- APPEARANCES
- Claimant,
Jacque K. Slade, by
- Gerald L. Casey
- Self-InsuredEmployer, Group Health Cooperative of, by
- Keehn Arvidson,PLLC, per
- Gary D. Keehn
The claimant,
Jacque K. Slade, filed an appeal (Docket No. 04 11552) with the Board of
Industrial Insurance Appeals on
February
11, 2004
, from an order of the Department of Labor and Industries
dated
January 30, 2004
. In this order, the Department denied the
claimant's request for a penalty against the self-insured employer for
unreasonable delay in the payment of benefits. The Department order is REVERSED
AND REMANDED.
The
claimant filed a second appeal (Docket No. 04 12746) on
March 10, 2004
, from an order of the Department
of Labor and Industries dated
February
25, 2004
. In this order, the
Department issued a repeated denial of the claimant's request for a penalty
against the self-insured employer for unreasonable delay in the payment of
benefits. The Department order is REVERSED AND REMANDED.
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 claimant
to a Proposed Decision and Order issued on
January 18, 2005
, in which the industrial appeals judge affirmed the orders of the Department
dated
January 30,
2004
, and
February 25,
2004
.
The Board has reviewed the
evidentiary rulings in the record of proceedings and finds that no prejudicial
error was committed. The rulings are
affirmed. We grant
review to address, as we have in other recent orders, the issue of unreasonable
delay in the payment of benefits. In so
doing, it is important to review the sequence of events in this particular
case. The claimant, Jacque K.
Slade, injured her low back on
October
30, 1997
, during the course of her employment with Group Health
Cooperative of Puget Sound (Group Health). She was paid time-loss compensation until
July 21, 2003
. At
that time, the self-insured employer stopped paying time-loss after receiving
an employability determination that the claimant could work. [2]
On
September 4, 2003
, the self-insured employer received a
letter from the Department determining that the claimant was not eligible for
vocational services. On
September 16, 2003
, the Department
issued a letter declining the claimant's request for a review of the vocational
determination. On
November 10, 2003
, the Department reversed its
decision and determined that it would address Ms. Slade's vocational
dispute. On
November 14, 2003
, the self-insured employer received a
letter from claimant's counsel arguing that the claimant was eligible for
time-loss. On November 19, 2003, the
self-insured employer received the November 17, 2003, Department order in which
the Department found that the claimant was temporarily totally disabled and
ordered payment of time-loss from July 19, 2003, to the date of the order.
The self-insured employer explored
the possibility of protesting or appealing the order. The claims manager, Scott Ruijters, discussed
the issue with a vocational counselor and the claimant's supervisor. Mr. Ruijters also discussed the potential of
an appeal with an attorney on
December 15,
2003
. On
December 31, 2003
, the employer made the
decision not to protest or appeal. On
December 31, 2003
, Mr. Ruijters
approved payment of time-loss compensation for the period from
July 19, 2003
, through
November 17, 2003
. The check was issued on
January 2, 2004
.
Based on this particular set of
facts, we find that the delay in the payment of benefits was unreasonable. RCW 51.48.017 provides that the self-insured
employer shall pay a penalty for unreasonably delaying the payment of benefits
when they become due. These benefits
become due as soon as the claimant is entitled to them. The Department does not need to issue an
order before the employer is required to pay benefits. See,
Taylor
v. Nalley's Fine Foods, 119 Wn. App.
919; 83 P.2d 1018 (2004) and In re
Jackie Washburn, BIIA Dec., 03 11104 (2004).
In this case, the self-insured
employer was required to pay benefits once the
November 17, 2003
, order was issued if there was not a
reasonable doubt that the worker was entitled to the benefit. Prior to that, there was an ongoing dispute
and a genuine doubt with regard to entitlement. However, it took the self-insured employer until
January 2, 2004
, to issue a check. Ms. Slade was forced to wait six weeks
during the holidays to receive her time-loss compensation. This may seem insignificant unless you are
the disabled worker going without income. It is unreasonable for the self-insured employer to take this much time
to decide whether it will pursue the claim further.
We no longer subscribe to the former
rule, which held that benefits were not due until the Department issued a
payment order. Neither will we continue
to hold that it is reasonable for a self‑insured employer to wait until
the sixty-day appeal period has passed before rendering [3] payment. See, In re Jackie L Washburn, BIIA Dec., 03 11104 (2004); overruling In re Agnes Levings, BIIA Dec., 99
13954 (2000). According to the Court in Nalley, the Department's ability to
issue orders in self-insured claims is to assist injured workers in receiving
payments. It was not intended to delay
the payments in legitimate claims. Similarly, the statutory appeal period cannot be used as a shield by
employers who are reluctant to pay benefits.
In this case, the self-insured
employer took over six weeks to determine whether to appeal or protest the
order. The delay between the
December 15, 2003
, discussion with
the attorney and the issuance of the check on
January 4, 2004
, was also unreasonable.
Injured workers are entitled to
speedy relief under Title 51. The most
recent line of cases construing RCW 51.48.017 echo this principle. Employers must react swiftly in dispatching
relief to the workers of this state. Based on the recent shift in the case law, the sequence of events in
this appeal constitute unreasonable delay. Both of the orders under appeal shall be reversed and the claim remanded
with direction to issue one penalty order for failure to pay benefits within a
reasonable time for the period of
July
19, 2003
, through
November
17, 2003
.
