Tentative Significant Decisions
January - December 2009
January 2009
Abuse of Discretion
The application to reopen this claim was filed more than seven years from the date the first closing order became final, making this is an "over seven" reopening. The decision whether to award time-loss compensation and other disability or "accident fund" benefits is committed to the Director's discretion. The issue presented by this appeal is whether the Director abused her discretion when she determined that the worker is not eligible to receive disability benefits. Because the worker has not been working, the Director concluded that he voluntarily removed himself from the workforce. It does not appear that the Director considered whether the worker was unable to work because of the industrial injury. In failing to do so, the Director failed to consider the relevant factors contained in the Department's own policy for making such determinations. As such, the Director's decision was exercised on untenable grounds, and was logically unconnected to determining whether disability benefits should be awarded, and constitutes an abuse of discretion. The Director abused her discretion by failing to consider whether the worker was unable to work because of the industrial injury and by basing her decision solely on the basis that the worker had not been working.
In re Robert Dorr, Jr., Dckt. No. 07 23982 (January 6, 2009)
Penalty
The self-insured employer appealed an order that indicated the worker was entitled to time-loss compensation benefits under two claims, and should be paid under both claims for the period March 18, 2004, to November 30, 2006 (the self-insured claim and a state fund claim). The order also provided that the self-insured employer should have paid time-loss compensation benefits for the entire period, assessed a penalty for unreasonable delay, and required the self-insured employer to reimburse the Department for an excess in time-loss compensation benefits paid to the worker from the state fund. The evidence established that from March 18, 2004, through March 21, 2005, the worker was not capable of reasonably continuous gainful employment, proximately caused by the residuals of the self-insured claim. From March 18, 2004, through November 30, 2006, the worker was not capable of reasonably continuous gainful employment, proximately caused by the residuals of the state fund claim, and he received temporary total disability benefits during this period from the Department. The Department paid the entire sum under the state fund claim. The Department thus seeks to recoup from the self-insured employer half of what it (the Department) paid during that time. The self-insured employer and the Department are responsible for payment of time-loss compensation benefits for the period of March 18, 2004, through March 21, 2005. The self-insured employer is responsible for the half of the time-loss compensation owed for that period, and not responsible for any of the time-loss compensation for the remaining period, March 22, 2005, through November 30, 2006. RCW 51.32.240 is the general statute that provides authority for recoupment of funds by the Department. That section of the statute, however, speaks to recoupment from the recipient, and the self-insured was not the recipient. In keeping with its policy, the Department can direct that the self-insured employer pay its usual share of the time-loss compensation benefits for the relevant period. This will result in an overpayment to the worker, at which point the Department may choose to invoke the provisions of RCW 51.32.240 to recoup its money from the worker.
In re Dan Dinescu, Dckt. No. 07 12380 (January 15, 2009)
February 2009
Injury/Physician's Assistant on Causation
The worker appealed an order that denied her claim. The industrial appeals judge misinterpreted the definition of "injury" when he concluded that the worker did not have sustain an injury because she could not have been injured on the date noted on her Application for Benefits, and did not testify to a different specific date of injury. RCW 51.08.100 makes no reference to a requirement of a "specific date and time." A worker's description of the events that is specific enough to identify that it involved a "sudden and tangible" event is sufficient for purposes of claim allowance as an injury. The only provider who testified regarding medical causation was a certified physician's assistant. WAC 296-20-01501(4) permits a certified physician's assistant to fill out an Application for Benefits. Because the Department permits a physician's assistant to render opinions on causation despite the fact that they do not meet the definitions of "doctor" or "physician" in WAC 296-20-01002, it follows that a physician's assistant's opinion should be considered a sufficient expert opinion to prove causation of the condition that was diagnosed. Such an inference is also supported by the lack of any such prohibition in WAC 296-20-01501(5), which specifically lists the medical tasks that physician's assistants are not allowed to perform when examining and/or treating injured workers. The evidence established that she sustained cervical and lumbar strains due to an industrial injury.
In re Evelyn C. Woods, Dckt. No. 07 23506 (February 3, 2009)
March 2009
Aggravation v. New injury
These appeals required that the Board determine the diagnoses of upper extremity conditions, and the proximate cause of those conditions; and analyze the evidence to decide whether the conditions represent the worsening of an industrial injury, or the manifestation of a separate occupational disease arising naturally and proximately from the conditions of the worker's employment. In two separate proposed decisions, the industrial appeals judge reversed and remanded the orders of the Department. The Board consolidated the appeals. Consolidation is warranted in cases such as this, where "the evidentiary records are identical, the parties are the same, and the issues are inextricably intertwined. A preponderance of the credible evidence established that the upper extremity conditions arose naturally and proximately from the distinctive conditions of employment. None of the conditions represented the worsening of a condition proximately caused by the industrial injury. The Board's jurisdiction is limited to review of those issues previously considered by the Department. Lenk v. Department of Labor & Indus., 3 Wn. App. 977, 982 (1970). In an appeal from the order in which the Department rejected the occupational disease claim, the Board's scope of review does not include a determination of the date of manifestation. The Department does not determine a date of manifestation of an occupational disease when the preliminary question—whether the claimant sustained an occupational disease—is decided in the negative. Because the Department order on appeal rejected the occupational disease claim, the industrial appeals judge should not have entered a finding establishing a date of manifestation for the occupational disease.
