RES JUDICATA
Absence of finding concerning previously litigated issue
Where a worker had claimed retroactive time loss compensation in a prior appeal, but the proposed decision and order placing the worker on the pension rolls had not addressed the issue of retroactive time loss, the worker could not establish entitlement to such time loss in an appeal from the subsequent ministerial Department order placing him on the pension rolls. The absence of a finding regarding a disputed material fact must be construed as a finding adverse to the appellant, and his failure to file a petition for review of the prior proposed decision and order made it res judicata that he was not entitled to the retroactive time loss. ....Carl Seltz, 88 1964 (1989)
Acceptance of condition
Unappealed Department orders reopening the claim for aggravation of condition and paying time loss compensation on the mistaken but unstated ground that the worker's low back condition was causally related to the knee condition for which the claim was filed are res judicata. However, the employer is not foreclosed from later litigating the issue of causal relationship by timely appealing subsequent time loss compensation orders. ....Kerry Kemery, 62,634 (1983)
Aggravation
An unappealed Department order closing the claim with no permanent disability award is only a res judicata determination that there was no disability at that time due to the injury. It does not mean that any condition existing at that time was unrelated to the injury, absent a specific segregation of the condition by the Department. The worker is therefore not barred from later establishing the causal relationship between the injury and a condition which developed either before or after the date of the closing order. Evidence of worsening of the condition is still required, and the worker may not rely on disability existing as of the closing date to prove such worsening. ....Lyssa Smith, 86 1152 (1988) [dissent]
The Jessie White (48 Wn.2d 413) rule, permitting the assumption that there was no disability on the first terminal date where the claim was closed without a permanent partial disability award, is inapplicable where the causal relationship of the condition to the occupational exposure is at issue. The closure of a claim on the first terminal date without a permanent partial disability award does not establish that the worker had no disability on that date, but only that on that date there was no disability attributable to the occupational exposure. ....Mary Burbank, 30,673 (1969)
The reopening of a claim for treatment does not establish ipso facto an increase in permanent disability but only the existence of a temporary exacerbation requiring remedial medical treatment. ....John Qualls, 28,430 (1969) [dissent]
The Jessie White (48 Wn.2d 413) rule has no application where the evidence establishes the existence of disability on the first terminal date. The failure of the Department to compensate the worker for such disability constitutes a determination that the disability existing at that time was not caused by the industrial injury. ....Leona McCleneghan, 24,922 (1967) [dissent]
Allowance of claim
*A final order paying time-loss compensation does not imply claim allowance with sufficient specificity to preclude further adjudication of the allowance issue. ....Darrel Lopeman, 06 13877 (2007) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No.07-2-007744-6]
Although the Board exceeded its scope of review in a prior appeal in this claim when it ordered that the claim be allowed as a "temporary" aggravation of a pre-existing condition, that decision is final and the doctrine of res judicata prevents the Board from making a decision inconsistent with the prior determination regarding the temporary nature of the condition. ….Orena Houle, 00 11628 (2001) [Editor's Note: Consider application of holding of In re Keith Browne, BIIA Dec., 06 13972 (2007)]
When the Department issues an order expressly addressing the issue of allowance of the claim, and that order is protested by the employer, the Department is obligated to specifically address the allowance issue in a further order. A subsequent determinative time-loss order, which the employer failed to timely protest or appeal, does not preclude the Department from later rejecting the claim. The determinative time-loss order cannot be construed as an implied allowance of the claim since it fails to clearly apprise the employer that the claim has been allowed. ....Gary Johnson, 86 3681 (1987) [dissent]
Ambiguous orders
*Neither res judicata nor collateral estoppel will be accorded to a finding of fact from a prior Board decision when the subject matter of the prior and present appeal is dissimilar, or the earlier determination is ambiguous due to an internal inconsistency. ....Keith Browne, 06 13972 (2007)
