January - December 2012
Allowance of claim/commission of felony—RCW 51.32.020
The worker appealed a Department order that assessed an overpayment of time-loss compensation and rejected the claim based on the fact that the worker was engaged in the commission of a felony at the time of the injury, relying on RCW 51.32.020. The IAJ reversed the Department order. The worker was rendered a quadriplegic following a one-vehicle accident in the course of his employment. A police investigation determined that the worker had used methamphetamine prior to the accident in an amount that would likely be impairing. A baggie found on the worker was field tested by an officer and the contents of the baggie tested positive for one or more controlled substances, including methamphetamine. The baggie and its contents were lost and never tested in a laboratory. The Board held that:
1) The Department cannot reject the claim under the felony provisions of RCW 51.32.020. Instead, the proper inquiry is whether the worker is barred from receiving industrial insurance payments under RCW 51.32.020.
2) The felony provisions of RCW 51.32.020 do not require that the worker be convicted of a felony in superior court to bar the worker from receiving payments. It requires only a finding that the worker was engaged in conduct, or attempting to engage in conduct that would meet the statutory elements of a felony at the time of the injury. The Board has the authority to determine if the worker was engaged in a felony at the time of the injury.
3) The standard of proof to be used in felony payment bar appeals, under RCW 51.32.020, is at least clear, cogent, and convincing evidence.
4) The legal standard in felony payment bar cases is whether the worker suffered an injury while he or she was engaged in the attempt to commit, or the commission of a felony. On the facts, the Board found that the evidence failed to show that the worker committed, or attempted to commit a felony while he was injured. The Board reversed the Department order and allowed the claim. In re Bart A. Rowley, Sr., Dckt. No. 09 12323 (January 30, 2012) [dissent]
The worker appealed an order of the Department that found he had received time-loss compensation induced by willful misrepresentation in that he was working or capable of working during the period in question. At the conclusion of the Department's evidence, the worker moved to dismiss for failure to make a prima facie case, pursuant to CR 41(b)(3). In the Proposed Decision and Order, the IAJ granted the motion and reversed the Department order.
The Board determined that the IAJ correctly used the same type of approach as the Board had in a similar situation in an appeal arising under WISHA. As in willful misrepresentation cases, the Department bears the burden of proof in WISHA appeals. The Board noted that if the literal language of CR 41(b)(3) was followed, granting the motion to dismiss would mean that the worker's appeal would be dismissed and the Department order would stand. The IAJ used the correct approach by reversing the Department order based on his determination that the Department had failed to make a prima facie case.
However, in his Proposed Decision and Order, the IAJ held the Department to the nine-element common law fraud standard that applied prior to the 2004 amendment of RCW 51.32.240. As the Board had previously held, under the 2004 amendments, the Department is no longer required to prove common law fraud. In re Vincent Reames, Dckt. No. 07 11270 (July 21, 2008). Instead, the Department is required to prove the elements set forth in RCW 51.32.240(5) and fleshed out by the Department rules, WAC 296-14-4121 through 296-14-4129.
The Department did not prove the statutory elements of willful misrepresentation by clear, cogent, and convincing evidence with respect of any of the time-loss compensation benefits at issue here. The Board held that the Department's payment of time-loss compensation was not induced by willful misrepresentation within the meaning of RCW 51.32.240(5), and reversed the Department order.
In re Gerald E. Hopkins, Dckt. No. 11 14921 (June 5, 2012)
Safety and Health
The employer, Aerojet General Corp., appealed from a Citation and Notice dated November 17, 2010, which alleged 21 serious violations. The issue before the Board was whether the Department issued a timely citation and notice. Aerojet maintained that the Department's November 17, 2010 Citation and Notice was merely a continuation of a prior inspection. The earlier citation was commenced on March 1, 2010, the date of the opening conference of the previous inspection. Aerojet maintained that the citation and notice in this appeal was not timely because it was issued more than six months after the date of the conference in the previous inspection. In the Proposed Decision and Order, the IAJ concluded that the citation and notice in this appeal was simply an expansion of the original citation, and was therefore untimely.
The closing conference in the previous inspection that had arisen due to a complaint not involving PSM matters, was scheduled for May 17, 2010. As of May 5, 2010, the Department had selected Aerojet to be one of the employers it would target for the required PSM emphasis program. The Department decided to hold its opening conference in that matter on the same day as the closing conference in the previous inspection, May 17, 2010, because it would have access to the appropriate Aerojet employees. The Department issued a citation and notice based on the original inspection of Aerojet on June 15, 2010. Aerojet timely appealed the citation it and was resolved by an Order on Agreement of Parties. The Department did not know whether Aerojet had violated any PSM rules as of May 17, 2010.
No Washington appellate or Board precedent has addressed the issue of whether a second inspection of an employer, begun after the opening conference in the first inspection, must be considered a continuation of the original inspection, making it subject to the original statute of limitations. The citation before the Board was issued exactly six months after the opening conference in the second inspection. It must be determined to be timely unless it was found to be a continuation of the original inspection.