In re Ronald J. Spriggs, Dckt. No. 07 24270 & 07 24764 (March 24, 2009)
April 2009 - None
May 2009
RCW 51.32.099, the vocational rehabilitation pilot program.
RCW 51.32.099 gives employers the right to stop the vocational process if the employer makes a valid job offer to the worker. After vocational services commenced, the employer submitted a job offer. The vocational counselor, who functions as a quality review manager for the Department, evaluated whether this was a valid job offer, and issued the order finding that the job offer of safety monitor/pick-up driver was a valid offer. This evaluation and order are authorized by RCW 51.32.099. These actions are reviewable on a preponderance of the evidence standard, not whether there was an abuse of discretion. This was not a decision made under the auspices of RCW 51.32.095; indeed, when the job of safety monitor/pickup driver was offered, the Director had already exercised her discretion and determined that the worker was in need of vocational services. Pursuant to RCW 51.32.099(2)(c), "To be valid, the offer must be for bona fide employment with the employer of injury, consistent with the worker's documented physical and mental restrictions as provided by the worker's health care provider." Apparently, one physician approved the job of safety monitor/pick up driver, the other did not. Opinions that supported approval of the job were found unpersuasive and the job of safety monitor/pickup driver was determined to be inconsistent with the worker's documented physical restrictions. Although RCW 51.32.099 does not mention job market, consideration of the proper job market must be a part of the analysis. Using a preponderance of the evidence standard, and looking at this record as a whole, this was not a valid return-to-work offer.
In re Steven M. Laing, Dckt. No. 08 12843 & 08 13044 (May 20, 2009)
Recoupment – Adjudicator Error.
The self-insured employer's decision to pay time-loss compensation benefits from April 27, 2007, through August 11, 2007, was an adjudicator error not subject to recoupment under RCW 51.32.240(1)(a). The worker was incarcerated on April 27, 2007, under conviction and sentence. At some point, the self-insured employer learned of the incarceration. Rather than stopping time-loss compensation benefits, the third-party administrator for the self-insured employer requested the Department suspend benefits. The Department declined to suspend benefits, indicating that incarceration was not considered non-cooperation. The self-insured employer wrote to the Department requesting the Department issue an overpayment order. If the payments had been made pursuant to clerical mistake, innocent misrepresentation, or circumstance of like nature, the Department could seek recoupment on behalf of the self-insured employer under RCW 51.32.240(1)(a). Because the administrator knew of the incarceration but continued payments, the payments were issued pursuant to adjudicator error, and do not fall within the constraints of RCW 51.32.240(1)(a). The Department may not seek repayment of benefits issued pursuant to adjudicator error unless the orders paying those benefits are not final and binding. RCW 51.32.240(1)(b) and RCW 51.32.240(4).
In re Anthony Womack, Dckt. No. 08 12365 (May 11, 2009)
Protests and Double pensions.
The Board first addressed the issue of whether the worker had filed a timely protest from an order that assessed an overpayment. A letter from the worker's attorney was not a Protest or Request for Reconsideration of the overpayment order because nothing in that letter could reasonably have been calculated to put the Department on notice that the worker was requesting action inconsistent with that order. In re Mike Lambert, BIIA Dec., 91 0107 (1991). The letter contained no statement regarding time-loss compensation or an overpayment; it only sought review of the lack of any permanent disability award in the closing order. The second issue was whether a worker can be classified as permanently and totally disabled under a claim when she is already so classified independently under another claim. The Board analyzed Shea v. Department of Labor & Indus., 12 Wn. App. 410 (1974), review denied, 85 Wn.2d 1009 (1975) and Clauson v. Department of Labor & Indus., 130 Wn.2d 580 (1996) together in this case, noting two separate issues were addressed. The first issue is causation of permanent total disability status when there are multiple claims. With regard to this issue, Shea applies to this situation. Here, as in Shea, the expert testimony supports the conclusion that two disabilities exist, separate and distinct, each of which alone was sufficient in and of itself to render the worker permanently and totally disabled. Clauson did not address such a situation because independent of each other, only one of the disabilities would render the worker permanently and totally disabled; the other resulted only in permanent partial disability. The second issue arises from the concern that a worker could receive a double recovery in this type of multiple disability situations, along with the policy goal of preventing such a windfall of benefits. In regard to this issue, Clauson applies to prevent the worker from simultaneously receiving the monetary equivalent of two pensions. Nothing in Shea permits a double recovery of permanent total disability benefits by an injured worker.
