What Constitutes a Protest in Washington?
Any party aggrieved by a Department order may submit a protest within 60 days of the order being communicated to them. In accordance with WAC 296-15-480, a self-insurer must submit a written protest from the worker to the Department within five working days of receipt.
A protest need not take any particular form, and no “magic” words are required. A protest does not need to be labeled a “Protest” or “Request for Reconsideration,” identify any specific order by date, or expressly state that an order is being protested. As such, it can be difficult to determine whether a communication should be considered a protest.
According to the Washington Court of Appeals, a communication constitutes a protest if it reasonably puts the Department or self-insured employer on notice that the worker is taking issue with some decision. Boyd v. City of Olympia, 1 Wash. App. 2d 17, 403 P.3d 956, 963–64 (2017).
The Board of Industrial Insurance Appeals recently issued a Decision and Order providing additional guidance regarding communications that do not constitute a protest. In In re Lisa M. Fulsang Mathews, claimant appealed a June 12, 2024 order in which the Department held that it could not reconsider its May 4, 2023 order finding the Department is not responsible for the condition of left knee osteoarthritis. In re Lisa M. Fulsang Mathews, Dckt. Nos. 24 15210, 24 15212, 24 15213, 24 15214 & 24 16819 (April 7, 2026). Claimant asserted that a Report of Accident filed under a separate claim on May 5, 2023 constituted a timely protest of the May 4, 2023 order as it plainly expressed disagreement with the Department’s decision to segregate left knee osteoarthritis.
The Board ultimately affirmed the June 12, 2024 order, finding claimant did not timely protest the May 4, 2023 order. The primary issue the Board identified with claimant’s argument was that the Report of Accident described a completely separate and distinct injury involving the left knee. Moreover, the diagnosis identified in the report was a left medial meniscus tear, not left knee osteoarthritis. The Board found that while there are no strict requirements regarding the form of a “protest” or “request for reconsideration,” the Report of Accident was not sufficient to put the Department on notice that claimant disagreed with the May 4, 2023 order.
If you have any questions regarding whether a communication constitutes a protest, feel free to contact me at 503-595-6114.
Posted by Elizabeth Aaberg.
