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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 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 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.]

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 (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.]

Decisions De-listed as Significant

Hearing Loss

The two-year limitation period for filing a compensable hearing loss claim begins to run on the last day of injurious exposure, not the day after.   ….In re James Scales, BIIA Dec., 09 10566 (2009) [Editor's Note: This significant decision appears to have been overruled sub silentio by the Supreme Court in Kovacs v. Dep't of Labor & Indus., 186 Wn.2d 95 (2016) (holding that the day of injury is excluded from time calculation in determining when the statute of limitations runs in industrial injury claims).]

Assessments

RCW 51.48.120 requires that service of a Notice of Assessment by mail be confirmed. Where the USPS return receipt shows the Notice of Assessment was unclaimed, service of the Notice of Assessment is not confirmed and service by mail fails. ….In re Jaz Services, BIIA Dec., 13 11377 (2015) [Editor's Note: Overruled by Simmons v. Dep't of Labor & Indus., No. 84529-I (slip opinion filed October 30, 2023), in which the court held that where the Department mailed a Notice of Assessment to a sole-proprietor employer's last known address by certified mail with return receipt requested, the Department complied with RCW 51.48.120, and the 30-day clock to protest or appeal began to run regardless of the fact that the owner of the sole proprietorship was out of town and didn't actually receive the Notice of Assessment. RCW 51.48.120 doesn't require actual receipt by the employer.]]