SCOPE OF REVIEW
Aggravation
In an appeal from a denial of an application to reopen the claim, the Board has jurisdiction to address an alleged mental health condition, notwithstanding that the order does not specifically indicate the Department considered such condition. ….Donna Jones (Simmons), 99 22362 (2001)
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. ....Ronald Leibfried, 88 2274 (1990) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 91-2-00015-4.]
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. ....Junior Wheelock, 86 4128 (1987) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 88-2-00404-2.]
When the Department denies an application to reopen for aggravation of condition which has alleged the existence of a new condition and the Board reverses that order, the Board cannot reach the issues of treatment and disability but must remand to give the Department an opportunity to rule on those questions in the first instance. ....Ronald Holstrom, 70,033 (1986)
Allowance of claim
AssessmentsAlthough 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 Brown, BIIA Dec., 06 13972 (2007) [Editor's Note: Consider application of holding of In re Keith Browne, BIIA Dec., 06 1372(2007)]
In an appeal involving the allowance of a claim for occupational disease, it is inappropriate for the Board to allow the claim as a "temporary" aggravation of a pre-existing disease. To do so is to go beyond the scope of review and pass upon the extent of permanent disability. Nevertheless, when evidence demonstrates that the worker suffers from a pre-existing, symptomatic and disabling condition a finding in that regard is appropriate since a necessary issue in an allowance case is whether the condition complained of was caused by the occupational exposure. ....Darlene Ross, 88 4379 (1990) [Editor's note: Explained In re Orena Houle, BIIA Dec., 00 11628 (2001).]
Where the Department received letters that the Board determined were an application for benefits and had conducted an investigation, the Board has jurisdiction to direct Department to allow the claim since the Department had the opportunity to adjudicate the alleged back injury. ....Leroy Norris, 92 1471 (1993)
In an assessment appeal where the assessment does not involve a reclassification, the Board will consider any of the factors the Department addressed in calculating assessment, including whether the appropriate classification was used during audit period. To go beyond the audit period would be an unwarranted expansion of the Board's jurisdiction and would intrude on the Department's initial underwriting and risk classification decisions. ....Henry Bacon Building Materials, Inc., 90 0656 (1992)[Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 92-2-02279-3.]
Closing order
In an employer's appeal taken from a closing order based on a medical examination through which the Department and the worker agreed to resolve the claim, the issue is limited to the appropriateness of the award for permanent partial disability. The decision to resolve the matter by stipulation could not be appealed because RCW 51.52.050 only authorizes appeals from final determinations. The final determination was the order resulting from the examination, not the decision to examine. ....Anthony Murphy, 94 1233 (1996)
If the Department had not had the opportunity to address the issue of Second Injury Fund relief, it is inappropriate to make a finding of fact that but for pre-existing conditions the industrial injury-related condition would not have rendered the worker permanently totally disabled. ....Janet Lord, 93 6147 (1996)
Closing order segregating condition
In an appeal from a Department order closing the claim without award for permanent disability and without denial of responsibility for a contested psychiatric condition, the Board has jurisdiction to determine the extent of disability due to the psychiatric condition where the notice of appeal raised the issue of permanent disability due to the aggravated psychiatric condition and the parties fully tried the issue of psychiatric disability as well as its causal relationship to the injury. ....Merle Free, Jr. 89 0199 (1990)
Where the Department closes a claim without an award for permanent disability and at the same time denies responsibility for a condition as unrelated to the industrial injury, the Board may, in addition to determining that the condition is causally related to the industrial injury, reach the question of whether the condition renders the worker permanently totally disabled. In this case the Department was fully apprised of the worker's allegation that the condition rendered him permanently totally disabled, had numerous opportunities to consider that issue, and was not prejudiced by any lack of medical evidence as to the extent of disability. ....Anton Worklan, 26,538 (1967)
Compromise of lien against third party recovery (RCW 51.24.060(3))
Board's review of the Department's discretionary decision regarding the compromise of its lien pursuant to RCW 51.24.060(3) is limited to determining whether or not the Department has abused its discretion. ....Johnny Smotherman, 87 0646 (1989) [Compare Hadley v. Department of Labor & Indus., 116 Wn.2d 897 (1991) [Editors note: The Board's decision was appealed to superior court under King County Cause No. 89-2-07005.]
