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Last Reviewed / Modified On 27 Apr 2017.

Washington Workers' Compensation Claim Handling Guidelines

Contents [hide]

DEFINITIONS

Employer

For purposes of workers’ compensation coverage, an employer is defined as follows within RCW 51.08.070:

“Employer” means any person, body of persons, corporate or otherwise, and the legal representatives of a deceased employer, all while engaged in this state in any work covered by the provisions of this title, by way of trade or business, or who contracts with one or more workers, the essence of which is the personal labor of such worker or workers…

Persons or entities may not be defined as employers under the Industrial Insurance Act (“IIA”) when they use the services of independent contractors, licensed contractors and electrical contractors. RCW 51.08.195; RCW 51.08.181

Employer-employee relationship cannot be created without the worker's knowledge and consent for the purposes of workers' compensation law. Judy v. Hanford Environmental Health Foundation 106 Wn.App. 26, 22 P.3d 810 (2001).

Statutory Employer

The term “statutory employer” does not exist in the Industrial Insurance Act (“IIA”). However, courts look to the IIA statute to determine employer status. For example, In calculating an independent contractor's wages for purposes of award of time-loss compensation under IIA, the Board of Industrial Insurance Appeals (“BIIA”) was required to apply statutory definitions of “employer” and “worker” to determine whether essence of the contract was for personal labor and to consider elements of IIA's section creating exception to rule that independent contractors for personal labor are “workers” under IIA to determine whether her services constituted employment. Malang v. Department of Labor and Industries (“DLI”)., 139 Wn.App. 677, 162 P.3d 450 (2007)

Employee

The IIA uses the term “worker” for purposes of the Act. The term is used interchangeably with “employee” in case law and by the DLI.

“Worker” means every person in this state who is engaged in the employment of an employer under this title, whether by way of manual labor or otherwise in the course of his or her employment. RCW 51.08.180.

An independent contractor may be a worker because the IIA defines a worker as someone “... working under an independent contract, the essence of which is his or her personal labor.” RCW 51.08.180.

An employee has entered an employer-employee relationship in the workers' compensation context when: (1) the employer controls the employee's physical conduct in performing his duties, and (2) the employee consents to this relationship. Daniels v. Seattle Seahawks 92 Wn.App. 576, 968 P.2d 883(1998).

Excluded employment RCW 51.12.020 (see statute for additional exceptions)
1.       Domestic help.
2.       Work done in or about private home of employer.
3.       Casual work not in the course of the business of the employer.
4.       Work done for aid or sustenance only from religious or charitable organizations.
5.       Sole proprietors and partners, unless they elect coverage or are engaged in the building construction industry.
6.       Work done by persons under 18 employed by parents in family farm activities.
7.       Jockeys.
8.       Corporate officers who are also directors and shareholders, unless they elect coverage.
9.       Employees of common carriers by railroad. RCW 51.12.080.
10.       Federal employees. RCW 51.12.060
11.       Maritime employees, except when the claim involves an asbestos exposure and the maritime insurer has not yet initiated payments under the Longshore & Harborworkers Act. See RCW 51.12.100.

Borrowed Employee

While an employer may “loan” an employee to another, the borrowing employer will not become an “employer” for purposes of the Industrial Insurance Act unless a mutual agreement exists between the loaned servant or borrowed employee and the borrowing employer. Rideau v. Cort Furniture Rental, 110 Wn.App. 301, 39 P.3d 1006 (2002)

Independent Contractor

Businesses may be required to provide workers’ compensation insurance coverage during the period of the contract with an independent contractor.

RCW 51.08.195 gives an employer an alternative six-part test to determine if an independent contractor is exempt from mandatory workers’ compensation coverage.

The six-part test states that a person is exempt if:
1)        He or she is free from control and direction over the performance of the services, and
2)       The service provided is outside the usual course of business or it is performed outside all of the places of business of the hiring enterprise or the hired individual is responsible, both under the contract and in fact, for the costs of the principal place of business from which the service is performed, and
3)       The individual is engaged in an independently established trade of the same nature as the contract, or the individual has a principle place of business eligible for IRS business deduction, and
4)       The individual is responsible for filing a schedule of expense and income with the IRS for the business, and
5)       On the effective date of contract or within a reasonable period, has established accounts with state agencies, and
6)       The individual maintains a separate set of books and records that reflect items of income and expense for the business.

For example, the essence of workers' contracts with home health care referral agency with whom they were associated was their personal services, so the DLI was required to provide workers' compensation insurance for those workers. Xenith Group, Inc. v. DLI, 167 Wn.App. 389, 269 P.3d 414 (2012).

EXCLUSIVE REMEDY

2.1 General Rule

Declaration of Power - RCW 51.04.010
RCW 51 et. seq. is the exclusive remedy for workers, unless there is "third party" action (RCW 51.24.030) or injury or death as result of "deliberate intention of employer" (RCW 51.24.020).

2.2 Exceptions Recognized

An exception to the IIA is recognized in Washington:

If an injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker can take under the IIA and also have cause of action against the employer for any damages in excess of compensation and benefits paid or payable under the IIA. RCW 51.24.020

The employee must demonstrate that the employer had actual knowledge that certain injury would occur and the employer willfully disregarded this knowledge. Birklid v. Boeing Co., 127 Wn.2d 853, 865–66, 904 P.2d 278 (1995). This exception is narrowly construed to require specific intent to injure. Id. at 860, 904 P.2d 278. Neither gross negligence nor failure to observe safety procedures and laws governing safety constitutes a specific intent to injure. Biggs v. Donovan–Corkery Logging Co., 185 Wn. 284, 286–88, 54 P.2d 235 (1936); Peterick v. State, 22 Wn.App. 163, 189, 589 P.2d 250 (1977), overruled on other grounds by Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710, 709 P.2d 793 (1985); French v. Uribe, Inc., 132 Wn.App. 1, 9, 130 P.3d 370 (2006). Nor is an act that has a substantial certainty of producing injury sufficient to show deliberate intention. Higley v. Weyerhaeuser Co., 13 Wn.App. 269

, 271–72, 534 P.2d 596, rev. denied, 85 Wn.2d 1013 (1975).

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The Industrial Insurance Act is the exclusive remedy for injured workers; therefore, except as provided in the IIA statute, all jurisdiction for workers' injuries in the state courts was abolished by the Act. Hernandez v. DLI, 107 Wn.App. 190, 26 P.3d 977 (2001); RCW 51.04.010

Extraterritorial Jurisdiction

Workers working outside Washington may be entitled to compensation under the IIA if when injured, (a) His or her employment is principally localized in this state; or (b) He or she is working under a contract of hire made in this state for employment not principally localized in any state; or (c) He or she is working under a contract of hire made in this state for employment principally localized in another state whose workers' compensation law is not applicable to his or her employer; or (d) He or she is working under a contract of hire made in this state for employment outside the United States and Canada. RCW 51.12.120.

For Washington workers sent temporarily out of state to work, Washington’s workers’ compensation coverage is extended to these Washington workers while working temporarily out of state as long as the work doesn’t fall under federal jurisdiction. Federal jurisdiction includes:
  1)       Maritime-related activities.
  2)       Maintenance or stevedoring at commercial piers and harbors.
  3)       Building or repairing commercial vessels.
  4)       Contractors working on U.S. overseas military bases.
  5)       Working overseas under contract with the Department of Defense or other security agencies.

(Source: Washington Department of Labor and Industries).

Reciprocal agreements designate coverage under the laws of the worker’s home state when working temporarily in the other state. The agreements vary in the extent this coverage is permitted. Washington State has signed reciprocal agreements with eight states: Oregon, Idaho, Montana, North Dakota, South Dakota, Wyoming, Nevada, and Utah. WAC 296-17-31009.

