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BURDEN OF PROOF

Employer Appeal

When the employer is the appealing party, RCW 51.52.050 and WAC 263 12-115(2)(a) and (c) charge the employer with proceeding initially with evidence sufficient to establish a prima facie case for the relief sought. If no motion to dismiss for failure to present a prima facie case is made, or the motion is made and initially denied or a ruling is deferred, then we must consider all the evidence presented, not just the evidence presented by the party with the burden of going forward. In this case, no one made a motion to dismiss for failure to present a prima facie case, so we consider the entire record, and we hold that the employer made a prima facie case. Here, the burden of persuasion shifted to the worker and/or Department to prove that the worker did not voluntarily retire, which they were unable to do. ….In re Deborah Hardy, BIIA Dec., 23 19203 (2025) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 25-2-01799-03.]

DEPARTMENT

Reassumption of Jurisdiction (RCW 51.52.060)

Where the worker appeals a Department letter, the Department may reassume jurisdiction by modifying, reversing, or holding the appealed letter in abeyance within 60 days of its issuance. The Department cannot reassume jurisdiction by issuing an order that only reiterates the decision that was appealed. ….In re Marc Denbo, BIIA Dec., 25 13319(2025) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 25-2-13935-8.]

MOTION TO DISMISS

Failure to make a prima facie case

A non-appealing party may move to dismiss an appeal for failure of the appellant to make a prima facie case. If the motion is denied, the non-appealing party may rest on its motion or present evidence. If the non-appealing party doesn't rest on its motion, the industrial appeals judge must review all of the evidence presented, from both parties, to determine if the appellant made a prima face case. ….In re Chong Pak, BIIA Dec., 23 15521(2025)

PROTEST AND REQUEST FOR RECONSIDERATION (RCW 51.52.050)

Contents

The employer's protests to 14 time-loss compensation orders did not act as a protest to a wage order issued around the same time period. The protests' language didn't indicate that the employer disagreed with the wage information. The employer didn't list the date of the wage order as a date of the orders being protested. The wage order became final and binding. ….In re David Gheorghita, BIIA Dec., 24 12743 (2025)

SANCTIONS

Discovery

When industrial appeals judges order sanctions, they must incorporate the sanctions ruling and make findings of fact and conclusions of law regarding the sanctions in a proposed decision and order so the decision is capable of review on appeal. ….In re Richard Curran, BIIA Dec., 24 10578 (2025)

WISHA

* Successor Liability

The Board applies the federal "substantial continuity" test when determining whether a cited successor employer may have citations from the predecessor employer considered for purposes of determining whether a repeat violation has occurred ….In re Genesis Framing Construction, BIIA Dec.,
22 W0206 (2025) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 25-2-6290-2 SEA.]

Decisions Delisted as Significant

DELISTED

PARTY ACTIONS (RCW 51.24)

Distribution of recovery

Under RCW 51.24.060, the Department must pay a proportionate share of the reasonable attorneys' fees and costs incurred by a worker in obtaining a third party recovery. The numerator of the proportionate share calculation is the actual amount which the Department has, or will, benefit from the recovery. The Department benefits from the recovery to the extent of the balance remaining after deducting fees and costs and the worker's 25 percent share, or the benefits "paid and payable", whichever is the lesser. ….In re Bruce Wilson, BIIA Dec., 86 4043 (1987) [concurrence]
Reason for Delisting: The statute changed to eliminate "and payable."

DELISTED

JOINDER

Single claim, multiple possible employers/insurers

In the allowance of a claim as an occupational disease, it is acceptable to remand a claim to the Department to determine the impacted state fund employers when the Department has agreed to the allowance of the claim because the state fund will be the responsible insurer. It is not acceptable to remand to the Department to determine the responsible insurer. All potential insurers must be joined to allow complete relief among the parties. Distinguishing In re Juan Muñoz, BIIA Dec., 05 11698 (2007). ….In re Steve Crookshanks, BIIA Dec., 16 10351 (2016)

Reason for Delisting: Overruled by In re Maria Gomez, BIIA Dec., 16 23157 (2018). The Board no longer holds that it is unacceptable to remand to the Department to determine the responsible insurer. If the record established that distinctive conditions of work within Washington caused an occupational disease, the claim can be remanded to the Department to determine the responsible insurer.

DELISTED

BOARD

Reassignment of Industrial Appeals Judge

Parties to an appeal may file an affidavit of prejudice to disqualify an industrial appeals judge assigned to conduct hearings, but after the hearings have been completed by one judge, the parties may not disqualify a judge who was reassigned solely for the purpose of issuing a Proposed Decision and Order. ….In re Gail Gomez, BIIA Dec., 17 15610 (2018) [Editor's note: The Board's decision was appealed to superior court under King County Cause No. 19-2-00765-6 KNT.]

Reason for Delisting: In 2021, the BIIA Rules of Practice and Procedure were amended to permit a notice of disqualification when an appeal has been assigned to a new industrial appeals judge for the writing of a Proposed Decision and Order. WAC 263-12-091.