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Can an Injured Worker Sue the Department of Labor & Industries?

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Can an Injured Worker sue the Department of Labor & Industries to force a favorable claim determination?

No. Courts do not have original jurisdiction to order the Department of Labor & Industries to decide any issue the way the injured worker believes is correct. The doctrine of Sovereign Immunity generally prevents suits against state agencies. Courts will only very rarely interfere in state agency powers due to constitutional Separation of Powers doctrine. For those reasons, injured workers must generally wait for the Department to act, and only thereafter can the injured worker request appellate review by the courts.

Occasionally, an injured worker will still ask whether it is possible to compel the Department using a special legal device called a “writ of mandamus.” The answer is virtually always a resounding, “no.” If the injured worker’s attorney believed it to be otherwise in their specific case, however, the injured worker’s attorney would then recommend applying to a Superior Court for such a writ. The attorney would then explain the process. 

An example of where a writ of mandamus might be useful in a workers compensation case would be if a Superior Court jury had already long-ago awarded back-due time loss but the Department then failed or refused to pay according to the Superior Court’s resulting judgment for an excessive period of time. An excessive period of time is typically a year or more, since writs of mandamus are discretionary and courts do not feel compelled to exercise their discretion unless or until the executive branch agency is well beyond the outer limits of reasonable conduct. For example, because a Superior Court understands that its judgments accrue interest in an ongoing manner, a Superior Court will generally conclude that an individual is not being sufficiently harmed by the Department’s tardy actions unless a completely unreasonable amount of (government) time has first elapsed.

 

An explanation of the involved legal doctrines is as follows: 

 

What is Sovereign Immunity in a Workers’ Compensation Case?

The modern doctrine of Sovereign Immunity stems from multiple sources, including the democratic theory that a person should not be allowed to sue themselves, so a citizen should not be allowed to sue her own self-government, as well as from the historical circumstance in which monarchs (Kings) were said to be headed by those imbued with Devine Authority (the grant of power from God) which could not be questioned in a civil lawsuit. Whereas these sources of the modern doctrine come from far disparate origins in thought, each served the interest of ensuring that efficient government could not be rendered incapable due to being entrapped in legal entanglements.

The doctrine of Sovereign Immunity essentially holds that a modern state must now give its consent before it can be sued by a resident, citizen or state subdivision. Our Lady of Lourdes Hosp. v. Franklin Cy., 120 Wash.2d 439, 455-56, 842 P.2d 956 (1993) (county not entitled to interest on award reimbursing it for inmate’s medical expenses because no statute or contract indicates the state’s consent to liability for interest). This concept has also been applied to prevent suits or claims against the state by injured workers. Shum v. Dep’t of Labor & Indus., 63 Wash.App.405, 409, 819 P.2d 339 (1991) (absent express statutory provision, the state has not consented to liability for prejudgment interest on claim for industrial insurance benefits).

Thus, when injured workers ask their attorneys whether they can sue the Department of Labor & Industries for waiting so long before authorizing a surgery, or for delaying time loss benefits as long as may often occur while the state agency takes what seems to be excessive time making the determination, or does anything else that harms the injured worker, the answer must be: “not unless there’s a statute specifically allowing that kind of lawsuit, which presently there is not.” Such a statutory waiver of the Sovereign Immunity defense in workers’ compensation matters would have to be contained with Title 51, RCW.

 

What is the Separation of Powers Doctrine in a Workers’ Compensation Case?

The Separation of Powers doctrine generally holds that the three branches of government are coordinate (they work together as a system). Each has its own constitutional place and should therefore not interfere in the constitutional powers and duties of the others. Thus, in the purest terms (the way it is supposed to work), the Legislative Branch enacts statutory law; the Executive Branch faithfully administers the laws passed by the Legislature; and the Judicial Branch decides all conflicts that may arise. 

In practice, the Executive Branch has some legislative powers, which are called “quasi-legislative” powers. The Executive Branch also has some adjudicative power, which is then called “quasi-judicial” power. An example of the Department’s quasi-legislative power is when it adopts new regulations within the Washington Administrative Code according to what the Department believes is necessary to administer the Industrial Insurance Act. An example of its quasi-judicial authority is on display every time the Department issues an order deciding whether an injured worker receives any form of claimed benefits. 

Similarly, the other branches of government sometimes have powers that seem like they are exercising an authority of a coordinate branch, such as when the Legislature issues quasi-judicial “findings” before adopting remedial legislation; or where the Governor proclaims inherent expanded powers to regulate society during a pandemic. This is an act of quasi-legislative authority.

