Significant Decisions

AGGRAVATION (RCW 51.32.160)
(See also APPLICATION TO REOPEN CLAIM, DIMINUTION OF DISABILITY, OCCUPATIONAL DISEASE, PERMANENT PARTIAL DISABILITY, PERMANENT TOTAL DISABILITY, RES JUDICATA, RETROACTIVITY OF STATUTORY AMENDMENTS, SUBSEQUENT CONDITION TRACEABLE TO ORIGINAL INJURY and TIMELINESS OF APPLICATION TO REOPEN CLAIM)


AGGRAVATION

Applicability of 1988 amendments

The 1988 amendments to RCW 51.32.160 were remedial in nature and apply to any application to reopen a claim filed subsequent to the effective date of the amendments, June 9, 1988.  ….In re Marven Sandven, BIIA Dec., 89 3338 (1990) [Editor's Note: See Campos v. Department of Labor & Indus., 75 Wn. App. 379 (1994) determining that amendment's seven-year limitation does not violate equal protection.]

"Deemed granted" application to reopen claim

Where the Department grants a worker's application to reopen for aggravation, the employer timely protests the reopening order, and the Department holds the reopening order in abeyance, the Department must deny the application to reopen within the time limits set out in RCW 51.52.060 or the application to reopen will be deemed granted.  ….In re Raymond Belden, BIIA Dec., 12 14005 (2013) [Editor's Note: The Board's decision was appealed to Spokane County Superior Court, No. 13-2-01191-8.]

After the Department places in abeyance the terms of an order that extends the time in which to act on an application to reopen the claim, the time to act is no longer extended.  The application to reopen must be deemed granted if not acted on or again extended within 90 days of receipt of the application as required by RCW 51.52.060(4).  ….In re Ingrid Evanoff, BIIA Dec., 08 18344 (2008) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 08-2-02400-5.]

The employer's ability under RCW 51.52.060(5) to appeal a deemed-granted application to reopen on the merits does not create a comparable ability to protest a deemed-granted application to reopen.  ….In re Stephen Murphy, BIIA Dec., 02 12603 (2003)

The 1995 amendment to RCW 51.52.060 reduced the time the Department has to place in abeyance the terms of orders involving applications to reopen claims.  If an application to reopen is filed before the effective date, the statutory changes do not apply to the application to reopen.  Additionally, even if the 1995 amendments could be applied, the failure of the Department to act within the proscribed time period will not result in the application being "deemed granted."  ….In re Elois Short, BIIA Dec., 95 4522 (1996) [dissent]

When there has been an appeal of an order closing the claim and an application to reopen filed while the appeal is pending, the Department has 90 days from the final order of the Board or Court to issue an order on the application or the application will be deemed granted.  The Department should not act upon an application to reopen the claim when the appeal from the claim closure is still pending in light of Reid v. Department of Labor & Indus., 1 Wn.2d 430 (1939). Distinguishing Marley v. Department of Labor & Indus, 125 Wn.2d 533 (1995).  ….In re Greg Ackerson, BIIA Dec., 94 1135 (1995) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 95-2-00808-5.  The Board has partially overruled this decision to the extent the decision relies on the concept of subject matter jurisdiction.  In re Betty Wilson, BIIA Dec., 02 21517 (2004), In re Jorge Perez-Rodriquez, BIIA Dec., 06 18718 (2008).]

Where the Department received a copy of a Superior Court judgment regarding the appeal of the last order closing the claim and the time for acting on the application to reopen the claim has passed, resulting in the application being deemed granted, the consequence is that the claim is considered to have been reopened for temporary worsening or aggravation--the worker must still prove entitlement to further benefits.  ….In re Margaret Casey, BIIA Dec., 90 5286 (1992) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 92-2-04909-6.]

The Department's failure to respond to a physician's submission of office notes recommending further treatment within the time prescribed by RCW 51.32.160, the application to reopen is deemed granted, notwithstanding the provisions of WAC 296-14-400.  WAC 296-14-400 is invalid to the extent it is an attempt to delay the running of the 90-day period within which the Department is required to act following the filing of an application to reopen a claim for aggravation of condition.  ….In re Wallace Hansen, BIIA Dec., 90 1429 (1991) [Editor's Note: Cf. Tollycraft Yachts v. McCoy, 122 Wn.2d 426, 433 (1993).]