Time Limitation

Workers must file claims for injury within one year. RCW 51.28.050. If occupational disease or hearing loss is involved, a two-year limitation may be permitted. RCW 51.28.055. Occupational disease means “such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title.” RCW 51.08.140. Occupational disease claims must be filed within two years after a worker is notified the disease exists by a medical provider. RCW 51.28.055. Hearing loss claims must be filed within two years of the date of the worker's last injurious exposure to occupational noise. RCW 51.28.055. If it is found that an employer has engaged in claim suppression and, as a result, the worker has not filed a claim for industrial insurance benefits as prescribed by law, then there may be a waiver of the time limits for filing a claim provided if the complaint or allegation of claim suppression is received within two years of the worker's accident or exposure. The claim must be filed with the department within ninety days of the date the determination of claim suppression is issued.RCW 51.28.025(5).

Discovery Rule

Washington does not generally recognize a discovery rule with respect to Workers’ Compensation claims for injuries. Courts may not relax the one-year statute of limitations governing a claim for work-related personal injuries where the legislature has clearly expressed its intent to allow a “time of manifestation” or “discovery” rule only for occupational diseases, not for injuries. Elliott v. DLI, 151 Wn.App. 442, 213 P.3d 44 (2009). Occupational diseases are subject to a discovery rule in which notification by a medical provider that a disease exists starts the clock for filing a claim within two years.

Notice of Injury

The worker or someone in his or behalf must report any accident to his employer or supervisor. The employer must report any accident or injury to L&I, where the worker has received treatment from a doctor or licensed advanced registered nurse practitioner, has been hospitalized, disabled, or has died. RCW 51.28.010(1). L&I must then forward to the worker or his beneficiaries or dependents notice of the worker’s rights under the IIA. RCW 51.28.010(2).

Statute of Limitations

If the IIA does not apply to a worker’s claim for injury, he or she has three years from the time of injury to file a traditional personal injury claim against another party, usually the employer. RCW 4.16.080(2). French v. Uribe, Inc. 132 Wn.App. 1, 130 P.3d 370 (2006). A claim for deliberate acts of the employer must similarly be brought within three years. A discovery rule applies in Washington for standard tort claims. Under this “discovery rule,” cases in which a plaintiff injured by tort of another does not or cannot know that he or she has been injured at the time injury takes place, the cause of action accrues at the time plaintiff knew or in exercise of diligence should have known all of essential elements of cause of action. Samuelson v. Community College Dist. No. 2 (Grays Harbor College), 75 Wn.App. 340, 877 P.2d 734 (1994).

Special Rules for Death Claims

A claim must be filed within one year of the date of death due to accident or injury. RCW 51.32.040(2)(c).

Occupational Disease Death Claims

A claim is valid if it is filed within two years from the date of death of the worker suffering from an occupational disease. RCW 51.28.055(1).

Occupational Disease Claims

1. The IIA was amended in 1941 to include disease or infection that arises naturally and proximately out of the employment. RCW 51.08.140.
2. Examples of occupational disease are lead poisoning, exposure to toxic substance, etc.

An occupational disease claim can be supported by evidence that long-term repetitive activity caused an asymptomatic disease condition such as degenerative arthritis to become symptomatic and disabling. Dennis v DLI., 109 Wn.2d 467, 745 P.2d 1295. (1987).

Extension of Limitation Period

Extensions to the limitation period are rare. In Elliott v. DLI, 151 Wn.App. 442, 213 P.3d 44 (2009) the court held that it could not relax the one-year statute of limitations governing a claim for work-related personal injuries where the legislature has clearly expressed its intent to a “time of manifestation” or “discovery” rule only for occupational diseases, not for injuries.

However, extreme cases may occur where a limitation is waived: In Rabey v. DLI, et. al., 101 Wn.App. 390, 3 P.3d 217 (2000), a Superior court's exercise of its equitable power to permit a waiver of widow's late filing for survivor benefits was not an abuse of discretion where a widow was shocked and disoriented by employee's death, she asked employer's lead human resource manager to determine if she had a legitimate claim for benefits, the manager agreed to do so, and when the widow heard nothing from the manager, she was reasonably led to believe she had no claim. Moreover, the children were totally blameless and, through no mistake of their own, would have unfairly lost necessary support that was otherwise uncontested to be rightfully theirs.

COMPENSABILITY

General Rule

Each worker injured in the course of his or her employment, or his or her family or dependents in case of death of the worker, shall receive compensation…
RCW 51.32.010

An injury may have no effect at all on the worker's wage-earning capacity, yet the injury is fully compensable. See Kostida v. DLI, 139 Wn. 629, 634, 247 P. 1014 (1926)

“Injury”Defined

1. Elements of Industrial Injury - RCW 51.08.100
a. Sudden and tangible happening of a traumatic nature,
b. Producing a prompt or immediate result,
c. Occurring from outside the body
d. With such physical condition(s) as proximately caused by that event.

Types of Injuries

Accident Not Required

An injury is compensable under the IIA if it occurs in course of employment and there is a causal relationship between the injury and condition for which compensation is sought is established by sufficient medical testimony. Goyne v. Quincy-Columbia Basin Irr. Dist., 80 Wn.App. 676, 910 P.2d 1321 (1996). However, Washington courts reject a “repetitive trauma” theory of coverage under the IIA. For example, repetitive trauma that resulted from an employee loading and unloading trucks for many years and that allegedly produced back injury was not a “sudden and tangible happening” * * * “producing an immediate and prompt result” and, therefore, did not create a compensable employment injury. Garrett Freightlines, Inc. v. DLI, 45 Wn.App. 335, 725 P.2d 463 (1986) Compare Lehtinen v. Weyerhaeuser Co. 63 Wn.2d 456, 387 P.2d 760 (1963) (If medical testimony established, in terms of probability, a causal relationship between an employee's back condition and a jolting he endured in course of his employment through a malfunction of a machine, any resulting disability would constitute an industrial injury under the IIA).

Infectious Diseases

“Infection” is explicitly included in the definition of “occupational disease” that may be covered by the IIA. “‘Occupational disease’ means such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title.” RCW 51.08.140

Heart

In order for a heart attack to qualify as injury under the IIA, it must result from strain or exertion not ordinarily required of an employee in performance of his or her duties. Even though a particular job may be done infrequently, a heart attack which may result in course of doing a job is not an injury under the IIA when the particular task is not an unusual or unexpected part of an occupation. Chittenden v. DLI , 71 Wn.2d 899, 431 P.2d 622 (1967) Expert medical testimony is not necessary to prove the requisite intensity of the work activity, but such evidence is required to prove a causal connection between the activity and the physical condition. Louderback v. DLI, 14 Wn.App. 931, 547 P.2d 889. (1976). Compare Favor v. DLI, 53 Wn.2d 698, 336 P.2d 382 (1959) in which a coronary occlusion resulting from worrying over details incident to the worker’s job as a state agricultural inspector and regulatory officer did not meet the requirements of proximate cause under the IIA.

Psychological Injury

Mental conditions or mental disabilities caused by stress do not fall within the definition of occupational disease in RCW 51.08.140. A mental condition caused by stress can qualify as an industrial injury and fall under the IIA if the condition resulted from a sudden, tangible, and traumatic event that produced an immediate result. The event, whether emotional or physical, must also be of some notoriety, fixed as to time and place and susceptible of investigation. Rothwell v. Nine Mile Falls School Dist. 173 Wn.App. 812, 295 P.3d 328 (2013) In Rothwell, a school custodian's posttraumatic stress disorder (PTSD) was found to have resulted from a sudden, tangible, and traumatic event that produced an immediate result during the course of employment, specifically the custodian's cleaning of the scene of a suicide in a school.

