease may not be mutually exclusive.? ….In re Leonard Roberson, BIIA Dec., 89 0106 (1990)

Proximate cause of worsened condition:? pre-existing condition

In order to be entitled to benefits on reopening of the claim it is necessary to show aggravation of the condition that was caused by the industrial injury; it is insufficient to show only a worsening of a pre-existing condition that was temporarily lit up by the industrial injury.? ….In re Arlen Long, BIIA Dec., 94 2539 (1996) [Editor's Note: The Board's decision was appealed to superior court under Okanogan County Cause No. 96-2-00033-9.]

Psychiatric conditions

The rule in Price (101 Wn.2d 520), eliminating the need to show objective evidence of worsening, does not apply unless the worker's condition has a psychiatric rather than a physical basis and the diagnosis is in the terminology of the Diagnostic and Statistical Manual of Mental Disorders (DSM III) as required by WAC 296-20-330(e).? ….In re Deborah Lee, BIIA Dec., 71 058 (1987) [dissent] [Editor's Note: Affirmed, Lee v. Department of Labor & Indus., 54 Wn. App. 1057 (1989).]

Res Judicata - See RES JUDICATA Aggravation

Scope of Review - See SCOPE OF REVIEW Aggravation

Survivor's benefits based on permanent total disability of deceased worker - See SURVIVOR'S BENEFITS Aggravation

Temporary worsening

When Department has reopened a claim for medical treatment it has admitted at least a temporary increase in disability (In re John Qualls, BIIA Dec., 28,430 (1969)).? A worker need not prove aggravation in an appeal from an order reclosing the claim with no additional permanent disability award if the worker is seeking further treatment, time-loss compensation or loss of earning power benefits.? However, if the worker's condition is fixed and stable, it is incumbent upon the worker to establish a permanent worsening of condition by comparative evidence in order to prove entitlement to a permanent disability award.? (Dinnis v. Department? of Labor & Indus., 67 Wn.2d 654 (1965)).? ….In re Maria Chavez, BIIA Dec., 87 0640 (1988) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 88-2-02121-9.]

In an appeal from a Department order denying an application to reopen the claim, the Board has jurisdiction to determine whether the worker's disability temporarily worsened during the aggravation period and can award temporary total disability compensation for such period.? ….In re Junior Wheelock, BIIA Dec., 86?4128 (1987) [Editor's Note: The Board's decision was appealed to superior court under Cause No. 88-2-00404-2.]

Although the evidence established that the worker's condition was fixed and that there was no increase in permanent disability as of the date the application to reopen the claim was denied, the worker was still entitled to benefits for a temporary worsening of his condition which occurred within the aggravation period.? ….In re Leon Wheeler, BIIA Dec., 70 344 (1986)

A prior finding that the worker's condition became aggravated requiring reopening of the claim for treatment establishes only a temporary increase in disability.? In order to obtain an increased permanent disability award, the worker must still present proof of aggravation resulting in an increase in permanent disability.? ….In re John Qualls, BIIA Dec., 28,430 (1969) [dissent]

"APPEALABLE ONLY" ORDER

See NOTICE OF APPEAL and PROTEST AND REQUEST FOR RECONSIDERATION

APPEALABLE ORDERS

Attorney fees for services rendered only before Department

The Board does not have authority to determine the reasonableness of a fee for an attorney's services rendered before the Department except in conjunction with a request to fix a fee for services rendered in proceedings before the Board.? Review of a Department order concerning the reasonableness of the attorney fee for services rendered only before the Department is obtained by application to superior court, not by appeal to the Board. RCW?51.52.120.? ….In re Charles Langseth, BIIA Dec., 89 2249 (1989)

Department agreed exam

In an employer's appeal taken from a closing order based on a medical examination through which the Department and the worker agreed to resolve the claim,? the issue is limited to the appropriateness of the award for permanent partial disability.?? The decision to resolve the matter by stipulation could not be appealed because RCW 51.52.050 only authorizes appeals from final determinations.? The final determination was the order resulting from the examination, not the decision to examine.? ….In re Anthony Murphy, BIIA Dec., 94?1233 (1996)

Where a worker agreed to be bound by the results of a Department medical examination, the worker is not foreclosed from appealing the Department's determination since there is no statutory authority to bind parties to a final disposition of the claim.? Only the Board has such authority pursuant to RCW 51.52.095, WAC 263-12-093.? ….In re Rafael?Rodriguez, BIIA Dec., 90?3308 (1991)

Department order fixing interest pursuant to order of superior court

Where a worker prevailed in an appeal to superior court regarding a claim for temporary total disability, the responsibility for fixing interest lies with the court pursuant to RCW?51.52.135(3).? The Board therefore does not have jurisdiction to review subsequent Department orders paying interest which were apparently entered pursuant to the order of the court.? ….In re Charles Courneya, BIIA Dec., 89 0845 (1989)

Informal letters

An electronic secure message sent by the Department to a worker is considered a writing and meets the requirements of RCW?51.52.050 and RCW?51.52.060 for appeal to the Board.?….In re Colleen Aldridge, BIIA Dec., 10?15903 (2011)

Where a worker received a letter determination stating that the rate of time-loss compensation was correct and that a separate order would affirm earlier orders but the worker did not appeal the order subsequently issued, the Board concluded that the order was not res judicata regarding the rate of time-loss compensation for the periods set forth in the order since the letter determination had been appealed.? ….In re Lucian Saltz, BIIA Dec., 92 4309 (1993)

A letter from a Department auditor informing an employer that premiums are due and requesting payment is an appealable decision under either RCW 51.48.131 or RCW?51.52.050 and .060, even though the letter fails to contain the required statutory language regarding the employer's appeal rights.? ….In re Maid-For-You, BIIA Dec., 88 4843 (1990)

