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Tentative significant decisions

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March 2016

Penalty for failure to pay benefits when due
The worker appealed a Department order denying the request for a penalty against a self-insured employer for failure to pay benefits when due. The IAJ found that the self-insured employer unreasonably delayed payment of benefits. The Board disagreed with the IAJ on the facts. The worker filed a dispute with the Vocational Dispute Resolution Office (VDRO). The worker was successful and VDRO directed the self-insured employer to reinstate TLC benefits if appropriate. On April 16, 2014, the Department then directed the self-insured employer to pay TLC benefits. The self-insured employer paid the TLC benefits on April 16, 2014, the date of the Department order. The Board found that the resolution of the issue required an analysis of RCW 51.48.017, the penalty statute for unreasonable delay, and WAC 296-15-4304 relating to the rejection of a Vocational Assessment Report. The Board found that the determination by the Department that the TLC benefits would be reinstated if appropriate did not require the self-insured employer to pay benefits. The determination merely informed the parties that a decision on the issue of the TLC benefits was pending. The Board found that under these facts the self-insured employer demonstrated genuine doubt from a medical legal standpoint as to the liability for the benefits. The Board affirmed the Department determination.
In re Chelsie Looker-Noble, Dckt. Nos. 14 17483 (March 3, 2016)

Medical opinion regarding PPD
The worker appealed a Department order closing the claim without an increased PPD award. The IAJ dismissed the appeal for failure to present a prima facie case. The IAJ sustained an objection by the Department to questions posed by the pro se worker to his medical witness. The objection was to the effect that the medical witness did not use the AMA Guides to the Evaluation of Permanent Impairment Fifth Edition. Absent the rating testimony, the worker failed to make a prima facie case on extent of disability. The Board disagreed. The Board noted that whether or not the medical witness used the AMA Fifth Edition was not a basis for exclusion of his testimony. It merely goes to the weight. The Board remanded to hearings to allow the worker to have a medical witness testify regarding the PPD rating.
In re Charles A. Pellor, Dckt. Nos. 15 11481 (March 21, 2016)

June 2016

Procedure/summary judgment
The self-insured employer filed a motion for summary judgment. The IAJ wrote to the parties explaining that a hearing wouldn't occur on the summary judgment motion unless a party requested one. No one requested a hearing, and the IAJ held in favor of the self-insured employer. The Board held that before granting a motion for summary judgment, an IAJ must ensure the parties understand they have the right to a summary judgment hearing, and the IAJ must either hold an oral hearing or obtain an express waiver of the right to a hearing, memorialized through either a transcript or a report of proceeding. The Board remanded the appeal for further proceedings
In re Edwin S. Makotsi, Dckt. Nos. 15 20961 (June 20, 2016)