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)
Department orders referring only to a "date of injury" do not clearly establish the "date of manifestation" of an occupational disease and are not considered as res judicata with respect to the date of manifestation. ....Rick Yost, Sr., 01 24199 (2003)
Clerical Error
If a final order contains a clerical error, the finality of the order does not require that the error be ignored in subsequent litigation. ....Geraldine Gallant, 03 16903 (2004)
Conditions not explicitly segregated
An unappealed Department order closing the claim with no permanent disability award is only a res judicata determination that there was no disability at that time due to the injury. It does not mean that any condition existing at that time was unrelated to the injury, absent a specific segregation of the condition by the Department. The worker is therefore not barred from later establishing the causal relationship between the injury and a condition which developed either before or after the date of the closing order. Evidence of worsening of the condition is still required, and the worker may not rely on disability existing as of the closing date to prove such worsening. ....Lyssa Smith, 86 1152 (1988) [dissent]
Extension of time to act on application to reopen claim
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. ....Clara Morton, 89 5897 (1990)
Informal letter
A Department letter advising the employer that the Department has accepted the worker's low back condition as causally related to the industrial injury is not a formal statutory order and does not become res judicata if not appealed. ....Kerry Kemery, 62,634 (1983)
Matters concluded by order rejecting a claim
The doctrine of res judicata does not preclude the worker from obtaining an award for disability for the full extent of his occupational hearing loss when a prior hearing loss claim rejection did not establish the extent of pre-existing hearing loss. ....David Flanigan, 02 18511 (2003)
Occupational Disease
The doctrine of res judicata does not prevent administration of a new claim which involves symptoms in the same body parts involved in a rejected claim, but which is the result of a new disease process. ....Amy Poe, 03 11095 (2004)
Orders void ab initio
Department orders setting the wage without inclusion of the value of worker's health care benefits are not void ab initio. Time-loss compensation orders entered with personal and subject matter jurisdiction are not void. To the extent that prior Board significant decisions, In re Dennis Roberts, BIIA Dec., 88 0073 (1989) and In re Rod Carew, BIIA Dec., 87 3313 (1989), do not reflect the law post Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1994), they are overruled. ....Clement McLaughlin, 02 18933 (2003) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 03-2-41325-9SEA.]
Time loss compensation orders based on a legally incorrect computation method are void ab initio and a party may challenge the correctness of the amount of time loss compensation even though the statutory time limitation for filing an appeal or request for reconsideration has passed. ....Rod Carew, 87 3313 (1989) Dennis Roberts, 88 0073 (1989) [Editor's Note: Consider impact of Marley v. Department of Labor & Indus., 125 Wn.2d 521 (1994)]
Segregation order
A Department order segregating a condition of "degenerative arthritis" is too ambiguous to have a res judicata effect and does not preclude the worker, in an aggravation case, from establishing that the progression of an arthritic condition in his low back and hip is causally related to the industrial injury. ....Loss Thompson, 13,473 (1962) [dissent]
Self-insured employer's order
A closing order issued by a self-insured employer pursuant to RCW 51.32.055(7)(a) which advises the worker a written protest may be filed within 60 days but does not advise that the order shall become final within 60 days unless such a protest is filed, and which advises the worker to contact the self-insured employer's representative by phone regarding any questions, does not become a final order within 60 days of communication where the worker telephoned the self-insured employer's representative within 60 days to protest the claim closure. ....Grace Kiser, 88 0710 (1990)
Surviving beneficiary's claim affected by prior adjudication on the merits in worker's claim
In a claim for survivor's benefits premised on the worker being permanently and totally disabled at the date of death, the widow must first establish a permanent worsening of the worker's condition between the date his claim was last closed with a permanent partial disability award and the date of his death. The widow is held to the same burden as the worker with respect to the need to prove aggravation of condition. ....Lowrey Pugh, Dec'd., 86 2693 (1989) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 89-08880-1.]
