Significant Decisions 2011

Proper Citation Form for Significant Decisions

The proper citation form for any decision contained in Significant Decisions is:

In re Mario Miranda, BIIA Dec., 40,116 (1972)

Decisions issued by the Board, which have not been identified as significant, should not be cited as if they were significant.  The proper citation form for a Board decision and order not identified is:

In re Injured Worker, Dckt. No. 00 000000 (February 1, 1900)

APPEALABLE ORDERS

Informal lettersl
An electronic secure message sent by the Department to a worker is considered a writing and meets the requirements of RCW 51.52.050 and RCW 51.52.060 for appeal to the Board.  ….Colleen Aldridge, 10 15903 (2011)


Orders held in abeyance
Once the Department has exercised its authority to hold a prior order in abeyance, it may not reverse the abeyance order and attempt to avoid its responsibilities to issue a further order.  Likewise, the Department may not return an appeal to the Board once it has elected to reassume jurisdiction following the filing of an appeal.  ….Tonja Petersen, 12 10440 (2012)

ASSESSMENTS

Equitable powers
Because RCW 51.12.070(5) is only one of the criteria to be met by a contractor seeking exemption from responsibility of a subcontractor's premiums, the satisfaction of subsection (5) does not allow for the application of "equitable estoppel" to dispose of the obligation to meet other criteria for the prime contractor exception under RCW 51.12.070.  ….GT Drywall, Inc., 10 11537 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]



Prime Contractor Liability

When the Department has assessed premiums against the prime contractor for work done by a subcontractor, reliance by the prime contractor on the Department of Labor and Industries' website that the subcontractor is in "good standing" is not synonymous with "compliance" with all of the requirements of RCW 51.12.070.  ….GT Drywall, Inc., 10 11537 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]


Successor liability (RCW 51.16.090)
When a change is business occurs without a change in business type, RCW 51.16.090 does not make the transfer of the old owner's cost experience mandatory but permits the new ownership to prove that the change in ownership, interests, or personal operating property was a "modified" change within the meaning of the statute and thus avoid imposition of the previous owner's cost experience rating. ….Mr. Rooter—South Puget Sound, 10 17889 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 11-2-01983-4.]

BOARD

Equitable powers

Because RCW 51.12.070(5) is only one of the criteria to be met by a contractor seeking exemption from responsibility of a subcontractor's premiums, the satisfaction of subsection (5) does not allow for the application of "equitable estoppel" to dispose of the obligation to meet other criteria for the prime contractor exception under RCW 51.12.070.  ….GT Drywall, Inc., 10 11537 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]


BURDEN OF PROOF

New in-home healthcare
In an appeal by the claimant to a Department determination rescinding authorization of an in-home healthcare provider to provide care to the claimant, the claimant had the burden to establish by a preponderance of the evidence that the Department should not have rescinded the provider's authority to provide services.  ….Tim Potterf, 10 18174 (2011)

COMMUNICATION OF DEPARTMENT ORDER

Failure to provide order to attending physician

A Department order segregating a mental health condition was not communicated to the claimant's treating psychologist; the order was communicated to the worker's attending physician as shown by Department records.  The holding by the Supreme Court in Shafer v. Department of Labor and Indus., 166 Wn.2d 710 (2009), which requires that the Department communicate the closing order to the attending physician does not prevent an order from becoming final when 1) the order segregates a condition and was not a closing order, and 2) the treating provider was not an attending physician per WAC 296-20-01002.  ….Mary Waldron, 09 20656 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 11-2-00317-8.]

COURSE OF EMPLOYMENT

Commission of felony (RCW 51.32.020)
The Department's ability to deny benefits or payments under RCW 51.32.020 is not a determination that the claim must be rejected.  The claim may otherwise be allowed if the injury occurs in the course of employment.  ….Wesley Nicholas, 10 15503 (2011)

CRIME VICTIMS COMPENSATIOIN

Limitation of benefits for felony conviction of the victim (RCW 7.68.070(19))
RCW 7.68.070(19) limits benefits to victims who have been convicted of certain crimes before or after applying for Crime Victims' benefits and have not completely satisfied all legal obligations owed prior to applying for the benefits.  Unpaid legal financial obligations incurred after applying for benefits does not defeat eligibility under the plain meaning of the statute.  ….Anthony Sakellis, 10 C1058 (2011)

DEPARTMENT

Reassumption of jurisdiction (RCW 51.52.060)5
The Department may not return an appeal to the Board once it has elected to reassume jurisdiction following the filing of an appeal.  ….Tonja Petersen, 12 10440 (2012))

INJURY

Injury v. occupational disease
When the claim has not been clearly allowed as an industrial injury or occupational disease, the parties and the industrial appeals judge must clearly address the question of whether the claim is for an industrial injury or occupational disease.  ….Moises Cobian, 10 13290 (2011)

OCCUPATIONAL DISEASE

Last injurious exposure
The date of claim filing is the pivotal consideration in determining the insurer on the risk for the last injurious exposure rule, not the date in which the Department adjudicates the claim.  DistinguishingIn re Juan Muñoz, BIIA Dec., 05 11698 (2007).  ….Mike Rasmussen, 09 14857 (2011)


