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Tentative significant decisions

All dockets are in Adobe Acrobat/PDF format

January 2020

Covered Employment/Franchisees/Hiring of Subordinates
Franchisee cleaning workers who provide services for the franchisor's clients are covered workers unless they pay subordinates to work for them. Testimony that family members or friends occasionally help without more is insufficient to prove that they employed a subordinate to help with all or part of the work. In this appeal, only 3 of the 22 franchisees at issue are exempt from coverage under the White test.
In re Hardy and Associates D/B/A Vanguard Cleaning Systems of WA, Dckt. No. 17 19828 (January 8, 2020)

Evidence/Expert Competency
The Board overruled its decision, In re Virgil Degolier, BIIA Dec., 60,471 (1983), in which it held that audiologists were incompetent to testify about medical causation of hearing loss. Here, the Board held that Michelle Batson, Au.D., an audiologist, was competent to testify on the causation of her patient's hearing loss because her testimony is helpful under ER 702. The Board found the worker did make a prima facie case, but credited the testimony of Julie Gustafson, M.D., an otolaryngologist, over that of Dr. Batson, and affirmed the Department's order rejecting the hearing loss claim. The Board noted that the licensing laws governing the practice of audiology provide that licensed audiologists "are independent practitioners who provide a comprehensive array of services related to the identification, assessment, habilitation and rehabilitation, and prevention of auditory and vestibular impairments."
In re Dean L. Babbitt, Dckt. No. 18 20492 (January 17, 2020)

August 2020

*New Law/Departure — Over-Seven
Aggravation/Disability/Standard of Review

Where the Department reopens an over-seven claim and the Director exercises discretion to award the worker an increased PPD award, the question of whether the worker was entitled to any other disability award, such as an industrial insurance pension, must be viewed under an abuse of discretion standard of review. The Board overruled its prior decision, George H. Higgins, Sr., and distinguishes Cascade Valley Hospital v. Stach.
In re David A. Platzer, Dckt. No. 18 26899 (August 4, 2020) [dissent]

September 2020

Wage Rate Calculation/Seasonal/Time-loss Compensation
RCW 51.08.178(1) is the "default provision" for determining wage rates and must be used "unless otherwise provided specifically in the statute concerned." In Avundes, our supreme court established a two-part test to determine whether subsection (1) or (2) applies: was the type of work essentially seasonal or intermittent? If so, subsection (2) applies. If not, we engage in a more detailed evaluation of the worker's relationship to the employment. Additionally, RCW 51.08.178 doesn't provide for taking into consideration time-loss payments or the "imputation" of wages that might have been earned in the wage rate calculation.
In re Claude A. Davis, Dckt. No. 19 15155 (September 2, 2020)

October 2020

Industrial Insurance Premiums/Gig Workers
The Board held that pet service providers (pet walkers, pet sitters) who accept work assignments via the A-Place-for-Rover app aren't under the control of the company. The company only provides an Internet platform for pet service providers to obtain gigs. In return the pet service providers pay a fee out of their earnings from the customer.
In re A Place for Rover Inc., Dckt. No. 19 11131 (October 23, 2020) [dissent]

November 2020

Hanford Presumption
The Board issued this D&O to discuss whether the provisions of RCW 51.32.187 creates a rebuttable presumption that Mr. Garza has a neurological disorder as the result of exposures at the Hanford nuclear site. The Board concluded that the statute is inapplicable to this appeal because Mr. Garza does not have toxic encephalopathy.
In re Abelardo Garza, Dckt. No. 19 11484 (December 15, 2020)