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SIGNIFICANT DECISIONS
Subject Index
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SUBJECT INDEX
A
ABUSE OF DISCRETION
ACCIDENT REPORT
- Applicability
of 1988 amendments
- "Deemed
granted" application to reopen claim
- Discretionary
reopening by Director
- Effect
of abeyance order on "deemed granted" provisions (RCW
51.32.160)
- Extension
of time to act on application to reopen claim
- First
closure based on medical recommendation
- First
terminal date: effect of Board's determination of effective date of closure
- First
terminal date: effect of subsequent ministerial order
- First
terminal date findings
- Last
closing order not final
- Objective
evidence requirement
- Over
seven years after initial closure (RCW 51.32.160)
- Permanent
total disability
- Proximate
cause of worsened condition: new injury vs. aggravation
- Proximate
cause of worsened condition: new occupational disease vs. aggravation
- Proximate
cause of worsened condition: pre-existing
condition
- Psychiatric
conditions
- Res
Judicata See RES JUDICATA Aggravation
- Scope
of Review See SCOPE OF REVIEW Aggravation
- Survivor's
benefits based on permanent total disability of deceased worker
See SURVIVOR'S BENEFITS Aggravation
- Temporary
worsening
APPEALABLE ONLY" ORDER
- Attorney
fees for services rendered only before Department
- Department
agreed exam
- Department
order fixing interest pursuant to order of superior court
- Informal
letters
- Interlocutory
orders
- Ministerial
orders
- Oral
decisions
- Orders
held in abeyance (RCW 51.52.060)
- Protest
divests Board of jurisdiction over appeal See also NOTICE OF
APPEAL Protest treated as notice of appeal
- Provisional
time loss compensation orders (RCW 51.32.210) See also APPEALABLE ORDERS Interlocutory orders
- Self-insured
employer's order (RCW 51.32.055
- Temporary orders
- Application
to reopen treated as accident report
- Reasonable
notification
-
Application to reopen treated as accident report
-
Reasonable notification
APPORTIONMENT BETWEEN INSURERS
- Classification
of business
- Communication
of order (RCW 51.48.120)
- Decisions
appealable See APPEALABLE ORDERS Informal letters
- Delegation
of authority to issue Notices and Orders of Assessment
- Effect
of failure to allow inspection of records (RCW 51.48.040)
- Estimated
premiums
- Existence
of partnership
- Failure
to maintain records
- Piece
Work
- Penalties
- Prime
contractor liability (RCW 51.12.070)
- Reassumption
of jurisdiction (RCW 51.48.131)
- Subcontractors
- Successor
liability Limitation of action (RCW 51.16.190)
-
Selection (RCW 51.36.010)
-
Transfer
-
Attorney fees not allowed on interest award
-
Factors to be considered
-
Fees for services rendered only before Department
AUDIOLOGISTS
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B
-
Abandonment of spouse (RCW 51.08.020)
-
Child (RCW 51.08.030)
-
Dependent (RCW 51.08.050)
-
Permanent partial disability benefits
-
Permanent total disability benefits
-
Spouse (RCW 51.32.040)
- Additional
evidence secured on Board's own motion (RCW 51.52.102; WAC 263-12-120)
- Appearance
of fairness doctrine
- Binding
examinations
- Constitutional
questions
- County
in which hearings held
- Discovery
- Equitable
powers
- Examination by industrial appeals
judge
- Hearing
- Joinder
See decisions listed under JOINDER
- Jurisdiction
determination based on Department file See SCOPE OF REVIEW
- Jurisdiction
in assessment appeal See SCOPE OF REVIEW
- Jurisdiction
in WISHA appeal (RCW 49.17)
- Moot
Appeals
- Motion
to vacate order denying petition for review
- New
evidence
- Nunc
pro tunc order
- Offer
of judgment CR 68
- Order
on agreement of parties See also SAFETY AND HEALTH Order on
Agreement of Parties
- Petition
for review
- Remand
for additional evidence
- Remands
from Superior Court
- Response
to petition for review
- Sanctions
See SANCTIONS
- Scope
of review - See SCOPE OF REVIEW Closing Order
- Stay
of proceedings
- Subpoena
- Substitution
of parties
- Summary
judgment
- Summary
judgment - time limits
- Transcript corrections
- Telephone
hearings
- Two
member Board
- Abandonment
- Employer
appeal
- Fraud
See FRAUD Burden of Proof
- Hearing
loss
