BOARD
Additional evidence secured on Board's own motion (RCW 51.52.102; WAC 263-12-120)
The parties' agreement to submit the appeal on the Department file does not prevent the Board from securing additional live testimony on its own motion. ....W. Tom Edwards, 26,382 (1967)
Appearance of fairness doctrine
A Board member may participate in the decision on an appeal from a Department order entered when he was the Supervisor of Industrial Insurance where the appeal raised only a legal issue and, despite the fact that his name appeared on the Department order, he was not personally involved in the Department action on the claim. ....Sandra Lucille Walster (II) 43,049 (11/73) [special concurrence]
Binding examinations
The procedure for binding examinations is designed to assure the objectivity of the examiner by restricting contact between advocates and the examiner, by reducing the possibility of an ambiguous result by providing the physician with the necessary historical background through records mutually selected by the parties and by directing the examiner to respond to specific questions concerning the worker's condition. ....Miles Ulrich, 93 1363 (1994)
Constitutional questions
The Board has no jurisdiction over constitutional issues. To the extent In re Danny Thomas, BIIA Dec., 40,665 (1973) concludes the Board may have such authority in certain circumstances, it is overruled. ....James Gersema, 01 20636 (2003)[Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 03-2-05093-3.]
The Board, anticipating what the Supreme Court would do if presented with the issue, reached the inevitable conclusion that the statute excluding illegitimate children from receiving benefits (RCW 51.32.005) was violative of the Equal Protection Clause of the U.S. Constitution. ....Danny Thomas, 40,665 (1973) (Overruled In re James W. Gersema, Dckt. No. 01 20636 (January 30, 2003)
County in which hearings held
If a party timely objects to the scheduling of a continued hearing in a county other than the county where the injury occurred or the worker resides, it is incumbent upon the Industrial Appeals Judge to make a determination as to whether "a continuance elsewhere is required in justice to interested parties." RCW 51.52.102 and WAC 263-12-115(7). ....Maria Chavez, 87 0640 (1988) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 88-2-02121-9.]
Discovery
Before applying sanctions for failure to answer requests for admission, consideration should be given to: 1) whether permitting an extension of time to respond promotes the presentation of the merits of the claim, and 2) whether the extension will prejudice the other party. Citing Santos v. Dean, 96 Wn. App. 849 (1999). Extension is not required when the admissions establish only a prima facie case and do not support a summary judgment. ….Duane Harper, 99 11127 (2000)
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.]
In order to be entitled to equitable relief for failing to file a timely protest, a worker must satisfy a two-part test to excuse the untimely filing. The worker must first establish that the worker is illiterate in English and unable to ascertain and/or understand the nature and contents of the order; and second, the worker must establish some misconduct in communication of the order on the part of the Department if it knew or should have known that the worker was illiterate in English. ....Adela Gonzalez, 05 23236 (2006)
The principles of equitable estoppel are applied only under the principle of stare decisis. Where there has been no determination by a court of final jurisdiction applying equitable estoppel to excuse an untimely filing under RCW 51.28.050, the Board will not apply the doctrine to a situation where the worker alleges that the Department employees improperly informed him of the requirements for filing an application for benefits. Additionally, the record failed to establish that the inaccurate statements caused injury to the worker, that the failure to timely apply for benefits was due to the worker's own mistake. Citing In re State Roofing & Insulation, Inc., BIIA Dec., 89 1770 (1991). ....James Neff, 92 2782 (1994) [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 94-2-01446-0.]
To establish equitable estoppel, an employer, in an assessment appeal, must prove each element. Where a Department audit included a determination that employer's premiums would be assessed on the basis that the employer paid employees on a commission basis, the employer failed to show justifiable reliance. ....AEX Corporation, 90 5314 (1992) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 93-2-00171-6.]
Because the courts have applied equitable estoppel against the state, if there is no question or doubt as to the extent of the Board's jurisdiction in a particular case, the Board may apply the doctrine under the principle of stare decisis in the same manner as it applies other principles of law. Estoppel will apply in proper circumstances against the Department, in its role as a taxing agency, and reliance, if reasonable, may be placed upon both the silence and non action of the state where it ought to speak, as well as upon affirmative statements and actions. ....State Roofing & Insulation, Inc., 89 1770 (1991) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 91-2-01375-4.]