An order extending the time in which the Department must act on an application to reopen the claim must be entered before the initial time allowed by RCW 51.32.160 has passed.  An order purporting to further extend the time, entered after the first extension period has passed, is ineffective, since at the time such order was entered the application to reopen the claim had already been "deemed granted" by operation of RCW 51.32.160.  ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990)

Where the last order closing the claim has been appealed and is not yet final the Department is not under any obligation to act upon a subsequent application to reopen the claim until a final order has been entered by either the Board or the Court, as the case may be.  Under the circumstances of this case the time within which the Department had to  act on the application to reopen the claim could not begin any sooner than the date upon which the Department received a conformed copy of the Superior Court's Stipulated Order of Dismissal.  Reid v. Department of Labor & Indus., 1 Wn.2d 430 (1940).  ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990)  [Editor's Note: Consider impact, if any, of Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1995) See In re Greg Ackerson, BIIA Dec., 94 1135 (1995).]

The Department may not deny an application to reopen a claim and then promptly enter an abeyance order, on its own motion pursuant to RCW 51.52.060, thereby attempting to give itself up to 180 additional days to act on the application.  To allow such action would render the time limitations of RCW 51.32.160 completely illusory.  Where the Department has entered such an abeyance order but has not made a final decision to deny the application within the time allowed by RCW 51.32.160, the application to reopen the claim is deemed granted.  ….In re John Aitchison, BIIA Dec., 90 4447 (1990); In re Donald Schroeder, BIIA Dec., 90 3177 (1990); In re Virginia Watts, BIIA Dec., 90 3816 (1990) [Editor's Note:  Rule reversed by Tollycraft Yachts v. McCoy, 122 Wn.2d 426 (1993).]

The provisions of RCW 51.32.160, as amended in 1988, which render an application to reopen a claim "deemed granted" if an order denying the application is not issued within 90 days of receipt of the application, do not apply where the Department denied the application within the time allowed but, following the filing of an appeal, reassumed jurisdiction over the claim and held its order denying the application in abeyance.  ….In re Edna Shore, BIIA Dec., 89 5898 (1990) [Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 91-2-00740-6.]

Discretionary reopening by Director

When an application to reopen is filed more than seven years after the first closing order became final, the reopening of the claim for aggravation is not at the discretion of the director.  Only the decision to award time-loss compensation or other disability benefits are committed to the director's discretion.  ….In re Michael Bell, BIIA Dec., 11 15598  (2012)

In an appeal of Director's letter refusing to waive the time limit for filing an application to reopen the claim, the standard of review is whether the decision not to waive the time limit constitutes an "abuse of discretion."  ….In re Ernest Therriault, BIIA Dec., 90 0876 (1990)

The Director has discretion to waive the seven year limitation for filing an application to reopen a claim provided there are sufficient facts to support a finding that an aggravation of disability has occurred.  The required factual basis is not within the determination vested in the discretion of the Director and the Board therefore has jurisdiction to decide whether the worker's condition worsened between the terminal dates.  ….In re Merle Fugate, BIIA Dec., 86 1526 (1987) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 87-2-22610-7.]

Once the Director exercises the discretion to reopen a claim which otherwise could not be reopened due to the time limitations of RCW 51.32.160, the worker is entitled to benefits under the Act to the same extent as if there had been no time limitation bar.  ….In re Bernard James, BIIA Dec., 04,394 (1955) [Editor's Note: See later statutory amendments, Laws of 1988, ch. 161, § 11.]

Effect of abeyance order on "deemed granted" provisions (RCW51.32.160)

The prohibition contained in RCW 51.52.060(4) that precludes the Department from issuing an order holding in abeyance the terms of an order issued pursuant to RCW 51.32.160 does not apply when the Department has been requested to reconsider the order under the authority of RCW 51.52.050.  ….In re Joseph Brown, BIIA Dec., 96 4577 (1996)

RCW 51.52.060(4) as amended in 1995 prohibits the Department from issuing an order that holds in abeyance the terms of an order issued under RCW 51.32.160 when more than 90 days have passed since an application to reopen has been filed.  ….In re Nancy Stumbaugh, BIIA Dec., 95 7068 (1996)

Where the Department elects to hold an order in abeyance pursuant to RCW 51.52.060, not in response to a protest or an appeal, the time limitations for action set forth in RCW 51.32.160 still apply.  ….In re Clyde McCoy, BIIA Dec., 91 0701 (1991) [Editor's Note: The Board's decision was appealed to superior court under Cowlitz County Cause No. 91-2-00373.]