A letter advising the employer that the Department has accepted the worker's low back condition as causally related to the industrial injury does not constitute a formal statutory order and no res judicata effect attaches to the informal communication if it is not appealed.? ….In re Kerry Kemery, BIIA Dec., 62,634 (1983)

Interlocutory orders

A worker is aggrieved by an order paying time-loss compensation benefits, even if the Department has designated the decision as temporary, if the worker is disputing the rate of time-loss compensation. ….In re Robert Uerling, BIIA Dec., 99?17854 (1999)

The Department cannot insulate a decision to terminate time-loss compensation from Board review by characterizing the decision as "interlocutory."? If the worker desires to appeal such a decision to the Board it is the worker's right to do so.? ….In re Louise Favaloro, BIIA Dec., 90 5892 (1990)

Ministerial orders

A Department order issued pursuant to a superior court judgment is strictly ministerial and is not appealable to the Board.? ….In re Alfred Greenwalt, Dec'd, BIIA Dec., 43,070 (1973)

Oral decisions

A decision of the Department must be in writing before it can be appealed to the Board.? ….In re Ryan Lowry, BIIA Dec., 91 C061 (1991)

Orders held in abeyance (RCW 51.52.060)

Once the Department has exercised its authority to hold a prior order in abeyance, it may not reverse the abeyance order and attempt to avoid its responsibilities to issue a further order.?Likewise, the Department may not return an appeal to the Board once it has elected to reassume jurisdiction following the filing of an appeal.?….In re Tonja Petersen, BIIA Dec., 12?10440 (2012)

Where the Department has held an order which has been appealed to the Board in abeyance pending further consideration, it must enter a further order within the time allowed by RCW 51.52.060.? However, the failure of the Department to issue a further order within the time allowed does not make the order held in abeyance appealable.? Such order is not a final order of the Department.? ….In re Coni Oakes, BIIA Dec., 90 1968 (1990)

Protest divests Board of authority to hear appeal - See also NOTICE OF APPEAL Protest and notice of appeal

When a worker appealed an order containing a statement of “protest rights”, but later filed a protest and request for reconsideration of the same order within the time allowed for protest, the Board lost jurisdiction over the appeal.? ….In re Mark Fossati, BIIA Dec., 95 1442 (1995) [Editor’s Note: The Board encouraged parties to notify it when they have filed a protest after filing an appeal.]

Where a Department order included a statement of protest rights as required by RCW?51.52.050, but did not promise the issuance of a further appealable order after the filing of a protest, a protest to that order deprived the Board of jurisdiction.? Citing In re Santos Alonzo, BIIA Dec., 56,833 (1981).? ….In re Glen Fulps, BIIA Dec., 94 7894 (1995)

A protest automatically operates to set aside and hold an order in abeyance pending the issuance of a further appealable order.? Thus, even though an appeal from a Department order had already been filed by the worker, the employer's subsequent but timely protest of the order appealed leaves the Board without jurisdiction to hear the worker's appeal.? ….In re John Robinson, BIIA Dec., 59,454 (1982)

When a Department order promises that a further appealable order will be issued if a protest is filed, a timely protest automatically sets the order aside and holds it in abeyance.? The Board therefore lacks jurisdiction to hear an appeal from the original order since it is not a final order.? ….In re Santos Alonzo, BIIA Dec., 56,833 (1981)

Provisional time-loss compensation orders (RCW?51.32.210) - See also APPEALABLE ORDERS Interlocutory orders

Orders of the Department paying provisional time-loss compensation, entered prior to the issuance of an order rejecting or allowing the claim on its merits, are not final orders of the Department under RCW?51.52.050 and .060.? Until the Department issues a determinative order either rejecting or allowing the claim, the payment of provisional time-loss compensation cannot be challenged by an appeal to the Board.? ….In re Ruth Logan, BIIA Dec., 89 0189 (1989)

Self-insured employer's order (RCW?51.32.055)

A closing order issued by self-insured employer under the authority of RCW?51.32.055(7)(a) may conditionally close the claim.? The closure is subject to reevaluation by the Department within two years on the basis that the claim was improperly or prematurely closed.? ….In re Noel Bray, Jr., BIIA Dec., 89 2484 (1991) [dissent] [Editor's Note: The provisions cited apply only to claims accepted by self-insurers after June 30, 1986 and before July 1, 1990--the window period expressed in RCW 51.32.055(7)(d) does not apply to claims accepted after June 30, 1990 and closed with medical treatment only.]

An order issued by a self-insured employer under the authority of RCW?51.32.055(7)(c) is not appealable to the Board, notwithstanding the fact the order may state otherwise.? However, the further determinative order of the Department which must be issued following the filing of a protest with the Department is appealable to the Board.? ….In re Laverne Alvarado, BIIA Dec., 87?4566 (1988)

Temporary orders

The worker is allowed to litigate entitlement to time-loss compensation after the Department changes an order closing the claim and terminating time-loss from final to "temporary."? The Department cannot isolate a decision to terminate time-loss compensation from Board review by characterizing it as a temporary decision.? ….In re Tony Perry, BIIA Dec., 03 19142 (2004) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 05-2-0140-3.]

APPLICATION FOR BENEFITS

Application to reopen treated as accident report

An application to reopen a claim for a prior injury, filed within one year of a new injury, may properly be considered as a claim for that new injury where information concerning the new incident has been supplied to the Department. ?….In re Stanley Lee, BIIA Dec., 09,425 (1959) [Editor's Note: See also In re John Svicarovich, BIIA Dec., 08,205 (1957), APPLICATION TO REOPEN CLAIM.]

Reasonable notification

A worker's letter to the Department explaining that he had injured his back the day before he suffered from an accepted injury described as "heat" coupled with a letter from a physician's assistant indicating that the worker was seen for heat exhaustion and back pain constitute an application for benefits within the meaning of RCW 51.28.020. ….In re Leroy Norris, BIIA Dec., 92 1471 (1993)

When an application for benefits identified two dates within a week of each other that injuries had occurred, the reference to the earlier injury in medical notes attached to the application for benefits in the second injury constituted a filing of a request for benefits because it reasonably put the Department on notice of the earlier alleged industrial injury. ….In re Charles Pierce, BIIA Dec., 91 4625 (1993) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 91-2-07862-4.]