Coverage and exclusions
Where it appears a chore service worker, who served on behalf of the Department of Social and Health Services (DSHS) and provided services to a particular individual, is not an employee of DSHS but may be the individual's employee, and where the individual was not a party to the appeal, the Board may not determine that issue in an appeal of a Department order rejecting the claim on the basis that the worker was a domestic servant in a private home. ....Beryl June Davis, 90 3688 (1992) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 92-2-14920-6.]
"Deemed granted" application to reopen claim
The Board will address the merits of a worker's entitlement to further benefits in an appeal where an application to reopen has been "deemed granted" when the parties had full and fair opportunity to present evidence concerning whether the worker was entitled to further benefits. ....Margaret Casey, 90 5286 (1992) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 92-2-04909-6.]
Department order not communicated
Where the worker had no actual knowledge of the contents of a Department order since it had never been communicated, the worker could not pursue an appeal from the contents of the order. Instead, the Board remanded the matter to the Department to either communicate the order to the worker or to issue a further determinative order. ....Daniel Bazan, 92 5953 (1994)
Employer's appeal of order that holds the claim open
The Department issued an order closing the claim that was protested by the worker and, in response, the Department issued an order that cancelled the closure and held the claim open. The employer appealed and presented a prima facie case for closure. In rebuttal, the worker is allowed to present evidence on medical fixity as well as unresolved vocational and time-loss compensation issues encompassed in the original closure order. ….Susan King, 98 10527 (2000) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 00-2-21596-7KNT]
Fraud determinations
In an appeal from an order demanding repayment of fraudulently obtained time loss benefits, the Board may not consider whether other circumstances warranted repayment, such as those set forth in RCW 51.32.240(1), for "clerical error, mistake of identify, or innocent misrepresentation." ....Del Sorenson, 89 2697 (1991) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 91-2-01355-6.]
Issues limited by notice of appeal
When the worker appeals and the employer fails to cross-appeal, the Board may not reduce a disability award below that granted by the Department, even though the evidence does not support that award. ....Zotyk Dejneka, 51,408 (1979) [dissent]
Interlocutory time-loss orders
A worker is aggrieved by an order paying time-loss compensation benefits, even if the Department has designated the decision as temporary, if the worker is disputing the rate of time-loss compensation. .…Robert Uerling, 99 17854 (1999)
Multiple injuries
Where the Department has rejected a claim for an injury alleged to have occurred on a specific date, the Board does not have jurisdiction to determine whether the worker sustained other injuries on other dates. The notice of appeal cannot expand the Board's authority to decide questions which have not been passed upon by the Department. The worker is not precluded, however, from pursuing additional claims at the Department level. ....Thad Ellis, 42,441 (1974)
Occupational disease and industrial injury as alternative theories
In an employer appeal of a Department order allowing a claim as an industrial injury, the Board's scope of review extends to whether the claim should have been allowed as an occupational disease. ....Joe Callender, Sr., 89 0823 (1990) [dissent on other grounds] [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 90-2-06962-0.]
Although the Department order on appeal rejected the claim for the sole reason that the worker's condition was not the result of an industrial injury and the notice of appeal did not allege an occupational disease theory, the Board may nevertheless consider the issue of whether the worker's condition constitutes an occupational disease where the parties, by tacit agreement, tried the case under alternative theories. ....Cathy Lively, 62,097 (1983) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 83-2-00722-2.]
