2022 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)
- *: indicates new subheading
- All dockets are in Adobe Acrobat/PDF format
BURDEN OF PROOF
Presumption under RCW 51.32.187
The lack of causation data does not mean that an association between the worker's medical condition and exposure to radiation or chemicals does not exist. The Board held that the employer failed to rebut the RCW 51.32.187 presumption by the requisite clear and convincing evidence standard of proof. ….In re Amy Elsey, BIIA Dec., 19 25936 (2022)[dissent] [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 22-2-00430-03.]
RES JUDICATA
Allowance of Claim
Where the Department order allowing a claim as an industrial injury has become final and binding, the claim cannot later be recharacterized as an occupational disease claim to request acceptance of responsibility for additional conditions caused by employment conditions. Citing Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1994), the Board overruled previous Board decisions: In re Robert E. Drury, Dckt. No. 88 1149 (April 19, 1990); In re Michael Katanik, Dckt. No 09 12087 (July 22, 2010); In re Robert D. Brezee, Dckt. No. 15 13246 (August 11, 2016); and In re Randy M. Black, Dckt. No. 19 19894 (July 6, 2021). ….In re Pedro Ceja, BIIA Dec., 20 20398 (2022) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 22-2-021078-39.]
SCOPE OF REVIEW
Closing Order
Where a self-insured employer cross appeals from a closing order, the employer cannot seek an overpayment order for past, unprotested orders that paid time-loss compensation without following the overpayment rules in RCW 51.32.240. If a self-insured employer believes it overpaid benefits due to the reasons set forth in RCW 51.32.240, it must petition for repayment within one year of making any such payment. ….In re Keri Mauney, BIIA Dec., 19 20581 (2022) [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
*Maphet acceptance
The Department denied responsibility under the claim for lumbar radiculopathy. The worker sought acceptance of the condition under Clark County v. Maphet, 10 Wn. App. 2d 420 (2019), because he had received epidural steroid injections for his low back under the claim. But the record showed that epidural steroid injections are never a proper treatment for the worker's accepted lumbar sprain condition. The Board held that the Department properly denied responsibility for radiculopathy. Injections were properly authorized for diagnostic purposes, and the worker didn't prove that he suffers from radiculopathy. The principle of Maphet acceptance doesn't apply to undiagnosed conditions. ….In re Michael Reed, BIIA Dec., 21 17153 (2022) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 22-2-17544-3KNT.]
SURVIVOR'S BENEFITS
*Post-hoc consideration of worker's ability to complete a vocational program
Upon a worker's death and claim closure, the worker's prospective ability to complete a vocational program before death is not a consideration when determining whether the worker was permanently totally disabled at the time of death. ….In re Antonio Flores, Dec'd, BIIA Dec., 20 28637 (2022)
TIME-LOSS COMPENSATION (RCW 51.32.090)
*Withdrawal of Modified Position Offer
Where a worker and employer agree to modify a light-duty job offer description, the employer is deemed to have withdrawn the original offer. ….In re Carlos Ortiz Martinez, BIIA Dec., 20 10952 (2022)
VOCATIONAL REHABILITATION
*Time-loss compensation
A worker receiving vocational plan development services or successfully participating in a vocational plan is automatically entitled to time-loss compensation. An employer who appeals such payment orders can establish the incorrectness of the orders only if it shows the Department abused its discretion in issuing them. ….In re Robert Lake Jr., BIIA Dec., 19 19796 (2022) [Editor's note: The Board's decision was appealed to superior court under Thurston County Cause No. 22-2-00924-34.]
