Administration costs, self-insurers
The Department lacks authority, under RCW 51.44.150, to assess a self-insured employer for the undercollected actual administrative costs associated with the self-insurance program for a period before the employer was certified as self-insured. ....Whatcom County, 87 0826 (1988) [Affirmed sub nom, Department of Labor & Indus. v. American Adventures, Inc., 59 Wn. App 790 (1990)] [Editor's Note: Thurston County Cause No. 88-2-02485-2]
Administrative convenience
The Department must fairly determine the extent of benefits owed injured workers in Washington state as well as outside the state and its obligation is not met when administrative convenience prevails over claimant's life situation. The Department cannot refuse to schedule an examination in Mexico for administrative purposes since a Mexican doctor would not be easily available to testify at a hearing in a circumstance where the worker resided in Mexico and was unable to obtain visa for legal entry. ....Ramiro Madrigal, 91 2559 (1993) [Note, RCW 51.32.110 (6) was changed by Laws 1997 Ch 325 §2]
Agreed examination
A closing order based on an examination agreed to by the worker and the Department is not ultra vires simply because no regulation authorized an agreed examination. Citing In re Rafael Rodriguez, BIIA Dec., 90 3308 (1991), such agreements are encouraged although the employer should be included in the process. ....Anthony Murphy, 94 1233 (1996)
Ambiguous orders
When the Department issues an order affecting the finality of an earlier order, the effect of the original order may not be revived by a third order unless the third order is drafted in such a way that it unambiguously states the Department's final action. ....Robert Kleest, Jr., 02 13352 (Order Granting Relief on the Record, May 7, 2002)
The Department's language closing a claim "without further award for permanent partial disability" is inherently ambiguous when the order is issued after reconsideration of a previous order paying an award for permanent partial disability. In such circumstance, it is impossible to determine if the Department intended that the award be paid and the doctrine of res judicata likely does not apply to the ambiguous determination. ....Brett Kemp, 02 13145 (2003)
Authority of Department not to pursue collection of final assessment
The Department does not have the authority to withdraw a Notice and Order of Assessment which has become final. However, the Department may still, at any time, elect not to pursue collection of the sums assessed thereby. Board construed Department's order withdrawing Notice and Order of Assessment which had become final as a decision by the Department not to pursue collection of the sums assessed, making the employer no longer obligated on the indebtedness asserted by the Notice and Order of Assessment. ....Thong Quach dba QT&T Co., 89 0055 (1989)
Authority to adjudicate claim after closure
After its order closing a claim with time-loss compensation as paid becomes final, the Department lacks subject matter jurisdiction to respond to protests regarding time-loss compensation payment orders issued prior to the date of closing. ….Randy Jundul, 98 21118 (1999) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 00-2830-0KNT].
Authority to adjudicate claim after closure – medical bills
After claim closure, the Department retains authority to pay and review payment of medical bills related to treatment rendered before claim closure. .…Kimberly Nelson, 00 18243 (2001)
Authority to bind parties to final disposition - See APPEALABLE ORDERS Department Agreed Exam
Authority to honor support enforcement lien
The Department is under no obligation to notify the worker that it will be honoring a support enforcement lien prior to making payments to the Office of Support Enforcement. ….Elizabeth Schaefer, 00 12023 (2001) [Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 01-2-00431-2.]
Authority to issue further adherence order
Once the Department has issued an order, its authority to take further action with respect to such order is limited by RCW 51.52.050 and RCW 51.52.060. Absent the filing of a protest or request for reconsideration, the Department cannot simply issue a further order which only adheres to the provisions of the original order. In such case, the adherence order is a nullity. [In re Thomas Houlihan, BIIA Dec., 67,414 (1985)] ....Richard Wagner, 88 0962 (1988)
Authority to issue nunc pro tunc order
The Department cited an employer for four safety violations and issued a Corrective Notice of Redetermination assessing a $6,000 penalty arising out of an incident where a worker was electrocuted. In a separate investigation, the Department apparently determined it had been too lenient on the employer and, more than 60 days after issuance of the unappealed Corrective Notice of Redetermination, issued a nunc pro tunc order vacating the Corrective Notice of Redetermination. The Board concluded there was no statutory authority to issue a nunc pro tunc order. ....American Neon Signs, 94 W346 (1995) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 9202094624-5.]
