Is that Docket Properly before the Board? Recent Board of Industrial Insurance Appeals Actions Caution Washington Employers to Double Check the Appealed Department of Labor & Industries’ Order
Washington’s Board of Industrial Insurance Appeals has long been deemed one of limited jurisdiction – the Board cannot act if it does not have the proper authority do so. The Board does not have the statutory authority to consider matters not first determined by the Department of Labor & Industries. To do so would “usurp the prerogatives of the Department,” the agency the legislature gave broad authority to decide claims for workers’ compensation. RCW 51.04.020; Lenk v. Dep’t of Labor & Indus., 3 Wn. App. 977, 982, 478 P.2d 761 (1970). Due to this limited jurisdiction that the Board takes great pains to confirm it has the authority to hear the appeals workers, employers, and the Department bring before it.
It is against this backdrop that recent Board activities should cause Washington employers and other parties seeking the Board’s review to confirm it has authority to act. Failing to do so could result in thousands of dollars spent litigating an order the Board later determines it does not have authority to decide and dismisses the appeal without a decision on the merits. This is because in recent weeks, the Board has been more stringent in its reviews of its ability to hear the matters before it. Specifically, the Board has taken to enforcing the now decades-old significant decision of In re Santos Alonzo, BIIA Dec., 56,833 (1981).
This 1981 significant decision stands for the proposition that if the Department issues an order that promises a further appealable order if a party files a protest, the Board does not have authority to hear an appeal from that same order. Specifically, if a Department order contains protest/appeal wording that promises a further appealable order will issue, the Department must issue an order after it receives a protest before the Board has jurisdiction to hear an appeal. If the Department does not issue a new order, but rather a party files an appeal of the order after a protest has been submitted to the Department, the protest strips the Board of authority to hear the appeal.
On its face, this position seems at odds with the Department’s ability to forward protests to the Board as appeals. See RCW 51.52.060(1)(b). It is standard procedure for the Department to forward protests of affirming order to the Board as appeals. However, the Alonzo decision focused on the Department’s promise of a further appealable order and a party submitting a protest to the Department (rather than filing an appeal) that triggered the promise of a subsequent appealable order as the basis for finding the Board does not have jurisdiction in this situation. The Board viewed the promise of an additional appealable order as “a statement of legal responsibility” and an enforceable right of a party to “require” the Department to utilize the authority RCW 51.52.060(3) grants it to direct submission of further evidence or investigation of more facts and pause the appeal deadline. In this timeframe after a party has filed a protest and the Department has not yet issued another appealable order, the Department cannot elect to avoid its legal responsibility of adjudicating a case or failing to issue an order by forwarding the protest to the Board as an appeal.
Thus, the crux of Alonzo is whether the Department order a party has protested to the Board includes the promise of another appealable order or if the order is appealable only. This may seem to be a minor or hyper technical distinction, but it is one that could cost employers thousands of dollars in litigation costs. If a protest of a Department order promising a subsequent appealable order is not discovered until after the parties have presented their evidence via expert witnesses and hearing testimony, the Board will not issue a ruling on the merits but rather dismiss the appeal after finding it does not have jurisdiction over the subject matter of the appeals.
SBH strongly encourages Washington employers to closely review not only the Department’s Claim Account Center for evidence of protests filed by any party, but also the copies of Department orders it receives to confirm whether it contains protest wording promising an appealable order after receiving a protest. If the Department’s file contains a protest and the protested order includes the promise of a subsequent Department order, the Board will not intervene even if the Department and parties ask it to do so.
If you have any questions or want to discuss a Department order you recently received, please do not hesitate to contact me at 503-412-3117 or .
Posted by Christine Olson.