Occupational Diseases

To establish an occupational disease, a workers' compensation claimant has to show her disorder arose both (1) “naturally” and (2) “proximately” out of her employment. Potter v. DLI, 172 Wn.App. 301, 289 P.3d 727 (2012). A disease is proximately caused by employment conditions, supporting a finding of “occupational disease,” when there is no intervening independent and sufficient cause for the disease, so that the disease would not have been contracted but for the condition existing in the employment. Raum v. City of Bellevue, 171 Wn.App. 124 (2012). Examples of occupational diseases are lead poisoning, exposure to toxic substance, noise-induced hearing loss, etc. Prolonged standing or movement on cement floors may cause an occupational disease in someone who may be predisposed to foot problems. Simpson Timber Co. v. Wentworth, 96 Wn.App. 731, 981 P.2d 878 (1999). Emotional injury sustained from watching a coworker fall to his death was not “occupational disease” such that an application for disability benefits was governed by two year limitations period. Elliott v. DLI, 151 Wn.App. 442, 213 P.3d 44 (2009).

A worker may also receive compensation for “lit-up” pre-existing conditions. The lighting-up theory provides that if a pre-existing dormant or latent condition is activated or “lighted up” by an industrial injury or occupational disease, the worker is entitled to benefits for the disability. McDonagh v. DLI., 68 Wn. App. 749, 845 P.2d 1030 (1993).

EXCLUSIONS AND DEFENSES

Course of Employment

In order to be eligible for compensation, RCW 51.08.013 requires that the injury occurred while the worker was acting within the “course of employment.” The IIA defines “acting in the course of employment” as: “the worker acting at his or her employer's direction or in the furtherance of his or her employer's business which shall include time spent going to and from work on the jobsite ... [and][i]t is not necessary that at the time an injury is sustained by a worker he or she is doing the work on which his or her compensation is based....” Fault is irrelevant to a determination of proximate cause of a work-related disability or death, on a claim for workers' compensation, and work relatedness is the only issue.  Department of Labor and Industries v. Shirley, 171 Wn.App. 870, 288 P.3d 390 (2012), rev. denied, 177 Wn.2d 1006, 300 P.3d 415.

Engaged in the Furtherance of Employer’s Business

In determining whether a worker's injury occurred within the course of employment, courts will consider whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer, or whether he was engaged at the time in the furtherance of the employer's interest.  Cochran Elec. Co. v. Mahoney129 Wn. App. 687, 121 P.3d 747, rev. denied 157 Wn.2d 1010, 139 P.3d 349 (2005). Lunch periods are covered if on the job site or away from the job site if on business under control of employer or at the request of owner. RCW 51.32.015, RCW 51.36.040.

Not in Furtherance of Employer’s Business

Deviation for personal, non-duty, or recreational reasons generally is not covered, unless: (i) the participation is during the employee's working hours, not including paid leave; (ii) the employee was paid monetary compensation by the employer to participate; or (iii) the employee was ordered or directed by the employer to participate or reasonably believed the employee was ordered or directed to participate. RCW 51.08.013. When the employee has a definite place and time of work, and time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the work day, and should be governed by the same rules and exceptions, when determining whether workers' compensation benefits are available to an employee who is injured while returning to work at end of his lunch period.  Boeing Co. v. Rooney, 102 Wn.App. 414, 10 P.3d 423 (2000); RCW 51.36.040.

Traveling Employees

A traveling employee is entitled to broader coverage than a non-traveling employee because a traveling employee is in a significantly different position of risk than a non-traveling employee; the non-traveling employee may satisfy his personal needs without leaving the comfort of home, but the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise.  Ball-Foster Glass Container Co. v. Giovanelli, 163 Wn.2d 133, 177 P.3d 692 (2008). Traveling employees entitled to workers' compensation for injury off employer's premises include those on temporary assignment at a fixed location.  Id. However, the traveling employee doctrine does not require coverage for every injury; a traveling employee may depart on a personal errand just like any other type of employee, thus losing the right to compensation benefits during such departures. Id.

Commuting

The general rule is that an employee commuting to and from work in his or her own vehicle is outside the course of employment, within the meaning of the IIA.  Orris v. Lingley 172 Wn.App. 61, 288 P.3d 1159 (2012), rev. denied 177 Wn.2d 1020, 304 P.3d 115. However, an employee driving an employer-furnished vehicle may be acting in the course of employment during his or her commute, within the meaning of the Industrial Insurance Act, but not if the vehicle is furnished solely for the employee's convenience and not incident to contract or in furtherance of the employer's business. Id.

No Fixed Place of Work Exception

Under the “traveling employee rule,” when employees are required by their employers to travel to distant jobsites, they are within the course of their employment throughout the trip, as element for entitlement to workers' compensation benefits, unless they are pursuing a distinctly personal activity. Ball-Foster Glass Container Co. v. Giovanelli, 128 Wn. App. 846, 117 P.3d 365 (2005) aff'd, 163 Wn. 2d 133, 177 P.3d 692 (2008); RCW 51.08.013, 51.32.015.

Transportation Included in Employment Exception

Under the “traveling employee rule,” when employees are required by their employers to travel to distant jobsites, they are within the course of their employment throughout the trip, as element for entitlement to workers' compensation benefits, unless they are pursuing a distinctly personal activity.  Ball-Foster Glass Container Co. v. Giovanelli 128 Wn.App. 846, 117 P.3d 365, rev. granted 156 Wn.2d 1024 (2005), 133 P.3d 473, affirmed 163 Wn.2d 133, 177 P.3d 692.

Special Missions, Assignments, or Circumstances Exception

When a worker engages in a special activity that is within the course of employment, and the activity is reasonably undertaken at the request or invitation of the employer, an injury of the worker while traveling to or from the place of the special activity is within the course of employment for purposes of workers compensation. Cochran Elec. Co. v. Mahoney, 129 Wn. App. 687, 690, 121 P.3d 747, 749 (2005), citing, Dimmig v. Workmen's Comp. Appeals Bd., 6 Cal.3d 860, 101 Cal.Rptr. 105, 495 P.2d 433, 439 (1972); Morris v. Dep't of Labor and Indus., 179 Wn. 423, 38 P.2d 395 (1934) (employee in the course of employment throughout special errand, even if errand temporarily interrupted for personal activity); Hilding v. Dep't of Labor and Indus., 162 Wn. 168, 298 P. 321 (1931) (injury during return trip from Idaho where employee traveled at the direction of employer, in furtherance of employer's business covered under the IIA). If the work performed is a “substantial part of the services for which the worker is employed” during a special errand, then coverage will extend in the event of injury. Belnap v. Boeing Co., 64 Wn. App. 212, 222, 823 P.2d 528, 534-35 (1992). The special errand exception should be distinguished from situations involving a simple mission off the premises to do some job for the employer. Although such missions are sometimes referred to in case law as “special errands,” they clearly are in the course of a worker's employment in their own right. 1 Larson, § 16.11 at 4–204., n. 8. See also RCW 51.32.015 and 51.36.040 (coverage is provided for workers who, by reason of employment, leave the jobsite under the direction, control or request of the employer).