The Board has no inherent equitable powers. ....Ben Ramahlo, 85 C025 (1987)
In applying the principles of Rodriguez (85 Wn.2d 949) and Ames (176 Wash. 509) the Board is not exercising equitable powers but is anticipating the relief which would be granted, under the doctrine of stare decisis, upon further appeal to superior court. It is without authority to expand those doctrines to cover cases with dissimilar facts. ....Ronald Jamieson, 62,551 (1983)
The Board's powers are limited to those expressly granted by the legislation which created it. Since the Board has no equitable powers under Ch 51 RCW, it may only, under the doctrine of stare decisis, apply equitable principles determined by the appellate courts in similar cases. ....Seth Jackson, 61,088 (1982)
Examination by industrial appeals judge
When the party with the burden of proof is unrepresented, judges must ask questions with the purpose of eliciting the facts needed to support a prima facie case, and should not advocate for any party, ask leading questions, or ask questions that attempt to elicit inadmissible testimony. ….Evangelina Acevedo, 08 15613 (2009)
When securing evidence necessary to fairly and equitably decide an appeal, an industrial appeals judge shall ask those questions necessary to present a prima facie case. ....Calvin Williams, 04 12770 (2005)
Hearing
A hearing on a motion to dismiss satisfies the requirement for a hearing under Watt v. Weyerhaeuser Co., 18 Wn. App. 731 (1977) when the hearing is held pursuant to proper notice and the parties understand the hearing may result in a final disposition of the appeal. ....José Benavides, 05 10661 (2007)
Joinder See decisions listed under JOINDER
Jurisdiction determination based on Department file - See SCOPE OF REVIEW
The Board may review and take notice of the contents of the Department file, sua sponte, at any stage of the proceedings, in order to determine whether it has jurisdiction over the appeal. ....Mildred Holzerland, 15,729 (1965)
Jurisdiction in assessment appeal - See SCOPE OF REVIEW
Jurisdiction in WISHA appeal (RCW 49.17)
The Board is authorized to hear appeals from any action taken by the Department except where a specific provision deprives it of jurisdiction and RCW 49.17 does not deprive the Board of jurisdiction in appeals from an order of immediate restraint. ....Air Quality Services, Inc., 92 W370-C (1993) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 93-2-00358-4.]
The Board does not have jurisdiction to consider an appeal from a Department decision not to conduct an inspection of the work site or issue a citation for alleged violations of Industrial Safety and Health Act. ....Jay Holloway, 91 3679 (1991)
Moot Appeals
Where a worker appealed an order closing the claim with permanent partial disability award and also appealed a vocational services determination and dismissed the appeal of the closure order, the appeal challenging the vocational determination became moot since a claim cannot be reopened solely for vocational rehabilitation purposes. RCW 51.32.095(7). ....Tina Gonzalez, 89 5233 (1991)
Motion to vacate order adopting proposed decision and order
Failure to ensure that the Board has extended the time in which to file a petition for review is not excusable neglect that would warrant vacation of an Order Adopting Proposed Decision and Order. ....Randy Squance, 00 17407 (2002)
Failure of a law office to correctly calendar the due date for filing a petition for review is not excusable neglect. ....Robert Wiyrick, 01 11323 (2003)
Miscommunication between an attorney and client does not establish a lack of consent for purposes of vacation of a Board order. ....Iva Jennings, 01 11763 (2002)
Motion to vacate order dismissing appeal
Inaccurate advice from an attorney regarding the effect of dismissing an appeal is not a basis on which to vacate the dismissal. ....Peggy Hardy, 96 6361 (1998)
Motion to vacate order on agreement of parties
A party who chooses not to participate in proceedings may not have an agreement vacated simply because their consent was not obtained. ....Kenneth Merrill, 06 22417 (2008)
An agreement may be vacated when a party demonstrated a desire to participate in the appeal and has a legitimate excuse for the failure to participate in the agreement. ....Deborah Jimenez, 01 19072 (2002)
Mutual mistake for purposes of vacating an Order on Agreement of Parties can be established where it is demonstrated the resolution was not based on a meeting of the minds. ....Hector Alaniz, 00 19916 (2001)
Motion to vacate order denying petition for review
Where the Board used the date of manifestation for calculating benefits in occupational disease claim, but the worker's beneficiary determined benefits payable would be greater if the date of last injurious exposure were used, the failure to determine the financial consequences of different benefit rates before issuance of proposed decision and order does not constitute a mistake or excusable neglect which would justify vacating order under CR 60. ....Robert Sarbacher, Dec'd., 88 3107 (1991)
New evidence
The record will not be opened to allow the worker to present additional evidence where there is no showing that the evidence could not have been discovered with reasonable diligence prior to the conclusion of the hearings. ....Eileen Cleary, 92 1119 (1993)
Nunc pro tunc order
The Board is without authority to issue an order nunc pro tunc directing the Department to pay a widow's estate her accrued pension benefits where the widow dies after the Board has granted the Department's petition for review from a proposed decision and order granting the widow's pension, but before the Board has issued its decision and order. (RCW 51.32.040) ....Johanna Hoerner, Dec'd., 70,575 (1986)[Editor's Note: Clingan v. Department of Labor & Indus., 71 Wn. App. 590 (1993) addresses court authority to issue nunc pro tunc order. The Board's decision was appealed to superior court under Benton County Cause No. 86-2-00646-7.]