A widow's claim for a survivor's pension based on the contention that the worker was permanently totally disabled at the time of his death, is not barred by a prior determination that the worker's claim for an occupational disease was not timely filed. The prior determination in the worker's claim was not a final adjudication on the merits which, under Ek (181 Wash. 91), would bind the widow as well as the worker. ....Harijs Mindenbergs, Dec'd., 48,426 (1977)
Subject matter of appealA widow claiming entitlement to a survivor's pension based on the contention that the worker was permanently totally disabled at the time of his death is bound by a prior final adjudication under the worker's claim that the condition causing his disability was not caused by the industrial injury. ....John Biers, Dec'd., 17,754 (1966)
*Neither res judicata nor collateral estoppel will be accorded to a finding of fact from a prior Board decision when the subject matter of the prior and present appeal is dissimilar, or the earlier determination is ambiguous due to an internal inconsistency. ....Keith Browne, 06 13972 (2007)
Time within which Department may 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.]
Time-loss compensation
When the rate of time-loss compensation benefits is properly adjusted, the adjustment is retroactively applicable to all time-loss compensation benefits paid subsequent to the last closing order. ....Roger Crook, 04 10691 (2005) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 06-2-02329-3SEA.]
Prior litigation over entitlement to time-loss compensation benefits for a specific period precludes subsequent litigation over loss of earning power benefits for the same period. ....Rick Yost, Sr., 01 24199 (2003)
Time within which Department may modify order – See DEPARTMENT Authority to modify order
Wages at time of injury
The loss of health care benefits prior to the issuance of a final order setting the wage for time-loss compensation purposes cannot be the basis for a later adjustment due to a change in circumstance under RCW 51.28.040. A judicial change in the interpretation of the law does not affect the finality of the Department's order setting the time-loss compensation rate. ....Rosalie Hyatt, 02 13243 (2003) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 03-2-11626-8.]
A party is not required to appeal or protest a time-loss rate-setting order to apply for an adjustment due to a change of circumstance when the change of circumstance occurs after the order is issued but prior to its becoming final. ....Edward Keeler, 02 16376 (2003)
Prior litigation over entitlement to time-loss compensation benefits for a specific period precludes subsequent litigation over loss of earning power benefits for the same period. ....Rick Yost, Sr., 01 24199 (2003)
Once an order expressing the basis for the calculation of time-loss compensation benefits has become final, a change in benefits can occur only if there has been a change in circumstances. A retroactive determination that the worker was entitled to higher wages is such a change in circumstances, and the change in wages may apply to benefits to which the worker was entitled 60 days prior to the application for an increase in benefits. ….Margo Schmitz, 97 5627 (1999) [dissent] [Editor's Note: The decision and order indicates it reverses an order dated April 25, 1997, when, in fact, the decision reversed by the Board order is a letter determination of the same date.]
If there has been a change in circumstances as contemplated by RCW 51.28.040, the rate of time loss compensation may be adjusted irrespective of any previous determination of the rate. ….Charles Stewart, 96 3019 (1998) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 98-2-04423-9]
Because the order establishing all the information necessary for calculation of time loss compensation, including wages at the time of injury, had become final, the worker cannot challenge the calculation in an appeal of a subsequent order paying time loss compensation benefits on the basis that the calculation is based on an incorrect wage at the time of injury. Citing Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1995). ....Tex Prewitt, 95 2064 (1996) [Editor's Note: The Board's decision was appealed to superior court under Okanogan County Cause No. 96-2-00516-1.]
Where a worker received a letter determination stating that the rate of time-loss compensation was correct and that a separate order would affirm earlier orders but the worker did not appeal the order subsequently issued, the Board concluded that the order was not res judicata regarding the rate of time loss compensation for the periods set forth in the order since the letter determination had been appealed. ....Lucian Saltz, 92 4309 (1993)
Prior unappealed time loss orders are not res judicata as to the rate of time loss where none had ever informed the claimant of the underlying basis for the rate of time loss compensation (i.e., the gross monthly wages being used for the computation). ....Louise Scheeler, 89 0609 (1990)