Premises and Parking Lot Cases

The Industrial Insurance Act expressly excludes parking areas from the Act and disassociates them from the legislative definition of what constitutes a jobsite for purposes of workers' compensation.  Puget Sound Energy, Inc. v. Adamo, 113 Wn.App. 166, 52 P.3d 560 (2002). The parking area exception is not, however, an absolute bar to industrial insurance coverage. Puget Sound Energy, Inc. v. Adamo, 113 Wn. App. 166, 169, 52 P.3d 560, 562 (2002). The appropriate inquiry is whether the injury occurred while the employee was acting in the course of his employment. For example, if the parking lot is the actual work site of the employee, then coverage for injury would exist. Id. Employee is acting in course of employment when injured immediately prior to or after work while walking, with knowledge or at direction of employer, to or from employer-designated parking area on property not owned or controlled by employer, where the route is the only practical, proximate, and customarily-used one to and from the parking area and it contains hazards not commonly shared by general public and likely to produce injuries. Hamilton v. Department of Labor and Industries, 77 Wn.2d 355, 462 P.2d 917 (1969).

Related to Employment

For those workers engaged in a “dual purpose” (i.e., personal as well as business), coverage will be extended unless the work activity was merely incidental to the private deviation from employment. An employer will be held responsible for injuries caused by his employee's negligence while combining his own business with that of employer or attending to both at substantially same time, unless employee clearly could not have been directly or indirectly serving employer. McNew v. Puget Sound Pulp & Timber Co.,37 Wn. 2d 495, 224 P.2d 627 (1950).

Intentionally Self-Inflicted Injury or Death

If injury or death results to a worker from the deliberate intention of the worker himself or herself to produce such injury or death, or while the worker is engaged in the attempt to commit, or the commission of, a felony, neither the worker nor the widow, widower, child, or dependent of the worker shall receive any payment under this title. RCW 51.32.020.

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

Any worker or beneficiary receiving benefits under Title 51 who is subsequently confined in, or who subsequently becomes eligible for benefits under this title while confined in, any institution under conviction and sentence shall have all payments of the compensation canceled during the period of confinement. After discharge from the institution, payment of benefits due afterward shall be paid if the worker or beneficiary would otherwise be entitled to them. RCW 51.32.040.

Intoxication (including alcohol and substance abuse) removes an employee from the course of employment, within the meaning of the exclusive remedy provision of the Industrial Insurance Act, if the employee becomes so intoxicated that he has abandoned his employment.  See, Orris v. Lingley, 172 Wn.App. 61, 288 P.3d 1159, rev. denied 177 Wn.2d 1020, 304 P.3d 115 (2012). Determination of whether the level of intoxication is sufficient to evidence an abandonment of the employment includes consideration of the worker’s tolerance for alcohol, demeanor, behavior, and speech immediately prior to the injury. In re Michael Pate, Dec’d, BIIA Dec., 97 1977 (1999).

Employee’s Violation of Positive Orders of Employer

The non-cooperation statute deals with the situation after the worker has been granted eligibility for vocational services, allowing the Department to suspend or deny compensation if the worker refuses, obstructs, or does not cooperate with vocational rehabilitation evaluations or examinations. RCW 51.32.110.

Personal Animosity

An injured worker may pursue a civil tort claim against a third person, not a supervisor or co-worker, for personal injury and simultaneously pursue a claim for industrial injury or occupational disease under the IIA. RCW 51.24.030. The IIA does not preclude recovery for an injury resulting from the intentional assault by a co-employee incurred on the job and recovery also from the wrongdoer over and above the limits of the Act, subject to recoupment by the employer. Newby v. Gerry, 38 Wn. App. 812, 690 P.2d 603 (1984); RCW 51.04.010 et seq., 51.24.060.

A worker who has received compensation under Workers' Compensation Act may elect to bring action against any liable third party, or may assign his or her cause of action to Department of Labor and Industries, and if worker elects to bring action against third party, the Department is entitled to lien against such proceeds as may eventually be recovered.  Washington Ins. Guar. Ass'n v. Department of Labor and Industries 122 Wn.2d 527, 859 P.2d 592 (1993). An injured worker is not to be deprived of the right to compensation on any technical theory of “election of remedies”, since there is no analogy between remedies in civil actions and rights accorded under the IIA.  Otter v. Department of Labor and Industries, 11 Wn.2d 51, 118 P.2d 413 (1941).

Hostile Attacks

Title 51 does not specifically address the issue of hostile attacks. However, in general, fault is irrelevant to a determination of proximate cause of a work-related disability or death, on a claim for workers' compensation, and work relatedness is the only issue.  Department of Labor and Industries v. Shirley, 171 Wn.App. 870, 288 P.3d 390 (2012), rev. denied, 177 Wn.2d 1006, 300 P.3d 415. The guiding principle in construing provisions of the IIA is that it is remedial in nature and is to be liberally construed in order to achieve its purpose of providing compensation to all covered employees injured in their employment, with doubts resolved in favor of the worker. Id., RCW 51.04.010.

Retirement

General Rule

“The ultimate goal [of time loss compensation] is to provide temporary financial support until the injured worker is able to return to work.” Kaiser Aluminum & Chem. Corp. v. Overdorff, 57 Wn.App. 291, 296, 788 P.2d 8 (1990). Under workers' compensation statute, temporary disability benefits are not available to a voluntarily retired worker.   Weyerhaeuser Co. v. Farr 70 Wn.App. 759, 855 P.2d 711, recons. denied, rev denied 123 Wn.2d 1017, 871 P.2d 600 (1993).

Proof of Voluntary Retirement

A worker who is voluntarily retired is not eligible for time loss compensation. RCW 51.32.090(8). A worker not actively engaged in the work force due to retirement “lack[s] the requisite adverse economic impact, i.e., lost wages or income, to warrant the award of time loss benefits.” Kaiser Aluminum & Chem. Corp. v. Overdorff, 57 Wn.App. 291, 296, 788 P.2d 8 (1990). A worker is considered “voluntary retired” if: “[1][t]he worker is not receiving income, salary or wages from any gainful employment; and [2][t]he worker has provided no evidence to show a bonafide attempt to return to work after retirement.”WAC 296–14–100(1); Energy Nw. v. Hartje, 148 Wn. App. 454, 466, 199 P.3d 1043, 1049 (2009)(workers' compensation claimant voluntarily retired prior to the reopening of her claim based upon aggravation of her industrial injury, and thus the claimant was not entitled to time loss compensation, since her injury did not cause her failure to return to work force; claimant had been found prior to reopening to be capable of obtaining gainful employment, and claimant made no showing that she had made a bona fide attempt to return to workforce). A person who voluntarily withdraws from the work force and subsequently becomes totally disabled is not entitled to permanent total disability benefits under the workers' compensation statute.  Weyerhaeuser Co. v. Farr 70 Wash.App. 759, 855 P.2d 711, recons. denied, rev denied 123 Wn.2d 1017, 871 P.2d 600 (1993).

BENEFITS

Calculation of Average Weekly Wage

Calculation of a worker’s time loss rate can often be complicated. Under Title 51, the default method of time-loss compensation calculations are based on monthly wages. RCW 51.08.178 (1). In cases where the worker's wages are not fixed by the month, they shall be determined by multiplying the daily wage the worker was receiving at the time of the injury pursuant to the methods set forth in RCW 51.08.178 (1). Most employment patterns fit under subsection 1 of the statute. In order for a worker’s wage to be computed under subsection 2, the worker’s relationship to the employer of injury must be exclusively seasonal in nature, or the worker’s current employment or relationship to employment in general be essentially part-time or intermittent. If the worker has received a bonus within the twelve months immediately preceding the injury, the average monthly value of such bonus shall be included in determining the worker's monthly wages. RCW 51.08.178 (3). In cases where a wage has not been fixed or cannot be reasonably and fairly determined, the monthly wage shall be computed on the basis of the usual wage paid other employees engaged in like or similar occupations where the wages are fixed. RCW 51.08.178 (4).

