PROTEST AND REQUEST FOR RECONSIDERATION (RCW 51.52.050)
Application to reopen treated as protest
If an order denying an application to reopen is not communicated to the worked and contains language promising a further order if a protest is filed, a subsequent application to reopen should be treated as a timely protest and request for reconsideration of the first denial of the request to reopen. Following In re Ronald Leibfried, BIIA Dec., 88 2274 (1990). Distinguishing In re Daniel Bazan, BIIA Dec., 92 5953 (1994). ....Carmel Smith, 95 1795 (1996)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 96-2-21023-4.]
It is proper to treat an application to reopen a claim as a protest of the order closing the claim where the evidence indicates the last closing order was never communicated to the claimant. In this case, the Board therefore directed the Department to treat the application to reopen the claim as a protest and to issue a further determinative order concerning the closure of the claim. ....Ronald Leibfried, 88 2274 (1990) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 91-2-00015-4.]
An application to reopen a claim, filed by the worker in response to notification from a health care provider that her claim had been closed, can be construed as a timely protest to the self-insured employer's closure order even though it was filed more than sixty days after the order was issued where there is no evidence the order was properly communicated to the worker. ....Valerie Rye, 89 3010 (1990)
An application to reopen a claim, filed in response to a Department closing order and within the time allowed for filing an appeal, can be construed as a request that the Department reconsider its closure of the claim, and requires the Department to issue a further final order. ....Charles Weighall, 29,863 (1970)
Contents
There are no strict requirements on the form of a "protest" or "request for reconsideration", a document will suffice as a protest or request for reconsideration if it is reasonably calculated to put the Department on notice that the party is requesting action inconsistent with the decision of the Department. ....Mike Lambert, 91 0107 (1991)
A request by the employer that the Department "reassume jurisdiction" constitutes a protest and request for reconsideration. ....John Robinson, 59,454 (1982)
Deemed-granted application to reopen claim
The employer's ability under RCW 51.52.060(5) to appeal a deemed-granted application to reopen on the merits does not create a comparable ability to protest a deemed-granted application to reopen. ....Stephen Murphy, 02 12603 (2003)
Department order, once protested, is not final order - See Protest divests board of jurisdiction
Where the Department's order contains a promise that a further appealable order will follow the filing of a protest, the Department is required to issue a further and final order once a protest has been filed. ....Gerald Wynkoop, 34,133 (1970)
Filing by mail permissible
A protest from a Department order is effectively filed when it is properly posted in the U.S. Mail on or before the sixtieth day from the date the Department order was communicated to the party. ....Betty Clayberg, 86 4295 (1988)
Filing by mail, proof of
A protest is timely if it is mailed within the requisite time period, even if it is not received by the Department. However, proof of office custom without proof of compliance with that custom in the specific instance is insufficient to create a presumption that the protest was mailed. Citing Farrow v. Department of Labor & Indus., 179 Wash. 453 (1934) ....Daniel Kelp, 86 0686 (1988) [Affirmed sub nom, Kaiser Alum. & Chem. Corp. v. Department of Labor & Indus., 57 Wn. App. 886 (1990)]
Filing with self-insured employer (WAC 296-20-09701
WAC 296-20-09701, allowing attending physicians to file requests for reconsideration with the self-insured employer, makes the self-insured employer the agent for the Department for receiving protests from attending physicians. A protest timely filed by the attending physician with the self-insured employer, but not with the Department, therefore constitutes a timely request for reconsideration under RCW 51.52.050. ....Harry Pittis, 88 3651 (1989)
Limitations on time to act
Where a worker timely protests and requests reconsideration of an order which promises issuance of a further order after receipt of a protest or request for reconsideration, the Department must enter a further order within the time limited by the fifth provision to RCW 51.52.060, with the period commencing on the date the Department received the protest. ....Clarence Haugen, 91 1687 (1991)
Notice of Appeal – See NOTICE OF APPEAL
Must be in writing
In order to be effective, a protest of an order must be in writing. This requirement is not satisfied when a party phones the Department and an employee makes a notation of the phone conversation. ….David Erickson, 97 5247 (1998)
Protest of "Appealable Only" order
When a firm filed an appeal from an "appealable only" order from which it had already filed with the Department a letter requesting reconsideration within prescribed time limits and the Department had not transmitted the protest to the Board and did not reassume jurisdiction in the later appeal, the Board considered the Department's action an indication of its intent to treat the protest as a notice of appeal. Citing In re Donzella Gammon, BIIA Dec., 70,041 (1985). ....Tony Mandrell, 92 2819 (1993)
When the protest language has been crossed out on an order, so that the Department has made no representation that a further determinative order will be issued, the Department has discretion to determine whether a document challenging its order is a protest or an appeal. If it is the latter, the Department should transmit the appeal to the Board. ....Donzella Gammon, 70,041 (1985)
Protest divests Board of jurisdiction over 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)
Self-insured employer's order
A closing order issued by a self-insured employer pursuant to RCW 51.32.055(7)(a) which advises the worker a written protest may be filed within 60 days but does not advise that the order shall become final within 60 days unless such a protest is filed, and which advises the worker to contact the self-insured employer's representative by phone regarding any questions, does not become a final order within 60 days of communication where the worker telephoned the self-insured employer's representative within 60 days to protest the claim closure. ....Grace Kiser, 88 0710 (1990)