• Search significant decisions
• Significant decisions case name index
• Significant decisions subject index
• Tentative significant decisions
• Decision & orders
• Settlement orders
• Rule-making

AGGRAVATION (RCW 51.32.160)

Objective evidence requirement

Citing Price v. Dep't of Labor & Indus., 101 Wn.2d 520, 528 (1984), and 6A Wash. Prac., WPI 155.09 (7th ed.), the Board held that because post-concussive syndrome is a psychiatric condition, a worker need not present objective evidence of worsening to prove a claim must be reopened. ….In re Didier Lappin, BIIA Dec., 23 11489 (2024) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 24-2-02842-32.]

APPEALABLE ORDERS

Interlocutory orders

The Department may pay benefits on a temporary basis only when it has issued no order in accordance with RCW 51.52.050. Where the Department has already issued an order allowing a claim, it cannot pay time-loss compensation on a temporary basis after that date. ….In re Karen Brawner, Order Granting Motion for Reconsideration in Part, and Granting Relief on the Record, BIIA Dec., 24 15585(2024) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 24-2-03527-06.]

ATTORNEY FEES AND COSTS

* Presumption in RCW 51.32.185

When a determination involving the presumption established in RCW 51.32.185 is appealed to the Board and the final decision allows the claim for benefits, the Board shall order that all reasonable costs of the appeal, including attorney fees and witness fees, be paid to the firefighter, fire investigator, or law enforcement officer, or his or her beneficiary by the opposing party. In determining the attorney's fee in such cases, there must be a nexus between the work and the appeal. The Board will use the date of the Department's order as the trigger date for starting the attorney's fee time attributable to the appeal. The Board will not order attorney's fees for work performed before the date of the Department order on appeal. ….In re David James, Order Awarding Attorney Fees and Costs, BIIA Dec., 23 18856(2024)

COMMUNICATION OF DEPARTMENT ORDER

Failure to provide order to attending physician

The Department issued an order in which it determined that it couldn't reconsider its closing order because the worker's protest was untimely. On appeal, the worker contended that the order never became final because it had not been mailed to a psychologist who treated him six times. Held: The psychologist wasn't the worker's attending provider. Citing Shafer v. Dep't of Labor & Indus., 166 Wn.2d 710 (2009), the Board held that the order was properly communicated to the attending provider, Matthew Brown, D.O., and became final and binding when no protest or appeal was filed within 60 days of communication. ….In re Zachariah Roetcisoender, BIIA Dec., 23 14840 (2024) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 24-2-02416-31.]

PERMANENT TOTAL DISABILITY (RCW 51.08.160)

* Vocational rehabilitation determinations

The worker filed an appeal from a Department order that closed the claim with a permanent partial disability award. The worker was seeking an industrial insurance pension. The Board found on the evidence that the worker was unemployable without formal vocational retraining. Held: After the Department has determined that the worker is not permanently totally disabled, the worker's "occupational retraining prognosis" is no longer a factor in determining whether the worker is permanently totally disabled. The worker's burden doesn't include proving that they wouldn't be employable even if retrained. His burden was to prove that due to the industrial injury, he is permanently unable to obtain and perform any gainful employment on a reasonable continuous basis, in consideration of his age, education, and transferable skills. ….In re Tesfai Ukbagergis, BIIA Dec., 09 20737 (2011)

PROTEST AND REQUEST FOR RECONSIDERATION (RCW 51.52.050)

Limitations on time to act

The worker's attorney filed a notice of appearance and protest to "any adverse orders" within 60 days. More than seven months after it issued a claim allowance order, the Department issued an order affirming claim allowance. The employer appealed. Held: The worker's general protest didn't reasonably put the Department on notice that the worker was requesting action inconsistent with claim allowance. And the Industrial Insurance Act doesn’t permit the Department to issue an affirming order five months after the claim allowance order had become final and binding. ….In re Richard Ballard, BIIA Dec.,
23 14950 (2024)

SAFETY AND HEALTH

Penalties

The Board clarified how repeat violations are defined under WAC 296-900-14020. A third violation of a safety rule by a company is a second repeat violation under WAC 296-900-14020, not a third repeat as found by the industrial appeals judge. The word repeat is used as an adjective in the rule. It means "of, relating to, or being one that repeats an offence, achievement, or action." So, the second time a violation occurs it is considered a repeat. For purposes of WAC 296-900-14020 penalty calculations, the proper nomenclature for a third violation is a second repeat. ….In re United Roofing Solutions, Inc., BIIA Dec., 22 W0250 (2024) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 24-2-02245-34.]

STANDARD OF REVIEW

Vocational rehabilitation determinations

A decision about whether a worker turned down a return-to-work job offer isn't a vocational decision subject to the abuse of discretion standard of review. The Director's decision to assign a vocational counselor is subject to the abuse of discretion standard of review. ….In re Kaleo Neil, Order Vacating Proposed Decision and Order, BIIA Dec., 23 10636 (2024)

TREATMENT

After claim closure

The Board held that pursuant to RCW 51.36.010(4), only the supervisor of industrial insurance, and not the supervisor's designee, may decide requests for post-pension treatment. A Department determination in writing without protest or appeal rights language is valid, but effectively has no deadline by which it must be challenged. ….In re Kirtley Gardiner, BIIA Dec., 23 22640 (2024) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 24-2-01741-34.]

Decisions De-listed as Significant

PERMANENT TOTAL DISABILITY (RCW 51.08.160)

Obtaining work vs. performing work

Whether a worker can obtain work is not a factor in determining whether the worker is permanently totally disabled. The question is whether the worker can perform any substantial gainful employment which exists in the competitive labor market and is within the worker's qualifications. …. In re Violet Canfield, BIIA Dec., 60,811 (1983) [concurrence] [Editor's Note: See Leeper v. Department of Labor & Indus., 123 Wn.2d 803 (1994)]

Reason for De-listing: No longer good law. It has long been held that a worker's ability to obtain employment is a factor in determining whether the worker is totally disabled. The statement about the ability to obtain employment in In re Violet Canfield is no longer supportable. See, for example, Leeper v. Department of Labor & Indus., 123 Wn.2d 803 (1994) (disapproving the analysis in Graham v. Weyerhaeuser Co., 71 Wn. App. 55, 856 (1993)) and 6A Wash. Prac., WPI 155.07 (7th ed.) ("Total disability is an impairment of mind or body that renders a worker unable to perform or obtain a gainful occupation with a reasonable degree of success and continuity. It is the loss of all reasonable wage-earning capacity.").