- Injury
See INJURY Burden of Proof
- WISHA
appeals See SAFETY AND HEALTH Burden of Proof
- Vocational Rehabilitation - See VOCATIONAL
REHABILITATION Burden of Proof
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C
-
Audiologist
-
Chiropractor
-
Psychologist
- Physical therapist
CHIROPRACTORS
-
Department order in another claim
-
Prior Board decision in same claim
-
Superior court judgment in unrelated case
COLLATERAL SOURCE RULE
COMBINED EFFECTS
- Address
shown by Department records
- Failure
to provide order to assignee of self-insured employer
- Failure
to provide order to attorney or representative
- Failure to provide order to custodial parent
- Failure to provide order to retrospective rating group
- Presumptions
of mailing and receipt
- Receipt
of copy of Department order
- Strict
compliance with service provisions (RCW 51.52.050)
-
Burial expenses
-
Change of circumstances (RCW 51.28.040)
-
Support provided to dependents (RCW 51.32.050(5))
CORPORATE OFFICERS, DIRECTORS AND SHAREHOLDERS
COSMETIC DEFECT
-
Abandoment
-
Aggressor doctrine
-
"Arising out of employment" test distinguished
-
Deviation
-
Dual purpose doctrine
-
Education and training off jobsite
-
Going and coming rule
-
Goodwill
-
Horseplay
-
Intoxication
-
Job site
-
Lunch period (RCW 51.32.015; RCW 51.36.040)
-
"On call" employees
-
Parking area exclusion (RCW 51.08.013)
-
Personal comfort doctrine
-
Reaction to treatment for probable occupational disease
-
Recreational activities
-
Resident workers
-
Sidewalk
-
Training programs
-
Chore service workers
-
Corporate officers (RCW 51.12.020(9) (1979); RCW 51.12.020(8) (1987)(1992))
-
Course of trade, business or profession of employer (RCW 51.12.020(3))
-
Effect of allowed Federal Employees Compensation Act claim
-
Elective adoption
-
Extraterritorial
- Inmates
-
Federal Employees Compensation Act
-
Jockeys
-
Limited liability company
-
Longshore and Harbor Workers' Compensation Act
-
Partners (RCW 51.12.020(5))
-
Reciprocity agreements
-
Religious or charitable organizations
-
Self employment
-
Sole proprietors (RCW 51.12.020(5))
-
Waiver of benefits (RCW 51.04.060)
- Temporary total disability benefits
-
Invalid child in custody of state institution (RCW 51.32.010 and RCW
51.32.020)
-
Determined by court order
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D
DENIAL OF APPEAL
- Administration
costs, self-insurers
- Administrative
convenience
- Agreed
examination
- Ambiguous
orders
- Authority
of Department not to pursue collection of final assessment
- Authority
to adjudicate claim after closure
- Authority
to adjudicate claim after closure medical bills
- Authority
to bind parties to final disposition - See APPEALABLE ORDERS Department Agreed Exam
- Authority
to honor support enforcement lien
- Authority
to issue further adherence order
- Authority
to issue nunc pro tunc order
- Authority
to issue order while superior court appeal pending
- Authority
to issue subsequent order once the period for appeal has passed
- Authority
to issue subsequent order while appeal pending
- Authority
to modify order
- Authority
to recoup overpayment of benefits
- Authority
to regulate out-of-state providers See PROVIDERS
- Delegation
of authority to issue Notices and Orders of Assessment See
ASSESSMENTS
- Delegation
of authority to receive protests and requests for reconsideration
See PROTESTS
- Determination
of new injury vs. aggravation (WAC 296-14-420) See also JOINDER Department as necessary party
- Employer
inclusion in claims administration
- Ministerial order
- Providers
See PROVIDERS
- Reassumption
of jurisdiction (RCW 51.48.131) See ASSESSMENTS
- Reassumption
of jurisdiction (RCW 51.52.060)
- Reassumption
of jurisdiction WISHA - See SAFETY AND HEALTH Reassumption of jurisdiction by
Department
- Rules
- Void
order
- Applicability
of civil rules -- medical experts
- Motion
to compel
- Physician-patient
privilege
- Sanctions
See SANCTIONS Discovery
DISCRETIONARY DECISIONS
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E
- Choreworkers
- Home
remodeling contractors
- Home
services provider
- Insurance
agents See INDEPENDENT CONTRACTORS
- Jurors
- Loggers
- See INDEPENDENT CONTRACTORS
- Outside
