October 8, 2014
by Sarah Ewing

Two favorable decisions from the Washington Court of Appeals.

sarah ewingBy:  Sarah Ewing

Two recent published cases from the Court of Appeals both are favorable to employers.

Mario Arriaga v. Department of Labor and Industries – (Division III) – At issue in this case is whether the attending physician’s protest of a segregation Order was timely.  In December 2005, Arriaga injured his right upper arm, face, and scalp at work.  The Department issued and mailed an Order segregating cervical disc degenerative condition on October 29, 2008 to claimant and claimant’s attending physician, Dr. Sherfey.  Dr. Sherfey’s office received a copy of the Order on October 31, 2008, but was not aware of the Order until 2010.  

A closing Order issued in November 2010.  Claimant’s counsel contacted Dr. Sherfey about the closing Order and pointed out the segregation Order.  Dr. Sherfey protested the October 29, 2008 Order on claimant’s behalf.  The Department affirmed the Order and determined Dr. Sherfey’s protest was untimely.  Claimant appealed.  The Board and Superior Court both dismissed his appeal as untimely because a protest was not filed within 60 days of its receipt.  

Claimant argued, that although Dr. Sherfey’s office received the Order on October 31, 2008, it was not “communicated” to him due to a breakdown in his own clinic’s mail handling procedures.  The Order was placed in claimant’s file without Dr. Sherfey’s review.  The Court disagreed. 

The Court found the Order was “communicated” to Dr. Sherfey when it was correctly addressed and delivered to his office.  Actual knowledge of the Order is not required to start the appeal period and does not toll the appeal period.  The Court declined to follow the Board’s significant decision, In re:  Dorena R. Hirschman, BIIA 09 17130 (2010), stating it conflicted with two Court of Appeals cases, which look at whether the mailing was correctly addressed and delivered. 

Tip:  Make sure there is a system in place to timely track an Order’s appeal date.  As the Court noted, “[t]he breakdown of office procedures or secretarial error, which results in claimant’s failure to file a timely petition for review, cannot be considered excusable neglect.

Yuchasz v. Department of Labor and Industries – (Division I) – Yuchasz, an electrician, was injured on the job.  At issue was the calculation of his loss of earning power benefits.  Yuchasz drove a company van, and the employer covered the cost of gasoline.  He kept the van at his home, though the employer did not allow it to be used for personal use.  Yuchasz returned to work in a light duty position and the van was assigned to a full-time electrician.  During this time, Yuchasz drove his personal vehicle to and from work and drove it to job sites.  The employer reimbursed the cost of travel, including gasoline for travel between jobsites, but not for travel to and from work.

Yuchasz argued the value of gasoline the employer paid for use of the company van at the time of injury should be included in the loss of earning power wage calculation.  And, that RCW 51.08.178(1) explicitly lists “fuel” to be included in the calculation of compensation payments.  The Department denied Yuchasz’s request, but the IAJ reversed the Department.  The BIIA agreed with the Department and reversed the IAJ’s Proposed Decision and Order and the Superior Court sided with the BIIA.

Relying on Cockle v. Department of Labor & Industries, the Court of Appeals held the “value of gasoline” was not a fringe benefit “critical to protecting” a worker’s “basic health and survival” and thus, not included in LEP benefit calculations.  Also, the Court pointed out that “fuel” under RCW 51.08.178(1) means heating fuel because heat is critical to a worker’s basic health and survival, not fuel for an automobile.  

Tip:  Be sure to include fringe benefits when calculating Loss of Earning Power benefits and time loss benefits.  If claimant contends a “new” fringe benefit, contact your legal counsel to discuss whether it is a benefit that is critical to protecting a worker’s “basis health and survival.”

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