Significant Decisions

I’ve added a new link – but it comes with a warning. The link will take you to a subject index of Significant Decisions from the Board of Industrial Insurance Appeal.

 

I should back up.  If the Department of Labor & Industries issues a Decision and Order and you or your employer disagrees, a protest or appeal must be filed within 60 days of receipt of the Order. This magic 60 day language is on the bottom of each and every Department Order.  A protest or appeal must be in writing, a phone call will not be enough to stop the 60 day appeal period from running.

 

If you disagree with a Department Order, it is a really good time to talk to an attorney.  There are many disputes which can be ironed out without the time, expense and frustration of litigation. An attorney familiar with workers compensation may be able to help.

 

A written protest is sent to the Department, the address is on the Decision and Order. A protest is a way of asking the Department to take another look at their decision. Sometimes we call it a Request for Reconsideration. Perhaps there is additional information which was not available when the claims manager issued the order.  An additional medical report from your physician, or additional wage information may change the department’s decision if they have an opportunity to review it.  Maybe the claims manager  missed something already in the file, or took action which is not supported by the Departments records. If  a protest is filed the Department must issue a new order. They might issue a new order in as quick as a couple of days, or it may take weeks. The new Decision and Order will also have the magic 60 day appeal period language on it. Either you or the employer can file a further appeal of the order.

 

An appeal is sent to the Board of Industrial Insurance Appeals which is the administrative agency which conducts hearings on workers compensation claims.  Again, the address is on the Department’s Decision and Order. The Board has Industrial Appeals Judges who conduct mediations, hold hearings and issue what we call Proposed Decision and Orders. These decisions will be reviewed by the full Board if a Petition for Review is filed.  A decision of the full Board can be appealed to Superior Court.

 

The new link I’ve added to the blogroll will allow you to read decisions from the Board which have been designated as ‘significant’. Usually significant decisions are on issues which are, or have been, hot button topics. The Board follows the reasoning in these significant decisions when ruling on cases being heard. They will give you some understanding of the law which will be applied in your case by the Board. The Board does not have the final say on how to apply or interpret the law in workers compensation claims. This lies with our Courts. But these significant decisions give guidance as to how the Board may view a particular situation.

 

So, here’s the warning. If your workers compensation claim is at the Board, it is time to talk to an attorney.  Just because you have access to and can easily read these significant decisions does not mean you shouldn’t consult with an attorney. This is your one chance to make a record. Board hearings are like trials.  The Rules of Evidence and Superior Court Civil Rules apply. You must be familiar with these rules in order to ensure that all your testimony and evidence will be admitted at your hearing. If there is an appeal from a decision of the Board it will be decided based on the evidence and testimony present at the hearing. The Department and/or your employer will be represented by an attorney, you should be as well.

 

So, peruse the significant decisions, they are sometimes interesting reading. But if your claim has been appealed and is at the Board, don’t rely on a reading of these significant decisions to chart your course. Talk to an attorney.

4 thoughts on “Significant Decisions

  1. I gather the case you’re asking about is:
    Dennis v. Department of Labor and Industries
    44 Wash.App. 423, 722 P.2d 1317 (1987)

    Dennis, helps us further define an occupational disease for purposes of Washington workers compensation.

    Let me back up. There are two types of workers compensation claims. The first stems from an Industrial Injury, that is a ‘sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result’. You fell off that ladder, lifted that crate, stepped in that hole, and had an immediate injury. The injury may be an aggravation of a pre-existing condition, or a completely new diagnosis, but the worker can point to a single activity or event on a particular day which caused the condition or injury.

    The other type of claim stems from an occupational disease. An occupational disease is a condition or infection which arises naturally and proximately out of employment. RCW 51.08.140 The condition must arise ‘naturally’ out of employment, which means work activities more probably caused the condition than did activities in everyday life. In addition, the occupation must be a proximate cause of the condition such that the condition would not have been contracted ‘but for’ the distinctive conditions of the employment. The classic example is carpal tunnel syndrome from repetitive keyboarding.

    The difficulty with occupational disease claims is in differentiating the work activities from activities of everyday life, and demonstrating the condition would not have been contracted but for those distinctive work activities. For instance, a worker with degenerative disc disease in his low back with a long work history of heavy work, is not likely to be successful if he files an occupational disease claim. We all have degeneration in our backs as we age, and we all occasionally do strenuous activities. But, imagine the truck driver who drops down from his cab onto his left leg, over and over again. He develops degenerative joint disease in the left knee, but not the right – he’s going to have a viable occupational disease claim. Or, the sanitation worker who empties cans into his truck, overhead with his right arm day in and day out, and develops degenerative joint disease in the right shoulder – he should definitely file a claim.

    The Dennis case was important because it told us “the Workers’ Compensation Act provided coverage for work place aggravation of previously nonsymptomatic, nondisabling disease, upon showing by worker that employment acted upon such disease so as to cause disability which did not previously exist’. Which in plain English means, it is enough if the distinctive conditions of employment aggravated the disease or condition. The work activities do not have to cause the disease, so long as the disease was ‘lit up’ or worsened, there may be an occupational disease claim. So, in the above example, it may be impossible for a medical provider to testify the degenerative joint disease was ‘caused’ by the repetitive overhead lifting, but clearly the DJD was aggravated or made symptomatic by the distinctive work activities. In Dennis the worker argued constant use of tin snips aggravated the osteoarthritis in his wrist to the point of disability. Although he had osteoarthritis in other parts of his body, it was not disabling anywhere other than his wrist.

    I will say these types of claims can be contentious. The employer community, rightly or wrongly, believes the door has been pushed open too wide. They feel claims are being filed and allowed for conditions which are nothing more than the natural aging process. Some of us age well, with few complaints or symptoms, and some of age with all manner of aches and pains. Employers do not want to see these conditions of ageing allowed as workers compensation claims. On the other hand, Labor believes workers with a long history of heavy strenuous work, which has worn down and beaten their bodies, should be afforded the benefits of our Industrial Insurance Act. I can’t tell you where the right answer lies. I can say Dennis just gave us one more tool to use in arguing an occupational disease claim should be allowed. That a disease can be aggravated by work activities is entirely consistent with saying a sudden and traumatic injury can aggravate or lit up a pre-existing condition.

  2. This is so informative. I just sent you an email regarding the decision & order I recieved on 9-15-08. I do not agree with it and my attorney will not continue with it. I now find out he is not an L & I attorney. He missed so many things and failed to give me fair representation.This sounds so much like my case infact. I have a tear in my left miniscus from an injury at my job.I didn’t have sudden symptoms but later in the PM. By the next day it was real bad.Thanks for your professional information. Lori Kepple

  3. I just so happen to come upon your explanation of the Dennis decision while I was filing a request for reconsideration of my claim. My problem is different but somewhat the same as mine is occurring on the bottom of my foot – tendinitis of my arch. As an elementary PE teacher, my feet take a daily beating due to the constant and variable movement on a hard gym floor. My claim was closed two days before I even saw the referred podiatrist because it “was not a distinct injury nor an occupational disease”. Based on the Dennis decision….I do have an occupational disease!

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