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2023 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)

COLLATERAL ESTOPPEL

Elements

A party asserting collateral estoppel must establish four elements: (1) the issue decided in the earlier proceeding is identical to the issue presented in the later proceeding; (2) the earlier proceeding ended in a judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding; and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. ….In re re Lee Richardson-Greenan, BIIA Dec., 19 23798 (2023) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 23-2-03190-3 SEA. The Board's decision was affirmed.]

EVIDENCE

ER 904

Where the ER 904 process is invoked, the Board must follow the rule as it has been interpreted by our state appellate courts. Following Lutz Tile, Inc. v. Krech, 136 Wn. App. 899 (2007), the Board holds that it is impermissible to allow an expert's report with a prima facie opinion into the record via an ER 904 submission where an objection was made at trial.  ….In re America 1st Roofing & Builders, BIIA Dec., 22 W0050 (2023)

MEDICAL EXAMINATIONS

Functional capacities evaluation

The Department has authority under RCW 51.32.095 (to fulfill its duty to assess vocational priorities) and WAC 296-20-01002 (when further information regarding physical capacities is needed or required) to issue an order approving a functional capacities evaluation. RCW 51.36.070, which authorizes medical examinations, is inapplicable to functional capacities evaluations.  ….In re Bryan Wickstrom., BIIA Dec., 21 11055 (2023)

OCCUPATIONAL DISEASE (RCW 51.08.140)

Infectious disease

Where the record shows that a flight attendant more likely than not contracted COVID-19 from a passenger, the claim should be allowed as an occupational disease. This is true even where the infectious disease was pervasive in everyday life. The flight attendant's distinctive conditions of employment made it more likely for her to contract the infectious disease. The Board allowed the COVID-19 claim as an occupational disease.  ….In re Shannon Bean, BIIA Dec., 21 18503 (2023) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 23-2-09441 KNT]

RES JUDICATA

Elements

A party asserting res judicata must establish five elements as between a prior action and a subsequent challenged action: concurrence of identity of subject matter, of cause of action, of persons and parties, and in the quality of the persons for or against whom the claim is made; and the application of res judicata cannot work an injustice. ….In re Lee Richardson-Greenan, BIIA Dec., 19 223798 (2023) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 23-2-03190-3 SEA. The Board's decision was affirmed.]

SAFETY AND HEALTH

Venue

The proper venue for an appeal under the Washington Industrial Safety and Health Act is the county in which the alleged violation occurred. ….In re Carolyn Daves DBA Loon Lake Partners., BIIA Dec., 20 W1281 (2023)

SURVIVOR'S BENEFITS

Substitution of party

Where a surviving spouse seeks to substitute as the appealing party for the deceased worker, the surviving spouse must file a motion accompanied by: (a) documentation of the marriage; (b) proof of death; and (c) a declaration or other proof that the surviving spouse retains some legitimate interest in pursuing the appeal. ….In re Stephen Foster (Dec'd), BIIA Dec., 22 13711 (2023) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 23-2-03886-32]

SUSPENSION OF BENEFITS (RCW 51.32.110)

Vocational benefits (RCW 51.32.099; RCW 51.32.110)

Where the worker interrupted his vocational plan under RCW 51.32.096(5)(c), his cancer diagnosis provided good cause for the interruption under RCW 51.32.110. Claim suspension was therefore improper.  ….In re Michael Killpatrick, BIIA Dec., 21 13384 (2023) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 22-2-13725-8 KNT. The appeal was dismissed by stipulation.]