SUSPENSION OF BENEFITS
Failure to comply with WAC 296-14-410
The worker/appellant has the burden of proving that the Department did not comply with WAC 296-14-410(4)(a), which requires the Department to provide an opportunity to explain an apparent failure to cooperate prior to the suspension of benefits. ....Gail Hanson, 04 14071 (2005)
Where the Department suspended worker's benefits without first requesting written explanation of why worker failed to attend scheduled examination, it failed to comply with WAC 296-14-410. ....Johan Petry, 92 0389 (1993)
A self-insured employer complied with WAC 296-14-400 when it forwarded notification of examination, plane ticket, and meal check to a worker's attorney where the worker had earlier directed the employer to forward all of his mail to the attorney's office. Because the employer failed to request in writing an explanation for the refusal to attend an examination before suspension of benefits, neither the Department nor the self-insured employer complied with the regulation. ....Luis Lopez, 91 3608 (1992)
Suspension of benefits is improper where the Department has failed to comply with the requirements of WAC 296-14-400 that the Department request, in writing, from the worker the reasons for the non-cooperation or refusal to attend an examination and allow thirty days for response. ....Willie Dunn, 91 0602 (1992)
Good cause
Suspension of benefits for non-cooperation requires behavior that obstructs or delays the administration of a claim. The behavior must be deliberate and calculated to obstruct. Behavior that is not designed or intended to obstruct or delay is not non-cooperation. A worker who is willing, although unable, to discontinue his use of tobacco has not refused to cooperate and his benefits may not be suspended for non-cooperation. ....John Galen, 03 18491 (2004)[Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 04-2-02677-2.]
When an injured worker asserts that the Department's lack of authority to schedule a needless or unnecessary examination is the basis for good cause not to attend, the worker must establish a prima facie case that the examination was unnecessary before the Board will conduct a balancing of the factors set forth in In Re Bob Edwards, BIIA Dec., 90 6072 (1992). ....Estela Romo, 94 3874 (1996) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 96-2-00212-3.]
The factors used to determine whether a worker had good cause to refuse to undergo examination include the worker's physical capacities, sophistication, circumstances of employment, family responsibilities, proven ability or inability to travel, medical treatment and other relevant concerns, including the expectation of a fair and independent medical examination balanced against the need to resolve conflicting medical documentation, the location of willing and qualified physician, the length of time before a physician is available to perform an examination, and the comparative expense of such. ....Bob Edwards, 90 6072 (1992)
No show fees
It is inappropriate to rely upon RCW 51.32.110 and WAC 296-14-410 to assess fees against a worker for failure to appear for an examination when it is subsequently determined the worker's claim is not valid. Those provisions anticipate repayment only where there is not good cause for failing to appear for scheduled examinations and can only be recovered from future benefits -- either time-loss compensation or medical treatment benefits. ....Laurie Anderson, 93 3571 (1996) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 96-2-05615-0.]
Refusal to attend medical examination
The Department inappropriately suspended benefits due to a worker's failure to attend an examination scheduled in Washington when the worker resided in Mexico and was unable to obtain visa for legal entry. ....Ramiro Madrigal, 91 2559 (1993)
A worker has good cause for not attending a medical examination where the worker attempted to use travel arrangements scheduled by the Department the day before his travel but was unable to do so due to the lack of notice by the Department and the fact he was wheelchair-bound. ....Willie Dunn, 91 0602 (1992)
Where the worker's refusal to attend a medical examination is based only upon the worker's unfounded presumption that the physician would be biased, the worker did not demonstrate good cause for the failure to attend the examination. ....Bob Edwards, 90 6072 (1992)
Where the worker's refusal to attend a medical examination is not based on a challenge to the examining physician's qualifications nor the employer's right to an independent medical evaluation but is based only on the requirement that the worker travel from Chehalis to Portland for the examination, the Department order directing the worker to attend will be affirmed where the worker has made the trip for other medical examinations without complaint, including trips to see his attending physician. ....Larry Nelson, 89 0257 (1990)
Where a worker has been directed by the Department to appear before a psychiatrist to assist in the administrative adjudication of the claim, the worker is not entitled to have an attorney present and a refusal to attend without an attorney justifies the suspension of benefits. Tietjen (13 Wn. App. 86), authorizing the attendance of a party's attorney at a CR 35 examination, is inapplicable to examinations under RCW 51.32.110. ....Elvina Munk, 58,847 (1982) [dissent]
Retroactive Suspension
The suspension of benefits under the provisions of RCW51.32.110 by the Department or self-insurer, with the Department's approval, may apply to future benefits only. The retroactive suspension of benefits is not permitted. ....Ronnie McCauley, 89 3189 (1991)
Vocational plan not pursued due to worker's relocation
A worker's move to an area where cost and housing were more affordable is not a "failure to cooperate in vocational rehabilitation" within the meaning of RCW 51.32.110, where the Department apparently did not determine feasibility of a vocational plan in the worker's new location and did not present evidence that such a plan would be impractical. See Kolano v. Department of Labor & Indus., 172 Wash. 27, 19 P.2d 113 (1933); In re Elvina M. Munk, BIIA Dec., 58,847 (1982). ....Louella Alcorn, 89 2619 (1991)