salespeople See INDEPENDENT CONTRACTORS
- Partners
(RCW 51.12.020(5))
- Real
estate agents See INDEPENDENT CONTRACTORS
- Route
managers
- Volunteers
EQUITABLE POWERS
-
Attorney as witness
EVASION OF BURDENS (RCW 51.04.060)
-
Admissibility of expert opinion - See EXPERT
TESTIMONY
-
Attorney as witness
-
Collateral source rule
-
Documents
-
Effect of failure to allow inspection of records (RCW 51.48.040)
-
Exhibits containing hearsay
-
Learned treatise
-
Physician-patient privilege
-
Psychologist-patient privilege
-
Rebuttal testimony
-
Statements by interpreter
EXCLUSIONS FROM COVERAGE
EXEMPTION OF AWARDS (RCW 51.32.040)
-
Admissibility of opinions
-
Conclusions
-
Scope of expertise
-
Vocational expert testifying by hypothetical
EXTRATERRITORIAL COVERAGE
EYEGLASSES
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F
FIXITY OF CONDITION
-
Burden of proof
-
Discovery (RCW 51.32.240(4))
-
Effect of worker's failure to present evidence when due
-
Material mispresentation
-
Time period of fraudulent activity
G
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H
HEARING LOSS
-
Emotional stress
-
Unusual exertion
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I
-
Entertainers
-
Home health care attendant
-
Insurance agents
-
Loggers
-
Outside salespeople
-
Real estate agents
-
Sole proprietors
INJURY
(RCW 51.08.100)
- Burden
of Proof
- Idiopathic
fall
- Normal
bodily movement
- "Physical
conditions"
- Physical/mental conditions
- Proximate
cause: new injury v. aggravation See AGGRAVATION
- Psychiatric
conditions (mental/mental) see also "Sudden and tangible
happening"
- "Sudden
and tangible happening"
- Toxic
Encephalopathy
- "Traumatic
nature"
- Unusual
exertion not required
-
Attorney fees not allowed on interest award
-
Fixing interest following superior court appeal
-
Loss of earning power benefits
- Waiver impermissible
-
Qualification (RCW2.43.040)
-
Requirement to provide at deposition
-
Requirement to provide at examination
-
Medical providers
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J
-
Department as necessary party
-
Multiple claims and employers
-
Provider as necessary party
- Single claim, multiple possible
employers/insurers
JURISDICTION
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K
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L
LIGHT DUTY
LONGSHOREMEN'S AND HARBOR
WORKER'S COMPENSATION ACT
- Comparison wages after reopening
- Department
obligated to make eligibility determination
- Effect
of completing vocational rehabilitation
- Effect
of not seeking full-time employment
- Effect of not working
- Effect
of wage increase in pre- and post-injury employments
- Entitlement after reopening
- Entitlement
beyond date condition becomes fixed
- Proof
required
- Rebuttable
presumption of entitlement
- Res
judicata See RES JUDICATA Time loss compensation
- Simultaneous
loss of earning power and time-loss compensation
- Unemployment
compensation
- Wages
(RCW 51.08.178) See TIME LOSS COMPENSATION
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M
MARITIME CLAIMS
- Discretion
of Department See STANDARD OF REVIEW Medical Bills
- Recovery
of overpayment See DEPARTMENT Authority to recoup overpayment of
benefits
MINISTERIAL ORDERS
- Failure of make a prima facie case
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N
-
Aggrieved party
-
Assignee as person affected or aggrieved
-
Contents required
-
Protest and notice of appeal
-
Timeliness
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O
- Aggravation of preexisting condition
- Aggravation
of preexisting occupational disease vs. new occupational disease See
AGGRAVATION Proximate cause of worsened condition: new occupational
disease vs. aggravation
- Apportionment
- Concurrent employers
- Date
of manifestation see Schedule of benefits appealable
- Hearing
loss
- Last
injurious exposure see Successive insurers - See also COVERAGE &
EXCLUSION
- Longshore and Harbor Workers' Compensation Act
- Onset
of condition
- Proximate
cause: occupational disease v. aggravation See AGGRAVATION
- Psychiatric
conditions (mental/mental)
- Reaction
to treatment for probable occupational disease See COURSE OF
EMPLOYMENT
- Schedule
of benefits applicable
- Schedule