Extension of time to act on application to reopen claim

An order extending the time in which the Department must act on an application to reopen the claim must be entered before the initial time allowed by RCW 51.32.160 has passed.  An order purporting to further extend the time, entered after the first extension period has passed, is ineffective, since at the time such order was entered the application to reopen the claim had already been "deemed granted" by operation of RCW 51.32.160.  ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990)

An order extending the time for acting on an application to reopen the claim which is not timely appealed is final and binding and has res judicata effect.  Worker cannot collaterally attack the unappealed extension decision in a later appeal of an order denying reopening of the claim.  ….In re Clara Morton, BIIA Dec., 89 5897 (1990)

First closure based on medical recommendation

Under the 1988 amendments to RCW 51.32.160, closing orders which were issued prior to July 1, 1981 need not be based on medical recommendation, advice or examination in order to serve as the starting point for the seven year period in which the worker is entitled, as a matter of right, to apply to have the claim reopened for payment of additional disability benefits.  ….In re Marven Sandven, BIIA Dec., 89 3338 (1990); In re Mike Streubel, BIIA Dec., 89 4867 (1990)

First terminal date: effect of Board's determination of effective  date of closure

A Department order issued in response to an Order Adopting Proposed Decision and Order is a ministerial order and the effective date of the closure of the claim is the effective date recited in the Board's order.  It is not the date of the Order Adopting Proposed Decision and Order.  ….In re Donald Workman, BIIA Dec., 00 24102 (2001)

First terminal date: effect of subsequent ministerial order

The issuance of a Department order pursuant to the terms of a Board Order on Agreement of Parties is merely a ministerial act.  It does not adjudicate the merits of the claim beyond the date of the Department order which was the subject of the Board order.  Therefore, the date of the Department order appealed, and not the date of the subsequent ministerial order, is the first terminal date of subsequent aggravation period. (Karniss v. Department of Labor & Indus., 39 Wn.2d 898 (1952)).  ….In re Jimmy Storer, BIIA Dec., 86 4436 (1988) [Editor's Note: The Board's decision was appealed to superior court under Stevens County Cause No. 88-2-00328-7.]

First terminal date findings

An Order on Agreement of Parties on the first terminal date, based on an examination by a particular physician, establishes the findings which must serve as the basis of comparison to determine if worsening has occurred between the terminal dates.  ….In re John Jensen (I), BIIA Dec., 16,316 (1964)

Last closing order not final

After the Department's decision to reopen the claim for aggravation becomes final, even if based on a mistake of law, the decision defeats any argument relating to the finality of the prior closing order and the reopening order sets the date upon which further benefits can be considered.  ….In re Christopher Preiser, BIIA Dec., 09 19683 (2010) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 10-2-09709-9.]

The Department's failure to properly close a claim before denial of an application to reopen a claim is not jurisdictional; the failure is an error of law and the subsequent denial of an application to reopen that becomes final is res judicata that the claim is closed as of the date of that denial.  ….In re Jorge Perez-Rodriguez, BIIA Dec., 06 18718 (2008)

When the Department fails to properly communicate the original closing order, but reopens a claim in response to an application to reopen and provides benefits, the Board obtains jurisdiction over an appeal of an order that re-closes the claim despite the Department's failure to communicate the original closing order.  Distinguishing In re Ronald Leibfried, BIIA Dec., 88 2274 (1990).  ….In re Glenda Singletary, BIIA Dec., 06 12195 (2007) [Editor's Note: Reversed on other grounds Singletary v. Manor Health Care Corp., 116 Wn. App. 774 (2012).]

When there has been an appeal of an order closing the claim and an application to reopen filed while the appeal is pending, the Department has 90 days from the final order of the Board or Court to issue an order on the application or the application will be deemed granted.  The Department should not act upon an application to reopen the claim when the appeal from the claim closure is still pending in light of Reid v. Department of Labor & Indus., 1 Wn.2d 430 (1939). Distinguishing Marley v. Department of Labor & Indus, 125 Wn.2d 533 (1995).  ….In re Greg Ackerson, BIIA Dec., 94 1135 (1995) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 95-2-00808-5.  The Board has partially overruled this decision to the extent the decision relies on the concept of subject matter jurisdiction.  In re Betty Wilson, BIIA Dec., 02 21517 (2004), In re Jorge Perez-Rodriquez, BIIA Dec., 06 18718 (2008).]

Where the last order closing the claim has been appealed and is not yet final the Department is not under any obligation to act upon a subsequent application to reopen the claim until a final order has been entered by either the Board or the Court, as the case may be.  Under the circumstances of this case the time within which the Department had to  act on the application to reopen the claim could not begin any sooner than the date upon which the Department received a conformed copy of the Superior Court's Stipulated Order of Dismissal.  Reid v. Department of Labor & Indus., 1 Wn.2d 430 (1940).  ….In re Edwin Fiedler, BIIA Dec., 90 1680 (1990) [Editor's Note: Consider impact, if any, of Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1995) See In re Greg Ackerson, BIIA Dec.,  941135 (1995).]

