WA BIIA 2024 Significant Decisions
Every year the Washington Board of Industrial Insurance Appeals designates several notable decisions each year as significant. A significant decision is one which the Board considers to have an analysis or decision of substantial importance to the Board. For 2024, the Board designated the following decision as significant:
In re Didier Lappin, BIIA, Dec. 23 11489 (2024) claimant filed a reopening application for worsening of symptoms related to a concussion. The Board decided that an injured worker does not need to show objective evidence of worsening to reopen a claim for post-concussion syndrome. Relying upon definition of a concussion being a brain injury undetectable by imagining or other objective measures, the Board determined that post-concussion syndrome was a psychiatric condition with no objective means of validation. Therefore, the worker need not show post-concussive syndrome has worsened by objective means between the terminal dates for a claim to be reopened.
In re Karen Brawner, Order Granting Motion for Reconsideration in Part, and Granting Relief on the Record, BIIA Dec., 24 15585 (2024), the Board held that the Department may not pay benefits on a provisional basis after it had issued an order allowing the claim.
In re David James, Order Awarding Attorney Fees and Costs, BIIA Dec., 23 18856 (2024), the Board clarified the period for which a claimant’s attorney’s fees and costs are payable when benefits are awarded pursuant to RCW 51.32.185. The Board held that there must be a nexus between the work performed by the attorney and the appeal. Therefore, the filing of the notice of appeal of the Department’s order serves as the trigger date for which attorney’s time attributable to the appeal will be recoverable.
In re Zachariah Roetcisoender, BIIA Dec. 23 14840 (2024), claimant contended his appeal of a closing order was timely because it was not served on a psychologist who was not the attending physician and whom he had sought treatment from six times. The Board reaffirmed Department orders are served on the official attending physician listed on the claim and not just any provider. As there was no evidence that the attending physician on the claim did not receive the closing order it was final and binding.
In re Richard Ballard, BIIA Dec., 23 14950 (2024), the Department issued an order allowing the claim. Claimant’s attorney filed a notice of appearance with a general protest of all adverse orders. The Department for reasons unknown issued an affirming order five months after the initial allowance order because final and binding. The employer appealed the order affirming claim allowance. The Board held the employer’s appeal was untimely because the worker’s general protest of all adverse orders would not reasonably put the Department on notice that the worker was requesting action inconsistent with claim allowance, and the Department does not have authority to issue an affirming order after the original allowance order became final.
In re United Roofing Solutions, Inc., BIIA Dec. 22 W0250 (2024), the Board clarified how repeat violations are determined. The employer in this case violated a safety rule for a third time. The Board held the third violation was the second repeat violation. Thus, the penalty would be multiplied by five for a second repeat violation rather than eight for a third repeat violation.
In re Kaleo Neil, Order Vacation Proposed Decision and Order, BIIA Dec., 23, 10636 (2024) the Director the Department issued a letter finding claimant turned down a valid permanent job offer. The VDRO staff then assigned a vocational counselor to the claim. The Board vacated the Proposed Decision and Order finding the decision that a worker turned down a return to work job offer is not a vocational determination subject to an abuse of discretion standard. Rather the proper standard of review is preponderance of the evidence. However, the Board held the Department’s decision to assign a vocational counselor is subject to an abuse of discretion standard of review.
In re Kirtley Gardiner, BIIA Dec., 23 22640 (2024) claimant was placed on the pension rolls in 2016. In 2023, he developed right hand numbness and his neurologist performed an EMG related the claimant numbness to his carpal tunnel syndrome which was one of the accepted conditions on pension claim. The Department denied payment for the EMG as it was not pre-authorized post pension treatment as required by RCW 51.36.010(4), and the letter was signed by the pension adjudicator. The Board held that pursuant to RCW 51.36.010(4) only the director can authorize post pension treatment and may not delegate that decision to anyone else. The Board further held that since the letter did not include protest/appeal language there was no deadline for an aggrieved party to file an appeal or protest of the Department’s letter.
Finally, the Board de-listed as a significant decision In re Violet Canfield, BIIA Dec., 60,811 (1983) holding the statement of whether a work can obtain work is not a factor in determining whether the worker is permanently totally disabled is no longer good law.
If you have any questions on how the 2024 significant decisions may affect a claim, please do not hesitate to contact me at or by telephone at (971) 867-2724.
Posted by Joe Urbanski.
