| IN RE: STEPHEN D. MURPHY | ) | DOCKET NO. 02 12603 |
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| CLAIM NO. W-146591 | ) | ORDER VACATING PROPOSED DECISION AND ORDER, DENYING CLAIMANT'S AND SELF-INSURED EMPLOYER'S MOTIONS FOR SUMMARY JUDGMENT, AND REMANDING THE APPEAL FOR FURTHER PROCEEDINGS |
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- APPEARANCES
- Claimant, Stephen D. Murphy, by
- Delay, Curran, Thompson, Pontarolo & Walker, P.S., per
- Michael J. Walker
- Self-Insured Employer, Sacred Heart Medical Center, by
- Craig A. Staples
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Molly M. Parish, Assistant
The self-insured employer, Sacred Heart Medical Center, filed an appeal with the Board of Industrial Insurance Appeals on March 6, 2002, from an order of the Department of Labor and Industries dated February 7, 2002. The order affirmed a prior Department order dated January 9, 2002, which indicated the Department was reopening the claim effective August 3, 2001, because the decision to allow or deny reopening was not made by January 7, 2002, as required by RCW 51.32.160. APPEAL REMANDED FOR FURTHER PROCEEDINGS.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the self-insured employer to a Proposed Decision and Order issued on October 28, 2002, in which the order of the Department dated February 7, 2002, was affirmed.
The issues presented to the Board on cross summary judgment motions are: (1) whether an employer has the right to protest to the Department an order reopening a claim and deeming granted an aggravation application, based on an untimely response to the aggravation application, pursuant to RCW 51.32.160; (2) whether an employer protest from a "deemed granted" aggravation application order provides the Department with authority to consider worsening; and (3) what rights are extended to employers by RCW 51.52.060(5). We have granted review because our industrial [2] appeals judge, in granting the claimant's summary judgment motion, overlooked the provision of RCW 51.52.060(5), added by our Legislature in 1995. The Proposed Decision and Order is vacated, and the matter is remanded to our hearings process.
The parties agree that the Department did not issue a timely determinative order in response to the claimant's reopening application within the requirements set forth in the statute. Because of its failure to issue that timely determinative order, the Department issued an order that declared the reopening application "deemed granted" under RCW 51.32.160. The employer timely protested that decision, asking the Department to consider whether the claimant's condition related to the industrial injury had worsened. The Department affirmed its "deemed granted" order, and informed the employer that the order was based solely on the Department's failure to timely process the reopening application, without addressing whether the claimant's compensable condition had worsened.
The employer contends in this appeal that when an employer protests from a "deemed granted" order, the Department not only has authority to reconsider whether the Department timely acted upon the aggravation application, but also has authority to consider whether there is aggravation or worsening. The employer relies upon RCW 51.52.060(5), which provides:
An employer shall have the right to appeal an application deemed granted under RCW 51.32.160 on the same basis as any other application adjudicated pursuant to that section.
Thus, the employer contends that a "right to appeal" equates to a "right to protest" to the Department. However, in order to give meaning to both RCW 51.32.160 and RCW 51.52.060(5), we must conclude that the Legislature specifically used "appeal" language in RCW 51.52.060(5) to require an employer challenging a "deemed granted" Department order to present evidence at the Board as to whether there is actual worsening of the condition. In other words, the Department is given, by virtue of RCW 51.52.060(5), no authority to look at issues of worsening when an employer protests from a "deemed granted" order.
The Board has held that RCW 51.52.060(5) gives an employer a right to appeal a "deemed granted" decision, and challenge the application to reopen the claim on its merits (i.e., whether there has been worsening to justify reopening of a claim). In re Jacqueline I. Stinson, Dckt. No. 98 18114 (July 21, 1999). If the employer elects to exercise its right to appeal under RCW 51.52.060(5), it will have the burden of going forward with the evidence, and establishing a prima facie case that there was no objective worsening of any condition proximately caused by the injury. [3]
In this appeal, there are material facts in issue as to whether there is objective worsening of a condition caused by this industrial injury, and the employer and claimant must be given the opportunity at hearing to present evidence. Summary judgment is inappropriate under these circumstances. We deny both the claimant's and the self-insured employer's motions for summary judgment and remand the matter to the hearing process for a hearing on the employer's appeal. The employer must present a prima facie case by presenting evidence that the condition related to the industrial injury of August 18, 1996, did not objectively worsen between January 7, 1997, when the claim was closed without permanent partial disability, and February 7, 2002, when the order reopening the claim was issued. A prima facie case would require support from a medical doctor. If the employer presents a prima facie case of no worsening of the condition related to the injury of August 18, 1996, the burden shifts to the claimant to establish entitlement to benefits.
The Proposed Decision and Order of October 28, 2002, is vacated. This appeal is remanded to the hearings process, pursuant to WAC 263-12-145(4), for further proceedings as indicated by this order. The parties are advised that this order is not a final Decision and Order of the Board within the meaning of RCW 51.52.110. At the conclusion of the further proceedings, the industrial appeals judge shall, unless the matter is dismissed or resolved by an Order on Agreement of Parties, enter a Proposed Decision and Order containing findings and conclusions as to each contested issue of fact and law, based upon the entire record, and consistent with this order. Any party aggrieved by such Proposed Decision and Order may petition the Board for review of such further Proposed Decision and Order, pursuant to RCW 51.52.104.
It is so ORDERED.
Dated this 14th day of February, 2003.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGANChairperson
/s/
JUDITH E. SCHURKEMember