In re Lorraine L. Williams, Dckt. No. 07 24841 (May 1, 2009)
June 2009 - None
July 2009
Reimburse power chair lift or adjustable bed.
The worker sought reimbursement for the purchase of a power lift chair (a chair that would lift him to a near standing position) and an adjustable bed. WAC 296‑23‑165 covers "certain proper and necessary miscellaneous services and items needed as a result of an industrial accident." WAC 296‑20‑01002 defines "proper and necessary," in the context of "treatment," as "[c]urative or rehabilitative." WAC 296-23-165 clearly contemplates items and services that are rehabilitative, in that they increase function and mobility. Applying "proper and necessary" in the context of WAC 296‑23‑165 led to the conclusion that items that increase mobility over the long-term are properly viewed as proper and necessary. The power lift chair is appropriate and medically necessary for treatment for his accepted lumbar condition, as it helps the worker overcome certain restrictions on mobility and functionality caused by the industrial injury. The worker also testified that he would like an adjustable bed for his home so that he can sleep in a bed with his wife. Unlike the power lift chair, an adjustable bed does not increase mobility or allow the worker to regain function. He is not entitled to reimbursement by the Department for the cost of an adjustable bed.
In re Murney F. Conley, Sr., Dckt. No. 08 17796 (July 22, 2009)
Use of DSM-IV.
The Board agreed with the industrial appeals judge's determination that there is no curative treatment available for the accepted lumbar condition, and the worker does not suffer from depression. The Board granted review primarily to address the IAJ’s extensive reliance on a section of the DSM that was not offered or admitted into the record, and was not addressed in medical testimony or other evidence. The Board, in several Decisions and Orders, has endorsed taking judicial notice of the AMA, Guides to the Evaluation of Permanent Impairment (Guides). In re Bertha Ramirez, BIIA Dec., 03 14933 (2004). Similar to the Guides, the DSM is referenced in several Department rules. See, for example, WAC 296-20-330(e) ("Impairments of mental health"); WAC 296-21-270 ("Psychiatric services"); WAC 296-30-010 ("Definitions"). However, good reason allows distinguishing the use of the Guides in Ramirez from our industrial appeals judge's use of the DSM-IV in this appeal. The Guides establish "straightforward" rules for rating impairments. Ramirez, at 6. In contrast, the DSM is a reference used by mental health professionals to diagnose mental health conditions. The DSM-IV's "Cautionary Statement" emphasizes that the criteria contained therein are intended for use by those with specialized clinical training. We must rely on the opinions of medical witnesses contained in the record as the basis for findings addressing mental health diagnoses.
In re Rafaela Martinez, Dckt. No. 07 25143 (July 29, 2009)
August 2009
Domestic servants, interests of an employer’s estate, and IAJ assistance in making a record.
This appeal presented the issue of whether the claimant was a domestic servant excluded from industrial insurance coverage pursuant to RCW 51.12.020(1). She alleges she injured her right arm during the course of her employment. The industrial appeals judge reversed a Department order that found her employment excluded from coverage, and remanded to the Department with directions to find that the worker's employment with Elijah and Beryl Gallaway was not excluded from coverage. The Board vacated the Proposed Decision and Order and remanded for further proceedings because Elijah Gallaway died during the pendency of this appeal, and his wife Beryl Gallaway pre-deceased him. On remand, the industrial appeals judge was directed to determine whether the Gallaway’s estate should be substituted as a party because any determination that the claimant was a covered worker would have consequences with respect to any future attempt by the Department to collect premiums, penalties, and interest from the estate. The Board also addressed an issue raised in the Department’s Petition for Review. The Department contends that the IAJ failed to act in a fair and impartial manner and became the advocate for the claimant in advancing her cause with the BIIA. The Department complained that the industrial appeals judge took the lead in questioning the claimant's witnesses and asked numerous questions of them. His decision to take the lead in questioning both witnesses was appropriate. When an unrepresented party is testifying, the best approach is for the judge to focus the witness on the issues at hand with a question-and-answer format, rather than permitting purely narrative testimony. When the party with the burden of proof is unrepresented, judges must ask those questions necessary to elicit a prima facie case. There was no evidence of actual or potential personal interest or bias. The industrial appeals judge was fulfilling his obligations as dictated by prior decisions. The test of whether he acted appropriately is not whether he took the lead in asking questions or the number of questions asked, but whether those questions were asked in an advocatory manner rather than to elicit facts needed to create a complete record.
In re Evangelina Acevedo, Dckt. No. 08 15613 (August 24, 2009)