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2017 significant decisions

Proper citation form for significant decisions

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

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

 

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

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

BOARD

* 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)

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]

Summary judgment

Summary judgment may be granted in favor of a non-moving party where there is no genuine issue of material fact. ….In re Cristobal Leal, BIIA Dec., 15 21241 (2017)

CAUSAL RELATIONSHIP

Physical therapist

* Expert Testimony

EXPERT TESTIMONY

Scope of expertise

Physical therapists 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 Juan Muñoz, BIIA Dec., 05 11698 (2007). ….In re Adele Palmer, BIIA Dec., 16 16600 (2017)

DEPOSITIONS

* Prior Appeals

CR 32(a) contemplates use of depositions from prior actions if they involve the same parties, subject matter, and issues. Where the issues in prior appeals differed from the issues in the present appeals, the prior depositions don't meet the narrow strictures of CR 32 and may be excluded. ….In re James Baker, BIIA Dec., 16 17782 (2017)

EVIDENCE

Judicial notice of AMA guides

The Board will not take judicial notice of the diagnostic criteria found in the AMA Guides to the Evaluation of Permanent Impairment when permanent impairment is not an issue in the appeal.  ….In re Virginia Peterson, BIIA Dec., 15 21676 (2017)

PERMANENT TOTAL DISABILITY

Combined effects of preexisting and subsequent disabilities

The legal standard for showing causation of an inability to work is proximate cause and not significant contributing cause. The industrial injury superimposed on a preexisting condition that becomes disabling after the industrial injury must be a proximate cause of the inability to work in order to support a finding of permanently and totally disabled. To the extent In re Carlton Hague, BIIA Dec., 59,331 (1982) held that the industrial injury must be a significant contributing cause, it is overruled. ….In re Sista Leetta, BIIA Dec., 15 24959 (2017)

SAFETY AND HEALTH

* Department's right to vacate citation

The Board cannot compel the Department to pursue enforcement of its citation and will grant the Department's motion to vacate and abandon enforcement of the citation. ….In re Sposari, Inc.,
(Mr. Rooter Plumbing),
BIIA Dec., 16 W0358 (2017)

Repeat violations

A repeat violation occurs when the employer has been formerly cited for the same type of hazard; the Department is not required to establish that the employer had been previously cited for the same behavior.  ….In re Cobra Roofing Services, BIIA Dec., 00 W0760 (2002) [Editor's Note: The Board's decision was appealed to superior court under Asotin County Cause No. 02-2-00051-2.]
….In re Silverbow Roofing, BIIA Dec., 15 W1275 (2017)

* Service of citation and notice

The presumption of communication of certified mail can be rebutted by showing that the party who received the certified mail wasn't an authorized agent of the employer. The employer directed the UPS Store, although a mail agent for the employer, to refuse acceptance of all certified mail. The UPS Store's acceptance of the certified mail does not establish communication. ….In re Stoneridge Contractors, BIIA Dec., 16 W0085 (2017)

TIME-LOSS COMPENSATION (RCW 51.32.090)

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

A training program offered by the employer's retro group at a resource center for several employers is a valid light-duty job. ….In re Aaron Richardson, BIIA Dec., 15 17069 (2017)

* Wage rate

When a previously injured worker files a claim for injuries incurred while working at a light-duty job (at a reduced rate of pay), the wage rate at the time of injury for the second claim will be based on the wages earned while performing the light-duty job. ….In re Brian Carlson, BIIA Dec., 16 16567 (2017)

TREATMENT

Proper and necessary medical and surgical services (RCW 51.36.010)

Spinal column stimulator

Notwithstanding the Health Technology Clinical Committee preclusion for authorizing spinal cord stimulator treatment, the Department remains obligated to repair or replace a spinal cord stimulator it had previously authorized. ….In re Steven Rochelle, BIIA Dec., 15 24143 (2017)