August 24, 2023
by Zachary Goldberg-Johns

What Decision? Washington requirements on Communication and Mailing.

RCW 51.52.060 sets forth the Department’s rules regarding the timeline to appeal a decision. It explains that any party (with the exception of certain enumerated parties) aggrieved by an order, decision or award of the Department must file with the Board within sixty days from the day on which a copy of the order is communicated. Given the importance of timely filing an appeal (See In re Leroy Hauser, BIIA Dec., 94 4636 (1995) for further discussion regarding the issue of timeliness), it is remarkable that the RCW’s do not include a definition of “communicated.” To address this issue and other lingering questions created by RCW 51.52.060, the Board of Industrial Insurance Appeals has issued many decisions over the years aimed at providing a little more clarity to the code.

Early on, the Board chose to interpret an order as having been “communicated” on the date the order was received. Providing meaning to the word communicated, however, was just the beginning of the Board’s attempt to bring 51.52.060 into focus. In In re John Karns, BIIA Dec., 05,181 (1956) the Board identified another one of the many difficulties inherent in giving RCW 51.52.060 a workable definition when it said:

“Although R.C.W. Sec. 51.52.060 provides that the time limited for appeal does not begin to run until the department’s decision or order is ‘communicated’ to the persons affected thereby, if this were interpreted as meaning that such a decision or order is not ‘communicated’ to a party until he chooses to pay attention to it and do something about it, there would be, in effect, no statute of limitations”

With the above in mind and in light of RCW 51.52.050 (which rules surrounding mail and service), the Board established a rule that “evidence that a Department order was mailed to the worker at his last known address gives rise to a presumption that the order was received by the worker in the due course of the mails.” This rebuttable presumption is still often cited to this day.

Despite RCW 51.52.060’s seeming simplicity and undisputed importance, the Board is still adding new dimensions to the rule. In 2019, the Board, In re Mario Malarchick, BIIA Dec., 18 30609 (2019) added to the scope of RCW 51.52.060 when it assessed that a claimant who, seemingly deliberately avoided checking his mail after he was told an order has been issued for several days, could not rebut the “course of mail” presumption. The Board directly stated “the presumption of delivery of an order in due course of the mail cannot be rebutted by a party’s deliberate choice to avoid checking his mail or negligent decision to disregard or fail to read an order…”

Over the years countless constellations of facts helped create a rich tapestry of case law that is still being developed to this day. These are just a few of the notable cases that form the basis for the interpretation of RCW 51.52.060. If you are seeking guidance on this issue, please feel free to contact me at 971-867-2731 or .

Posted by Zachary Goldberg-Johns.