Timeliness in Washington: Friend or Foe? Washington Courts say “Friend” . . . if you preserve your right
Employers are wise to keep track of deadlines—both their own and those of injured workers. In Washington workers’ compensation cases where a worker does not file a claim in the allotted time, the employer may avoid liability. For injury claims, workers must file their claims within one year of the date of injury (RCW 51.28.050); for occupational disease claims, workers must file their claims within two years following the date the worker had written notice of a diagnosis from a qualified provider (RCW 51.28.055).
But what happens if a worker files late and the Department of Labor and Industries allows the claim anyway? Do employers have a defense, or are they out of luck?
The Washington Court of Appeals recently addressed this issue in Benson v. Providence Health & Services 33 Wash.App.2d 1016 (2024). On December 14, 2016, Crystal Benson was injured while on duty at Providence Health & Services. However, she did not file an application for benefits with the Department until over three years later on December 20, 2019. Nevertheless, the Department allowed her claim in January 2020. Providence did not protest the Department’s allowance order within 60 days.
A year and a half later, the Department reversed its decision and issued a new order finding the January 2020 order null and void. The Department then denied Ms. Benson’s claim on the basis that her application for benefits was untimely. Ms. Benson appealed to the Board of Industrial Insurance Appeals and then to Washington Superior Court. The Superior Court reversed and determined that the Department did have jurisdiction to allow the claim in 2020 despite Ms. Benson’s untimely application for benefits. Providence appealed.
The employer argued that Ms. Benson exceeded the 1-year statutory time limitation imposed by RCW 51.28.050, since she filed her claim over a year after the date of injury. Therefore, the Department lacked jurisdiction to allow the claim.
Ms. Benson responded that the 1-year time constraint is a statute of limitation. As such, it “is merely a time limit on when an action may be commenced,” but does not confer or remove jurisdiction. Mut. Of Enumclaw Ins. Co. v. T&G Constr., Inc., 165 Wn.2d 255, 266, 199 P.3d 376 (2008). Since the employer did not protest or appeal within the 60-day deadline following the allowance order, it waived its timeliness defense.
The Court of Appeals sided with Ms. Benson, finding that the Department has “original and exclusive” jurisdiction over workers’ compensation claims. Therefore, Providence waived its timeliness defense by failing to protest within 60-days of allowance and the order became final.
This outcome is important because it establishes that even if a claimant fails to meet its timeliness requirement, the employer must still protest the timeliness of a claim in order preserve its defense. This places more of a burden on the employer to be diligent in disputing unfavorable claims.
If you have any questions or would like to discuss how to approach scenarios involving timeliness in workers’ compensation claims, please feel free to contact me at nmcfadden@sbhlegal.com, or 503-721-9272.
Posted by Nathan McFadden.
