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2021 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)

Permanent total disability

Where a worker's claim is closed without an industrial insurance pension and later reopened, then reclosed, and the worker seeks increased permanent disability, the evidence of worsening does not need to be substantial; a slight worsening of a condition where the percentage rating of impairment does not increase can still result in the award of a pension provided that a preponderance of the evidence shows the worker can no longer maintain gainful employment. ….In re Darla Ellinghausen, BIIA Dec.,
19 24229
(2021)

BURDEN OF PROOF

*Presumption under RCW 51.32.187

In a Hanford appeal, just as in any other appeal at the Board of Industrial Insurance Appeals, to overcome a CR 41(b)(3) motion, the party with the burden of production must establish a prima facie case—substantial evidence which, if unrebutted, would convince an unprejudiced, thinking mind of the truth of the issues on appeal. The Board will follow the Morgan theory of presumptions in claims arising under RCW 51.32.187. Accordingly, RCW 51.32.187 shifts both the burden of production and the burden of persuasion (proof) to the employer, in this case, DOE. ….In re Glenn Hannaman BIIA Dec.,
19 12787 (2021) [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 21-2-01716-3]

EVIDENCE

Judicial notice

The Board can take judicial notice of its own records to determine whether an employer in a WISHA appeal appealed prior Corrective Notices of Redetermination or Citations. ….In re CDK Construction Services, BIIA Dec., 19 W1143 (2021)

*Jurisdictional History

Even if stipulated to, the BIIA's Jurisdictional History document is not intended to be admitted as substantive evidence on issues under appeal unless the parties otherwise agree to do so. ….In re Jerald McClinton, Order Vacating Proposed Decision and Order, BIIA Dec., 19 16607 (2021)

Rebuttal testimony

The Board held that disclosure of late discovered surveillance video only after the appellant's witnesses testified meets the requirement of new matters for which rebuttal testimony is appropriate. ….In re Carlos Angulo,Order Vacating Proposed Decision and Order, BIIA Dec., 20 11887 (2021)

MOTION TO DISMISS

Failure to make a prima facie case

In deciding whether to grant a CR 41(b)(3) motion to dismiss, we are required to accept the non-movant's evidence as true; view all the evidence in the light most favorable to the non-movant; and determine if there is any evidence or reasonable inference from the evidence establishing a prima facie case. ….In re Dora ValeroOrder Vacating Proposed Decision and Order, BIIA Dec., 19 19528 (2021)

PERMANENT PARTIAL DISABILITY (RCW 51.32.080)

*Overpayment

The Industrial Insurance Act doesn't permit the Director any discretion to waive an overpayment for previously paid permanent partial disability when the Department places the worker on a pension under the same claim. ….In re Randall Pruden, BIIA Dec., 20 14546 (2021)

PERMANENT TOTAL DISABILITY (RCW 51.08.160)

Availability of work in a geographic area

Where a worker is qualified to perform telehealth nurse services, the job is not constrained by geographic boundaries like most jobs. ….In re Kathleen Houlihan, BIIA Dec., 19 26282 (2021)[dissent] [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 21-2-02535-32]

PROTEST AND REQUEST FOR RECONSIDERATION (RCW 51.52.050)

*Attorneys

Even if the Department of Labor and Industries knows or should know that a claimant is represented, the Industrial Insurance Act requires a signed authorization before the Department can send copies of orders to a representative of an injured worker. Without such authorization, the Department is under no obligation to send orders to an attorney. ….In re Robert Backstein, BIIA Dec., 20 10293 (2021) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 21-2-05703-1]

RES JUDICATA

*Prior stipulation in Order on Agreement of Parties

The Board won't be bound by the stipulated medical opinion underlying an order on agreement of parties in a previous appeal, particularly where, as here, a party requests that the Board should infer facts from the parties' prior stipulation. ….In re Brett Klein, BIIA Dec., 19 16443 (2021) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 21-2-05652-2]