Occupational disease v. injury
When an allowed claim has not been clearly designated as an industrial injury or occupational disease, the parties and the industrial appeals judge must clearly address the question of whether the claim is for an industrial injury or occupational disease.  ….Moises Cobian, 10 13290 (2011)

PENALTIES

Unreasonable delay
After a penalty was properly imposed for unreasonable delay or refusal to pay benefits as they became due, the Department may not reverse the imposition of the penalty solely because the self-insured employer was bankrupt and the Department had assumed jurisdiction over the claim.  ….Melvin Blackwood, 10 15912 (2011)

PERMANENT TOTAL DISABILITY

Continuing medical benefits
The director's decision to provide treatment to a permanently and totally disabled worker, as well as the treatment authorized, are both within the discretion of the director and reviewable under an abuse of discretion standard.  ….Debra Jarvis, 10 14734 (2011)

PROVIDERS

In-home healthcare
In an appeal by the claimant to a Department determination rescinding authorization of an in-home healthcare provider to provide care to the claimant, the claimant had the burden to establish by a preponderance of the evidence that the Department should not have rescinded the provider's authority to provide services.  ….Tim Potterf, 10 18174 (2011)

SANCTIONS

Discovery
Sanctions are mandatory under CR 26(g) where counsel failed to make a reasonable inquiry by asking his client for the material or deliberately withheld discoverable material.  ….Danny Dow, 08 14859 (2011)

The sanction chosen for violation of a discovery rule must be the least severe sanction necessary to remedy prejudice caused by noncompliance with discovery rules.  If the only prejudice shown by failure to comply with the discovery was additional attorney's fees, striking the testimony of a witness was excessive.  ….Judith Overby, 09 19369 (2011)

[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 11-2-11646-8 KNT.])

SCOPE OF REVIEW

Fixity of all conditioins required
When the worker suffers from a condition which is not fixed and stable and requires further treatment, the worker is not entitled to an award for permanent partial disability for another condition that has reached maximum medical improvement.  Awards for permanent disability are made at the time the claim is closed and a claim cannot be both open and closed at the same time. Citing Franks v. Department of Labor & Indus., 35 Wn. 2d 763 (1950).  ....Bette Pike, 88 3366 (1990)


Occupational disease and industrial injury as alternate theories
When an allowed claim has not been clearly designated as an industrial injury or occupational disease, the parties and the industrial appeals judge must clearly address the question of whether the claim is for an industrial injury or occupational disease.  ….Moises Cobian, 10 13290 (2011)

Ultimate issue
In an appeal from a closing order where the ultimate issue which resolved the appeal was coverage of the worker's mental health condition and the determination that the condition was in need of treatment, it is error to enter findings and conclusions regarding fixity of other conditions, permanent partial disability, permanent total disability, and temporary total disability.  ….Carolyn Bowers, 10 18398 (2011)

SECOND INJURY FUND

Permanent partial disability payment
RCW 51.16.120 requires a self-insured employer to pay the full amount due without deduction for any advances made by the self-insured employer to the claimant.  The fact that the claimant owes the self-insured employer money for the advance does not relieve the employer from paying its full obligation to the Department to help fund the pension.  ….Debra Jarvis, 10 14734 (2011)

SELF-INSURANCE

Insolvency of self-insured employer

If the terms of a bond require that the penal sum of the bond be forfeited to the Department when the self-insured employer becomes insolvent, the Department can require the entire bond be forfeited, notwithstanding the fact that there were no unpaid claims.  ….Great American Insurance Company, 09 22005 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 11-2-00612-1.]

SOCIAL SECURITY

Limitation on recovery of overpayment (RCW 51.32.220)

Where lump sum payments of time-loss compensation by the self-insured employer were made prior to the Department notifying the worker that it was reducing her benefits, the self-insured employer's recovery of the overpayment is limited to the amount of compensation for six months of total disability preceding the notification.  ….Jeannie Forsythe, 09 22899 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Mason County Cause No. 11-2-00163-0.]


TIME-LOSS COMPENSATION

Certificate for available light work (RCW 51.32.090(4))

To constitute a valid light duty job offer, the offered employment must be within the worker's relevant labor market, which requires the job be within a reasonable commuting distance.  A job offer that required a roundtrip commute of 136 miles with the worker required to pull to the side of the road six times and walk for five minutes during the drive because of physical limitations imposed by the industrial injury, was not a valid light duty job offer because it was not within a reasonable commuting distance.  ….Richard Gramelt, 09 21629 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Klickitat County Cause No. 11-2-00221-2.]


Wages (RCW 51.08.178 – Compensation)

Where the worker was paid an additional $9.00 per hour for 'zone pay' due to a remote work site, the Department should have included the 'zone pay' in the wage calculation because the 'zone pay' compensated the worker for housing and boarding.  ….Richard Gramelt, 09 21629 (2011)

[Editor's Note: The Board's decision was appealed to superior court under Klickitat County Cause No. 11-2-00221-2.]

TREATMENT

Department guidelines
Department guidelines for determining if surgery is medically proper and necessary treatment do not provide the legal basis for the Board to determine if the treatment is proper and necessary.  ….Paul Fish, 10 18494 (2011)