APPLICATION TO REOPEN CLAIM

Accident report treated as application to reopen

An accident report may constitute an application to reopen for aggravation of condition where the Department has not been misled or prejudiced.? The worker should not be penalized for using the wrong form in applying for additional benefits.? ….In re John?Svicarovich, BIIA Dec., 08,205 (1957) [Editor's Note: See also In re Stanley Lee, BIIA Dec., 09,425 (1959) APPLICATION FOR BENEFITS.]

Office notes treated as application to reopen

An application to reopen must be in writing, be individual in nature, and give the Department information regarding the reason for the application Donati v. Department of Labor & Indus., 35 Wn.2d 151 (1949)), but the Department may not require a worker to submit an application to reopen by using a particular form (WAC 296-14-400).? Where worker's physician submitted office notes recommending further treatment, the Department should have treated the same as an application to reopen.? ...In re Wallace?Hansen, BIIA Dec., 90 1429 (1991) [Editor's Note: Cf. Tollycraft Yachts v. McCoy, 122 Wn.2d 426, 433 (1993).]

APPORTIONMENT BETWEEN INSURERS

See OCCUPATIONAL DISEASE

ASSESSMENTS

See also DEPARTMENT, PENALTIES, and RETROSPECTIVE RATINGS

Bankruptcy

The filing of a bankruptcy petition prevents collection action on a debt; it does not stay actions relating to determination of the amount of taxes due and does not prevent the Board from taking further action on an appeal of an assessment.? ….In re Pro-Wall, BIIA Dec., 05?21844 (2008)

Burden of proof

The fact that the Department found that the employer knowingly misled the Department when it failed to report covered workers does not change the employer's burden of proof in an appeal before the Board; employers always bear the burden of proof in an appeal from a Notice and Order of Assessment (RCW 51.48.131). ….In re Dispatch Group, BIIA Dec., 13 21330 (2015)

Classification of business

Although an assessment on appeal does not involve a reclassification, the Board will consider any of the factors the Department addressed in calculating assessment, including whether the appropriate classification was used during the audit period.? ….In re Henry Bacon Building Materials, BIIA Dec., 90 0656 (1992) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 92-2-02279-3.]

Communication of order (RCW 51.48.120)

Where service of a notice and order of assessment is perfected by mailing a notice by certified mail to the employer's last known address, and where an attorney or other representative has appeared before the Department on behalf of a firm and expressed desire to receive further communication from the Department regarding the assessment, the Department is obligated to direct all future correspondence to the firm's attorney or representative.? ….In re Bell & Bell Builders (II), BIIA Dec., 90 5119 (1992)

RCW 51.48.120 requires that service of a Notice of Assessment by mail be confirmed. If the USPS return receipt shows the Notice of Assessment was unclaimed, service of the Notice of Assessment is not confirmed and service by mail fails. ….In re Jaz Services (II), BIIA Dec., 13 11377 (2015)

The Department must resolve any doubts regarding who to communicate a Notice and Order of Assessment to by making an inquiry with the firm.….In re Sound Dive Center (II), BIIA Dec., 14 12707 (2015)

Decisions appealable - See APPEALABLE ORDERS Informal letters

Delegation of authority to issue Notices and Orders of Assessment

Authority to issue Notices and Orders of Assessment is properly delegated to collection auditors even in the absence of written documentation of the Director's delegation.? Efficient use of agency Director's time outweighs value of creating specific written documentation memorializing the delegation of authority.? ….In re Wayne Jamison Timberfallers, BIIA Dec., 87 1383 (1988)

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)

Where an employer failed to provide records to Department on Fifth Amendment grounds, it is precluded from presenting evidence at the Board that the assessment was incorrect.? Citing Annest v. Annest 49 Wn.2d 62 (1956).? ….In re Cheri's Pet Grooming, BIIA Dec., 89?5939 (1991)

Equitable powers

Because RCW 51.12.070(5) is only one of the criteria to be met by a contractor seeking exemption from responsibility of a subcontractor's premiums, the satisfaction of subsection (5) does not allow for the application of "equitable estoppel" to dispose of the obligation to meet other criteria for the prime contractor exception under RCW 51.12.070. ….In re GT Drywall, BIIA Dec., 10 11537 (2011) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]

Estimated premiums

In an assessment appeal, the Board found that the employer failed to establish equitable estoppel where a Department audit included a determination that employer's premiums would be assessed on the basis that the employer paid employees on a commission basis, the employer failed to show justifiable reliance.? ….In re AEX Corp., BIIA Dec., 90 5314 (1992) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 93-2-00171-6.]

Any assessment of premiums based upon an estimate of hours worked, as permitted by RCW 51.16.155, must be based upon a reasonable estimate which has some basis in fact.? ….In re NAO Enterprises, BIIA Dec., 89 1832 (1990)

Existence of partnership

Where individuals became partners upon completion of training period, industrial insurance taxes were payable for an individual who never completed the payments necessary to establish partnership.? ….In re F& R Cliff (Cliff's Dairy Cow Hoof Trimming), BIIA Dec., 93 2648 (1994)

Failure to maintain records

Where a firm failed to maintain adequate records but could present only an educated guess regarding the number of hours worked by cab drivers and paid the drivers at the rate of 45 percent of fare-generated fees, the firm failed to establish that it paid the drivers on any basis other than commission.? ....AEX Corporation, 90 5314 (1992) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No.? 93-2-00171-6.]