Separation of Powers doctrine is based in constitutional law principles which are not always evident in operation during the administration of a workers’ compensation claim. However, a notable example is where the Board of Industrial Insurance Appeals and higher review courts will not order the Director of the Department of Labor & Industries to pay for an injured worker’s vocational retraining because the statutory scheme vests the Director with the discretion to determine if an individual worker is entitled to retraining. As long as the Director has any reason whatsoever for his or her discretionary determination, it cannot be successfully appealed to the higher courts. Another example is that the Department has a regulation that it follows whereby it will not consider the opinion of a doctor of clinical psychology for purposes of permanent partial disability assessment, but the exact same opinion can certainly be credited by the Courts if the Department denies benefits and the injured worker appeals. This is because the Courts will not be bound to the administrative agency’s rules or policy determinations where being bound would deprive the courts of their own core functions, i.e., to decide issues and conflicts fairly. Thus, Separation of Powers doctrine can literally precipitate a circumstance in which the Department believes it cannot rule in favor of an injured worker so will deny their claim, but then when the same matter is presented at the Board of Industrial Insurance Appeals, the Department will sometimes enter into an agreed Board Order on Agreement of Parties (“OAP”) where it concedes that its position is incorrect, so long as the injured worker actually appeals. In that circumstance, the Department is taking the position that it doesn’t have the authority to accept a Ph.D. –based opinion on mental health severity while adjudicating a matter on its own, but as soon as it’s authority to decide has been ceded to the Judicial Branch, the Department may feel unconstrained to accept opinion evidence it has very recently rejected outright.

The complexities of Separation of Powers doctrine means that injured workers who have conflict-ridden cases should certainly consult with an experience attorney to determine the best tactics and forum in which to seek an efficient resolution of those conflicts. Sometimes it’s better to rely upon the Department’s core powers, for example when the injured worker wishes hearsay evidence to be considered and credited; whereas sometimes it’s better to rely upon the judicial authority of the reviewing courts above, such as when the claim of the injured worker requires consideration of both law and equity. 

 

Why isn’t a Writ of Mandamus Generally Available in a Workers’ Compensation Case?

A writ of mandamus is a written Court Order compelling an executive branch agency or agency officer to conduct a certain act (do a certain thing). Such writs work the same with respect to workers’ compensation matters as they do in other matters. The court can issue the writ (“order”) compelling the state agency’s Director to take a specified action, and if the agency’s Director fails to obey, the court can then hold that Director in contempt and order their arrest and other punishments. Needless to say, courts don’t consider issuing a writ of mandamus lightly. 

The law says that a writ of mandamus “is a rare and extraordinary remedy because it allows courts to command another branch of government to take a specific action, something the separation of powers typically forbids.” Colvin v. Inslee, 195 Wn.2d 879, 890-91, 467 P.3d 953 (2020). Courts have the power to issue a writ of mandamus only “[w]hen the law requires a government official to take a particular action.” Id. at 892. And “mandamus cannot control the discretion that the law entrusts to an official.” Id. at 893.

A writ of mandamus cannot be used “to compel the performance of acts or duties which involve discretion on the part of a public official.” SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 599, 229 P.3d 774 (2010) (quoting Walker v. Munro, 124 Wn.2d 402, 410, 879 P.2d 920 (1994)). Therefore, a writ of mandamus is an appropriate remedy only “ ‘[w]here the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.’ ” Colvin, 195 Wn.2d at 893 (quoting SEIU Healthcare 775NW, 168 Wn.2d at 599).

Thus, the example above, wherein the Department fails to pay based on a valid Superior Court judgment for more than a year following a jury’s verdict is an example of where courts might be willing to initiate a higher level of conflict between the respective branches of government. In such a case, the payment of the specified judgment is not within the discretion or decision-making authority of the executive branch agency’s officer to refuse, and the court would fail to enforce its own authority to issue valid judgments if it then declined to issue a writ of mandamus on pain of contempt of court penalties should the executive branch officer continue to defy and fail the court’s lawful orders.

If you are an injured worker and you need help with your L&I claim, please call Washington Law Center today.

ABOUT THE AUTHOR:

Spencer Parr

Partner
Labor & Industries / Personal Injury Attorney

Spencer Parr is a litigation and trial attorney at Washington Law Center focused primarily in the areas of Labor & Industries claims and injury pension benefits. Before co-founding Washington Law Center, Spencer served in the U.S. Army. He has litigated major issues in the law, represented clients from coast to coast, and dedicated his professional life to assisting the injured and disabled. Click here to learn more about Spencer. View More Labor & Industries and Work Injury Resources.

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