Total Disability

Pursuant to RCW 51.08.160, “Permanent total disability” means loss of both legs, or arms, or one leg and one arm, total loss of eyesight, paralysis or other condition permanently incapacitating the worker from performing any work at any gainful occupation. See, Dowell v. Department of Labor and Industries 51 Wn.2d 428, 319 P.2d 843 (1957). The definition of permanent total disability supplied by case law involves both medical aspect, i.e., the physical impairment itself, and employability aspect, i.e., the impairment's effect on wage-earning capacity.   Young v. Department of Labor and Industries 81 Wn.App. 123, 913 P.2d 402, amended on denial of recons., rev. denied 130 Wn.2d 1009, 928 P.2d 414(1996). In determination of whether workers' compensation claimant is entitled to award of permanent total disability, evidence is examined to determine claimant's weaknesses, strengths, age, education, training, experience and loss of function, and effect of these factors on qualifying individual for employment generally available in labor market. Id.

Partial Disability

Pursuant to RCW 51.08.150, “Permanent partial disability” means the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any dislocation where ligaments were severed where repair is not complete, or any other injury known in surgery to be permanent partial disability. PPD and PTD both involve loss of working ability by a claimant due to an industrial injury or condition which is permanent, that is, the injury or condition which is fixed, lasting, stable, and not remediable; however, they differ insofar as they refer to the claimant's ability to engage in gainful employment in that, if the claimant cannot engage in any gainful employment, the permanent disability is total, but if the claimant can engage in some type of gainful employment on reasonably continuous basis notwithstanding the medical condition, permanent disability is partial.  Williams v. Virginia Mason Medical Center 75 Wn.App. 582, 880 P.2d 539 (1994). Before allowance can properly be made for permanent partial disability under the IIA, the condition of the injured worker must have reached a fixed state.  State ex rel. Stone v. Olinger 6 Wn.2d 643, 108 P.2d 630 (1940).

Impairment Rating

Permanent partial disability is any anatomic or functional abnormality or loss after maximum medical improvement (MMI) has been achieved. At MMI, the worker's condition is determined to be stable or non-progressive at the time the evaluation is made.

The Industrial Insurance Act requires that PPD be established primarily by objective physical or clinical findings establishing a loss of function. Mental health impairments are evaluated under WAC 296-20-330 and 296-20-340.

Under WAC 296-20-19020, specific disabilities are rated as follows: (1)(a) Impairment due to amputation, total loss of hearing, and total loss of vision are rated according toRCW 51.32.080; (b) Impairment for the loss of function of extremities, as well as partial loss of hearing or vision, is rated using a nationally recognized impairment rating guide unless otherwise precluded by department rule; (2) Unspecified disabilities are rated in accordance with WAC 296-20-200 through 296-20-660.

Vocational Rehabilitation

A primary goal of Title 51 is to enable the injured worker to become employable at gainful employment. RCW 51.32.095(1). To this end, the department or self-insurers shall utilize the services of individuals and organizations, public or private, whose experience, training, and interests in vocational rehabilitation and retraining qualify them to lend expert assistance to the supervisor of industrial insurance in such programs of vocational rehabilitation as may be reasonable to make the worker employable consistent with his or her physical and mental status. Id. The department has the discretion to order vocational rehabilitation services when it finds that vocational rehabilitation is “both necessary and likely to enable the injured worker to become employable at gainful employment.” RCW 51.32.095(1); Anderson v. Weyerhaeuser Co., 116 Wn. App. 149, 155, 64 P.3d 669, 672 (2003). A referral for an Ability to Work Assessment is used to determine if the worker should receive vocational rehabilitation plan development services. WAC 296-19A-065.

Return to Work with Loss of Earnings

RCW 51.32.090(3) provides for payment of a form of partial time loss benefits, commonly referred to as loss of earning power, for periods where a worker is able to work but the workers earning capacity is only partially restored. If a worker proves an inability to return to his or her job of injury, but returns to lighter work paying less than their wage of injury, the fact that the post-injury job pays less than the job of injury creates a rebuttable presumption that the worker has sustained a loss of earning power. In re Howard Dyer, BIIA Dec., 15, 763 (1962).

Earning Power Assessment

Loss of earning power is governed by the provisions of RCW 51.32.090(3). To prove entitlement to loss of earning power benefits a worker must present the following: (1) lay or expert testimony establishing pre-injury earning capacity; (2) expert testimony establishing post-injury earning capacity; (3) expert testimony establishing that a reduction, if any, in post-injury earning capacity is causally related to residuals of the industrial injury. In re Patricia Heitt, BIAA Dec., 87 1100. When the total disability is only temporary, the schedule of payments contained in RCW 51.32.060 (1) and (2) shall apply, so long as the total disability continues. RCW 51.32.090. Workers' compensation claimant's loss of earning power is to be measured by comparing earning capacity during aggravation period with earning capacity at date of claim closure, rather than at time of original injury, for purposes of determining entitlement to loss of earning power benefits.  Davis v. Bendix Corp. 82 Wn.App. 267, 917 P.2d 586 (1996), rev. denied 130 Wn.2d 1004, 925 P.2d 989. The loss of earning power must exceed five percent for the worker to be eligible for loss of earning power benefits.

Employer Job Offer

A claimant's right to temporary total disability benefits (TTD) terminates when the claimant's earning power, at any kind of work, is restored to that existing at the time of the occurrence of the injury, when the claimant's claim is closed, or when the claimant is able to earn a wage at any kind of reasonably continuous and generally available employment.  Hubbard v. Department of Labor & Industries of State of Washington, 140 Wn.2d 35, 992 P.2d 1002 (2000). Thus, the consequence of declining a legitimate job offer is that time loss compensation will end, usually as of the date the offer is declined. Medical benefits for the conditions caused by the industrial injury will continue. If an employer offers light-duty, it must strictly follow the requirements of RCW 51.32.090(4).

Vocational Expert

Assessment services are used by the department or self-insured employer to determine if a worker should receive vocational rehabilitation plan development services. Assessment services may include, but are not limited to, the following:(1) Documenting work restrictions; (2) Performing job analyses; (3) Evaluating the worker's ability to work at the job of injury; (4) Assessing transferable skills; (5) Conducting labor market surveys as defined in WAC 296-19A-140; (6) Evaluating the worker's ability to work at any other job; (7) Evaluating the worker's ability to benefit from plan development services, including vocational testing if appropriate; and (8) Assessing the worker's need for preferred worker status and when appropriate educating the worker on the preferred worker benefit. WAC -296-19A-065

Amputation or Loss of Use

Specified disabilities are listed in RCW 51.32.080(1)(a). An injured worker shall receive compensation for amputations and permanent partial disability as set forth under RCW 51.32.080(1)(a). Pursuant to RCW 51.36.020 (2), every worker whose injury results in the loss of one or more limbs or eyes shall be provided with proper artificial substitutes.

Disfigurement/Scarring

Unspecified disabilities are addressed in RCW 51.32.080. Compensation for any other permanent partial disability not involving amputation shall be in the proportion which the extent of such other disability, called unspecified disability, shall bear to the disabilities specified in subsection (1) of RCW 51.32.080, which most closely resembles and approximates in degree of disability such other disability, and compensation for any other unspecified permanent partial disability shall be in an amount as measured and compared to total bodily impairment. RCW 51.32.080 (3)(a). To reduce litigation and establish more certainty and uniformity in the rating of unspecified permanent partial disabilities, the department shall enact rules having the force of law classifying such disabilities in the proportion which the department shall determine such disabilities reasonably bear to total bodily impairment. Id. In enacting such rules, the department shall give consideration to, but need not necessarily adopt, any nationally recognized medical standards or guides for determining various bodily impairments. Id.

