Representing the Injured or Disabled Member Part 40: Challenging Workers Compensation Decisions Made by Labor and Industries

By: Jim Cline and Erica Shelley Nelson

Representing the Injured or Disabled member

Part 40: Challenging Workers Compensation Decisions Made by Labor & Industries

This article is the 40th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them.  For some time now and continuing for the next several weeks, we are publishing, in various segments, a book information on how state and federal laws protect your members who are hurt or otherwise unable to work. Topics covered include disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.

The subjects of these “Parts” articles that have been and will be posted here are covered in much more detail in our book titled: HELPING THE INJURED OR DISABLED MEMBER: A GUIDEBOOK FOR THE WASHINGTON LAW ENFORCEMENT AND FIRE UNION REPRESENTATIVE. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights.  Expect to hear more on that in the months ahead.

The 40th article in these newsletter series provides a discussion how to challenge decisions made by L & I. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook  and other information on the laws covering your members.

Decisions by the Department or self-insured employer relating to the adjudication of worker’s compensation claims must be communicated in writing to the injured worker.[1]  Frequently these decisions are labeled “Order and Notice” or “Notice of Decision.”  Specific language is required by statute in these decisions.[2] Most importantly, the order must communicate the fact that the “order, decision or award” becomes final within “sixty days from the date the order is communicated to the parties.”

Consequently, if the injured worker disagrees with the order, decision, or award, the worker has 60 days to file a “written request for reconsideration” with the Department or an appeal with the Board of Industrial Appeals (BIAA).[3]  The BIAA will extend the time for filing one day if the 60th day falls on a weekend, or state holiday.[4] A request for reconsideration, or protest, must be in writing, but otherwise there are no specific requirements.  An identification of the order at issue and a brief statement indicating what Department decision is being challenged or objected to will suffice.[5]  Instead of filing a protest, the injured worker may also file an appeal with the BIAA.  The Industrial Insurance Notice of Appeal form can be printed, completed, and delivered by mail, fax, or in person.  The form can also be submitted online.[6]  Upon receiving a protest or notice of appeal, the Department or self-insured employer may modify, reverse, or change any order, decision, or award, or hold the order, decision or award in abeyance for “a period of ninety days,” which may be extended by the Department for “good cause.”[7]

If the Department or self-insured employer does not modify or reverse the decision, then the appeal will progress through the administrative adjudicative process.  At this point, if the injured member does not already have an attorney to represent their interests, the member should hire an attorney.  While administrative hearings are slightly less formal than a civil or criminal trial, they have many similarities.  An industrial appeals judge (IAJ) presides over the appeal hearing, and there are specific procedural and evidentiary rules that apply.  Having an attorney who understands the process and the legal issues is essential to success on appeal.

As far as the process on appeal is concerned, ordinarily, the BIIA will issue an “Order Granting Appeal” once it determines that it has jurisdiction over the matter.  Once BIIA consents to jurisdiction, the parties (the injured worker and the Department and/or self-insured employer) will be contacted by a mediation judge to select a mediation conference date.  At that stage, the parties or their legal counsel may discuss resolution prior to the conference.  Prior to an adjudicative hearing, the parties may enter into an Order on Agreement of the Parties, which is essentially a settlement agreement to resolve the appeal.[8]

If there is an issue about a PPD rating, for example, the parties can also agree to a binding medical examination with a mutually agreed upon medical provider.  While this is an option, it also places a lot of power and control in the hands of a physician who may or may not rule in favor the injured worker.  As a result, binding examinations should not be utilized as a matter of course, but only when the provider selected is truly neutral and fair.

If the appeal is not resolved through mediation, an IAJ is assigned and a hearing will be scheduled.  An initial pre-hearing conference will be held typically by telephone to discuss location and scheduling of the hearing, and deadlines related to discovery, witness confirmation, and depositions.

Often, medical providers are crucial witnesses in an injured member’s case on appeal. However, medical providers are very busy, and may charge costly expert fees for their testimony.  Fortunately, the BIIA permits witnesses to testify by “perpetuation deposition.”  Perpetuation depositions are testimonial and akin to providing live testimony at hearing.

While the course and scope of the hearing will be determined by legal counsel, it will likely include testimony from the injured member, family and friends of the injured member, medical providers, and/or a VRC.  The Department or the employer will also have the opportunity to present their own witnesses, which may include medical experts, claims managers, a VRC, and coworkers or supervisors of the injured member. There is no perfect recipe for who will testify at hearing and ultimately that decision is up to the injured member’s attorney, depending the facts of the particular case.

Once the hearing has concluded, the IAJ will issue a “Proposed Decision and Order.”[9]  If either party disagrees with the Decision and Order, they may file a Petition for Review (PFR) within 20-days of receipt of the Decision and Order to the BIIA.[10]  The PFR is essentially a legal brief challenging the Decision and Order.  If review is granted, the BIIA has 180 days from the date the PFR is filed to issue a final Decision and Order.[11]

If either party disagrees with the BIIA’s final Decision and Order, or the BIIA denies the PFR, then the challenging party may appeal to Superior Court.  If successful in Superior Court, the injured member’s attorney may be entitled to attorney’s fees and costs.[12]  Similar to any civil court case, a final decision and order of the BIAA can be appealed from the Superior Court, to the Washington State Court of Appeals, and even to the Washington State Supreme Court.

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[1] See Rodriguez v. Department of Labor & Indus., 85 Wn.2d 949, 540 P.2d 1359 (1975).
[2] See RCW 51.52.050.
[3] Id., and see also RCW 51.52.060.
[4] WAC 263-12-175.
[5] RCW 51.52.050.
[6] RCW 51.52.050-070, and WAC 263-12-10501.  See also sample BIIA Notice of Appeal, attached as Appendix ___.
[7] RCW 51.52.060.
[8] WAC 263-12-093.
[9] RCW 51.52.104, WAC 263-12-140, and WAC 263-12-150.
[10] WAC 263-12-145.
[11] WAC 263-12-145(4).
[12] RCW 51.52.130.

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