The provisions of RCW 51.48.030 and .040, which require an employer to keep and preserve adequate books and records of employment and make them available for inspection by the Department, do not require a corporation which engaged in no business activity and had no employees to maintain such records.? ....NAO Enterprises, 89 1832 (1990)

Limited Liability Company

Members of a limited liability company that manage the company are exempt from mandatory coverage.? ….In re JDI, LLC, BIIA Dec., 09?18829 (2010)

Newspaper carrier RCW 51.12.020(10)

The newspaper carrier exemption RCW 51.12.020(10) does not apply to carriers who enter businesses for delivery of newspapers to be resold to that business's own customers.  ….In re W.A. Schmittler, Inc., BIIA Dec., 11 23864 (2012)[Editor's Note: The Board's decision was appealed to Kitsap County Superior Court No. 12-2-02754-6.? Also see the 2013 amendment to RCW 51.12.020(10), which adds delivery to businesses as an exemption and effectively overrules the Board's decision in W. A. Schmittler.]

Piece Work

In an assessment appeal, the Board found equitable estoppel where the employer relied to its detriment on Department representations and past practices on determinations of average rate of compensation for piece workers and where the employer would suffer if the Department were allowed to repudiate or contradict its prior acts, practices, and policies. ?….In re State Roofing & Insulation, BIIA Dec., 89 1770 (1991) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 91-2-01375-4.]

Penalties

Penalties assessed for misrepresentation and failure to keep records are not penalties on premiums as set forth in RCW 51.48.055. ….In re Ray Araya (Emerald Coast Painting), BIIA Dec., 11 12356 (2014) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 14-2-11166-5.]

In assessing a penalty under RCW?51.48.030 for failure to keep records of an employee, the Department may assess a separate penalty for each employee for which records were not kept. ?.…In re R & G Probst (Diamond Driving School), BIIA Dec., 00?11968 (2001) [Editor's Note: Affirmed, Probst v. Department of Labor & Industries, 121 Wn. App 288 (2004).]

Prime contractor liability (RCW 51.12.070)

When the Department has assessed premiums against the prime contractor for work done by a subcontractor, reliance by the prime contractor on the Department of Labor and Industries' website that the subcontractor is in "good standing" is not synonymous with "compliance" with all of the requirements of RCW 51.12.070.

When a prime contractor is liable for the premiums assessed for the work of a subcontractor, the prime contractor discount rate cannot be applied to the work performed by the subcontractor.? ….In re GT Drywall, BIIA Dec., 10 11537?(2011) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]

Because RCW 51.12.070 makes the letting contractor primarily and directly responsible for all premiums due for work performed by sub contractors, the Department need not exhaust collection remedies against subcontractors or their bonds before collecting from the letting contractor and may apply payments received first to interest, then fees, then penalties, and then to premiums.? ….In re GL?&?L Enterprises (Precision Drywall), BIIA Dec., 05?13857 (2008)

A firm involved in tree planting and tree thinning contracted directly with landowners and subcontracted with a second firm.? The second firm had many claims filed but had not paid industrial insurance taxes. In light of the contractual arrangement, and the fact that the second firm performed the actual work, the Board concluded that the firm was responsible as a prime contractor.? Citing Littlejohn Construction v. Department of Labor & Indus., 74 Wn. App. 420 (1994).? ….In re Sylvia Reforestation, BIIA Dec., 93 5150 (1994)

Reassumption of jurisdiction (RCW 51.48.131)

Department's failure to act to modify, reverse or change its assessment decision within thirty days of receipt of the employer's appeal renders all subsequent orders null and void and vests jurisdiction with the Board even though the Department failed to forward the appeal to the Board.? ….In re Maid-For-You, BIIA Dec., 88 4843 (1990)

Subcontractors

A landowner does not "let a contract" within the meaning of RCW?51.12.070 when selling downed timber for harvesting pursuant to a sales contract.? The purchaser of the timber is not considered a subcontractor of the landowner/seller. ….In re Weyerhaeuser Co., BIIA Dec., 99?12028 (2000)

Successor liability

When a change in business occurs without a change in business type, RCW?51.16.090 does not make the transfer of the old owner's cost experience mandatory but permits the new ownership to prove that the change in ownership, interests, or personal operating property was a "bona fide" change within the meaning of the statute and thus avoid imposition of the previous owner's cost experience rating.?….In re Mr. Rooter-South Puget Sound, BIIA Dec., 10?17889 (2011) [Editor's Note:?The Board's decision was appealed to superior court under Thurston County Cause No. 11-2-01983-4.]

The three-year statute of limitation, as set forth in RCW?51.16.190(3), on actions to collect a delinquent assessment does not apply when the successor firm fails to file a report of sale as contemplated by RCW?51.16.200. ….In re BLC Trucking, BIIA Dec., 98?11140 (2000) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 00-2-00689-3.]

ATTENDANT SERVICES

Attendant care, as authorized by RCW 51.32.060(14) [RCW 51.32.060(3)], is not limited to "constant" care nor is it restricted to a worker so "physically helpless as to be unable to care for his personal needs" as stated in WAC 296-20-091.? A blind worker need not rely on the charity of others to provide the basic necessities of life, nor can payment for those services be denied merely because they are provided by the worker's spouse.? ….In re Delbert Johnson, BIIA Dec., 89 0398 (1990) [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 90-2-00872-6.]

A worker is not precluded from receiving attendant care services under RCW 51.32.060(5) [now RCW 51.32.060(3)] even though the worker is receiving discretionary medical care under RCW?51.36.010, so long as the services are not duplicative.? ….In re Ovide DuBois, BIIA Dec., 34,754 (1970) [Editor's Note: See also RCW 51.32.072.]

