S 0523

S‑0523.2 _____________________________________________

SENATE BILL 5234

_____________________________________________

State of Washington 57th Legislature 2001 Regular Session

By Senator Swecker

Read first time 01/16/2001. Referred to Committee on Labor, Commerce & Financial Institutions.

_1 AN ACT Relating to supplemental medical opinions; amending RCW

_2 51.52.050 and 51.52.070; reenacting and amending RCW 51.52.060;

_3 and adding a new section to chapter 51.52 RCW.

_4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

_5 NEW SECTION. Sec. 1. A new section is added to chapter 51.52

_6 RCW to read as follows:

_7 In order to provide additional medical evidence to supplement

_8 the worker's record in preparation for an appeal of an action of

_9 the department to the board, a worker may seek a supplementary

10 medical exam and opinion. If a worker intends to seek an opinion,

11 the worker must file with the department and with the board within

12 sixty days from the day on which a copy of the order, decision, or

13 award was communicated to the worker, a notice that the worker

14 will be seeking a supplementary opinion. The filing of this notice

15 entitles the worker to an additional sixty days in which to file a

16 notice of appeal, and must contain a submission of the names of

17 two licensed physicians. The department must select one of the two

18 physicians to perform the exam and issue the medical opinion. If

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_1 the department has not indicated to the worker the department's

_2 selection of physician within twenty days of receiving the

_3 submission, the worker may seek a medical exam and opinion from

_4 either of the two physicians. The worker must submit a complete

_5 copy of the medical opinion together with his or her notice of

_6 appeal to the department and to the board within the time for

_7 appeals specified in RCW 51.52.060, and the opinion must be made

_8 part of the worker's record on appeal. The cost of the supplemental

_9 medical exam will be paid by the department.

10 Sec. 2. RCW 51.52.050 and 1987 c 151 s 1 are each amended to read

11 as follows:

12 Whenever the department has made any order, decision, or award,

13 it shall promptly serve the worker, beneficiary, employer, or

14 other person affected thereby, with a copy thereof by mail, which

15 shall be addressed to such person at his or her last known address

16 as shown by the records of the department. The copy, in case the

17 same is a final order, decision, or award, shall bear on the same

18 side of the same page on which is found the amount of the award, a

19 statement, set in black faced type of at least ten point body or

20 size, that such final order, decision, or award shall become final

21 within sixty days from the date the order is communicated to the

22 parties unless a written request for reconsideration is filed with

23 the department of labor and industries, Olympia, or an appeal is

24 filed with the board of industrial insurance appeals, Olympia((:

25 ~~PROVIDED, That~~)). In addition, the order must include a statement

26 informing the worker of his or her rights under section 1 of this

27 act. A department order or decision making demand, whether with or

28 without penalty, for repayment of sums paid to a provider of

29 medical, dental, vocational, or other health services rendered to

30 an industrially injured worker, shall state that such order or

31 decision shall become final within twenty days from the date the

32 order or decision is communicated to the parties unless a written

33 request for reconsideration is filed with the department of labor

34 and industries, Olympia, or an appeal is filed with the board of

35 industrial insurance appeals, Olympia.

36 Whenever the department has taken any action or made any

37 decision relating to any phase of the administration of this title

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_1 the worker, beneficiary, employer, or other person aggrieved

_2 thereby may request reconsideration of the department, or may

_3 appeal to the board. In an appeal before the board, the appellant

_4 shall have the burden of proceeding with the evidence to establish

_5 a prima facie case for the relief sought in such appeal: PROVIDED,

_6 That in an appeal from an order of the department that alleges

_7 fraud, the department or self-insured employer shall initially

_8 introduce all evidence in its case in chief. Any such person

_9 aggrieved by the decision and order of the board may thereafter

10 appeal to the superior court, as prescribed in this chapter.

11 Sec. 3. RCW 51.52.060 and 1995 c 253 s 1 and 1995 c 199 s 7 are

12 each reenacted and amended to read as follows:

13 (1)(a) Except as otherwise specifically provided in this

14 section, a worker, beneficiary, employer, health services

15 provider, or other person aggrieved by an order, decision, or

16 award of the department must, before he or she appeals to the

17 courts, file with the board and the director, by mail or

18 personally, within sixty days from the day on which a copy of the

19 order, decision, or award was communicated to such person, a

20 notice of appeal to the board. However, a worker who files a notice

21 with the department and the board indicating that he or she

22 intends to seek a supplementary medical opinion has one hundred

23 twenty days from the day on which a copy of the order, decision,

24 or award was communicated to the worker to file a notice of appeal

25 to the board. Upon filing the notice of appeal, the worker must

26 submit a complete copy of the supplemental medical opinion. If the

27 worker does not include the supplemental medical opinion with the

28 appeal, and more than one hundred twenty days have passed since

29 the order, decision, or award was communicated to the worker, the

30 appeal will be dismissed. A health services provider or other

31 person aggrieved by a department order or decision making demand,

32 whether with or without penalty, solely for repayment of sums paid

33 to a provider of medical, dental, vocational, or other health

34 services rendered to an industrially injured worker must, before

35 he or she appeals to the courts, file with the board and the

36 director, by mail or personally, within twenty days from the day

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_1 on which a copy of the order or decision was communicated to the

_2 health services provider upon whom the department order or

_3 decision was served, a notice of appeal to the board.

_4 (b) Failure to file a notice of appeal with both the board and

_5 the department shall not be grounds for denying the appeal if the

_6 notice of appeal is filed with either the board or the department.

_7 (2) Within ten days of the date on which an appeal has been

_8 granted by the board, the board shall notify the other interested

_9 parties to the appeal of the receipt of the appeal and shall

10 forward a copy of the notice of appeal to the other interested

11 parties. Within twenty days of the receipt of such notice of the

12 board, the worker or the employer may file with the board a cross-

13 appeal from the order of the department from which the original

14 appeal was taken.

15 (3) If within the time limited for filing a notice of appeal to

16 the board from an order, decision, or award of the department, the

17 department directs the submission of further evidence or the

18 investigation of any further fact, the time for filing the notice

19 of appeal shall not commence to run until the person has been

20 advised in writing of the final decision of the department in the

21 matter. In the event the department directs the submission of

22 further evidence or the investigation of any further fact, as

23 provided in this section, the department shall render a final

24 order, decision, or award within ninety days from the date further

25 submission of evidence or investigation of further fact is ordered

26 which time period may be extended by the department for good cause

27 stated in writing to all interested parties for an additional

28 ninety days.

29 (4) The department, either within the time limited for appeal,

30 or within thirty days after receiving a notice of appeal, may:

31 (a) Modify, reverse, or change any order, decision, or award;

32 or

33 (b)(i) Except as provided in (b)(ii) of this subsection, hold

34 an order, decision, or award in abeyance for a period of ninety

35 days which time period may be extended by the department for good

36 cause stated in writing to all interested parties for an

37 additional ninety days pending further investigation in light of

38 the allegations of the notice of appeal; or

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_1 (ii) Hold an order, decision, or award issued under RCW

_2 51.32.160 in abeyance for a period not to exceed ninety days from

_3 the date of receipt of an application under RCW 51.32.160. The

_4 department may extend the ninety-day time period for an additional

_5 sixty days for good cause.

_6 For purposes of this subsection, good cause includes delay that

_7 results from conduct of the claimant that is subject to sanction

_8 under RCW 51.32.110.

_9 The board shall deny the appeal upon the issuance of an order

10 under (b)(i) or (ii) of this subsection holding an earlier order,

11 decision, or award in abeyance, without prejudice to the

12 appellant's right to appeal from any subsequent determinative

13 order issued by the department.

14 This subsection (4)(b) does not apply to applications deemed

15 granted under RCW 51.32.160.

16 (5) An employer shall have the right to appeal an application

17 deemed granted under RCW 51.32.160 on the same basis as any other

18 application adjudicated pursuant to that section.

19 (6) A provision of this section shall not be deemed to change,

20 alter, or modify the practice or procedure of the department for

21 the payment of awards pending appeal.

22 Sec. 4. RCW 51.52.070 and 1977 ex.s. c 350 s 77 are each amended

23 to read as follows:

24 The notice of appeal to the board shall set forth in full

25 detail the grounds upon which the person appealing considers such

26 order, decision, or award is unjust or unlawful, and shall include

27 every issue to be considered by the board, and it must contain a

28 detailed statement of facts upon which such worker, beneficiary,

29 employer, or other person relies in support thereof. If a worker

30 has filed a notice indicating his or her intent to seek a

31 supplementary medical opinion, the complete opinion must be

32 included with the notice of appeal filed with the department and

33 with the board. The worker, beneficiary, employer, or other

34 person shall be deemed to have waived all objections or

35 irregularities concerning the matter on which such appeal is taken

36 other than those specifically set forth in such notice of appeal

37 or appearing in the records of the department. The department shall

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_1 promptly transmit its original record, or a legible copy thereof

_2 produced by mechanical, photographic, or electronic means, in such

_3 matter to the board.

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