Where a prior closing order was not communicated to the claimant it was improper to construe a further order denying a subsequent application to reopen the claim as an order affirming the order closing the claim.  The issues before the Department on an application to reopen the claim are different from those involved when closing the claim.  In this case, the Board therefore directed the Department to treat the application to reopen the claim as a protest and to issue a further determinative order concerning the closure of the claim.  ….In re Ronald Leibfried, BIIA Dec., 88 2274 (1990) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 91-2-00015-4.  Although this decision correctly determines an application to reopen can be treated as a protest, consider the effect of In re Jorge Perez-Rodriquez, BIIA Dec., 06 18718 (2008) on the effects of the denial of an application to reopen that becomes final when the original closing order was not communicated.]

Objective evidence requirement

Consistently positive Tinel's sign and positive Phalen's test constitute objective physical or clinical findings of worsening and are not merely subjective complaints or symptoms.  ….In re Peggy Anderson, BIIA Dec., 09 11986 (2010)

Some medical conditions cannot be measured by the independent observation of a physician, and where that is the case, the worker's subjective report of worsening coupled with a physician's opinion that supports the worker's report is sufficient to establish worsening.  ….In re Charles Lewis, BIIA Dec., 07 16483 (2008)

A worker's subjective description of increased pain is not sufficient to establish that the condition causally related to the industrial injury worsened or became aggravated between the relevant terminal dates since there must be some objective findings to support the complaints of increased pain and loss of function.  ….In re John Anderson, BIIA Dec., 91 6315 (1992) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 93-2-00001-3.]

Under the 1988 amendments to RCW 51.32.160, the time limitation is removed for applying to reopen a claim to obtain additional medical services.  However, in order to show entitlement to additional medical services, a worker must still establish, by a preponderance of the evidence, that the condition causally related to the industrial injury worsened or became aggravated on an objective basis between the relevant terminal dates.  ….In re Marven Sandven, BIIA Dec., 89 3338 (1990)

ER 703 does not eliminate the substantive rule requiring objective medical evidence of worsening.  ….In re Earl Blake, BIIA Dec., 51,928 (1980) [Editor's Note: But see Price v. Department of Labor & Indus., 101 Wn.2d 520 (1984).]

Over seven years after initial closure (RCW 51.32.160)

When an application to reopen is filed more than seven years after the first closing order became final, the reopening of the claim for aggravation is not at the discretion of the director.  Only the decision to award time-loss compensation or other disability benefits are committed to the director's discretion.  ….In re Michael Bell, BIIA Dec., 11 15598 (2012)

The Director abused her discretion when she failed to consider whether the worker was unable to work because of the industrial injury and based her decision to deny benefits solely on the basis that the worker had not been working.  ….In re Robert Dorr, Jr., BIIA Dec., 07 23982 (2009)

Where a worker files an application to reopen more than seven years after the first closing order became final, such application is not timely within the meaning of RCW 51.32.160 but the worker is entitled to a determination of worsening and entitlement to proper and necessary treatment as authorized by RCW 51.36.010.  ….In re Carol Allen, BIIA Dec., 91 1837 (1992)

Permanent total disability

While it is not necessary to show an increase in category of impairment to establish an aggravation of condition resulting in permanent total disability, the worker must still show an increase in loss of bodily function demonstrated by objective medical findings.  ….In re Jean Wassmann, BIIA Dec., 69,953 (1986)

Proximate cause of worsened condition: new injury vs. aggravation

In considering the Department's requirement under WAC 296-14-420 to issue a joint order concerning whether a condition is the responsibility of a new claim or an aggravation of an existing claim, the Department cannot be made to issue a joint order if a determination rejecting the new claim has become final.  ….In re Douglas Lenz,BIIA Dec., 00 21329 (2002)

Where a self-insured employer asserts that a worker's condition was the result of a new injury rather than an aggravation of the condition causally related to the industrial injury for which the employer was responsible, a Department order which included only the signature of the claims manager does not comply with WAC 296-14-420.  To meet the requirements of WAC 296-14-420, the Department order must reflect that it is a single determination made jointly by the assistant directors for claims administration and self-insurance.  ….In re Bennie Johnson, BIIA Dec., 91 4040 (1992)

The occurrence of a new injury and an aggravation of a preexisting condition are not mutually exclusive.  Whether a worker's worsened condition is a result of a new incident or constitutes an aggravation of the original injury depends upon whether the new incident is a supervening cause, independent of the original injury.  The real question is one of proximate cause, i.e., whether "but for" the original injury the worker would not have sustained the subsequent condition.  ….In re Robert Tracy, BIIA Dec., 88 1695 (1990)

Where a new traumatic event was wholly and independently responsible for the worker's worsened low back condition and the accepted industrial injury was not a proximate cause of the later occurring symptoms, the McDougle (64 Wn.2d 640) reasonableness test was inapplicable.  ….In re William Dowd, BIIA Dec., 61,310 (1983) [Editor's Note: Consider continued application in light of In re Robert Tracy, BIIA Dec., 88 1695 (1990).]