Whether the worker "requires" the services of an attendant is determined by an evaluation of the worker's physical condition and not by the financial ability to pay for such services or by the willingness of family members to provide the needed care.?….In re Agnes Knoell, BIIA Dec., 24,242 (1967) [dissent]

A psychiatric condition, the manifestations of which are physically incapacitating, may satisfy the statutory requirement of "physical helplessness", entitling the worker to attendant care services.? ….In re Agnes Knoell, BIIA Dec., 24,242 (1967) [dissent]

ATTENDING PHYSICIAN

Selection (RCW 51.36.010)

A worker's choice of physician is appropriately limited to one "conveniently located" within a proximate geographical area.? ….In re Loren Denison, BIIA Dec., 91 5619 (1993) [Editor's Note: The Board's decision was appealed to superior court under Stevens County Cause No. 93-2-0066-7.]

Transfer (WAC?296-20-065)

WAC 296?20-065 requires that the Department or self-insured employer approve of a transfer of attending physician.? The worker will not be allowed to transfer until the attending physician has had sufficient time to complete a treatment regimen, complete diagnostic studies, and evaluate the efficacy of the therapeutic program.? The mere fact that the worker is unhappy with the physician does not warrant a transfer.? ….In re Maria?Gonzalez, BIIA Dec., 97 0261 (1998)

ATTORNEY FEES FIXED BY BOARD (RCW 51.52.120)

Attorney fees not allowed on interest award

It is unlawful to charge an attorney fee from interest awarded pursuant to RCW?51.52.135.? ….In re Floyd Allen, BIIA Dec., 69 533 (1988) [Editor's Note: The Board's decision was appealed to superior court under Skagit County Cause No.88-2-00124-6.]

Factors to be considered

The size of the pension reserve is only one of the factors to be considered in arriving at the amount of the fee.? Other factors which may be taken into consideration are:? the time involved in litigation and the controverted nature of the case; the amount of the retroactive pension; the financial status of the worker; and the humanitarian social objectives of the Industrial Insurance Act.? ….In re Edith Colbo, BIIA Dec., 16,117 (1968)

Fees for services rendered only before Department - See APPEALABLE ORDERS Attorney fees for services rendered before Department

AUDIOLOGISTS

See CAUSAL RELATIONSHIP


BENEFICIARIES

See also COMPUTATION OF BENEFITS

Abandonment of spouse (RCW?51.08.020)

A worker was fatally injured in a logging accident.? Although separated from the surviving spouse for three years, the worker provided occasional money for contributing to life necessities, had continued to visit on a regular basis, and had hoped to regain the marriage.? Under these circumstances, the spouse was not living in a state of abandonment and had been provided with funds for maintenance as required by RCW 51.08.020. ….In re Loren Snavely, Dec'd, BIIA Dec., 95?7778 (1997)

Child (RCW 51.08.030)

The statute defining "child" is not intended to include children to whom the worker stands in loco parentis.? ….In re Cletus Tyrrell, Dec'd, BIIA Dec., 12,121 (1960)

Dependent (RCW 51.08.050)

Low-income family members who receive cash from a worker to be used for their medical expenses can be considered dependents of the workers for purposes of RCW?51.32.050(5).? ….In re Oscar Vasquez, BIIA Dec., 99?19523 (2001) [dissent]

The worker's payments to his mother for his own room and board did not constitute "support" and she was therefore not dependent on the deceased worker at the time of his death.? ….In re Owen Raines, Dec'd, BIIA Dec., 08,542 (1957)

Permanent partial disability benefits

A beneficiary may be entitled to benefits under RCW?51.32.050 and RCW 51.32.067 if it is established that the disability would have been permanent even if the worker had not died from unrelated causes before treatment was complete? ….In re James McShane, Dec'd, BIIA Dec., 05?16629 (2006)

Permanent total disability benefits

A beneficiary may be entitled to benefits under RCW?51.32.050 and RCW 51.32.067 if it is established that the disability would have been permanent even if the worker had not died from unrelated causes before treatment was complete.? ….In re James McShane, Dec'd, BIIA Dec., 05?16629 (2006)

Spousal benefits are derived from the worker's pension reserve and are not calculated separately.? When a worker is found totally and permanently disabled and dies prior to making an election pursuant to RCW?51.32.067, a previously paid permanent partial disability award must be taken out of the pension reserve and the Department has authority to select the spousal option.? ….In re Gary Christian, Dec'd, BIIA Dec., 96 4751 (1998) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 98-2-00106-9.]

RCW 51.32.010 permits payment of permanent total disability pension benefits to a custodial parent where a minor was in legal custody of a divorced spouse because RCW?51.32.090(2), regarding payment of compensation for temporary total disability to the person actually providing support for a child, does not apply to payments for permanent total disability benefits.? ….In re Dorsey Hursh, BIIA Dec., 90 6802 (1991)

A spouse, substituted as the appealing party where the worker died during the pendency of the appeal, who established that the worker was permanently totally disabled as of the date his time-loss compensation benefits were terminated, two years before his suicide, was entitled to benefits under RCW 51.52.050(6).? ….In re William Zygarliski, Dec'd, BIIA Dec., 89?1094 (1990)

RCW 51.32.020 only applies when compensability hinges on the cause of the death.? That statute does not bar a claim for benefits by a surviving spouse where the worker's death by suicide takes place while the worker is in a status of permanent total disability. ?….In re John Hoerner, Dec'd, BIIA Dec., 67,267 (1985) [Editor's Note: Rule upheld by Department of Labor & Indus. v. Baker, 57 Wn. App. 57 (1990)

While the death of a worker who commits suicide with intent and deliberation is not compensable under RCW 51.32.020, the surviving spouse is not foreclosed from benefits under RCW 51.32.050(6) if the worker was permanently totally disabled at the time of death. ?….In re Owen Larkin, Dec'd, BIIA Dec., 18,441 (1965) [dissent] [Editor's Note: Rule upheld by Department of Labor & Indus. v. Baker, 57 Wn. App. 57 (1990).]