Loss of Sight

An injured worker shall receive compensation for loss of sight as set forth under RCW 51.32.080. Currently, Permanent Partial Disability Category Awards for Dates of Injury from July 1, 2013 through June 30, 2014 specifies compensation as follows: loss of one eye by enucleation $46,667.13; Loss of central visual acuity in one eye $38,889.36. Where worker receives injury to sightless eye and, as result, undergoes an enucleation, amount awarded will be difference between compensation fixed by schedule for loss of one eye by enucleation, and compensation fixed for loss of sight of one eye. Beyer v. Department of Labor and Industries 17 Wn.2d 29, 134 P.2d 948, Am. 17 Wn.2d 29, 137 P.2d 1016 (1943). Partial loss of visual acuity is rated as a percentage of complete loss of central visual acuity in each eye based on the AMA Guides designated by the department (currently the Fifth Edition).

Loss of Hearing

How benefits are awarded for hearing loss claims is ever-changing. The latest case law should be reviewed, including Harry v. Buse Timber & Sales, Inc. 166 Wn.2d 1, 201 P.3d 1011, corrected (2009). Noise-induced hearing loss is classified as an occupational disease and, as such, is subject to provision of Industrial Insurance Law addressing applicable date for determining appropriate rate of compensation for occupational diseases. Id.; RCW 51.08.140. Claims for hearing loss due to occupational noise exposure must be filed within two years of the date of the worker's last injurious exposure to occupational noise in employment covered under Title 51. RCW 51.28.055. Currently, Permanent Partial Disability Category Awards for Dates of Injury from July 1, 2013 through June 30, 2014 specifies compensation as follows: Complete loss of hearing in both ears $93,334.53; complete loss of hearing in one ear $15,555.63

Penalties

The Department is authorized to assess penalties for violations of the rules as provided by RCW 51.48 et seq. Pursuant to RCW 51.48.010, if a worker suffers an industrial injury or occupational disease prior to the employer securing payment, the employer may be liable for a penalty in the sum of 50 percent to 100 percent of the cost of such injury or disease. Further, any employer who has failed to secure payment of compensation for his or her workers covered under this title may also be liable to a maximum penalty in a sum of five hundred dollars or in a sum double the amount of premiums incurred prior to securing payment of compensation under Title 51, whichever is greater, for the benefit of the medical aid fund. A self-insured employer that unreasonably delays or refuses to pay benefits as they become due is liable for a penalty equal to $500 or 25 percent of the amount of the benefits, whichever is greater. RCW 51.48.017. Determination of what is unreasonable delay in payment of workers' compensation benefits, for purposes of late payment penalty, turns on whether employer possessed genuine doubt from legal or medical standpoint as to who was liable for benefits. Taylor v. Nalley's Fine Foods 119 Wn.App. 919, 83 P.3d 1018 (2004).

Interest

Under RCW 51.52.135, a worker who prevails in appealing a temporary total disability award is entitled to 12 percent interest on the unpaid portion of the award. The statute authorizes prejudgment interest only when the employer appeals and the worker prevails or only when the worker both appeals and prevails on a claim for temporary total disability. Shum v. Dep't of Labor & Indus. of State of Wash., 63 Wn. App. 405, 409, 819 P.2d 399, 401 (1991).

Costs

Under RCW 51.52.130, where a worker appeals a decision of the Board of Industrial Insurance Appeals, the worker is entitled to fees and costs if: (a) the Board's decision is “reversed or modified” and (b) “the accident fund or medical aid fund is affected by the litigation.” Tobin v. Dep't of Labor & Indus.,169 Wn. 2d 396, 406, 239 P.3d 544, 549 (2010); see also, Pearson v. State Dept. of Labor and Industries 164 Wn.App. 426, 262 P.3d 837, as modified (2011) (award of fees and costs in a workers' compensation proceeding requires both that the injured worker requesting fees prevail in the action and that the accident fund or medical aid fund be affected).

Counsel Fees

Attorney’s fees paid to claimant’s attorneys are regulated by statute. RCW 51.52.120; RCW 51.52.130. The purpose of the statute is to provide for fixing of attorney's fees for an attorney representing a worker or beneficiary, to prevent charging of unreasonable fees, and not to assess those fees against department except in those cases where board is in error and accident fund is affected. See, Harbor Plywood Corp. v. Department of Labor and Industries of State of Wash., 48 Wn.2d 553, 295 P.2d 310 (1956). An attorney engaged in the representation of any worker or beneficiary shall charge a reasonable fee of not more than thirty percent of the increase in the award secured by the attorney's services. RCW 51.52.120. When calculating an attorney fees award for a workers' compensation claimant who succeeds on appeal before the superior or appellate court, courts may consider subjective factors such as: the level of skill required by the litigation, the attorney's reputation, the fee customarily charged for such services, the time and labor customarily required, duplicative efforts, and time limitations imposed on the litigation.  Brand v. Department of Labor and Industries of State of Wash. 139 Wn.2d 659, 989 P.2d 1111 (1999), amended on denial of reconsideration, as amended.

Death Benefits

Widow/Widower

A surviving spouse of a deceased worker eligible for benefits under the IIA shall receive monthly benefits for life or until remarriage payments according to the schedule set forth in RCW 51.32.050. A spouse of an injured worker, living separate and apart in a state of abandonment, regardless of the party responsible therefor, for more than one year at the time of the injury or subsequently, shall not be a beneficiary. RCW 51.08.020. A spouse who has lived separate and apart from the other spouse for the period of two years and who has not, during that time, received, or attempted by process of law to collect, funds for maintenance, shall be deemed living in a state of abandonment. Id.

Death Benefits/Children

Children under the IIA includes every natural born child, posthumous child, stepchild, child legally adopted prior to the injury, child born after the injury where conception occurred prior to the injury, and dependent child in the legal custody and control of the worker, all while under the age of eighteen years, or under the age of twenty-three years while permanently enrolled at a full time course in an accredited school, and over the age of eighteen years if the child is a dependent as a result of a physical, mental, or sensory handicap. RCW 51.08.030.

Death Benefits/Parents and Siblings

A parent of a minor may be entitled to an allowance. Op.Atty.Gen. 1911-12, p. 183. A dependent parent or parents also may be entitled to benefits. RCW 51.32.050(2)(e). It is not clear whether siblings would be entitled to death benefits as Title 51 does not specifically address the subject.

Death Benefits/Amounts of Benefits

Individuals entitled to death benefits under the IIA shall receive payments according to the schedule set forth in RCW 51.32.050. A minimum benefit is provided regardless of the employee's earnings and a burial allowance is available. In a case of death or permanent total disability, the monthly payment provided may be converted, in whole or in part, into a lump sum payment. RCW 51.32.130.

Medical Benefits

Under RCW 51.36.010, upon the occurrence of any injury, a worker is entitled to receive “proper and necessary” treatment for accepted conditions from a physician of the worker’s choice. RCW 51.36.010 (2)(a). Medical services that are diagnostic, curative, or rehabilitative in nature are proper and necessary medical treatment. WAC 296-20-010(8); WAC 296-20-01002. Controversial and experimental treatment may be covered under certain circumstances. WAC 296-20-01002; WAC 296-20-02850; WAC 296-20-030047; In re Susan Pleas, BIIA Dec., 96 7931 (1998).

Under WAC 296-20-01002: “The department or self-insurer stops payment for health care services once a worker reaches a state of maximum medical improvement. Maximum medical improvement occurs when no fundamental or marked change in an accepted condition can be expected, with or without treatment. Maximum medical improvement may be present though there may be fluctuations in levels of pain and function. A worker's condition may have reached maximum medical improvement though it might be expected to improve or deteriorate with the passage of time. Once a worker's condition has reached maximum medical improvement, treatment that results only in temporary or transient changes is not proper and necessary. “Maximum medical improvement” is equivalent to “fixed and stable.””

