skip to main content

Tentative significant decisions

All dockets are in Adobe Acrobat/PDF format

March 2022

Scope of Review/Segregation Orders
The Department issued an order in which it held that the worker didn't have cervical radiculopathy. The worker seeks acceptance of this condition. The Department contends that the question is beyond the Board's scope of review. The Board disagreed. Following Lenk v. Department of Labor and Industries, the Board held that the question does fall within its scope of review in this appeal: " When the Department determined that he did not have the condition, it implicitly and necessarily determined that the condition was not proximately caused or aggravated by the industrial injury. Moreover, if we declined to address proximate cause at this juncture, we would unnecessarily delay and add to the expense of the parties' resolution of the issue, against the interests of judicial economy."
In re Isaac Pickett, Dckt. No. 21 11184 (March 3, 2022)

Hanford Claims
The Board held that the Department of Energy failed to rebut the Hanford presumption by clear and convincing evidence. The worker has chronic lymphocytic leukemia (CLL). DOE's records regarding potential chemical exposure to the worker are scant. And the cause of CLL is not known. Not knowing what causes something does not mean that nothing causes it. The lack of data does not mean that an association between CLL and exposure to radiation or chemicals does not exist. In re Amy M. Elsey, Dckt. No. 19 25936 (March 8, 2022)

May 2022

Res Judicata/Marley
The Department allowed the claim as an industrial injury. Later, the worker sought to have the Department accept additional conditions under the claim. The worker presented expert testimony that the conditions were related to the distinctive conditions of his employment. Because this is an industrial injury and not an occupational disease claim, the IAJ segregated the conditions. The Board agreed. Citing Marley, the Board specifically overruled previous Board decisions, Robert E. Drury, Michael Katanik, Robert D. Brezee, and Randy M. Black. In re Pedro C. Ceja, Dckt. No. 20 20398 (May 16, 2022) [dissent]

July 2022

Scope of Review/Closing Orders/Time-Loss Compensation
In a worker's appeal from a closing order, the worker may seek back time loss compensation for periods where time-loss compensation wasn't paid, but in an employer's cross appeal from a closing order, the employer cannot seek an overpayment order for past, unprotested time-loss compensation orders without following the overpayment rules found in the Industrial Insurance Act. Under RCW 51.32.240, if a self-insured employer has reason to believe it overpaid disability to a worker due the reasons set forth in that section, it must petition for repayment within one year of making any such compensation. After such a request, the Department will then act by issuing an order either assessing an overpayment or not. In re Keri P. Mauney, Dckt. No. 19 20581 (July 20, 2022)

October 2022

Record/Video Recording of Hearing
The industrial appeals judge didn't err when he denied the claimant's request to videorecord the hearing. The Board denied the worker's motion for a remand to allow him to videorecord the hearing. In re Jerald D. McClinton, Dckt. No. 19 16607 (October 11, 2022) [dissent]

Scope of Review/Claim Rejection Orders/Occupational Disease
The Board agreed with our judge that the ironworker developed end-stage arthrosis in his foot due to an occupational disease and reversed the Department's order rejecting the claim. It granted review to remove a finding that Mission Support Alliance was the employer of last injurious exposure, because "[w]hen the Department rejects a claim, and on appeal we allow the claim as an occupational disease, it is beyond our scope of review to decide who is the employer of last injurious exposure [or the date of manifestation]." In re Rick R. Huston, Dckt. No. 21 11610 (October 31, 2022)