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2020 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 (RCW 51.32.160)

Over seven years after initial closure (RCW 51.32.160)

The exercise of the director's discretion to provide permanent partial disability benefits in a claim reopened over seven years after the first closure does not make decisions to deny temporary or permanent total disability benefits reviewable under a preponderance of the evidence standard.
  ….In re David Platzer, BIIA Dec., 18 26897 (Order Vacating Proposed Decision and Order) (2020)

BOARD

* Effect of claim rejection on pending claim administration issues

When we issue a decision to reject a claim, appealed orders adverse to the worker's interests are correct and should be affirmed.   ….In re Barry Bush, BIIA Dec., 19 12861 (2020) [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 20-2-01488-2]

* Failure to confirm witnesses

Before excluding a witness's testimony due to a party's failure to confirm, the judge should consider the factors relevant to allowing a continuance: the diligence of the party in pursuing the appeal, the harm caused by not allowing the witness to testify balanced against the prejudice to the opposing party if the witness is allowed to testify, and consideration that the sanction of excluding a witness is an extreme sanction and is not preferred when a less severe sanction may be available.   ….In re Leslie Giblett, BIIA Dec., 19 19420 (2020)

BURDEN OF PROOF

* Presumption in RCW 51.32.185

The presumption that certain cancers are related to employment as a firefighter shifts the burden of production and persuasion to the Department or self-insured employer. Citing Spivey v. City of Bellevue, 187 Wn.2d 716 (2017). The presumption can be overcome by a preponderance of evidence that established the cancer was not caused by exposures in the course of employment as a firefighter.
  ….In re Daniel Apodaca, BIIA Dec., 19 11160 (2020) [dissent]

CAUSAL RELATIONSHIP

Audiologist

Audiologists may testify about the causation of a condition if their opinion is admissible under ER 702 using the analysis from Frausto v. Yakima HMA, 188 Wn.2d 227 (2017). Overruling In re Virgil Degolier, BIIA Dec., 60,471 (1983).  ….In re Dean Babbitt, BIIA Dec., 18 20492 (2020)

EXPERT TESTIMONY

Admissibility of opinions

Audiologists may testify about the causation of a condition if their opinion is admissible under ER 702 using the analysis from Frausto v. Yakima HMA, 188 Wn.2d 227 (2017). Overruling In re Virgil Degolier, BIIA Dec., 60,471 (1983).  ….In re Dean Babbitt, BIIA Dec., 18 20492 (2020)

Psychologists may testify about the degree of impairment caused by a mental health condition if their opinion is admissible under ER 702 using the analysis from Frausto v. Yakima HMA, 188 Wn.2d 227 (2017).  ….In re Adrian Estrada Ramirez, BIIA Dec., 19 16654 (2020) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 20-2-01788-06.]

INDEPENDENT CONTRACTORS

* Franchisees

In order to establish an exemption from coverage, the hiring of subordinates must have greater formality and structure than enlisting aid from another on an occasional basis without a contemporaneous delegation of a significant portion of the franchisee's duties.  ….In re Hardy and Associates DBA Vanguard Cleaning Sys., BIIA Dec., 17 19828 (2020)

* Hiring subordinates

In order to establish an exemption from coverage, the hiring of subordinates must have greater formality and structure than enlisting aid from another on an occasional basis without a contemporaneous delegation of a significant portion of the franchisee's duties.  ….In re Hardy and Associates DBA Vanguard Cleaning Sys., BIIA Dec., 17 19828 (2020)

* Online platforms

Service providers are not employees or independent contractors of a provider of an electronic (Internet) platform through which pet owners and pet services providers can interact and come to an agreement for services in which all services agreements are between pet owner and pet services provider and the platform provider is not involved in setting price, time, scope of service, or any other matter relating to the provider's and owner's agreement. ….In re A Place for Rover, Inc., BIIA Dec., 19 11131 (2020) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 20-2-02332-6.]

RETROACTIVITY OF STATUTORY AMENDMENTS

* Mental/mental occupational disease claims for firefighters and law enforcement officers

Statutory amendments to RCW 51.08.142 and RCW 51.32.185 contain no language providing for retroactive application and are neither curative or remedial; such amendments operate prospectively and will not apply retroactively to conditions diagnosed prior to the amendments effective date.  ….In re Gary Yetter, BIIA Dec., 19 11900 (2020) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 21-2-00347-4 SEA]

STANDARD OF REVIEW

* Over-seven reopening

The exercise of the director's discretion to provide permanent partial disability benefits in a claim reopened over seven years after the first closure does not make decisions to deny temporary or permanent total disability benefits reviewable under a preponderance of the evidence standard.
 ….In re David Platzer, BIIA Dec., 18 26897 (Order Vacating Proposed Decision and Order) (2020) [dissent]

TIME-LOSS COMPENSATION (RCW 51.32.090)

Attending physician's recommendation against return to work

Where the attending physician's work restrictions were in anticipation of upcoming surgery and not a risk of further injury on return to employment, the rationale for providing time-loss compensation based on In re Charles Hindman, BIIA Dec., 32,851 (1970) does not apply. ….In re Romeo Muldrow, BIIA Dec., 19 16111 (2020) [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 21-2-00023-5]

Wages (RCW 51.08.178) - Compensations

Per diem paid to a traveling employee need not be replaced during a period of disability and is not considered wages for purposes of calculating time-loss compensation. ….In re Donald Ball, BIIA Dec., 19 14869 (2020)

TREATMENT

* Accepted conditions

"Administratively accepted" conditions are not a separately recognized class of conditions related to a claim. Conditions stipulated as "administratively accepted" are accepted conditions under the claim.
….In re Cynthia Simmons, BIIA Dec., 18 18875 (2020)

VOCATIONAL REHABILITATION

* Return-to-work offer

RCW 51.32.096(2)(c) requires that the employment offered as a return to-work offer be consistent with the worker's documented physical and mental restrictions as provided by the worker's health care provider. This means that a person hired for purposes of performing an independent medical examination or physical capacities evaluation is not the worker's health care provider, and decisions involving validity of a return-to-work offer cannot be made in reliance on them. ….In re Chancy Rickey,
BIIA Dec., 18 15264 (2019)