What If You Disagree with the Department of Labor and Industries?

How to file a workers’ comp appeal to the Board of Industrial Insurance Appeals in Washington

By S.M. Oliva

Workers' compensation provides “no-fault” accident benefits to Washington residents who are injured on the job. Employers are legally required to pay for workers' comp coverage that includes both wage replacement and medical benefits. While most workers' comp claims are paid without incident, there are cases where an employer may dispute the employee's right to receive benefits or the amount of benefits allowed under the law.

“People think the state or employer is on their side, and I will tell you after 25 years of doing this, they aren’t there to be the advocate of an injured worker,” says Patrick Palace, a workers’ comp attorney at Palace Law in University Place.

Employees do not have to take their employer's decision at face value. The worst thing you can do is blindly trust the system, Palace says. Instead, consider reading up on your rights with articles like this one or resources elsewhere on the internet (including at palacelaw.com), and, even better, call an attorney for a free consultation. Workers have rights to seek review of a workers' comp decision, first from the Washington Department of Labor and Industries (L&I), and then from the state's Board of Industrial Insurance Appeals (BIIA). A qualified Washington workers' compensation attorney can advise you on the specifics of this process as it may apply to your case, but here is a general overview.

Employees Must Be Aware of Time Limits to Appeal

When an employer makes a formal decision regarding a claim, it will send the employee a legal document called an “Order and Notice.” Once the employee receives this document, he or she usually has 60 days to file a written protest with L&I. This can be done via mail or online. L&I will then review the claim and send the employee a response in the form of a second Order and Notice.

“It’s really just a simple letter that is a protest essentially saying, ‘I disagree, please reconsider this,’” Palace says. “You can also send a direct message through your claims manager.” You can find instructions to do this at lni.wa.gov. “I caution people that they cannot simply call by phone and tell them you protest. That will not protect your rights or save you.”

If the employee is still dissatisfied with L&I's Order and Notice, he or she can then appeal in writing to the BIIA. Like before, there is a 60-day deadline to make such an appeal, starting from the date the employee receives L&I's response. BIIA accepts appeals online, or by written notice sent to its central office in Olympia. Find instructions at biia.wa.gov.

BIIA is a state agency that operates independently from L&I. BIIA functions as an administrative court, while L&I is responsible for the day-to-day operations of Washington's workers' compensation system. Once filed, L&I has 60 days to respond to the appeal.

Filing an appeal is fairly straightforward, “but there are some issues that are critical,” Palace says. “Probably the biggest point of error is people waiting too long. Once the order is issued and you choose to protest or appeal it, you have 60 days to do that. That is a hard and fast deadline. If you fail to do it in time, chances are you have waived your rights to ever contest.”

In some cases, L&I will voluntarily reverse or reconsider its prior decision in light of appeal. This means that no formal action by the BIIA is necessary. But if L&I stands by its decision, it will send its record of the employee's claim to BIIA. The board will then hold an in-person hearing where the employee and any witnesses can offer testimony. If the employee is not happy with BIIA's decision regarding the appeal, he or she may seek a further appeal to a Washington State Superior Court judge.

Why Call an Attorney?

“So far we’ve only covered how to protect your rights and, in that case, you don’t have to present any evidence whatsoever,” Palace says. “You just have to fill out the protest or appeal. When it comes to how to argue the merits of your case, you should contact a workers’ comp attorney—for free, without charge—to ask for a consultation. They can tell you whether an appeal or protest is likely to result in a change in their outcome.”

If you choose to ask an attorney to take your case, that’s when cost comes into play. They should outline fees right away, but know that they work on a contingency basis—they only win if you win—and they often take about 30 percent of your award settlement.

In Washington state, roughly 120,000 workers’ comp claims are filed per year, and only about 3 percent of the claimants ever call an attorney. “Ninety-seven percent of people, for one reason or another, don’t contact a lawyer. That’s a huge number of people who simply waive or lose their rights, or don’t take steps to protect themselves,” Palace says. 

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