APPEALABLE ORDERS
Attorney fees for services rendered only before Department
The Board does not have authority to determine the reasonableness of a fee for an attorney's services rendered before the Department except in conjunction with a request to fix a fee for services rendered in proceedings before the Board. Review of a Department order concerning the reasonableness of the attorney fee for services rendered only before the Department is obtained by application to superior court, not by appeal to the Board. RCW 51.52.120. ....Charles Langseth, 89 2249 (1989)
Department agreed exam
In an employer's appeal taken from a closing order based on a medical examination through which the Department and the worker agreed to resolve the claim, the issue is limited to the appropriateness of the award for permanent partial disability. The decision to resolve the matter by stipulation could not be appealed because RCW 51.52.050 only authorizes appeals from final determinations. The final determination was the order resulting from the examination, not the decision to examine. ....Anthony Murphy, 94 1233 (1966)
Where a worker agreed to be bound by the results of a Department medical examination, the worker is not foreclosed from appealing the Department's determination since there is no statutory authority to bind parties to a final disposition of the claim. Only the Board has such authority pursuant to RCW 51.52.095, WAC 263-12-093.....Rafael Rodriguez, 90 3308 (1991)
Department order fixing interest pursuant to order of superior court
Where a worker prevailed in an appeal to superior court regarding a claim for temporary total disability, the responsibility for fixing interest lies with the court pursuant to RCW 51.52.135(3). The Board therefore does not have jurisdiction to review subsequent Department orders paying interest which were apparently entered pursuant to the order of the court. ....Charles Leo Courneya, 89 0845 (1989)
Informal letters
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)
Where a worker received a letter determination stating that the rate of time-loss compensation was correct and that a separate order would affirm earlier orders but the worker did not appeal the order subsequently issued, the Board concluded that the order was not res judicata regarding the rate of time-loss compensation for the periods set forth in the order since the letter determination had been appealed. ....Lucian Saltz, 92 4309 (1993)
A letter from a Department auditor informing an employer that premiums are due and requesting payment is an appealable decision under either RCW 51.48.131 or RCW 51.52.050 and .060, even though the letter fails to contain the required statutory language regarding the employer's appeal rights. ....Maid-For-You, 88 4843 (1990)
A letter advising the employer that the Department has accepted the worker's low back condition as causally related to the industrial injury does not constitute a formal statutory order and no res judicata effect attaches to the informal communication if it is not appealed. ....Kerry Kemery, 62,634 (1983)
Interlocutory orders
A worker is aggrieved by an order paying time-loss compensation benefits, even if the Department has designated the decision as temporary, if the worker is disputing the rate of time-loss compensation. ….Robert Uerling, 99 17854 (1999)
The Department cannot insulate a decision to terminate time loss compensation from Board review by characterizing the decision as "interlocutory." If the worker desires to appeal such a decision to the Board it is the worker's right to do so. ....Louise Favaloro, 90 5892 (1990)
Ministerial orders
A Department order issued pursuant to a superior court judgment is strictly ministerial and is not appealable to the Board. ....Alfred Greenwalt, Dec'd., 43,070 (1973)
Oral decisions
A decision of the Department must be in writing before it can be appealed to the Board. ....Ryan Lowry, 91 C061 (1991)
Orders held in abeyance (RCW 51.52.060)
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)
Where the Department has held an order which has been appealed to the Board in abeyance pending further consideration, it must enter a further order within the time allowed by RCW 51.52.060. However, the failure of the Department to issue a further order within the time allowed does not make the order held in abeyance appealable. Such order is not a final order of the Department. ....Coni Oakes, 90 1968 (1990)
Protest divests Board of authority to hear appeal – See also NOTICE OF APPEAL Protest treated as notice of appeal
When a worker appealed an order containing a statement of “protest rights”, but later filed a protest and request for reconsideration of the same order within the time allowed for protest, the Board lost jurisdiction over the appeal. ....Mark Fossati, 95 1442 (1995) [Editor’s note: the Board encouraged parties to notify it when they have filed a protest after filing an appeal.]
Where a Department order included a statement of protest rights as required by RCW 51.52.050, but did not promise the issuance of a further appealable order after the filing of a protest, a protest to that order deprived the Board of jurisdiction. Citing In re Santos Alonzo, BIIA Dec., 56,833 (1981).....Glen Fulps, 94 7894 (1995)
A protest automatically operates to set aside and hold an order in abeyance pending the issuance of a further appealable order. Thus, even though an appeal from a Department order had already been filed by the worker, the employer's subsequent but timely protest of the order appealed leaves the Board without jurisdiction to hear the worker's appeal. ....John Robinson, 59,454 (1982)
When a Department order promises that a further appealable order will be issued if a protest is filed, a timely protest automatically sets the order aside and holds it in abeyance. The Board therefore lacks jurisdiction to hear an appeal from the original order since it is not a final order. ....Santos Alonzo, 56,833 (1981)
Provisional time loss compensation orders (RCW 51.32.210)--See also APPEALABLE ORDERS Interlocutory orders
Orders of the Department paying provisional time loss compensation, entered prior to the issuance of an order rejecting or allowing the claim on its merits, are not final orders of the Department under RCW 51.52.050 and .060. Until the Department issues a determinative order either rejecting or allowing the claim, the payment of provisional time loss compensation cannot be challenged by an appeal to the Board. ....Ruth Logan, 89 0189 (1989)
Self-insured employer's order (RCW 51.32.055(7)(c))
A closing order issued by self-insured employer under the authority of RCW 51.32.055(7)(a) may conditionally close the claim. The closure is subject to reevaluation by the Department within two years on the basis that the claim was improperly or prematurely closed. ....Noel Bray, Jr., 89 2484 (1991) [dissent] [Editor's Note: The provisions cited apply only to claims accepted by self-insurers after June 30, 1986 and before July 1, 1990--the window period expressed in RCW 51.32.055(7)(d) does not apply to claims accepted after June 30, 1990 and closed with medical treatment only.]
An order issued by a self-insured employer under the authority of RCW 51.32.055(7)(c) is not appealable to the Board, notwithstanding the fact the order may state otherwise. However, the further determinative order of the Department which must be issued following the filing of a protest with the Department is appealable to the Board. ....Laverne Alvarado, 87 4566 (1988)
Temporary orders
The worker is allowed to litigate entitlement to time-loss compensation after the Department changes an order closing the claim and terminating time loss from final to "temporary." The Department cannot isolate a decision to terminate time-loss compensation from Board review by characterizing it as a temporary decision. ....Tony Perry, 03 19142 (2004) [P-166] [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 05-2-0140-3.]