November 15, 2013
by Lee Ann Lowe

New Washington Appellate decision limits Department discretion to authorize additional medical treatment under RCW 51.36.010 to cases closed with permanent total disability.

lee ann loweIn Dep’t of Labor and Indus. v. Slaugh, decided October 31, 2013, the Washington Court of Appeals, Division III reversed a BIIA Order allowing ongoing treatment after claim closure. The claim for occupational asthma and restrictive airways disease was closed in May 2010 with an award for PPD.  Claimant requested that the Department supervisor exercise discretion to authorize continued life-sustaining asthma treatment under RCW 51.36.010.  The Department denied the request, stating RCW 51.36.010 did not permit authorization of life-sustaining treatment unless the claim is closed with PTD.  Claimant appealed to the Board.  Relying on In re Reichlin, BIIA Dec., 00,15943 (2003), in which the Board held that RCW 51.36.010 permits the Department to consider extending life-sustaining treatment in all closed cases, the Board remanded the matter to the Department with direction to the supervisor to exercise its discretion.  On appeal, the Superior Court accepted the Department’s construction of RCW 51.36.010 and reversed the Board’s decision.                

The Court of Appeals reviewed the specific wording and punctuation of RCW 51.36.010 and concluded the legislature has limited the supervisor’s discretion to authorize additional medical treatment on a closed claim only when a claim is closed with PTD.  If the claim is closed with permanent partial disability, claimant must request reopening of the claim in order to obtain additional medical treatment.  This decision effectively overrules the Board’s holding in In re Reichlin and provides claimants with only one avenue for obtaining additional medical treatment under a claim closed with a permanent partial disability award.

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