of benefits -- beneficiary of deceased worker
- Successive
insurers
- Time-loss
compensation benefits
- Tinnitus
- Toxic
Encephalopathy
OFFSETTING PRIVATE INSURANCE BENEFITS AGAINST TIME LOSS
COMPENSATION
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P
- Employer's
liability for acts of service company
- Failure
to keep records of employee hours
- Failure
to secure payment of compensation (RCW 51.48.010)
- Failure
to submit medical reports (WAC 296-15-070(3))
- Offsetting
employment contract benefits against monetary award for permanent
partial disability
- Offsetting
private insurance benefits against time loss compensation
- Review
of penalties (RCW 51.48.080)
- Sidebar agreements
- Standard
of review (RCW 51.48.010) See STANDARD OF REVIEW
- Unreasonable
delay
- WISHA
See SAFETY AND HEALTH Penalties
-
Calculation
-
Deduction of prior permanent partial disability award
(RCW 51.32.080))(Previously RCW
51.32.080(2))
-
Reduction
-
Standard of Review
- Ambiguous
orders
- Amputation
value
- Award
after pension determination
- Beneficiaries
- Category
rating
- Cervical
conditions
- Chiropractors
- Converting
premature permanent partial disability award to time loss compensation
- Cosmetic
defect
- Fixity
of all conditions required
- Hearing
loss See OCCUPATIONAL DISEASE
- Interest
(RCW 51.32.080 (6))
- Interest
rate (RCW 51.32.080(4))
- Migraine
headaches
- Multiple
levels of the spine
- Pension
does not preclude payment of award under another claim See also
Award after pension determination
- Pension
due to combined effects may preclude payment of award under another
claim
- Permanent
partial disability award paid in lieu of pension benefits
- Permanent
partial disability award should not be converted to time loss
compensation where permanent total disability follows
- Prior
permanent total disability determination See Award after pension
- Rating
- Rating
by Board
- Schedule
of benefits See also OCCUPATIONAL DISEASE Schedule of benefits
applicable
- Segregation
- Survivors
Benefits
- Temporomandibular
joint
- Tinnitus
- Twenty-five
percent reduction (RCW 51.32.080(2))
- Age
as factor
- Availability
of work in geographical area
- Beneficiaries
- Combined
effects of preexisting and subsequent disabilities
- Continuing
medical benefits
- Deduction
of prior permanent partial disability award (RCW 51.32.080(2))
- Effective
date of pension
- Employment
on closing date
- Fixity
of condition at time of death from unrelated cause (RCW 51.32.050(6))
- Gainful
Employment
- Obtaining
work vs. performing work
- Odd
lot
- Part-time
employment
- Permanent
partial disability award under another claim
- Reduction
of benefits by prior permanent partial disability award
- Retroactive
effective date of pension
- Subsequent
industrial injury
- Survivors
benefits
- Termination
of benefits (RCW 51.32.160) See DIMINUTION OF DISABILITY (RCW 51.32.160)
- Vocational
testimony
- Issue
first raised in petition for review
- Order
denying appeal
- Scope
of review
PRIMA FACIE CASE
PROCEDURE BEFORE BOARD
-
Breast implant
-
Eyeglasses
- Application to reopen treated as protest
- Contents
- Department order, once protested, is not
final order See also Protest divests board of jurisdiction
- Deemed-granted application to reopen claim
- Filing by mail permissible
- Filing by mail, proof of
- Filing with self-insured employer (WAC
296-20-09701)
- Limitations on time to act
- Notice of Appeal See NOTICE
OF APPEAL
- Must be in writing
- Protest of "Appealable Only" order
- Protest divests Board of jurisdiction over
appeal
- Self-insured employer's order
- Approved examiners lists
- Audits
- Department's authority to regulate
out-of-state providers
- Limitations of actions
- Peer review
- Provider appeals
- Treatment
- Significant cause
PSYCHOLOGISTS
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Q
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R
REASSUMPTION OF JURISDICTION (RCW 51.52.060)
REFUSAL TO ATTEND MEDICAL EXAMINATION
- Absence of finding concerning previously
litigated issue
- Acceptance of condition
- Aggravation
- Allowance of claim
- Ambiguous orders
- Clerical error
- Conditions not explicitly segregated
- Extension of time to act on application to