In order for a workers' compensation claimant to succeed on appellate review of trial court's finding that her unauthorized surgery did not constitute “proper and necessary” medical procedure, and, thus, was not subject to reimbursement, claimant must demonstrate that, in hindsight, the procedure was objectively curative or rehabilitative. Rogers v. Department of Labor and Industries151 Wn.App. 174, 210 P.3d 355, rev. denied 167 Wn.2d 1015, 220 P.3d 209 (2009).

Refusal of Medical Treatment

The non-cooperation statute RCW 51.32.110 deals with the situation after the worker has been granted eligibility for vocational services, allowing the Department to suspend or deny compensation if the worker refuses, obstructs, or does not cooperate with vocational rehabilitation evaluations or examinations. Anderson v. Weyerhaeuser Co., 116 Wn. App. 149, 157, 64 P.3d 669, 673 (2003). The burden of justifying a refusal to appear for a scheduled medical examination is on the worker. Andersen v. Depart.of Labor & Indus. 93 Wn.App. 60, 967 P.2d 11 (1998).

SUBROGATION OR CREDIT

General Rule

Because the Washington employment compensation system is a self-contained unit, subrogation issues are generally only triggered in situations involving a third-party tortfeasor. In these situations, the recipient of benefits must either 1) pursue a claim against the third party, or 2) assign the claim over to the self-insurer or Department to pursue. RCW 51.24.050.

The recovery will be distributed and/or subrogated as follows:
    (a) First, the Department/self-insurer and/or the worker is entitled to reimbursement for costs and reasonable fees. This is allocated proportionally to the resources expended by the parties in pursuing the claim against the third party. (E.g., if the worker assigned his claim and expended no resources in pursuit of the claim, he would be entitled to no reimbursement to costs and fees).
    (b) Next, the worker or beneficiary is entitled to 25% of the remaining sum. However, the worker may settle for an amount less that 25% of this sum.
    (c) Next, the Department/self-insurer is entitled to full reimbursement for compensation and benefits already paid.
    (d) Finally, the worker or beneficiary is entitled to any remaining award. However, the Department/self-insurer is entitled to a set-off of future payments by the amount of this remaining award. (E.g., if there was a remaining award of $10,000.00, and the worker was entitled to $1000.00 worth of benefits a month, then the Department would not be obligated to pay the next ten months’ worth of benefits. Once ten months has past, the Department’s obligation provide benefits would resume.)
RCW 51.24.050(4); 51.24.060(1).

Additionally, if an appeal occurred, once section (a) is calculated and distributed, the worker is entitled to 12 percent interest on any unpaid benefits to the worker/beneficiary. RCW 51.52.135.

Note that any damages awarded in a claim against a third party for loss of consortium will not be subject to the above allocation. Hi-Way Fuel Co. v. Estate of Allyn 128 Wn. App. 351, 358, 115 P.3d 1031 (2005).

Workers or beneficiaries cannot avoid reimbursement to the Department or a self-insure under the equitable doctrines of “common fund” or “windfall profit” because the right to reimbursement is based in statute. Rhoad v. McLean Trucking Co., Inc. 102 Wn.2d 422, 427, 686 P. 2d 483 (2002). Similarly, a lien may be placed on an entire recovery if the underlying tort litigators fail to differentiate general damages from special damages; but see Paulsen v. Dep't of Soc. & Health Servs., 78 Wn. App. 665, 672, 898 P.2d 353, 356 (Div. 1, 1995).

Attorney’s Fee

Reasonable attorney’s fees various by the stage of the litigation process. For claim-level management and disputes with the Department, attorney’s fees may not exceed thirty percent of the increased value in benefits secured by the attorney. RCW 51.52.120. Attorney’s fees during the BIIA appeal process are set by the BIIA. Id.

Attorney’s fees during superior-court level appeals are set by the superior court. These may vary by county and one would need to consult the local rules. Furthermore, the Court may set them on a case by case basis. RCW 51.52.130. The size of the worker’s increased benefit need not be part of the fee analysis. Brand v. Dep't of Labor & Indus. of State of Wash., 139 Wn. 2d 659, 671, 989 P.2d 1111, 1116 (1999). Furthermore, the lodestar method of fee calculation is appropriate at the superior court level. Id.

Charging more than the reasonable fees set by the Board or Court pursuant to RCW 51.25.120 and 51.25.130 is a criminal misdemeanor. RCW 51.25.132.

Motor Vehicle Accidents

Motor vehicle accidents which occur while a worker is on duty are treated as any other claims involving third parties as detailed above. However, the Department/self-insurer is not entitled to reimbursement of UIM benefits. Any UIM benefits received would not be distributed as detailed above. Dept. of Labor & Indus. V. Cobb 59 Wn. App. 360, 797 P. 2d 536, rev. denied, 116 Wn.2d 1031, 813 P. 2d 582 (1990); but see Frost v. Depart. of Labor and Indus. 90 Wn. App. 627, 954 P.2d 1340 (1998), recons. denied, rev. denied, 137 Wn.2d 1001, 972 P.2d 464.

LITIGATION AND APPEAL

The Players

Worker/Beneficiary

The worker who was injured within the scope of his employ and/or anyone entitled to benefits pursuant to pension or loss of support laws.

The Self-Insured Employer

An employer who was able to demonstrate their ability to pay claims by an employee pursuant to RCW Chapter 51.14. The Responsibilities and duties of a Self-Insured Employer include:
    - Development and maintenance of an internal or third party administrative organization to manage the self-insurers workers compensation program
    - Maintenance of records, including of compensation and benefit payments
    - Provision of copies of claim file to the worker
    - Self-reporting to the Department in cases of protest and/or appeal.
Note that a Self-Insured Employer who unreasonably delays in paying benefits may be subject to penalties. RCW 51.87.017. The Department still monitors Self-Insured Employers.

The Employer

Every employer (with very limited exceptions detailed in RCW 51.12.020) must participate in the industrial insurance program administered by the Department. Employers who fail to secure workers compensation coverage by paying into the Fund (and do not qualify as self-insured) shall be liable for penalties. The penalties are described above in Section 6.8.

The Department

The Department is the Washington State Department of Labor and Industries. It is a division of the state executive government. Issues related to workers compensation are run through the Department’s Division of Industrial Insurance. It is responsible for managing the state worker’s compensation system, enforcing the Washington Industrial Safety and Health Act (WISHA) and providing health and safety consultations and information.

The State Fund

An insurance pool funded by the premiums paid by employers and employees. Premiums are paid into the fund quarterly by Employers who are not self-insured. Premiums are allocated by class of Employers. Classes are determined by the degree of hazards which their employees face. Three are three premiums each Employer pays:
    - Industrial Insurance (meant to fund lost time, disability, and death benefits)
    - Medical Aid
    - Supplemental Pension.
Over 70% of workers are covered by the State Fund (as compared to Self-Insured Employers).

Attorney General

As a state agency, the Department is represented by the Washington State Attorney General is when appeals are filed.

The Board of Industrial Insurance Appeals

The Board is a separate agency from the Department, and is only given access to Department files in limited cases. The agency is directed by a three person board. The Chairperson, who must be an attorney, represents the public. A second member represents workers. The third represents employers. The Board reviews, holds hearings on, and rules on appeals from Department Orders. These reviews, hearings, and rulings and performed by a host of judges and attorneys who are appointed by the Board. Standards for Industrial Appeal Judges can be found at WAC 263-12-045. The Board is limited to an appellate capacity. It does not have inherent equitable power and therefore only may apply established by case law. In re Seth Jackson, BIIA Dec. 61,088 (1981). Furthermore, the Board only has authority to make determinations within the scope fixed by the Department Order and the issues raised by the notice of appeal. While the Board has some of its own rules the Rules of Superior Court apply in all areas not covered by the Board rules.

