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2016 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)

BOARD

Summary judgment

Because a determination of genuine doubt goes to the state of mind, summary judgment is not appropriate when considering whether an employer had a genuine doubt as to its need to pay benefits. ….In re Donica Drachenberg, BIIA Dec., 16 12263 (2016)

Before granting a motion for summary judgment the parties have a right to a hearing on the motion and must expressly waive that right before the judge can issue a ruling without conducting a hearing. ….In re Edwin Makotsi, BIIA Dec., 15 20961 (2016)

DEPOSITIONS

* Filing

After taking a perpetuation deposition with the judge's permission, if the party desires to not file the deposition, opposing parties must be given the opportunity to request publication. ….In re Ann Vanzuyt, BIIA Dec., 15 18385 (2016)

EXPERT TESTIMONY

Admissibility of opinions

A permanent impairment opinion not based on the AMA Guides to permanent impairment affects the weight to be given the opinion, but is not a reason to exclude the opinion. ….In re Charles Pellor,
BIIA Dec., 15 11481 (2016)

INJURY (RCW 51.08.100)

Injury v. occupational disease

An industrial injury claim denied as untimely will not be remanded for consideration as a timely application for occupational disease when the application was clear and detailed in expressing a claim based on a specific injury occurring at a definite time and place.  ….In re Andrew Leitner, BIIA Dec., 15 18574 (2016) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 16-2-12291-0.]

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)

PENALTIES (RCW 51.48.017)

* Rejected vocational assessment (WAC 296-15-4304)

Under WAC 296-15-4304, when the VDRO rejects a self-insured vocational assessment that the worker is employable, the self-insured employer is not automatically required to reinstate time-loss compensation. ….In re Chelsie Looker-Noble, BIIA Dec., 14 17483 (2016) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 16-2-00709-4.]

* Genuine doubt

For purposes of determining genuine doubt, the mere filing of an appeal does not establish genuine doubt. When the self-insured employer delays paying benefits it must have a genuine doubt that the benefits are due and cannot rely on the appeal or stay process under RCW 51.52.050 as a basis for delaying payment if there is no genuine doubt that payment is due. ….In re Alfredo Suarez, BIIA Dec., 15 20822 (2016) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 16-2-02585-8.]

Because a determination of genuine doubt goes to the state of mind, summary judgment is not appropriate when considering whether an employer had a genuine doubt as to its need to pay benefits. ….In re Donica Drachenberg, BIIA Dec., 16 12263 (2016)

PROTEST AND REQUEST FOR RECONSIDERATION (RCW 51.52.050)

Contents

A letter requesting the Department approve a knee surgery is not a protest of an order setting wages because it did not put the Department on notice that the worker sought action inconsistent with the wage order. ….In re Roy Hill, BIIA Dec., 15 22318 (2016) [Editor's Note: The Board's decision was appealed to superior court under Jefferson County Cause No. 16-2-00182-2.]

A protest filed to any "adverse orders" is reasonably calculated to put the Department on notice that the worker is requesting action inconsistent with an order setting the wage for time-loss compensation purposes and orders paying time-loss compensation based on the wage order. ….In re Misael Lopez Hernandez, BIIA Dec., 15 16635 (2016)

SAFETY AND HEALTH

"Serious" violation

A citation based on the failure to document that workers were properly trained and warned regarding proper fall protection can be cited as a serious violation. ….In re North Coast Iron Corp., BIIA Dec., 14 W1086 (2016) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 16-2-23179-9 SEA.]

SCOPE OF REVIEW

* Combined effects pension

The scope of review in a combined effects pension does not include a determination that but for the preexisting conditions the industrial injury or occupational disease would not have rendered the worker totally and permanently disabled. In re Janet Lord, BIIA Dec., 93 6417 (1996). This does not prohibit a determination that a condition was symptomatic and disabling as of the date of injury or manifestation or that the combined effects caused the permanent total disability. ….In re Mary Williams, BIIA Dec.,
06 10831 (2007)
[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 07-2-08038-2.]

Time-loss compensation

When the order under appeal denies time-loss compensation benefits for a specified period and is not an order also closing the claim, the Board's scope of review is limited to consideration of time-loss compensation benefits for that period and does not extend to other periods in which the worker may seek compensation. ….In re Nancy Foster (II), BIIA Dec., 15 13351 (2016) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 16-2-01568-1.]

Segregation order

In appeal from an order denying responsibility for a specific psychiatric condition, the Board's scope of review does not extend to other alleged psychiatric conditions if those conditions had not been alleged in previous protests. Distinguishing In re Sheri Gorham, BIIA Dec., 11 23281 (2013). ….In re Jesus Osorio, BIIA Dec., 15 11214 (2016)

SECOND INJURY FUND (RCW 51.16.120)

* Scope of review

The scope of review in a combined effects pension does not include a determination that but for the preexisting conditions the industrial injury or occupational disease would not have rendered the worker totally and permanently disabled. In re Janet Lord, BIIA Dec., 93 6417 (1996). This does not prohibit a determination that a condition was symptomatic and disabling as of the date of injury or manifestation or that the combined effects caused the permanent total disability. ….In re Mary Williams, BIIA Dec.,
06 10831 (2007)
[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 07-2-08038-2.]

TIME-LOSS COMPENSATION

Stay at work (RCW 51.32.090(4))

Under the provisions of the so called "stay at work" law, RCW 51.32.090(4), an employer may receive reimbursement for keeping an injured worker at work for periods prior to receipt of the attending physician's approval of the job. ….In re Ellen Wright, BIIA Dec., 15 19928 (2016) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 16-2-02175-3.]

TREATMENT

* Burden of proof

Despite the lack of an explicit expert witness statement that no further treatment is required, a prima facie case for no further treatment can be made through medical testimony that there was no evidence of permanent injury and sufficient time had passed that the condition would have resolved. ….In re Tyler Childs, BIIA Dec., 15 18081 (2016)

VOCATIONAL REHABILITATION

* Time-loss compensation (WAC 296-15-4304)

Under WAC 296-15-4304, when the VDRO rejects a self-insured vocational assessment that the worker is employable, the self-insured employer is not automatically required to reinstate time-loss compensation. ….In re Chelsie Looker-Noble, BIIA Dec., 14 17483 (2016) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 16-2-00709-4.]