reopen claim
- Informal letter
- Matters concluded by order rejecting a claim
- Occupational Disease
- Orders void ab initio
- Segregation order
- Self-insured employer's order
- Subject matter of appeal
- Surviving beneficiary's claim affected by
prior adjudication on the merits in worker's claim
- Time-loss compensation
- Time within which Department may modify
order See DEPARTMENT Authority to modify
order
- Wages at time of injury
-
Aggravation (RCW 51.32.160)
-
Children's benefits (RCW 51.08.030)
-
Interest rate increases (RCW 51.32.080(4))
-
Occupational disease statute of limitations (RCW 51.28.055)
-
Schedule of benefits applicable in occupational disease claim (RCW
51.32.180)
-
Social security retirement offset (RCW 51.32.225)
-
Underinsured motorist insurance recovery (RCW 51.24.030)
-
Wages (RCW 51.08.178)
-
Standard of review - See STANDARD OF REVIEW Retrospective
rating adjustments
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S
- Amendment of citation
- Appeals
- Authority to issue nunc pro tunc order
- Burden of proof
- Burden of proof failure to abate
- Corporate officers
- "Employee misconduct" defense
- Employer (RCW 49.17.020(3))
- Enforcement of safety standards in federal
enclave
- Feasibility defense
- Federal guidelines
- General contractor liability for safe
environment
- General contractor liability - multiple
employer worksite
- General duty standards - WAC 296-24-073
- Grouped violations
- Grouping of violations
- Immediate restraint
- Industry-specific standards
- Leased employees
- Multiple citations
- Order on agreement of parties
- Penalties
- Process Safety Management
- Reassumption of jurisdiction by Department
- Repeat violations
- Safe workplace rule
- Scope of review SCOPE
OF REVIEW Safety and Health
- "Serious" violation
- "Willful" violation
-
Civil Rule 11
- Discovery
-
Failure to attend CR 35 medical examination
-
Frivolous defense
- Aggravation
- Allowance of claim
- Assessments
- Closing order
- Closing order segregating condition
- Compromise of lien against third party
recovery (RCW 51.24.060(3))
- Coverage and exclusions
- "Deemed granted" application to
reopen claim
- Department order not communicated
- Employer's appeal of order that holds the
claim open
- Fraud determinations
- Issues limited by notice of appeal
- Interlocutory time-loss orders
- Multiple injuries
- Occupational disease and industrial injury
as alternative theories
- Order terminating pension since worker
gainfully employed
- Penalty assessments
- Penalty assessment, Director's refusal to
assess
- Rejected claim
- Safety and Health
- Second injury fund See SECOND
INJURY FUND Jurisdiction
- Suspension of benefits
- Time loss compensation
- Vocational rehabilitation determinations
- Authority
to reimburse self-insured employer for overpayment of time-loss compensation
benefits
- Bodily disorder
- Continuing medical benefit
- Date of charge against pension reserve
- Jurisdiction
- Knowledge of disabling condition
- Permanent partial disability payment (RCW
51.16.120(1))
- Pre-existing disability
- Time loss compensation
- Closing order
- Subsidiaries (WAC 296-15-023
-
Adequacy of notice
-
Average monthly wage
-
Computation
-
Computation after reentitlement to benefits
-
Computation based on benefit levels in effect on:
-
Cost of living increases (COLI's)
- Effective date of offset
-
Limitation on recovery of overpayment (RCW 51.32.230)
-
Loss of earning power benefits
-
State offset computed in same manner as federal offset
-
Time loss compensation
-
Applicability
-
Calculation
-
Effective date of offset
-
No federal pre-emption of social security retirement offset
- Claims Administration
- Medical bills
- Penalty assessments
- Pension reserve calculation
- Provider revocation
- Removal of physician from approved examiners
list
- Retrospective rating adjustments
- Time loss compensation benefits as part of
vocational rehabilitation plan
- Vocational rehabilitation determinations
- Vocational rehabilitation vs. time loss
compensation
- Waiver of time limit for reopening claims
-
Substantial compliance
STATUTES OF LIMITATION
-
Effect of appeal to Board on Department's order
-
Effect of appeal to superior court on Department's authority to take
