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2015 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)

AGGRAVATION (RCW 51.32.160)

* Non-network provider authorized to file application to reopen

The provision of WAC 296-14-400 that allows only a network provider to file an application to reopen a claim is an interpretive rule and not a binding legislative rule, and RCW 51.36.010 does not limit the filing of an application to reopen to network providers. ….In re Ronald Ma'ae, BIIA Dec., 14 21595 (2015) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 15-2-14529-6.]

ASSESSMENTS

* Burden of proof

The fact that the Department found that the employer knowingly misled the Department when it failed to report covered workers does not change the employer's burden of proof in an appeal before the Board; employers always bear the burden of proof in an appeal from a Notice and Order of Assessment (RCW 51.48.131). ….In re Dispatch Group, BIIA Dec., 13 21330 (2015)

Communication of order (RCW 51.48.120)

RCW 51.48.120 requires that service of a Notice of Assessment by mail be confirmed. If 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)

The Department must resolve any doubts regarding who to communicate a Notice and Order of Assessment to by making an inquiry with the firm. ….In re Sound Dive Center, BIIA Dec., 14 12707 (2015)

DEPARTMENT

Authority to recoup overpayment of benefits

Where the Board's Decision and Order placing the worker on a pension is reversed by a final court order, the self-insured employer is entitled to reimbursement of time-loss compensation benefits it paid for the same period the Department paid pension benefits because the time-loss compensation payments were based on an erroneous adjudication order under RCW 51.32.040(4) ….In re Ralph Tiffany (Dec'd), BIIA Dec., 13 22516 (2015)

SAFETY AND HEALTH

Burden of proof

The Department has the burden of proof that the penalty calculation is correct. ….In re Apex Roof Systems, BIIA Dec., 13 W0200 (2015)

Penalties

The Department has the burden of proof that the penalty calculation is correct. ….In re Apex Roof Systems, BIIA Dec., 13 W0200 (2015)

* Standard of review

The Board's review of the Department's decision in a WISHA appeal is based on a preponderance of the evidence. ….In re Apex Roof Systems, BIIA Dec., 13 W0200 (2015)

SCOPE OF REVIEW

Time-loss compensation

Where the Department had previously considered the claim for total permanent disability, the issue of permanent total disability is within the Board's scope of review in an appeal from an order of the Department paying time-loss compensation benefits. Distinguishing In re Ann Boyle, BIIA Dec., 93 3740 (1994). ….In re Douglas Palmer, BIIA Dec., 14 13660 (2015)

SELF-INSURANCE

Insolvency of self-insured employer

When the terms of the bond require that the penal sum of the bond be forfeited to the Department if the self-insured employer has defaulted and is insolvent, the Department can require the entire bond to be forfeited. ….In re Fidelity & Deposit Co. of Maryland, BIIA Dec., 14 13348 (2015) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 15-2-01209-3.]

SOCIAL SECURITY DISABILITY OFFSET (RCW 51.32.220)

Computation

Contributions to a "cafeteria plan" as provided by 42 U.S.C. § 409(a)(4)(l) are not taxable wages and cannot be included in wage calculation. ….In re Douglas Barker, BIIA Dec., 14 19053 (2015)

Computation based on benefit levels in effect on:

The index date used to determine the amount of the social security disability benefit in calculating the reverse offset is the date of receipt of concurrent state and federal benefits. Overruling In re Charles Hamby, BIIA Dec., 59,175 (1982) and In re Lee Darbous, BIIA Dec., 58,900 (1982) ….In re Nancy Foster, BIIA Dec., 14 19952 (2015)

SUSPENSION OF BENEFITS (RCW 51.32.110)

No show fees

Where the self-insured claims administrator advises the worker that a "no-show fee" will be assessed against the worker if the worker fails to give seven days notice that he will not attend a scheduled appointment, and the worker gives the required seven days notice, the Department is estopped from assessing the cost of the no-show fee to the worker. ….In re Richard Guerra, BIIA Dec., 14 19746 (2015)

THIRD PARTY ACTIONS (RCW 51.24)

Settlement of action

The worker cannot challenge the amount of a third party settlement in an appeal to the Board from a third party distribution order. Any challenge to the third party settlement has to be in superior court. ….In re David Buckles, BIIA Dec., 12 15919 (2015) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 15-2-04959-3-KNT.]

Where the third party settlement does not allocate any of the recovery to pain and suffering, but the Department nevertheless allocates a portion of the recovery to pain and suffering in the distribution order, the worker cannot challenge the sufficiency of the allocation. ….In re David Buckles, BIIA Dec., 12 15919 (2015) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 15-2-04959-3-KNT.]

TIME-LOSS COMPENSATION (RCW 51.32.090)

Wages (RCW 51.08.178) – Compensation

Hours a worker is required to remain on the employer's premises waiting for work assignments constitutes "hours the worker is normally employed" under RCW 51.08.178(1) and therefore are included in wage calculations. ….In re Wesley Cronk, BIIA Dec., 14 14972 (2015)

* Wages (RCW 51.08.178) – Unemployment compensation

Unemployment compensation benefits are not wages paid by an employer and are not consideration of a like nature as part of the contract of hire within the meaning of RCW 51.08.178. ….In re Margaret House, BIIA Dec., 13 25663 (2015) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 15-2-07277-9.]

TREATMENT

Proper and necessary medical and surgical services (RCW 51.36.010)

The Department is precluded from authorizing spinal cord stimulator treatment based on the court's decision in Joy v. Department of Labor and Indus., 170 Wn. App. 614 (2012). The Board's decision in In re Susan Pleas, BIIA Dec., 96 7931 (1998) is no longer an accurate statement of the law regarding the Department's authority to authorize spinal cord stimulator treatment. ….In re Ladonia Skinner, BIIA Dec., 14 10594 (2015) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 15-2-15630-6-SEA.]

Spinal column stimulator

The Department is precluded from authorizing spinal cord stimulator treatment based on the court's decision in Joy v. Department of Labor and Indus., 170 Wn. App. 614 (2012). The Board's decision in In re Susan Pleas, BIIA Dec., 96 7931 (1998) is no longer an accurate statement of the law regarding the Department's authority to authorize spinal cord stimulator treatment. ….In re Ladonia Skinner, BIIA Dec., 14 10594 (2015) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 15-2-15630-6-SEA.]

VOCATIONAL REHABILITATION

Option 2 benefits under RCW 51.32.099

If a worker elects Option 2 under RCW 51.32.099(4) and establishes worsening of a condition under the claim so that claim closure is not appropriate, the Option 2 selection must be rescinded. ….In re Rogelio Robles, BIIA Dec., 14 21084 (2015)

* Termination of vocational plan

The Department lacks authority to terminate a worker's vocational plan and end time(-loss compensation benefits solely on the basis that the worker is employable where the worker is actually and successfully participating in his approved vocational plan. ….In re Peter Morse, BIIA Dec., 13 25365 (2015)