FINDINGS OF FACT
1.
On
November
6, 1997
, the self-insured employer, Group Health Cooperative of
Puget Sound, received an Application for Benefits on behalf of the claimant,
Jacque K. Slade, alleging a back injury on
October 30, 1997
. On
September 2, 2003
,
the Department of Labor and Industries issued a letter to the claimant in which it determined that claimant was not eligible for
vocational services and taking into consideration claimant's accepted
condition, Ms. Slade was considered able to work at her pre-injury
occupation. On
September 9, 2003
, a Protest and Request for
Reconsideration was filed on behalf of the claimant and a penalty against the
self-insured employer was requested for not sending a complete copy of the
file. On
September 16, 2003
, the Department of Labor and Industries
issued a letter to the claimant indicating that her letter could not be
accepted by the Director as a dispute. On
October 16, 2003
,
the Department issued an order indicating that the claimant had requested a
penalty against the self‑insured employer for not providing complete
copies of the file and a request for penalty failure to act on her request for
claim closure, which were both denied. On
October 22, 2003
,
a Notice of Appeal was filed by the claimant from the Department order of
October 16, 2003
.
On
October 24, 2003
, the Department
denied the claimant's request for a penalty against the self-insured employer
for an unreasonable delay in authorizing surgery. On
October
29, 2003
, the Department denied the claimant's request for a
penalty against the self-insured employer for an unreasonable delay of
time-loss payments. [4]
The Board granted
the appeal of the
October 16, 2003
,
Department order on
November 14,
2003
, and assigned it Docket No. 03 17949. On
September
17, 2004
, we issued an order denying a Petition for Review and
adopted the Proposed Decision and Order that affirmed the
October 16, 2003
, Department order. On
November
17, 2003
, the Department issued an order in which it determined
that the claimant was temporarily disabled and ordered time-loss compensation
be paid starting
July 19, 2003
,
and continuing according to the facts and the law. On
November 17,
2003
, a Notice of Appeal was filed with the Board on behalf of the
claimant from the Department order of
October
24, 2003
. The Board granted
the appeal in its order dated
November
25, 2003
, and assigned it Docket No. 03 18949. This appeal was dismissed on
May 5, 2004
.
On
December 26, 2003
, a Protest and
Request for Reconsideration was filed with the Department on behalf of the
claimant from the Department order dated
October 29, 2003
. On January 30, 2004, the Department issued an order adhering to its
prior order dated October 29, 2003, and denying the claimant's request for
penalty against the self-insured employer for delay in payment of time-loss
benefits on the basis that there was medical and legal doubt as to claimant's
entitlement to time-loss benefits effective July 19, 2003.
On
February 11, 2004
, the claimant filed
an appeal with the Board from the Department order of
January 30, 2004
. On
February 25, 2004
,
the Department denied the claimant's request for a penalty against the
self-insured employer for an unreasonable delay of benefits. On
March 5,
2004
, the Board issued an order granting the appeal from the
Department order of
January 30, 2004
,
and assigned Docket No. 04 11552.
On
March 10, 2004
, an appeal was filed
with the Board on behalf of the claimant from the Department order of
February 25, 2004
. On
April
2, 2004
, the Board issued an order granting the appeal from the
Department order of
February 25, 2004
,
and assigning it Docket No. 04 12746.
2. On
July 21, 2003
, an
employability assessment report was submitted, determining that the claimant,
Jacque K. Slade, was employable. Thereupon the self-insured employer ceased paying time-loss
compensation.
3. On
November 10, 2003
, the self-insured employer received a
letter from the Department dated
November
4, 2003
, determining that it would address issues regarding the
claimant's employability, and on
November 19,
2003
, the self-insured employer received a Department order dated
November 17, 2003
, in which the
Department deferred [5] action on the claim to the self-insured employer and finding that the claimant
was temporarily totally disabled and requiring payment of time‑loss
compensation from July 19, 2003, to the date of the order.
4. Following receipt of the Department
order of
November 17, 2003
,
the self-insured employer discussed the possibility of protesting or appealing
the Department's order with its attorney and vocational counselor. On
December
31, 2003
, the self-insured employer determined not to appeal the
order and on
January 2, 2004
,
a check for payment of back time-loss compensation was issued for the period
from
July 19, 2003
through
November 17, 2003
. The self-insured employer took too long to
determine not to contest the Department order of
November 17, 2003
, and this resulting six-week delay in
the payment of benefits was unreasonable.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance
Appeals has jurisdiction over the parties to and the subject matter of these
appeals.
2. The self-insured employer unreasonably
delayed in the payment of benefits when due pursuant to the requirements of RCW
51.48.017.
3. The Department orders dated
January 30, 2004
, and
February 25, 2004
, denying assessment
of penalties against the self-insured employer are incorrect and are
reversed. The claim is remanded to the
Department with direction to issue a penalty for unreasonable delay in the
payment of time-loss compensation for the period of
July 19, 2003
, through
November 17, 2003
.
It is so ORDERED.
Dated
this 2nd day of August, 2005.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN
Chairperson
/s/
FRANK E. FENNERTY, JR.
Member
/s/
CALHOUN DICKINSON
Member
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