skip to main content

Tentative significant decisions

All dockets are in Adobe Acrobat/PDF format

January 2021

Res Judicata/Segregation Orders
In 2019, the Department issued an order affirming a 2013 lumbar degenerative disc disease segregation order. The Department alleged that the 2019 order was a mistake and asked for summary judgment. The judge agreed, determining that the Department had no authority to issue its 2019 segregation order because an unchallenged 2013 segregation order was final and binding on the issue. The Department's 2019 order cannot reasonably be read as simply saying again that, as of 2013, the worker's lumbar degenerative disc disorder was unrelated to her claim. Rather, it must be read as stating that as of the 2019 order, the worker's lumbar degenerative disc disorder continued to be unrelated. That is a different and new claim determination and is not one that can be considered res judicata by the Department's 2013 order.
In re Katherine I. Bard, Dckt. No. 19 22559 (January 26, 2021)

March 2021

Overpayment of PPD/Waiver of Not Available
Under RCW 51.32.080, previously paid PPD on a claim must be recouped if the Department later awards the worker a pension under the same claim. Here, the worker's attorney (now disbarred) embezzled the previous PPD award. Although this case is sympathetic, the Act doesn't permit the Director any discretion to waive an overpayment for previously paid PPD when the Department places the worker on a pension under the same claim.
In re Randall J. Pruden, Dckt. No. 20 14546 (March 8, 2021)

Acceptance of Condition/Maphet Acceptance
In this back claim, the worker argued that the Department must accept responsibility for his bipolar disorder because it paid for bipolar medication under the claim. The Board rejects this argument. Unlike the surgery found by the court in Maphet to have been authorized by the self-insured employer when it expressly authorized and reimbursed surgeries for a specific condition, there has not been express authorization for medicinal treatment of the worker's mental health conditions. Simple assertion that the Department paid for the medicine is not sufficient. The holding in Maphet was not simply that payment equals acceptance.
In re Samuel P. Peña, Dckt. No. 19 17589 (March 22, 2021) [dissent]

April 2021

Judicial Notice
The Board agreed with the IAJ that an IAJ can take judicial notice of the Board's own records to determine whether the employer appealed prior Corrective Notices of Redetermination or Citations or whether they became final.
In re CDK Construction Services, Inc., Dckt. No. 19 W1143 (April 21, 2021)

July 2021

Acceptance of Condition/Maphet
Agreeing with the IAJ, the Board held that the injury didn't cause a disc protrusion. The claimant appealed, arguing for acceptance of the condition under Maphet because the self-insured employer authorized injections to treat a lumbar sprain. The Board issued the D&O to distinguish Maphet. In Clark County v. Maphet, the claimant underwent eight employer authorized surgeries for a condition. As a result of the fifth surgery, the claimant developed patellofemoral instability, which necessitated sixth, seventh, and eighth surgeries. The self-insured employer refused to authorize the ninth surgery. Under Maphet, the worker must demonstrate that the self-insured employer accepted the L5-S1 disc protrusion and multi-level lumbar spine degenerative conditions when it authorized and paid for epidural injections.
In re Jeremy S. Carrigan, Dckt. No. 20 12899 (July 13, 2021)

Hanford Presumption/CR 41 Motions
The Board held that when viewing the evidence in the light most favorable to the non-moving party (the employer), the employer made a prima facie case that the Hanford worker's condition did not arise naturally and proximately out of the distinctive conditions of her employment at the Hanford site. This was sufficient to defeat the Department's CR 41 motion. In deciding whether to grant a CR 41(b)(3) motion to dismiss, we are required to accept the non-movant's evidence as true; view all the evidence in the light most favorable to the non-movant; and determine if there is any evidence or reasonable inference from the evidence establishing a prima facie case.
In re Tammie A. LaPlant, Dckt. No. 19 24791 (August 13, 2021)

Hanford Presumption/CR 41 Motions
The Board held that when viewing the evidence in the light most favorable to the non-moving party (the employer), the employer made a prima facie case that the Hanford worker's condition did not arise naturally and proximately out of the distinctive conditions of her employment at the Hanford site. This was sufficient to defeat the Department's CR 41 motion. In deciding whether to grant a CR 41(b)(3) motion to dismiss, we are required to accept the non-movant's evidence as true; view all the evidence in the light most favorable to the non-movant; and determine if there is any evidence or reasonable inference from the evidence establishing a prima facie case.
In re Dora E. Valero, Dckt. No. 19 19528 (August 13, 2021)