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Industry Insights

Wong: Significant Board Decisions Refresher: Reopenings

  • State: Washington

This week’s refresher concerns significant Board of Industrial Insurance Appeals decisions related to reopenings.

Sara Wong

Sara Wong

To reopen a claim, a worker must show objective evidence of worsening of the industrially related condition since the date of the last order closing the claim or denying a reopening application.

Significant decision No. 1: In re Marven Sandven, BIIA Dec., 89 3338 (1990)

  • Legal issue: What is the legal standard for a reopening?
  • Key point: A worker must establish by a preponderance of the evidence that a condition causally related to an industrial injury has objectively worsened or become aggravated between the relevant terminal dates. (The first terminal date or “T1” is the date of claim closure or a prior order denying reopening, whichever is most recent. The second terminal date or “T2” is the date of the department order granting or denying a reopening application.)

Significant decision No. 2: In re Michael Bell, BIIA Dec., 11 15598 (2012)

  • Legal issue: Are there time limits on a reopening?
  • Key point: Yes, sort of. If a worker submits a reopening application more than seven years from the date of closure and the Washington State Department of Labor and Industries director subsequently grants the reopening application, then the worker is usually eligible to receive only medical benefits. However, the director has the discretion to award full benefits.

Significant decision No. 3: In re Raymond Belden, BIIA Dec., 12 14005 (2013)

  • Legal issue: How should we interpret the “deemed granted” rule in RCW 51.52.160? What is the legal impact if the following occurs within 90 days of a reopening application: The department reopens a claim, the employer protests claim reopening, and the department places the reopening order in abeyance but does not issue a further determinative order?
  • Key point: The claim is reopened pursuant to the deemed granted rules. If the department does not affirmatively deny a reopening application within 90 days (or extend the 90-day time frame by 60 additional days for good cause), then a reopening application is deemed granted and an employer’s only recourse is to appeal to the board. This is regardless of any employer protest or department order placing the reopening order into abeyance within the 90/150-day time frame.

Significant decision No. 4: In re Wallace Hansen, BIIA Dec., 90 1429 (1991)

  • Legal issue: Can a treating physician’s chart notes constitute a reopening application?
  • Key point: Yes. A reopening application must be in writing, be individual in nature and give the department information regarding the reason for the application. A worker is not required to use any particular form to file a reopening application.

Significant decision No. 5: In re John Anderson, BIIA Dec., 91 6315 (1992)

  • Legal issue: Are subjective complaints alone sufficient to warrant a reopening application?
  • Key point: No. A worker’s subjective description of increased pain is not sufficient to establish a worsening or aggravation to support a reopening application. Instead, there must be objective findings to support a worker’s complaints of increased pain and loss of function.

Sara Wong is a litigation attorney in Reinisch Wilson Weier PC's Washington practice group for workers’ compensation defense. This column is republished with permission from the firm's website

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