Offer of judgment CR 68
CR 68, which provides for payment of costs if an offer of judgment is declined and the matter ultimately is resolved for the offered amount or less, does not apply to proceedings before the Board. ….Elena Osborn, Declaratory Ruling (1999)
Order on agreement of parties - See also SAFETY AND HEALTH Order on Agreement of Parties
An order on agreement of parties can only be vacated by a subsequent or additional order of the Board. An industrial appeals judge is without authority, on a party's motion, to vacate an order on agreement of parties and issue a proposed decision and order reaching the same result. In that circumstance, the proposed decision and order is a nullity. ....Theresa Baker-Nolden, 90 4968 (1992) [special concurring opinion] [Editor's Note: CR 60(a) applies in instances of clerical error. See Marriage of Stein, 68 Wn. App. 922 (1992);Marriage of King, 66 Wn. App. 134 (1992) Otherwise, CR 60(b) applies. Northwest Investment v. New West Fed., 64 Wn. App. 938 (1992)]
An industrial appeals judge does not render a final judgment or final decision and order; only the Board has such authority under RCW 51.52.050. Where an industrial appeals judge declined to accept the parties' stipulation after the hearing date on the basis that issuance of a proposed decision and order, dismissing the matter for failure to present evidence when due, was merely a ministerial act, the proposed decision and order should be vacated and an order, based upon the agreement of parties, entered. ....John Herrin, 89 5253 (1991)
Petition for review
When a petition for review is filed, the scope of the Board's review extends to all contested issues of law and fact and is not limited to the specific issues raised by the petition for review. ....Richard Sims, 85 1748 (1986)
An order denying an appeal cannot be petitioned to the Board but must be appealed to superior court. [RCW 51.52.080] ....Sandra Lucille Walster (II), 43,049, (11/73)
Reassignment of Industrial Appeals Judge
When a case is reassigned from one judge to another, the expectation is that the new judge will exercise independent judgment and take whatever further steps he or she deems appropriate. ….Nathan Rosentrater, 08 20200 (2009)
Remand for additional evidence
Where parties had agreed to be bound by the results of a Board-sponsored medical examination, the industrial appeals judge did not follow the ordinary procedures for obtaining the examination, the worker asked for the opportunity to cross-examine the physician, and the industrial appeals judge issued a proposed decision and order without ruling on the motion, the Board vacated the proposed decision and order and remanded for further proceedings. ....Miles Ulrich, 93 1363 (1994)
Where the Department received a call indicating a worker was employed during the period the worker received loss of earning power benefits, the call raised the question of mistake as to the amount of benefits properly payable but did not establish fraud and motion for summary judgment should have been denied. As a result, the Board remanded to hearing process to determine whether an overpayment existed and if so, whether the benefits were fraudulently obtained. ....Sherryl Schank, 90 1542 (1991) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 92-2-04865-3.]