Spouse (RCW 51.32.040)

In the circumstance where a worker died while the appeal was pending and the survivor proves the spousal relationship, and establishes that an application for survivors’ benefits has been filed with the Department, the spouse will be substituted as the appealing party and is entitled to pursue any benefits to which the deceased worker may have been entitled.? ….In re William Zygarliski, Dec'd, BIIA Dec., 89 1094 (1990)

BENEFITS PENDING APPEAL

Where there was no question that the worker was entitled to treatment for a condition causally related to an injury under the jurisdiction of the Department, and the only dispute was over which injury and which employer was responsible for the condition, the worker's receipt of benefits should not have been delayed by an employer's appeal.? The Department was ordered to provide treatment and compensation during the pendency of the appeal.? ….In re Mario Miranda, BIIA Dec., 40,116 (1972)

BOARD

See also PETITIONS FOR REVIEW, SANCTIONS, SCOPE OF REVIEW, and STANDARD OF REVIEW

Additional evidence secured on Board's own motion (RCW?51.52.102; WAC 263-12-120)

The parties' agreement to submit the appeal on the Department file does not prevent the Board from securing additional live testimony on its own motion.? ….In re W. Tom Edwards, BIIA Dec., 26,382 (1967)

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.]

Appearance of fairness doctrine

A Board member may participate in the decision on an appeal from a Department order entered when he was the Supervisor of Industrial Insurance where the appeal raised only a legal issue and, despite the fact that his name appeared on the Department order, he was not personally involved in the Department action on the claim.? ….In re Sandra Walster (II), BIIA Dec., 43,049 (11/73) [special concurrence]

Authority to determine felony (RCW 51.32.020)

RCW 51.32.020 does not require that the worker be convicted of a felony.? The Board has the authority to determine if the worker was engaged in a felony at the time of the injury.? ? ….In re Bart Rowley, Sr., BIIA Dec., 09 12323 (2012) [Editor's Note: Affirmed, Department of Labor & Indus. v. Rowley, 185 Wn. App. 154 (2014). See also Department of Labor & Indus. v. Rowley, Supreme Court No. 91357-9 (March 17, 2016).]

Binding examinations

The procedure for binding examinations is designed to assure the objectivity of the examiner by restricting contact between advocates and the examiner, by reducing the possibility of an ambiguous result by providing the physician with the necessary historical background through records mutually selected by the parties and by directing the examiner to respond to specific questions concerning the worker's condition.? ….In re Miles Ulrich, BIIA Dec., 93?1363 (1994)

Conduct of litigants

Inciteful and harassing language is not protected speech and its use during litigation may lead to sanctions or cessation of proceeding. ….In re Ahmad Gibson, BIIA Dec., 13 22860 (2017)

Constitutional questions

The Board has no jurisdiction over constitutional issues.? To the extent In re Danny Thomas, BIIA Dec., 40,665 (1973) concludes the Board may have such authority in certain circumstances, it is overruled.? ….In re James Gersema, BIIA Dec., 01?20636 (2003) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 03-2-05093-3.]

The Board, anticipating what the Supreme Court would do if presented with the issue, reached the inevitable conclusion that the statute excluding illegitimate children from receiving benefits (RCW 51.32.005) was violative of the Equal Protection Clause of the U.S. Constitution.? ….In re Danny Thomas, BIIA Dec., 40,665 (1973) (Overruled, In re James Gersema, BIIA Dec., 01 20636 (2003))

County in which hearings held

If a party timely objects to the scheduling of a continued hearing in a county other than the county where the injury occurred or the worker resides, it is incumbent upon the Industrial Appeals Judge to make a determination as to whether "a continuance elsewhere is required in justice to interested parties."? RCW 51.52.102 and WAC?263-12-115(7).? ….In re Maria Chavez, BIIA Dec., 87 0640 (1988) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 88-2-02121-9.]

Discovery

Before applying sanctions for failure to answer requests for admission, consideration should be given to:? 1) whether permitting an extension of time to respond promotes the presentation of the merits of the claim, and 2) whether the extension will prejudice the other party.? Citing Santos v. Dean, 96 Wn. App. 849 (1999).? Extension is not required when the admissions establish only a prima facie case and do not support a summary judgment. ?….In re Duane Harper, BIIA Dec., 99 11127 (2000)

Equitable powers

Because RCW 51.12.070(5) is only one of the criteria to be met by a contractor seeking exemption from responsibility of a subcontractor's premiums, the satisfaction of subsection (5) does not allow for the application of "equitable estoppel" to dispose of the obligation to meet other criteria for the prime contractor exception under RCW 51.12.070. ?….In re GT Drywall, BIIA Dec., 10 11537 (2011) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]

In order to be entitled to equitable relief for failing to file a timely protest, a worker must satisfy a two-part test to excuse the untimely filing.? The worker must first establish that the worker is illiterate in English and unable to ascertain and/or understand the nature and contents of the order; and second, the worker must establish some misconduct in communication of the order on the part of the Department if it knew or should have known that the worker was illiterate in English.? ….In re Adela Gonzalez, BIIA Dec., 05?23236 (2006)

The principles of equitable estoppel are applied only under the principle of stare decisis.? Where there has been no determination by a court of final jurisdiction applying equitable estoppel to excuse an untimely filing under RCW 51.28.050, the Board will not apply the doctrine to a situation where the worker alleges that the Department employees improperly informed him of the requirements for filing an application for benefits.? Additionally, the record failed to establish that the inaccurate statements caused injury to the worker, that the failure to timely apply for benefits was due to the worker's own mistake. ?Citing In re State Roofing & Insulation, BIIA Dec., 89 1770 (1991).? ….In re James Neff, BIIA Dec., 92 2782 (1994) [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 94-2-01446-0.]

To establish equitable estoppel, an employer, in an assessment appeal, must prove each element.? Where a Department audit included a determination that employer's premiums would be assessed on the basis that the employer paid employees on a commission basis, the employer failed to show justifiable reliance.? ….In re AEX Corp., BIIA Dec., 90 5314 (1992) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 93-2-00171-6.]