Authority to issue order while superior court appeal pending
Pursuant to RCW 51.52.110 a superior court appeal is not an automatic stay of the Board's decision. The Department has authority to administer the claim consistent with the Board's decision. Despite that authority, neither the Board nor the Department has jurisdiction to reconsider the subject matter of the order that is on appeal to superior court. .…Steven Carrell, 99 11430 (1999)
Authority to issue subsequent order once the period for appeal has passed
Once the 60-day appeal period expired, a Department order became final and binding on all parties, including the Department. As a result, the Department's effort to "modify from final to interlocutory" an unappealed order was invalid, although it could recoup monies paid due to clerical error. ....Martina Peterson, 94 0991 (1995)
Authority to issue subsequent order while appeal pending
It is erroneous as a matter of law for the Department to adjudicate claim closure when adjudication regarding segregation of a condition is pending. To that extent, In re Larry Nelson, BIIA Dec., 89 0257 (1999) is overruled in the sense that it determined that the Department "lacks jurisdiction" to adjudicate a claim in such circumstances. ....Betty Wilson, 02 21517 (2004)
Entry of a subsequent order that affirms an order that paid time loss compensation benefits does not deprive the Board of jurisdiction over issues raised by the appeal of the order closing the claim. ….Ronald Watson, 96 5309 (1997)
An appeal from a Department order does not necessarily deprive the Department of jurisdiction to issue subsequent orders on other aspects of an open claim which are not covered by the order on appeal. ....Larry Nelson, 89 0257 (1990)
Authority to modify order
Under RCW 51.52.060 the time within which the Department can modify or hold in abeyance a prior order is the "time limited for appeal." This "time" is not 60 days from the date shown on the order, but rather, 60 days from the date the order was communicated to the aggrieved party.....Kenneth Osborne, 69,846 (1986) [special concurrence][Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 86-2-20322-2.]
Authority to recoup overpayment of benefits
When the self-insured employer has previously paid time-loss compensation benefits for a period after the effective date of the pension, the Department's authority to use the second injury fund for pension payment includes the authority to reimburse the self-insured employer from the second injury fund for payment of the total disability benefits. Recoupment or offset of the overpayment of total disability benefits is the responsibility of the Department of Labor and Industries. …Frederic Cuendet, 99 21825 (2001)
The Department attempted to recoup the worker's medical expenses that were incurred before the Board determined that he was permanently and totally disabled, but after the effective date of the pension. The bills for medical treatment were properly payable by the Department and, accordingly, are not subject to recoupment. RCW 51.32.240 does not give authority to the Department to recoup from the worker payments made to medical providers, since the recoupment statute only authorizes recoupment from the recipients of the payments. Distinguishing In re Esther Rodriguez, BIIA Dec., 91 5594 (1993) ….Anthony Lajcin, 99 12440 (2000)
Once the 60-day appeal period expired, a Department order became final and binding on all parties, including the Department. As a result, the Department's effort to "modify from final to interlocutory" an unappealed order was invalid, although it could recoup monies paid due to clerical error. ....Martina Peterson, 94 0991 (1995)Where an order allowing a claim is final, the Department may vacate the order on the basis of fraud but the Department cannot issue an order seeking recoupment under the terms of RCW 51.32.240 where more than a year had passed since discovery of the fraud. ....Keith Hunt 92 6213 (1994) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 94-2-01893-6.]