Segregation order

A condition segregation order that is different and new from a prior segregation determination can't be considered res judicata. ….In re Katherine Bard, Order Vacating Proposed Decision and Order, BIIA Dec., 19 22559 (2021)

The Department of Labor and Industries' previous determination that the worker didn't have depression at the time it issued its order does not preclude a finding that the worker later developed claim-related depression. ….In re Todd Saeger, BIIA Dec., 19 18448 (2021)

SANCTIONS

*Deadline to pay sanctions

Absent a stated deadline, the Board and its judges should include "date payable by" language in orders awarding sanctions. ….In re Neil Cowley,Order Denying Motion for Further Monetary Sanctions, BIIA Dec., 20 10532 (2021) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 22-2-00989-31]

SUBSEQUENT CONDITION TRACEABLE TO ORIGINAL INJURY

Aggravation by treatment

The consequences of treatment for an industrial injury are considered to be part and parcel of the injury itself. But where treatment is required to treat a non-industrially related condition that previously impeded recovery of an industrially related condition, and the worker's industrially related condition is fixed and stable, the insurer doesn't have an ongoing responsibility to continue to treat all complications that arise from such a condition. ….In re Janice Brinson-Wagner, BIIA Dec., 20 27444 (2021) [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 21-2-01296-03]

*Maphet acceptance

Under Clark County v. Maphet, 10 Wn. App. 2d 420 (2019), the worker must demonstrate that the self-insured employer accepted the L5-S1 disc protrusion and multi-level lumbar spine degenerative conditions when it authorized and paid for epidural injections. In this appeal, the self-insured employer only authorized injections to treat a lumbar sprain. Distinguishing Maphet, the Board held that the employer didn't accept responsibility for L5-S1 disc protrusion. ….In re Jeremy Carrigan,, BIIA Dec., 20 12899 (2021) [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 21-2-00930-03]

The holding in Clark County v. Maphet, 10 Wn. App. 2d 420 (2019) was not simply that payment equals acceptance. ….In re Samuel Peña, BIIA Dec., 19 14287 (2021) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 21-2-04974. The court disagreed with the Board on the facts, and found the Board majority was incorrect in part and the dissenting Board member was incorrect in part. The court didn't reach the Maphet issue. Instead, it credited the worker's attending physicians, and weighed the evidence on causation differently. The court held by a preponderance of the evidence that the worker's bipolar condition was proximately caused or aggravated by the industrial injury.]

TREATMENT

*Diagnostic treatment

Proof that diagnostic treatment is proper and necessary does not also require proof of specific curative treatment the diagnostic testing is expected to identify. ….In re Matthew Riggs, BIIA Dec., 19 23004 (2021)

WAGES (RCW 51.08.178)

*Work that fluctuates throughout the year

While the asphalt worker's hours varied throughout the year, RCW 51.08.178(1) should be used to calculate his wage at the time of injury. RCW 51.08.178(1) does not state specifically how the Department is to calculate the number of hours a worker is normally employed, and the employer hasn't shown that the result using a 6-month period to determine hours is significantly different from using a 12-month period. The Department's method (using a 6-month period to avoid penalizing the worker for time he was on strike) was reasonable. ….In re Jeremy Parsons,
BIIA Dec., 19 22500 (2021)

Decision Removed

PENALTIES (RCW 51.48.017)

Unreasonable delay

Where the Department determines that a penalty is due for unreasonable delay in payment of benefits, the amount "then due" as set out in RCW 51.48.017 is the aggregate amount due. ….In re Josannah Hopkins, Order Denying Motion for Reconsideration, BIIA Dec., 13 21202 (2015) [Editor's Note: April 2022 the decision is removed from the Board's significant decisions because the Legislature amended RCW 51.48.017. Effective September 1, 2020, every time a self-insured employer unreasonably delays or refuses to pay benefits as they become due, they are required to pay a penalty not to exceed the greater of one thousand dollars or 25 percent of either the amount due or of each underpayment made to the claimant. Josannah Hopkins is no longer good law.]