APPEALING AN INDUSTRIAL INSURANCE CLAIM

PROFIT REPORT - 2302

prepared by Independent Business Association



BACKGROUND
Small employers all too often miss their opportunity to appeal a workers compensation claim until after its too late. It's not until their industrial insurance rate goes up a year or two later that they realize they should have appealed the claim--but then it's too late.

The following information summary management assistance information and is not legal advice. You are advised to consult with a qualified attorney regarding any legal matters related to this issue.

Washington's industrial insurance system is a "no-fault" insurance program, which guarantees workers injured on the job, sure, and certain benefits. Thus, it requires the WA Industrial Insurance program to pay benefits to workers who claim an injury or illness was a result of an occupational accident or exposure. In all but a few special cases, only YOU, the employer can appeal a claim for industrial insurance benefits. If you don't appeal a questionable claim, the WA Industrial Insurance program must pay the claim.

HOW TO APPEAL AN INDUSTRIAL INSURANCE CLAIM

1.      Investigate EVERY worker accident or illness claim immediately. Ask other workers what they saw and what happened. If it is equipment related, analyze the equipment, see if it failed in some way. Was the worker using the required safety equipment? Was the worker following operational requirements? Was some other worker at fault? Was some other person or some other company responsible in part for what happened (car ran a red light and collided with your worker's vehicle)?

YOU need this information WRITTEN DOWN for three reasons. First, if some other person (outside your company) or some other company was partially responsible for the accident or exposure, they may be liable for part of the cost of the claim--it could reduce your costs. Second, if the worker claims an injury or exposure but there is proof that the alleged injury or exposure did not happen (i.e. other workers testify that the worker wasn't in the area at the time of the alleged claim, or the injured worker told another worker the injury happened during non-work hours when the injured worker was doing some non-work activities), you may have a case to appeal the validity of the claim. Third, if the injury or exposure did occur, by doing an accident investigation, you can discover changes you need to make in work practice, etc., to avoid another claim like this in the future.

  1. Complete the employer's portion of the accident report. Whenever a worker claims an industrial injury or illness, they complete a WA Industrial Insurance program Accident Report. A copy of that report is sent to you for you to complete and return to the Department. Keep a copy for yourself. This is your first opportunity to start building your case if the worker has filed a false claim. Use the information you gained from your accident or exposure investigation to complete this form and return it promptly.

 

  1. A week or so later, you will be receive by mail a Notice of Decision from the Department indicating their decision to approve or disapprove the worker's claim for benefits. This is just one of many Notice of Decisions you will receive for a worker's claim. Each is very important to you.

Each time you receive a Notice of Decision, you have 60 days to appeal that decision. AFTER 60 days, you lose all of your rights on the issues included in that Notice of Decision.

YOU can appeal an industrial insurance claim to the Board of Industrial Insurance Appeals. An appeal to the Board of Industrial Insurance Appeals must be filed within 60 days of receiving the Notice of Decision letter, which is the subject of your appeal. IBA strongly urges you to consult with an attorney experienced in industrial insurance appeals to the Board of Industrial Insurance prior to filing your Notice of Appeal to ensure that it includes all requirements and effectively states the basis of your appeal. Your appeal must be in writing and specifically include a statement like:

"I am formally appealing the Department's decision on whatever the issue of the decision in the Notice of Decision is, issued on date of decision on the notice of decision letter for claims number here."

You may want to include in your letter your reasons for protesting the Department's decision. Provide as much proof as you can to support your case. Consulting with an attorney on the contents of this letter is strongly advised. Send your notice of appeal letter to the Board of Industrial Insurance Appeal at the following address:

Board of Industrial Insurance Appeals

PO Box 42401

2430 Chandler Court SW

Olympia, WA 98504-2401

IBA strongly recommends you send your letter with return receipt requested to show proof when it was delivered to protect your appeal rights.

         The Board of Industrial Insurance Appeals is very much like a court of law. In fact, if you appeal the decision of the Board of Industrial Insurance to the Superior Court, the appeal before the Superior Court is limited to a review of the record developed by the Board of Industrial Insurance Appeals--no new evidence or testimony is allowed.  Thus, IBA strongly recommends you consult with an attorney who has extensive experience in dealing with the Board of Industrial Insurance Appeals if you want to maximize your chances of a successful appeal.

 

         Your actual appeal is heard by an administrative law judge who serves as the judge in your appeal.  The matter is done very much like a court proceeding without a jury.  Rules of evidence are followed.  After the hearing with the ALJ, the ALJ issues his/her proposed decision.   You have 20 days after the ALJ issues his/her Proposed Decision and Order to petition to the full 3-member Board for a review.  This process requires substantial additional detail that can be obtained from the Board of Industrial Insurance Appeals by calling 1-800-442-0447

 

         Ultimately, the Board will issue its final Decision and Order.  If you disagree with it, you can appeal that decision to the Superior Court within 30 days of the Board issuing its final order. Again, this is a complex process and you will need an attorney to file your apple to the Superior Court.  If you do not know of an attorney with experience in Industrial Insurance appeals, IBA can provide you with names of attorneys we know have extensive experience with this area of law.

 

         One more item.  If you appeal a decision of the Department to the Board of Industrial Insurance Appeals, the Department may “reassume” the decision in order to reconsider it.  This is usually a good thing so do not be surprised.  When the Department “reassumes” a decision, it often means the Department will reverse its decision instead of having to argue the decision before the Board of Industrial Insurance Appeals.  However, the Department may confirm its decision after they “reassume” a decision you have appealed in which case the appeal continues moving forward.