Because the courts have applied equitable estoppel against the state, if there is no question or doubt as to the extent of the Board's jurisdiction in a particular case, the Board may apply the doctrine under the principle of stare decisis in the same manner as it applies other principles of law.? Estoppel will apply in proper circumstances against the Department, in its role as a taxing agency, and reliance, if reasonable, may be placed upon both the silence and non-action of the state where it ought to speak, as well as upon affirmative statements and actions.? ….In re State Roofing & Insulation, BIIA Dec., 89 1770 (1991) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 91-2-01375-4.]

The Board has no inherent equitable powers.? ….In re Ben Ramahlo, BIIA Dec., 85 C025 (1987)

In applying the principles of Rodriguez?(85 Wn.2d 949) and Ames (176 Wash. 509) the Board is not exercising equitable powers but is anticipating the relief which would be granted, under the doctrine of stare decisis, upon further appeal to superior court.? It is without authority to expand those doctrines to cover cases with dissimilar facts.? ….In re Ronald Jamieson, BIIA Dec., 62,551 (1983)

The Board's powers are limited to those expressly granted by the legislation which created it.? Since the Board has no equitable powers under Ch 51 RCW, it may only, under the doctrine of stare decisis, apply equitable principles determined by the appellate courts in similar cases.? ….In re Seth Jackson, BIIA Dec., 61,088 (1982)

Examination by industrial insurance appeals judge

When the party with the burden of proof is unrepresented, judges must ask questions with the purpose of eliciting the facts needed to support a prima facie case, and should not advocate for any party, ask leading questions, or ask questions that attempt to elicit inadmissible testimony.? ….In re Evangelina Acevedo, BIIA Dec., 08?15613 (2009)

When securing evidence necessary to fairly and equitably decide an appeal, an industrial appeals judge shall ask those questions necessary to present a prima facie case.? ….In re Calvin Williams, BIIA Dec., 04?12770 (2005)

Hearing

A hearing on a motion to dismiss satisfies the requirement for a hearing under Watt v. Weyerhaeuser Co., 18?Wn.?App.?731 (1977) when the hearing is held pursuant to proper notice and the parties understand the hearing may result in a final disposition of the appeal.? ….In re José Benavides, BIIA Dec., 05?10661 (2007)

Joinder - See JOINDER

Jurisdiction determination based on Department file - See also SCOPE OF REVIEW

The Board may review and take notice of the contents of the Department file, sua sponte, at any stage of the proceedings, in order to determine whether it has jurisdiction over the appeal.? ….In re Mildred Holzerland, BIIA Dec., 15,729 (1965)

Jurisdiction in assessment appeal - See SCOPE OF REVIEW

Jurisdiction in WISHA appeal (RCW 49.17)

The Board is authorized to hear appeals from any action taken by the Department except where a specific provision deprives it of jurisdiction and RCW 49.17 does not deprive the Board of jurisdiction in appeals from an order of immediate restraint.? ….In re Air Quality Services, BIIA Dec., 92 W370-C (1993) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 93-2-00358-4.]

The Board does not have jurisdiction to consider an appeal from a Department decision not to conduct an inspection of the work site or issue a citation for alleged violations of Industrial Safety and Health Act.? ….In re Jay Holloway, BIIA Dec., 91 3679 (1991)

Moot Appeals

Where a worker appealed an order closing the claim with permanent partial disability award and also appealed a vocational services determination and dismissed the appeal of the closure order, the appeal challenging the vocational determination became moot since a claim cannot be reopened solely for vocational rehabilitation purposes.? RCW?51.32.095(7).? ….In re Tina Gonzalez, BIIA Dec., 89 5233 (1991)

Motion to vacate order adopting proposed decision and order

Failure of a law office to correctly calendar the due date for filing a petition for review is not excusable neglect.?....In re Robert Wiyrick, BIIA Dec.,?01?11323?(2003)

Miscommunication between an attorney and client does not establish a lack of consent for purposes of vacation of a Board order.? ….In re Iva Jennings, BIIA Dec., 01?11763 (2002) [Editor's Note: The Board's decision was appealed to superior court under King County Cause N o03-2-15607-8-KNT & 04-2-04473-1-SEA.]

Failure to ensure that the Board has extended the time in which to file a petition for review is not excusable neglect that would warrant vacation of an Order Adopting Proposed Decision and Order.? ….In re Randy Squance, BIIA Dec., 00?17407 (2002)

Motion to vacate order denying petition for review

Where the Board used the date of manifestation for calculating benefits in occupational disease claim, but the worker's beneficiary determined benefits payable would be greater if the date of last injurious exposure were used, the failure to determine the financial consequences of different benefit rates before issuance of proposed decision and order does not constitute a mistake or excusable neglect which would justify vacating order under CR?60.? ….In re Robert Sarbacher, Dec'd, BIIA Dec., 88 3107 (1991)

Motion to vacate order dismissing appeal

Inaccurate advice from an attorney regarding the effect of dismissing an appeal is not a basis on which to vacate the dismissal.? ….In re Peggy Hardy, BIIA Dec., 96?6361 (1998)

Motion to vacate order on agreement of parties

A party who chooses not to participate in proceedings may not have an agreement vacated simply because their consent was not obtained.? ….In re Kenneth Merrill, BIIA Dec., 06?22417 (2008)

An agreement may be vacated when a party demonstrated a desire to participate in the appeal and has a legitimate excuse for the failure to participate in the agreement.? ….In re Deborah Jimenez, BIIA Dec., 01?19072 (2002)

Mutual mistake for purposes of vacating an Order on Agreement of Parties can be established where it is demonstrated the resolution was not based on a meeting of the minds.? ….In re Hector Alaniz, BIIA Dec., 00?19916 (2001)

New evidence

The record will not be opened to allow the worker to present additional evidence where there is no showing that the evidence could not have been discovered with reasonable diligence prior to the conclusion of the hearings.? ….In re Eileen Cleary, BIIA Dec., 92 1119 (1993)

Nunc pro tunc order

The Board is without authority to issue an order nunc pro tunc directing the Department to pay a widow's estate her accrued pension benefits where the widow dies after the Board has granted the Department's petition for review from a proposed decision and order granting the widow's pension, but before the Board has issued its decision and order.? (RCW 51.32.040)? ….In re Johanna Hoerner, Dec'd, BIIA Dec., 70 575 (1986) [Editor's Note: Clingan v. Department of Labor & Indus., 71 Wn. App. 590 (1993) addresses court authority to issue nunc pro tunc order. The Board's decision was appealed to superior court under Benton County Cause No. 86-2-00646-7.]