McDougle (64 Wn.2d 640) does not hold that a new accident identifiable in time and place, adversely affecting an area of the body previously injured in an industrial injury, should be considered an aggravation of that previous injury.  The aggravation of the worker's condition is the result of the new and independent traumatic occurrence, not the industrial injury.  ….In re Alfred Swindell, BIIA Dec., 53,792 (1980) [Editor's Note: Consider continued application in light of In re Robert Tracy, BIIA Dec., 88 1695 (1990).]

Although the worker's initial low back condition was due to the industrial injury, the subsequent aggravation was due to a new, intervening and independent cause, and was not a proximate result of the industrial injury.  The application to reopen the claim was therefore properly denied.  ….In re Marian Roberts, BIIA Dec., 17,096 (1963) [Editor's Note: Consider continued application in light of In re Robert Tracy, BIIA Dec., 88 1695 (1990).]

Proximate cause of worsened condition: new occupational disease vs. aggravation

Whether a carpal tunnel condition resulting from employment activities which give rise to a need for surgery is an aggravation of an occupational disease for which prior claims were filed, or a new occupational disease, is a question of proximate cause.  A claim of aggravation of a prior condition and a claim for a new occupational disease may not be mutually exclusive.  ….In re Leonard Roberson, BIIA Dec., 89 0106 (1990)

Proximate cause of worsened condition: pre-existing condition

In order to be entitled to benefits on reopening of the claim it is necessary to show aggravation of the condition that was caused by the industrial injury; it is insufficient to show only a worsening of a pre-existing condition that was temporarily lit up by the industrial injury.  ….In re Arlen Long, BIIA Dec., 94 2539 (1996) [Editor's Note: The Board's decision was appealed to superior court under Okanogan County Cause No. 96-2-00033-9.]

Psychiatric conditions

The rule in Price (101 Wn.2d 520), eliminating the need to show objective evidence of worsening, does not apply unless the worker's condition has a psychiatric rather than a physical basis and the diagnosis is in the terminology of the Diagnostic and Statistical Manual of Mental Disorders (DSM III) as required by WAC 296-20-330(e).  ….In re Deborah Lee, BIIA Dec., 71,058 (1987) [dissent] [Editor's Note: Affirmed, Lee v. Department of Labor & Indus., 54 Wn. App. 1057 (1989).]

Res judicata effect of prior order - See RES JUDICATA Aggravation

Scope of Review - See SCOPE OF REVIEW

Survivor's benefits based on permanent total disability of deceased worker - See SURVIVOR'S BENEFITS Aggravation

Temporary worsening

When Department has reopened a claim for medical treatment it has admitted at least a temporary increase in disability (In re John Qualls, BIIA Dec., 28,430 (1969)).  A worker need not prove aggravation in an appeal from an order reclosing the claim with no additional permanent disability award if the worker is seeking further treatment, time-loss compensation or loss of earning power benefits.  However, if the worker's condition is fixed and stable, it is incumbent upon the worker to establish a permanent worsening of condition by comparative evidence in order to prove entitlement to a permanent disability award.  (Dinnis v. Department  of Labor & Indus., 67 Wn.2d 654 (1965)).  ….In re Maria Chavez, BIIA Dec., 87 0640 (1988) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 88-2-02121-9.]

In an appeal from a Department order denying an application to reopen the claim, the Board has jurisdiction to determine whether the worker's disability temporarily worsened during the aggravation period and can award temporary total disability compensation for such period.  ….In re Junior Wheelock, BIIA Dec., 86 4128 (1987) [Editor's Note: The Board's decision was appealed to superior court under Cause No. 88-2-00404-2.]

Although the evidence established that the worker's condition was fixed and that there was no increase in permanent disability as of the date the application to reopen the claim was denied, the worker was still entitled to benefits for a temporary worsening of his condition which occurred within the aggravation period.  ….In re Leon Wheeler, BIIA Dec., 70,344 (1986)

A prior finding that the worker's condition became aggravated requiring reopening of the claim for treatment establishes only a temporary increase in disability.  In order to obtain an increased permanent disability award, the worker must still present proof of aggravation resulting in an increase in permanent disability.  ….In re John Qualls, BIIA Dec., 28,430 (1969) [dissent]