So the Department of Labor and Industries (Department) has issued an order that is unfavorable to you and you disagree with that decision. What happens next? Whether you are represented or not, it is helpful to understand the process.
Whether your employer at the time of your injury was self-insured, or not, it is the Department which is charged with the duty to issue determinative orders that affect your claim and the benefits to which you may, or may not, be entitled. Once they issue an order than is unfavorable, a new set of events can happen with which you may not be familiar.
The first step in the process is the filing of a protest to an unfavorable order. This is also referred to as a request for reconsideration at the bottom of the order issued by the Department. Technically, you have 60 days from the date the order was effectively communicated to you for the Department to receive your protest. Direct appeals are possibly but in the majority of cases, protests are issued to unfavorable orders with which the injured worker disagrees.
If your protest was timely, meaning that the Department received your protest within the 60-day period, then the Department must respond to that protest. There is no time limit within which they are compelled by statute to respond and occasionally, it is only with regular encouragement, to use a polite euphemism, that a claims manager in fact responds.
If the Department issues an order affirming the unfavorable order, then an appeal to the Board of Industrial Insurance Appeals (Board) must be filed within 60 days of the date the order affirming the original unfavorable order is communicated.
Once the appeal is filed, the Board will determine whether to grant the appeal. Within 90 days of the filing of the appeal, the Department has statutory authority to reassume jurisdiction of your appeal. What that means is that your claim is sent back to the Department, the Board denies the appeal, and the Department then takes further action on your claim. This does not mean that order you appealed is being reversed. It simply means that the Department wants to take another look at your file to determine whether it believes it made the right decision. Sometimes this results in a reversal of the order you appealed, sometimes that order is affirmed in a new order and the same process and time limits for appealing to the Board ensues.
Once the appeal is granted by the Board, the next step is for there to be a mediation conference, also called a settlement conference. At the conference is a mediation judge appointed by the Board whose job is primarily to assist the parties in reaching a resolution of the dispute without having to resort to litigation. No testimony is taken, no one is sworn to an oath. This is a time for a free and open discussion between the parties to try to resolve the dispute.
If the dispute cannot be resolved, then the mediation judge will send the case on to hearings. The next step in the process is another conference, this time with a hearings judge who will be the judge in your case, barring illness or reassignment. The judge will ask the parties to identify the issues, identify the probable witnesses, will schedule time for the case to be litigated, and will set time limits for confirming witnesses, taking depositions, completing discovery, and any other matters the judge deems necessary.
At the hearing, testimony will be taken, and any perpetuation depositions will be taken separately. When all of the testimony is taken, the judge will review the transcripts and issue a decision on the issues raised by the appealing party. That decision is called a Proposed Decision and Order, or PD&O. Any party felt aggrieved by the PD&O has a right to file a Petition for Review, or PFR, to a three-member panel of the Board. If the Board denies the PFR, then the PD&O is adopted. If the Board grants the PFR, it will reconsider all of the evidence and issue it’s own decision. Sometimes the Board will adopt the PD&O, sometimes it will reverse the PD&O, and sometimes it will adopt the PD&O in part and reverse in part. Rarely but it does happen from time to time, the Board will set aside the PD&O and remand the case for more litigation and development on concerns the Board has regarding the evidence that was originally presented.
If a party is aggrieved by the decision of the Board after review following a PFR, then a party has a right to file an appeal in Superior Court. At Superior Court, only the evidence presented at the original Board hearing is considered. Sometimes the appeal in Superior Court is a jury trial, sometimes it is a bench trial, meaning that there is only a judge, no jury. It is really up to the parties to indicate whether or not they want a jury.
Once the matter is tried in Superior Court, the Court issues an order consistent with the decision. If a party is aggrieved by that decision, they may file an appeal in the Court of Appeals. At the Court of Appeals, again, the Court only considers the evidence produced at the Board. Briefing is submitted on the salient issues and oral argument is made to the Court. The Court will then make a decision. Thereafter, an aggrieved party may wish to file an appeal to the Washington State Supreme Court. Review is discretionary with the Court but if granted, there is more briefing and oral argument. Once the case is decided by the Supreme Court, the issues are generally resolved, barring a decision, which would send the case back for additional matters to be considered by the Board.
Fortunately for the injured worker, most cases never go beyond hearings at the Board level. Of the small percentage that proceed to Superior Court, most are resolved there. It is only a very small number of cases that merit taking the case to the Court of Appeals or the Supreme Court. However, if your case is one that does, it is helpful to understand the entire process. Clearly, you should seek the assistance of an attorney experienced in worker’s compensation to assist you in your appeal. While an attorney is not required to present your case to the Board, as was famously said by Abraham Lincoln, “He who represents himself has a fool for a client.”