Offer of judgment CR 68

CR 68, which provides for payment of costs if an offer of judgment is declined and the matter ultimately is resolved for the offered amount or less, does not apply to proceedings before the Board. ….In re Elena Osborn, Declaratory Ruling (1999)

Order on agreement of parties - See also SAFETY AND HEALTH Order on Agreement of Parties

An order on agreement of parties can only be vacated by a subsequent or additional order of the Board.? An industrial appeals judge is without authority, on a party's motion, to vacate an order on agreement of parties and issue a proposed decision and order reaching the same result.? In that circumstance, the proposed decision and order is a nullity.? ….In re Theresa Baker-Nolden, BIIA Dec., 90 4968 (1992) [special concurring opinion] [Editor's Note: CR 60(a) applies in instances of clerical error.? See Marriage of Stein, 68 Wn. App. 922 (1992); Marriage of King, 66 Wn. App. 134 (1992). ?Otherwise, CR 60(b) applies. ?Northwest Investment v. New West Fed., 64 Wn. App. 938 (1992).]

An industrial appeals judge does not render a final judgment or final decision and order; only the Board has such authority under RCW 51.52.050.? Where an industrial appeals judge declined to accept the parties' stipulation after the hearing date on the basis that issuance of a proposed decision and order, dismissing the matter for failure to present evidence when due, was merely a ministerial act, the proposed decision and order should be vacated and an order, based upon the agreement of parties, entered.? ….In re John Herrin, BIIA Dec., 89 5253 (1991)

Petition for review

RCW 51.52.104 and WAC 263-12-145 require a petition for review set forth the details of grounds for relief, and legal theory relied on, and citation of authority and/or argument in support of any legal theory. Failure to comply with these minimum requirements could result in denial of the petition based on non-compliance. ….In re Muhamed Mujic, BIIA Dec., 16 15373 (2017) [dissent]

When a petition for review is filed, the scope of the Board's review extends to all contested issues of law and fact and is not limited to the specific issues raised by the petition for review. ….In re Richard Sims, BIIA Dec., 85 1748 (1986)

An order denying an appeal cannot be petitioned to the Board but must be appealed to superior court. [RCW 51.52.080] ….In re Sandra Walster (II), BIIA Dec., 43,049, (11/73)

Reassignment of Industrial Appeals Judge

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.]

When a case is reassigned from one judge to another, the expectation is that the new judge will exercise independent judgment and take whatever further steps he or she deems appropriate.? ….In re Nathan Rosentrater, BIIA Dec., 08?20200 (2009)

Remand for additional evidence

Where parties had agreed to be bound by the results of a Board-sponsored medical examination, the industrial appeals judge did not follow the ordinary procedures for obtaining the examination, the worker asked for the opportunity to cross-examine the physician, and the industrial appeals judge issued a proposed decision and order without ruling on the motion, the Board vacated the proposed decision and order and remanded for further proceedings.? ….In re Miles Ulrich, BIIA Dec., 93 1363 (1994)

Where the Department received a call indicating a worker was employed during the period the worker received loss of earning power benefits, the call raised the question of mistake as to the amount of benefits properly payable but did not establish fraud and motion for summary judgment should have been denied.? As a result, the Board remanded to hearing process to determine whether an overpayment existed and if so, whether the benefits were fraudulently obtained.? ….In re Sherryl Schank, BIIA Dec., 90 1542 (1991) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 92-2-04865-3.]

Where the employer has received notices of proceedings but failed to appear, it has waived its right to present evidence and the Board will not remand the appeal for further hearings to permit the employer to do so.? ….In re Joseph Benoit, BIIA Dec., 35,483 (1971)

Remands from Superior Court

RCW 51.52.115 indicates that the Superior Court, in case of modification or reversal of the Board's order, should refer its order to the Department, not the Board, and to direct the Department to act in accordance with the court's findings.? In the circumstances of this case, the Superior Court order directed the Board to issue an order directing the Department to issue an order reopening the claim for aggravation of the condition causally related to the industrial injury, paying time-loss compensation benefits, with a permanent partial disability, reduced by an overpayment, denying responsibility for a condition identified as thoracic outlet syndrome, and thereupon closing the claim.? ….In re Daniel Hatch, BIIA Dec., 63 150 (1992)

Response to petition for review

The ten day time period set forth in?WAC 263-12-145(3) for filing a response to a petition for review is not jurisdictional.? The Board may therefore consider a response filed after the ten day period has elapsed.? ….In re Daniel Furlong, BIIA Dec., 65,138 (1985)

Sanctions - See SANCTIONS

Scope of review - See SCOPE OF REVIEW Closing Order

Stay of proceedings

The Board need not suspend proceedings in the worker's appeal where the employer served the Board a bankruptcy court's stay in an industrial insurance appeal where the employer is not self-insured but participates in the state fund since the presence or absence of the employer from the proceeding has no impact on the adequacy of the statutory relief available.? Citing Matter of Johns-Manville Corp., 99 Wn.2d 193 (1983). ?….In re Mary Propst, BIIA Dec., 92 2186 (1993) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 93-2-06468-1.]

Subpoena

Where a physician has develope