Although the Department order under appeal did not specifically reject the claim as an occupational disease, the worker's accident report must be viewed as a claim for benefits for either an injury or an occupational disease, and the Department is obligated to adjudicate the claim under both theories. However, while the Board may have jurisdiction over the occupational disease issue, a remand to the Department was appropriate in this case. ....James McCollum, 62,296 (1983)
Where the worker has consistently alleged that his carpal tunnel syndrome is the result of a specific injury, the Board is without authority to allow the condition as an occupational disease resulting from the repetitive use of the hand in daily work activities. ....Roy Benson, 53,294 (1980)
An accident report must be viewed as a claim for compensation for either an industrial injury or an occupational disease and the Department must adjudicate the claim under both theories. The Board therefore had jurisdiction to reach the question of whether the worker's condition was an occupational disease even though the only stated reason for rejecting the claim was that the worker's condition was not the result of an industrial injury. ....Judith Burr, 52,023 (1979) [dissent]
The issue of whether the worker's condition constituted an occupational disease was properly before the Board even though the only stated reason for rejection of the claim was that the condition was not the result of an industrial injury. The Department had an opportunity to determine whether the claim was allowable as an occupational disease, the worker amended her notice of appeal to include an occupational disease theory, and the employer had the opportunity to meet the occupational disease issue by way of a CR 35 examination. ....Susanne Ryan, 46,094 (1977) [dissent]
Order terminating pension since worker gainfully employed
Where an order terminating pension is based upon the determination a worker returned to gainful employment, the Board will not consider the question of diminution of the worker's disability. ....Nestor Vargas, 89 2000, (1991) [special concurring opinion]
Penalty assessments
The Department's decision to assess a penalty under RCW 51.48.010 for failure to secure the payment of compensation is not discretionary. Board review of the Department's penalty assessment is de novo and based on a preponderance of the evidence, as opposed to an abuse of discretion, standard of review. ....Twin Rivers Inn, 89 0684 (1990) ; C & R Shingle, 88 2823 (1990)
The decision to assess a penalty pursuant to RCW 51.48.080 is not committed to the discretion of the Department. In an appeal from a penalty assessed by the Department pursuant to RCW 51.48.080, the appellant is entitled to a full de novo review, and must prevail if the assessment of the penalty or the amount of the penalty is incorrect based upon a preponderance of evidence. ....Susan Irmer, 89 0492 (1990)
Penalty assessment, Director's refusal to assess
The determination whether to assess a penalty is not vested solely in the discretion of the Director, and the Director's decision not to assess a penalty is therefore reviewable by the Board. ....Frank Madrid, 86 0224-A (1987) [special concurrence] [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 87-2-04553-4.]
Rejected claim
Where the Department rejected a claim on the basis the worker sustained no compensable hearing loss, the issue of permanent partial disability is before the Board if it determines claim should have been allowed. ....Robert MacPhail, 89 3689 (1991)
Safety and Health
The issues in an appeal of WISHA citations are limited by the notice of appeal pursuant to RCW 49.17.140 and RCW 51.52.070 and as confirmed on the record of proceedings. The Department is not required to present evidence on cited violations that were not in dispute. ….U.S. Engine, Inc., 98 W1057 (1999)
Second injury fund – See SECOND INJURY FUND Jurisdiction
Suspension of benefits
In an appeal from the Department's suspension of a worker's benefits where the Department failed to comply with WAC 296-14-410, the Board reached the merits of whether the worker had good cause for not attending a scheduled examination and concluded it was probable that the worker did not receive prior notice of the examination. ....Johan Petry, 92 0389 (1993)
Time loss compensation
In an appeal of an order terminating time-loss compensation benefits, the Board's scope of review extends to consideration of the cause of any conditions impacting employability, even though the Department's prior consideration of such cause and its impact is not shown. ....Jose Aguilar-Vasquez, 03 15196 (2004)
In an appeal from a determination that RCW 51.08.178(2) is the appropriate section for calculation of wages, the Board's scope of review extends to a determination of whether subsection (1) should be used to calculate wages. ....Ignacio Silva, 01 16231 (2003)
In a worker's appeal regarding the calculation of the rate of time-loss compensation benefits and social security offset, where the record indicated both calculations needed to be corrected but would result in lower payments to the injured worker, those benefits may properly be reduced since the calculations are ministerial and the Department cannot ignore the facts established in the appeal. (Distinguishing Brakus v. Department of Labor & Indus., 48 Wn.2d 218 (1956)). ....Loren Denison, 91 5619 (1993) [Editor's Note: The Board's decision was appealed to superior court under Stevens County Cause No. 93-2-00066-7.]
The Board is without jurisdiction to consider permanent total disability in appeal from order paying time-loss compensation benefits for a particular period. (Overruling In re Arthur C. Ryals, Dckt. No. 87 2998 (September 26, 1989); Citing In re Betty Connor, BIIA Dec., 91 0634 (1992)). ....Ann Boyle, 93 3740 (1994) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 94-2-11074-8]
The Board is without authority to consider the issues of fixity of a medical condition or extent of permanent disability in an employer's appeal of an order directing payment of time loss compensation. ....Betty Connor, 91 0634 (1992)
The Board is without authority to determine entitlement to time loss compensation for periods of time not covered by the Department order on appeal. ....Tom Camp, 38,035 (1973)
Vocational rehabilitation determinations
Review of Director's decision that a worker is employable, and therefore not eligible for vocational rehabilitation services, is limited to determining whether or not the exercise of the discretionary authority of RCW 51.32.095 has been abused. ....Armando Flores, 87 3913 (1989)