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

March 2024

Timeliness of Protest/Summary Judgment Motions
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 treating psychologist who treated him six times. The Board held that 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, Dckt. No. 23 14840 (March 14, 2024)

Social Security Benefits Offset/Pension Option III
The pensioned worker elected Option III benefits, resulting in an actuarially reduced pension benefit in return for his spouse receiving a continued lifetime benefit of one-half of the reduced benefit thereafter. RCW 51.32.220(5) provides, "In no event shall the reduction reduce total benefits to less than the greater amount the worker may be entitled to receive under this title or the federal old-age, survivors, and disability insurance act." The Board held that the Department properly offset the worker's Option III monthly pension amount by his Social Security retirement and disability benefits in accordance with RCW 51.32.220 and RCW 51.32.225, after first taking into account the reduced benefit amount under Option III.
In re Arthur C. Beard, Dckt. No. 23 11002 (March 18, 2024)

Pension-Option II-Social Security Benefits Offset
The pensioned worker elected Option II benefits, resulting in an actuarially reduced pension benefit in return for his spouse receiving a continued lifetime benefit of one-half of the reduced benefit thereafter. RCW 51.32.220(5) provides, "In no event shall the reduction reduce total benefits to less than the greater amount the worker may be entitled to receive under this title or the federal old-age, survivors, and disability insurance act." The Board held that the Department properly offset the worker's Option III monthly pension amount by his Social Security retirement and disability benefits in accordance with RCW 51.32.220 and RCW 51.32.225, after first taking into account the reduced benefit amount under Option II.
In re James R. Lorkowski (Dec'd), Dckt. No. 23 13625 (March 25, 2024)

May 2024

Reopening - Post-Concussive Syndrome
Citing, Price v. Dep't of Labor & Indus., 101 Wn.2d 520, 528 (1984), 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. The Board disagreed with the judge on the facts, however, holding that the worker did not show a worsening of the condition by a preponderance of the subjective medical evidence presented. The Department properly denied the worker's reopening application.
In re Didier F. Lappin, Dckt. No. 23 11489 (May 21, 2024)

June 2024

WISHA - Penalty Calculations - Repeat Serious Violations
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, Dckt. No. 22 W0250 (June 3, 2024)

July 2024

Standard of Review - Vocational Services Decisions
The Department's Director found that the worker did not turn down an offer of a new, permanent job from the employer. He also found that the claims manager will assign a vocational rehabilitation counselor to assess the worker's ability to work. Three time loss compensation orders were also consolidated. The Board held that the decision about whether the worker turned down the return to work job offer was not a vocational decision subject to abuse of discretion standard of review but that the Director's decision to assign a vocational counselor assigned was subject to the abuse of discretion standard of review.
In re Kaleo C. Neil, Dckt. No. 23 10636 (July 19, 2024)

August 2024

Authority of the Department to Affirm Prior Orders
Although the worker's representative filed a generic protest to "any adverse orders" within 60 days of the Department's order allowing the claim, the protest did not put the Department on notice that the worker was seeking action inconsistent with claim allowance. Under the Industrial Insurance Act, the Department did not have authority to issue an affirming order six months after the original allowance order had become final and binding.
In re Richard M. Ballard, Dckt. No. 23 14950 (August 30, 2024)