March 29, 2023
by Kara Cogswell Kidder

New Washington Board Decision Addresses Closure of Claims When Worker Deceased

The Washington Board of Industrial Insurance Appeals recently designated a new significant decision addressing the situation where a worker dies for unrelated reasons with an open claim, and before their ability to work within their industrial restrictions has been established.  This decision holds that employers cannot defeat a pension claim with evidence that a deceased worker could have been successfully retrained if they had lived.

In the case of In re Antonio Flores, Dec’d (2022), the Board addressed appeals brought by Antonio Flores’ widow, who was seeking pension benefits as a surviving beneficiary.  Mr. Flores had an occupational disease claim allowed for bilateral knee conditions. The claim was open and in the vocational plan development phase when Mr. Flores died in 2018 due to non-industrial conditions.

Before the Board, the medical experts all agreed that at the time of his death, Mr. Flores had work restrictions related to the claim which prevented his returning to his job of injury as an insulation installer. It was also undisputed that Mr. Flores died before he could complete vocational retraining.

The focus of the Board testimony was whether at the time of his death, Mr. Flores had the physical capability to complete vocational retraining for several proposed job goals.  The self-insured employer presented testimony from a vocational rehabilitation counselor, who performed a forensic review of the partially completed vocational plan, and identified medically appropriate job goals.  The employer’s argument was that Mr. Flores was not permanently and totally disabled, because if he had lived, he would have had the capability to complete retraining and become employable based on retraining.

The Board refused to consider evidence of what it described as “hypothetical ability” to complete a vocational plan. The Board concluded that it could only consider education and skills that the worker had as of the date of his death. In Mr. Flores’ case, he had an eighth-grade education and a singular work history in heavy jobs which were precluded by his permanent restrictions related to his claim. The Board found that Mr. Flores was permanently and totally disabled when he died and awarded pension benefits to his surviving spouse.

Take-Away for Employers and Claims Examiners

It is possible that the Board could distinguish this decision if an appeal was brought by an employer on a claim where the deceased worker was close to completing their retraining, such that they had already acquired sufficient skills to be employable. On the other hand, the Board may continue to take a hard line against considering “hypothetical” evidence of employability.

For now, the takeaway for employers and claim examiners is that if a worker with an open claim dies for unrelated reasons, uncompleted vocational retraining is unlikely to support employability. Certainly, mere eligibility for retraining or a proposed plan is not enough based on the Flores decision. If industrial restrictions prevented the worker from returning to the job of injury when they died, employability must be established based on ability to work with their skills and education at the time of death – not prospective ability after retraining.

Posted by: Kara Cogswell Kidder