The Superior Court

Appeals from the BIIA access the civil court system at the Superior Court level.

The Process

Request for Appeal

Appeals and litigation occur when a party is unhappy with a Department Order (DO). If a party seeks an appeal, it must file a Notice of Appeal with the Board. A denial of a of an appeal is directly appealable in Superior Court. If the Notice of Appeal is granted, an appeal will proceed before the Board. A Notice of Appeal must be filed within 60 days of communication of DO, so long as the order complies with RCW 51.52.050. Note that appeals of non-worker’s compensation related orders may have different timing requirements. There are very specific filing and communication requirements detailed in WAC 263-12-01501(a).

If a petition for an appeal is received by the Board, the Department has 20 days to “reassume” the claim. RCW 51.52.060(4). This provides an opportunity for the Board to reconsider its DO. If the Department reassumes jurisdiction, then the Notice of Appeal will be denied. If the Department does not reassume, it is obligated to return its record to the Board for appeal processing.

The Board has 30 days from the date the request for an appeal has been filed to determine what to do with it. They Board may unilaterally extend this period an additional 30 days if necessary. If no action is taken by the deadline, the appeal is granted by default. RCW 51.52.090.

Appeal

If an appeal is granted, an interested party has 20 days from receipt of the notice of appeal to file a cross-appeal.

If an employer appeals and the appeal is granted, the benefits will continue pending the outcome of the appeal. The employer may file a Motion to Stay Benefits to avoid this. It must be filed within 15 days of the order granting the appeal.

Appeals before the Board are governed by RCW Chapter 51.52. Procedure is dictated by WAC Chapter 263. However, the Superior Court Civil Rules, Rules of Evidence, and Rules of Professional Conduct also govern the proceedings. RCW 51.52.020; 51.52.140; and WAC 263-12-125. Where there is a conflict between the rules and RCW 51.52, the latter governs. Similarly, WAC 263-12 governs in conflicts between it and the rules. The proceedings are substantively governed by case law and by “Significant Decisions”. These are available through the Board’s website.

Notice of Appearance

This shall be filed in compliance with WAC 263-12-020. Withdrawals and substitutions are governed by CR 71.

Interpreters

These are governed by WAC 263-12-097.

Mediation

Once an appeal has been filed the case is usually sent to a Mediation Judge first before hearing time is scheduled. The purpose of mediation is to assist the parties in resolving the appeal. Mediation Judges will also be the judge who reviewed the case to determine whether the appeal was appropriate. Mediation in this context is much like that in traditional litigation: the judges will focus the parties on narrowing the issues and exploring settlement options. Mediation may occur in person by phone. If Mediation is unsuccessful, the Mediation Judge will forward the file to a Hearing Judge. It is possible that the Mediation Judge will still attempt to broker a settlement even after formal proceedings have been initiated.

Agreed Exams

These are “binding” alternative means for dispute resolution. Typically, the evaluator is mutually selected by the parties. The examination will be paid for by the Board. However, if the Claimant fails to attend, he will need to pay a “no-show” fee. The examiner will issue a medical and/or vocation report. The judge will then review this usually will issue an Order on Agreement of the Parties. It cannot be appealed and is a final Board order. In rarer circumstances the judge may issue a Proposed Decision and Order. RCW 51.52.020, WAC 263-12-093.

Conferences

These are status conference to monitor the progression of discovery, etc. They are governed by WAC 263-12-090 and -095. CR 16 also applies. Most conferences will result in the issuance of a Litigation Order. Failure to comply with the same could result in sanctions.

Depositions

Depositions are permitted for perpetuation of testimony. WAC 263-12-117.

Hearings

These are the equivalent of a trial before the Board’s judge. Procedures are governed by WAC 263-12-115, as well as the Civil Rules and Rules of Evidence. The appealing party has the “burden of going forward.” Workers who appeal also have the “burden of proof”. Employers who appeal need merely produce evidence sufficient to withstand a motion to dismiss. Upon doing so, the burden then shifts to the worker and the Department to establish the correctness of the DO by a preponderance of the evidence. Bifurcation to accommodate the locations of parties and witnesses and the intake of evidence are common. RCW 51.52.100.

Objections

Objections must be made to preserve issues on appeal. Keep in mind that if a case is appealed to Superior Court, the record is read aloud. Thus, objections made will be repeated in Superior Court. Usually they are ruled on by the judge prior to reading the record so the reading proceeds smoothly.

Order

The judge will issue a Proposed Order and Decision(PD & O) pursuant to RCW 51.52.104 and WAC 263-12-140 and -150. It must be issued within 60 days of the judges received of all transcripts from any hearings. Typically, a Proposed Order will be issued earlier. The Proposed Order will become final and un-appealable by operation of law unless a PFR is filed. WAC 263-12-150.

Petition for Review

A party aggrieved by the Proposed Order and Decision may file a Petition for Review (PFR). WAC 263-12-145. It must be filed within 20 days. Additional time may be requested from the Executive Secretary of the Board. The scope of the review will extend to all contested issues of law and fact, not solely the issue which triggered the party’s petition. In re Richard Sims, BIIA Dec. 85 1748 (1986).

A Review Judge will review the record and determine whether to grant or deny the review, and make a recommendation regarding the same. The Board members will then vote on whether to grant or deny review. If the Board issues an Order Denying Petition for Review, the order is final and appealable to the Superior Court.

If an Order Granting Petition for Review is issued, parties may respond by filing a Reply to Petition for Review within 10 days of receipt of the Order granting review. If the Board issues an Order Granting Petition for Review, it has 180 days to review the case and issue a final Board Decision and Order. RCW 51.52.106; WAC 263-12-155. The final decision is appealable to Superior Court.

Order on Agreement of the Parties (OAP)

This is a stipulated order by way of resolution by the parties. It may be entered at any time during the Board appeal process prior to the issuance of a final Order by the Board. WAC 263-12-093. It must be reviewed and approved by the Board, and must conform to the facts and the law.

Order Dismissing the Appeal

This may be filed as a matter of right by the appealing party. When filed, the DO stands as final.

Interlocutory Appeals to the Board

These are governed by 263-12-115. This is a mechanism to gain review of an adverse ruling by the Chief Industrial Appeals Judge.

Superior Court Appeal

Appeal to Superior Court is governed by RCW 51.52.110. The appeal to Superior Court must be filed within 30 days of communication of a Decision and Order or Order Denying Petition for Review. The appealing party has an additional 30 days to perfect the appeal. Perfection is completed upon filing of the appeal and service upon the Director of the Department, the Board, and (if applicable) the Self-Insured Employer.

Appeals to Superior Court must be filed in the Superior Court for the county in which the injured worker 1) resides or 2)was injured.

CABR: The Certified Appeal Board Record is created by the Board and forwarded to the Superior Court. It consists of:
        - Department Order
        - Notice of Appeal
        - Notices of Appearance
        - Responsive Pleadings
        - Written motions and responses
        - Stipulations
        - Depositions
        - Transcripts and Exhibits
        - Proposed Decision and Order
        - Petition for Review
        - Board Decision and Order/Order Denying Petition for Review
The CABR will be the entirety of evidence admissible at Superior Court. No external evidence will be permitted.

Appeal to the Superior Court does not operate as a stay. RCW 51.52.110. Any directives contained in the final Board order must be followed while the appeal is pending. A motion for stay may be filed. Lee v. Jacobs, 81 Wn.2d 937, 939, 506 P.2d 308 (1973).

The Superior Court (and a jury, if demanded), reviews these issues de novo.

Appeals beyond the Superior Court operate under traditional rules of litigation.

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