Where the employer has received notices of proceedings but failed to appear, it has waived its right to present evidence and the Board will not remand the appeal for further hearings to permit the employer to do so. ....Joseph Benoit, 35,483 (1971)
Remands from Superior Court
RCW 51.52.115 indicates that the Superior Court, in case of modification or reversal of the Board's order, should refer its order to the Department, not the Board, and to direct the Department to act in accordance with the court's findings. In the circumstances of this case, the Superior Court order directed the Board to issue an order directing the Department to issue an order reopening the claim for aggravation of the condition causally related to the industrial injury, paying time loss compensation benefits, with a permanent partial disability, reduced by an overpayment, denying responsibility for a condition identified as thoracic outlet syndrome, and thereupon closing the claim. ....Daniel Hatch, 63,150 (1992)
Response to petition for review
The ten day time period set forth in WAC 263-12-145(3) for filing a response to a petition for review is not jurisdictional. The Board may therefore consider a response filed after the ten day period has elapsed. ....Daniel Furlong, 65,138 (1985) ]
Sanctions - See SANCTIONS
Scope of review - See SCOPE OF REVIEW Closing order
Stay of proceedings
The Board need not suspend proceedings in the worker's appeal where the employer served the Board a bankruptcy court's stay in an industrial insurance appeal where the employer is not self-insured but participates in the state fund since the presence or absence of the employer from the proceeding has no impact on the adequacy of the statutory relief available. Citing Matter of Johns-Manville Corp., 99 Wn.2d 193 (1983). ....Mary Propst 92 2186 (1993) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 93-2-06468-1.]
Subpoena
Where a physician has developed an opinion as an expert and has expressed that opinion, a subpoena should not be refused solely on the ground that the physician has refused to speak with the litigant or the litigant is unable to pay other than the statutory witness fee. …Ronald Baker, 99 21232 (2001)
Substitution of Parties
In the circumstance where a worker died while the appeal was pending and the survivor proves the spousal relationship, and establishes that an application for survivors' benefits has been filed with the Department, the spouse will be substituted as the appealing party and is entitled to pursue any benefits to which the deceased worker may have been entitled. ....William Zygarliski, Dec'd., 89 1094 (1990)
Summary judgment
A declaration in support of summary judgment is insufficient if opinions are not related to the critical date or contain only conclusory opinions, without the requisite supporting facts showing the basis for those opinions. When a declaration is deficient, the opposing party is not required to file a responsive declaration from a medical expert. ….Nathan Rosentrater, 08 20200 (2009)
To raise an issue of credibility on a motion for summary judgment, the non-moving party must present contradictory evidence or otherwise impeach the evidence of the moving party. The non-moving party may not rely on speculation or argumentative assertions to establish an issue of material fact. ….David Gruger, 08 14143 (2009)
The Board has the authority to resolve appeals, in whole or in part, by summary judgment. RCW 51.52.140; WAC 263-12-125; CR 56. ....David Potts, 88 3822 (1989)
Summary judgment-time limits
A declaration in support of summary judgment is insufficient if opinions are not related to the critical date or contain only conclusory opinions, without the requisite supporting facts showing the basis for those opinions. When a declaration is deficient, the opposing party is not required to file a responsive declaration from a medical expert. ….Nathan Rosentrater, 08 20200 (2009)
To raise an issue of credibility on a motion for summary judgment, the non-moving party must present contradictory evidence or otherwise impeach the evidence of the moving party. The non‑moving party may not rely on speculation or argumentative assertions to establish an issue of material fact. ….David Gruger, 08 14143 (2009)
Summary judgment is not appropriate when the motion was filed later than permitted under CR 56 and the worker failed to establish that there were no issues of material fact. CR 56 does not provide for discretion with respect to filing timelines, the only discretion permitted is with respect to the requirement that the motion be heard more than 14 days before the hearing. ….Duane Harper, 99 11127 (2000)
Telephone hearings
An industrial appeals judge has discretion to determine in what circumstances telephone testimony will be allowed over the objection of a party. Factors impacting that decision include objections related to oath giving and verification of the witness's identity, and assessing credibility. Oath giving and identification are germane only to objections based on concerns that the witness may not be who they purport to be. Objections related to assessing credibility should be tempered by the realities of the appeal process where the Board members or the court or jury are the ultimate assessors of credibility, not the industrial appeals judge. ….Peter Kim, 00 21147 (2002)
Transcript corrections
If a party believes there is an error in the transcript, the party should file a motion with the industrial appeals judge, who will then hold a proceeding and place the burden on the moving party to explain why the transcript is in error and should be changed. ....Cascade Utilities, Inc., 04 W1392 (2006)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 06-2-38556-0 SEA.]
Two member Board
The Department order must stand when the Board is reduced to two voting members who disagree on the disposition of the appeal. ....Herbert Thomas, 42,061 (1973)