The statute of limitations found in RCW 49.17.120(4) has the same purpose as the six‑month statute of limitations contained in OSHA. The Board found one Federal case to be directly on point and dispositive. Sec'y. of Labor v. Dayton Tire, OSHRC No. 94-1374, 1994 WL 913343 (July 26, 1994). In that case, because the cited violations continued to exist during the six months preceding the issuance of the citation and notice, the OSHRC held it was timely, even though these violations were initially observed eleven months earlier. The fact that OSHA staff could have issued an earlier citation addressing the violations does not preclude them from alleging equivalent violations based on their findings during a subsequent inspection. In the present case, the Department staff did not know that Aerojet violated any PSM or asbestos rules during the initial inspection of the other violations. Based on this federal precedent, the citation and notice was timely.
Further, Washington law clearly allows the Department prosecutorial discretion to determine whether it should expand the scope of an inspection, amend the prior citation, or initiate a new inspection in circumstances such as this one. The Board has allowed citations to be amended both before and after a hearing, so long as an employer is not prejudiced by the amendment. In re Jeld-Wen of Everett, BIIA Dec., 88 W144 1990). The amended citations in such cases were issued more than six months following the original inspections, but were nonetheless timely. The key issue is whether the alleged violations existed during the six months before the citation was issued. This issue can only be resolved during a hearing on the merits of the appeal.
Finally, the Board noted that WISHA is a remedial statute. Vacating a citation would undercut the purpose of the Act. The Department's staff convinced the Board that it did not have qualified inspectors available to proceed with a PSM inspection of Aerojet until mid-May 2011. The Department should not have had to proceed earlier. That would have been disadvantageous not just to the Department, but also to Aerojet and its employees, who deserve to have inspections done by personnel with appropriate expertise. The Board vacated the Proposed Decision and Order and remanded the appeal for further proceedings.
In re Aerojet General Corporation, Dckt. No. 10 W1285 (June 26, 2012)
Burden of proof—employer appeal; aggravation
The employer filed an appeal of a Department order that reopened the claim. The Board noted that after an appealing party has presented its evidence, the non-appealing party may move for dismissal for failure to demonstrate a right to relief, without waiving the right to present evidence if the motion is denied. As the appealing party, the employer had the initial burden of presenting a prima facie case. Upon presentation of a prima facie case, the burden shifts to the claimant to prove entitlement to benefits. The employer cited In re Christine Guttromson, BIIA Dec., 55,804 (1981) for the proposition that if the worker does not rest on a motion to dismiss, and presents any evidence, the Board may not determine whether the employer presented a prima facie case. The employer asserted that the burden shifted to the worker to prove entitlement to benefits based on a preponderance of the evidence.
The Board granted review to clarify the impact of the worker's presentation of evidence. Guttromson was overruled to the extent it holds that there does not to be a determination as to whether the employer presented a prima facie case if the worker does not rest on a motion to dismiss. The worker or Department may move to dismiss the appeal and choose to present its case-in-chief, rather than rest on its motion. Proceeding in this manner does not relieve the employer of its burden. In this case, the employer did not present competent medical evidence that the worker's industrial injury did not objectively worsen between the terminal dates. The employer did not present a prima facie case for the relief sought in it appeal. The Board granted the Department's motion and dismissed the appeal.
In re Kathleen Stevenson, Dckt. No. 11 13592 (August 3, 2012)
Penalty for Unreasonable Delay in the Payment of Medical Benefits
The worker appealed a Department order denying the worker's request for a penalty against the self-insured employer for delay in payment of medical benefits. The IAJ affirmed the Department order relying in part on the Board's significant decision In re John Meyer, BIIA Dec., 03 14702 (2004). Meyer held that there was no statutory authority for imposition of a penalty based on the self-insured employer's unreasonable delay in providing medical treatment. The Board granted review to overrule In re John Meyer, BIIA Dec., 03 14702 (2004), and reverse the Department order. The Board held that the payment of medical bills is a benefit contemplated by Title 51 RCW. The Board found on the facts that the self-insured employer or its third party administrator failed to pay medical bills for two and one-half years. The Board remanded the matter to the Department to assess a penalty against the self-insured employer.
In re James Coston, Dckt. No. 11 12310 (September 11, 2012)
Assessments/News Carrier Exception to RCW 51.12.020(10)
The firm appealed an Order of Assessment in the amount of $7,117.61 for the last two quarters of 2007, all of 2008 and 2009, and the first two quarters of 2010. The IAJ affirmed the Department order. The Board agreed with the IAJ on the result in the PD&O but granted review to elaborate on the news carrier exception to the Industrial Insurance Act. The firm contracted with individuals to deliver newspapers. Some carriers delivered house-to-house, others entered businesses to deliver newspapers to a proprietor for resale. The issue before the Board was whether RCW 51.12.020(10), the news carrier exemption, applied to the workers delivering to proprietors for resale. The Board held that RCW 51.12.020(10) applies only to those individuals who deliver "on the street or from house-to-house" and that individuals who enter a business for delivery of newspapers to be resold to that businesses' own customers, are not exempt from coverage under the Act. The Board affirmed the assessment.
In re W.A. Schmittler, Inc., Dckt. No. 11 23864 (November 20, 2012)