One of the fundamental principles of workers' compensation law is that the industrial insurance system replaced the injured worker's right to sue his or her employer. All on-the-job injury claims flow through the Department of Labor & Industries.
The Department makes all final adjudication on claims and enters orders setting forth its determinations. Even in self-insured cases, the Department enters the determinative order. Once that order is entered, a challenge to that order can be pursued by either filing a protest to the Department for reconsideration or filing an appeal to the Board of Industrial Insurance Appeals (BIIA).
The BIIA is a separate state agency that is independent of the Department. It is the BIIA's function to review the Department's determinations when there is an appeal by an interested party.
Claims under the Industrial Insurance Act differ from most administrative claims (on appeal) in that the BIIA follows the Rules of Evidence and the Washington Civil Rules. In proceedings before the BIIA, evidence is presented as it would be in Superior Court. All witnesses are sworn and all evidence is offered per the Rules of Evidence and Civil Rules.
Any objection not taken during the presentation of evidence is deemed waived and cannot be raised at a later time. Cases may be fragmented in that the case is not tried from beginning to end without a break. Often, the appealing party will go forward using perpetuation depositions and some live testimony before the BIIA and there will be a break of several weeks prior to the responding party putting on their case.
After both sides have finished their cases, the administrative law judge enters a Proposed Decision and Order (PD&O). Either party can petition the full Board to review the PD&O. The Board can deny or grant the Petition for Review. If the petition is granted, the Board enters a Decision and Order that is appealable to Superior Court. If the Petition for Review is denied, that also is appealable to Superior Court.
One quirk of Industrial Insurance Act appeals to Superior Court is that the matter is tried de novo. The case is tried solely on the evidence that was offered before the BIIA. The evidence that is to be considered is limited to the "Certified" Appeal Board Record.
Neither party is permitted to bring witnesses into court and have them testify. The only testimony considered on appeal is the testimony of the witnesses presented before the BIIA. The testimony from the Certified Appeal Board Record is read to the jury.
Another oddity of appeals to Superior Court is that the burden of proof on the appealing party is preponderance of the evidence. The findings and decision of the BIIA are presumed correct on appeal. The presumption of any Board correctness, however, is not binding on the trier of fact, who determines whether the presumption is rebutted by the evidence.
The appealing party in any case must only show that considering all the evidence in the case, the proposition under which they have the burden of proof is more probably true than not true. There is no abuse of discretion standard that has to be met.
The testimony of the attending physician can be quite powerful in the presentation of a case before the BIIA and especially in a case tried to a jury. Our Supreme Court has ruled that it is proper to instruct the jury that it should give special consideration to testimony given by an attending physician. Wash-ington Pattern Instruction 155.13.01 sets forth the consideration that is to be given by the jury to the testimony of an attending physician. I know of no other area of law in Washington where such instruction is to be given to a jury.
One of the difficulties in presenting a workers' compensation case to a jury in Superior Court is trying to bring the witnesses to life. There can be days of reading transcripts to a jury without any exhibits and/or witnesses. Typically, most of the testimony is from medical witnesses and can often be complex and dry.
It is my practice to use as much demonstrative evidence as possible. I often use numerous blow-ups of exhibits that have been admitted and detailed blow-ups setting forth each witness and the highlights of his or her testimony.
In non-jury cases, an opening statement is given, the record is read to the judge and then closing argument is usually heard by the judge. In cases where a jury has been requested, rulings over the legal aspects of the case, such as evidentiary objections and jury instructions, are of paramount importance and can often determine the outcome.
In that it is a creature of legislation, the Industrial Insurance Act is in constant flux and the rights of and remedies for injured workers can change from legislative session to legislative session. Nevertheless, it must be remembered that the provisions of the Act should be liberally construed in favor of the injured worker. The Act provides that there is a hazard in all employment and that it is to be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.