further action on claim
-
Aggravation by treatment
- Injury sustained en route from vocational
appointment
-
Migraine headaches
-
New incident aggravating prior injury
-
Worry over industrial injury causing further condition
SUCCESSIVE INSURERS
SUICIDE
(RCW 51.32.020)
-
Permanent total disability at time of death (RCW 51.32.050(6))
-
Volitional act
SUMMARY JUDGMENT
-
Aggravation
- Failure to comply (WAC
296-14-410)
- Good cause
- No show fees
- Refusal to attend medical examination
- Retroactive Suspension
- Vocational plan not pursued due to worker's
relocation
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T
- Accord and satisfaction
- Allocation of fault
-
Assignment of action
-
Assignment of interest in distribution of recovery
-
Benefits
-
Compromise of lien
-
Definition of injury
-
Distribution of recovery
-
Insurance guarantee association recovery
-
Interest
-
Multiple beneficiaries
-
Recovery limited to injury caused by the
third party
-
Reduction of lien due to employer fault
(RCW 51.24.060(1)(f))
-
Settlement for nuisance value
-
Settlement of action
-
Surviving spouse's recovery for loss of consortium
-
Underinsured motorist insurance policy owned by employer
- Attending physician's recommendation against
return to work
- Certification by vocational rehabilitation
counselor
- Certification for available light work (RCW
51.32.090(4))
- Eligibility
- Eligibility where capable of performing
light work
- Eligibility while attending medical
evaluation
- Eligibility while undergoing vocational
rehabilitation (RCW 51.32.095(3))
- Entitlement beyond date condition becomes
fixed
- Intermittent employment
- No presumption of continued eligibility
- Orders void ab initio
- Provisional time loss compensation (RCW
51.32.190(3) and RCW 51.32.210)
- Recovery of overpayment of benefits (RCW
51.32.240(1)) - See DEPARTMENT Authority to
recoup overpayment of benefits
- Res judicata See RES
JUDICATA Wages at time of injury
- Scope of review See SCOPE
OF REVIEW Time loss compensation
- Seasonal employment See also Wages
Intermittent/seasonal, full time or other usual wages paid others
- Simultaneous loss of earning power and
time-loss compensation
- Sporadic employability
- Termination from modified position
- Wage at time of injury See RES
JUDICATA Wages at time of injury
- Wage continuation precludes time loss
compensation (RCW 51.32.090(6))
- Wages (RCW 51.08.178) - Compensation
- Wages Intermittent/seasonal, full time
or other usual wages paid others
- Wages - WAC 51.08.178(1), (2), or (4)
-
TIMELINESS
- Applicability of 1988 amendments
-
Calculation of time
-
Issue of timeliness of application may be raised for first time on
appeal
-
Calculation of time
-
Child's claim for survivors' benefits
-
Crime victims' compensation
-
Filing
-
Occupational disease [after 1984 amendment to RCW 51.28.055]
-
Occupational disease [prior to 1984 amendment to RCW 51.28.055]
-
Compensable disability
-
Divisible claims
-
Notification by physician
-
Oral reports in self-insured claims
-
Physician's certification (RCW 51.28.020)
-
Survivors' benefits
-
Survivor's benefits where worker dies of occupational disease
TIMELINESS OF NOTICE OF APPEAL
- After claim closure
- Aggravation of preexisting condition
- Failure to obtain prior authorization
-
Fixity of condition
-
Hearing aids
-
Proper and necessary medical and surgical services (RCW 51.336.010)
- Recoupment of medical benefits
- Spinal column stimulator
- Subsequent condition impairing
recovery
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U
UNUSUAL EXERTION
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V
- Abuse of discretion
- Burden of proof
- Cooperation of worker relevant
- Eligibility for time loss compensation distinguished
(RCW 51.32.090)
- Jurisdiction of Board See BOARD
Moot Appeals
- Standard of review See STANDARD
OF REVIEW Vocational rehabilitation determinations
- Time loss compensation (RCW
51.32.095(3))
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W
- Loss of Earning Power
WAIVER OF BENEFITS (RCW 51.04.060)
WORKER
X
Y
Z
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Update 4/2007
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