In the context of the Department's calculation of the offset of a previously paid permanent partial disability award against the pension reserve, where the Department had also paid an additional award for permanent partial disability by an order which never became final, the Department could deduct the erroneously paid permanent partial disability -- which was neither a permanent partial disability or temporary total disability award -- from time-loss compensation benefits under RCW 51.32.240(3). ....Esther Rodriguez, 91 5594 (1993)[Editor's Note: Consider application in light of Stuckey v. Department of Labor & Indus., 129 Wn.2d 289(1996)]
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
WAC 296-20-09701, allowing attending physicians to file requests for reconsideration with the self-insured employer, makes the self-insured employer the agent for the Department for receiving protests from attending physicians. A protest timely filed by the attending physician with the self-insured employer, but not with the Department, therefore constitutes a timely request for reconsideration under RCW 51.52.050. ....Harry Pittis, 88 3651 (1989)
Determination of new injury vs. aggravation (WAC 296-14-420) - See also JOINDER Department as necessary party
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. ....Bennie Johnson, 91 4040 (1992)
Employer inclusion in claims administration
A closing order based on an examination agreed to by the worker and the Department is not ultra vires simply because no regulation authorized an agreed examination. Citing In re Rafael Rodriguez, BIIA Dec., 90 3308 (1991), such agreements are encouraged although the employer should be included in the process. ....Anthony Murphy, 94 1233 (1996)
Ministerial orders
*A Department order that purports to follow a finding of fact contained in a Board order is not ministerial unless the Board also directed the Department to take specific action consistent with the finding of fact. ....Keith Browne, 06 13972 (2007)
Providers - See PROVIDERS
Reassumption of jurisdiction (RCW 51.48.131) - See ASSESSMENTS
Reassumption of jurisdiction (RCW 51.52.060)
Pursuant to holding in In re Russell Randall, BIlA Dec. 90 3634 (1990), the Department may reassume jurisdiction once in response to a notice of appeal, not twice; the inability to reassume jurisdiction a second time prohibits the Department from reconsidering the same issue twice. If the second notice of appeal raises an issue not raised when the Department first reassumed jurisdiction, the Department is not precluded from reconsidering the new issue. ....Antonia Bustos, 96 5971 (1996)
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. ....Joseph Brown, 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. ....Nancy Stumbaugh, 95 7068 (1996)
Department's failure to act to modify, reverse or change its assessment decision within thirty days of receipt of the employer's appeal renders all subsequent orders null and void and vests jurisdiction with the Board even though the Department failed to forward the appeal to the Board. ....Maid-For-You, 88 4843 (1990)
Where the Department has held an order which has been appealed to the Board in abeyance pending further consideration, it must enter a further order within the time allowed by RCW 51.52.060. However, the failure of the Department to issue a further order within the time allowed does not make the order held in abeyance appealable. Such order is not a final order of the Department. ....Coni Oakes, 90 1968 (1990)
Where the Department has issued a further determinative order under RCW 51.52.060 which affirms the order previously appealed to the Board it may not, in the event of a further appeal to the Board, hold such order in abeyance pending further consideration. RCW 51.52.060 allows the Department to reassume jurisdiction once, not twice, and it may not, on its own motion, artificially extend the time allowed by the Legislature to reconsider its decision once an appeal is filed with the Board. ....Russell Randall, 90 3634 (1990)
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. ....Edna Shore, 89 5898 (1990) [Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 91-2-00740-6.]
Where the Department has held in abeyance an order previously appealed, pursuant to the provisions of RCW 51.52.060, and issued a further affirming order after the time allowed for doing so has passed, it may not thereafter hold such order in abeyance for further consideration. The Department cannot artificially extend the time for reconsideration as allowed by the Legislature. ....Cortez Tyler, 90 3483 (1990)
Whether the Department has taken further action in response to a notice of appeal "within thirty days after receiving a notice of appeal" is determined by the date it made its further decision and not by the date the decision was mailed to the parties. RCW 51.52.060. ....Benson Wood, 90 1810 (1990)
Reassumption of jurisdiction – WISHA - See SAFETY AND HEALTH Reassumption of jurisdiction by Department
Rules
Rules enacted by the Department that interpret RCW 51.08.178 are interpretive rules and do not have the force of law when disputed in the course of an appeal. ....Fred Jones, 02 11439 (2003) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 03-2-04618-7.]
WAC 296-17-349 (effective April 1, 1988), which purports to limit the corporate officer exemption to officers "who are in a position similar to a proprietor to direct and control the business," is beyond the authority of the Department. The Legislature had the opportunity to adopt language remarkably similar to that of WAC 296-17-349 and determined not to do so. An administrative agency does not have the power to make rules which, rather than applying legislative enactment's, attempt to amend or change them. ....Western Gold Shake, 89 3349 (1990) [dissent] [Editor's Note: See later statutory amendments to RCW 51.52.020(8), Laws of 1991, ch. 246, § 4 (effective January 1, 1992)]
Void order
Once an order allowing the claim became final, the Department may not set aside the allowance of a claim by an order rejecting the claim on the basis that a worker's condition was not the result of an injury or occupational disease and directing repayment of time-loss compensation with no reference to fraud where the Department had already issued an order allowing the claim which had become final. An order which attempts to do so is void ab initio and cannot direct repayment of benefits under the terms of RCW 51.32.240(1). ....Keith Hunt 92 6213 (1994) [Editor's Note: Consider impact of` Marley v. Department of Labor & Indus., 125 Wn.2d 521 (1994); The Board's decision was appealed to superior court under Pierce County Cause No. 94-2-01893-6.]