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Tentative significant decisions

All dockets are in Adobe Acrobat/PDF format

January 2017

Total disability/light-duty work/training as work
The Board held that a training program offered by the employer's retro group at a resource center for various employers was a valid light-duty job offer under RCW 51.32.090(4). The Board rejected the notion that training isn't meaningful or respectful work. This job offer of training was in keeping with the legislative goal that employers maintain an employment relationship with their injured workers who are receiving TLC benefits.
In re Aaron E. Richardson, Dckt. No. 15 17069 (January 11, 2017)

March 2017

Procedure/judicial notice
The Board won't take judicial notice of the diagnostic criteria for CRPS found in the AMA Guides to the Evaluation of Permanent Impairment because permanent impairment was not an issue in this appeal. Significantly, there is no WAC instructing physicians to use the AMA Guides for diagnostic purposes as in the case of permanent impairment evaluation under WAC 296-20-2015. [Contrast with In re Bertha Ramirez, BIIA Dec., 03 14933 (2004).]
In re Virginia C. Peterson, Dckt. No. 15 21676 (March 3, 2017)

Aggravation/spinal cord stimulators previously implanted
Under a pilot project, the Department had paid to implant a spinal cord stimulator ("SCS") in the worker's spine. After claim closure, the SCS's battery failed and the worker applied for claim reopening. The Department denied reopening because Washington law has since prohibited the Department from paying for SCS devices. The Board held that notwithstanding the new Health Care Authority law barring SCS devices, the Department remains obligated to repair or replace the SCS's battery. Once the worker received implantation of the SCS, he obtained a vested right to repair or replacement under WAC 296-20-1102 (governing equipment malfunction).
In re Steven G. Rochelle, Dckt. No. 15 24143 (March 15, 2017)

May 2017

Proximate cause of inability to work
The Board overrules the 1982 significant decision In re Carlton Hague, BIIA Dec., 59,31 (1982), and in doing so clarifies that the legal standard requirement for showing a sufficient causal nexus between and industrial injury and an inability to work to receive total disability benefits is proximate cause not significantly contributing cause.
In re Sista Leetta, Dckt. No. 15 24959 (May 1, 2017)

July 2017

WISHA/service of citation and notice
The delivery of a citation and notice by certified mail to the proper address for an employer creates a rebuttable presumption of communication to the employer. Here the employer successfully rebutted the presumption by showing that the party who received the certified mail wasn't an authorized agent. The party who received the mail was the UPS Store, a mail agent for the employer, and the employer proved it had directed the UPS Store to refuse acceptance of all certified mail. The UPS Store failed to do so.
In re Stoneridge Contractors, Dckt. No. 16 W0085 (July 5, 2017)

WISHA/Department's right to vacate citation
In an appeal from a CNR, when the Department requests that the Board vacate the citation and abandon it, the Board lacks statutory authority to deny the motion. The Board cannot compel the Department to pursue enforcement of its citation.
In re Sposari, Inc., dba Mr. Rooter Plumbing, Dckt. No. 16 W0358 (July 27, 2017)

October 2017

Petitions for review
The Board agreed with the IAJ that a preponderance of medical evidence supported the acceptance of lumbar disc displacement, lumbar degenerative disc disease, lumbar spondylolysis, and right lumbar spondylosis with radiculopathy, and the worker failed to show that continued opioid coverage is proper and necessary treatment for accepted conditions. The Board issued the D&O to note that the worker's counsel failed to comply with RCW 51.52.104 and WAC 263-12-145. The Petition for Review doesn’t detail any grounds for relief, and sets forth no legal theory relied on and no citation of authority and/or argument in support of any legal theory.
In re Muhamed Mujic, Dckt. No. 16 15373 (October 9, 2017) [dissent]

December 2017

Evidence/physical therapists/Juan Munoz overruled
Because the physical therapist statute allows physical therapists to diagnose conditions for physical therapy, they are not per se prohibited from testifying about the causation of a condition. Instead, the Board will use the analysis from Frausto v. Yakima HMA. If a physical therapist is qualified to independently diagnose a particular medical condition, he or she may have the requisite expertise under Evidence Rule 702 to discuss medical causation of that condition. Such determinations must be made on a case-by-case basis.
In re Adele Palmer, Dckt. No. 16 16600 (December 15, 2017)