Failure to send physician closure order dooms department's denial of claim

In Washington, when the Department of Labor and Industries fails to provide a worker's attending physician with a copy of the closure order and therefore prevents the physician from appealing the order, the worker's claim is not final until 60 days after the attending physician receives a copy of the order.

Case name: Shafer v. Washington Department of Labor and Industries, No. 81049-4 (Wash. 08/13/09).

Ruling: In a case of first impression, the Washington Supreme Court held that a workers' compensation claim is not final until both the worker and the worker's attending physician receive a copy of the Department of Labor and Industries' order closing the claim.

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What it means: In Washington, when the Department of Labor and Industries fails to provide a worker's attending physician with a copy of the closure order and therefore prevents the physician from appealing the order, the worker's claim is not final until 60 days after the attending physician receives a copy of the order.

Summary: A bowling alley employee injured her back lifting a keg at work. She saw a spinal specialist, who diagnosed her with broken bones and a pinched nerve, as well as a preexisting condition where vertebrae bones are weak and break. Although the Department of Labor and Industries paid for some treatment, the department declined further payment after an independent medical examiner concluded the employee's condition was stable and could not be improved. The department sent the employee and her physician an order closing the claim. The employee appealed and was awarded permanent partial disability benefits, and the claim was closed again. This was not communicated to the physician. The employee returned to the physician, who asked the department to reopen the claim for further treatment but was denied.

The employee argued her initial claim was never closed because her physician never received a copy of the revised closing order. The department argued the employee had received the order and the 60-day appeal period had expired. The Washington Supreme Court affirmed the finding that the order was not final because the physician did not receive a copy.

The physician stated that if she had received the revised order, she would have appealed it because in her opinion, the employee needed additional treatment. The court explained that when the department makes an order, it must promptly serve the worker or any "other person aggrieved" by the order with a copy. The court reasoned that the term "other person aggrieved" included attending physicians. It rejected the department's argument that the expiration of the 60-day appeal period is not contingent upon another aggrieved person (the physician) receiving a closing order.

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October 8, 2009

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