Effect of a Labor & Industries Protest
A Department of Labor & Industries order becomes final 60 days after the Department communicates the order to the required parties unless a written request for reconsideration, also known as a “protest,” or an appeal is filed. See RCW 51.52.050(1). A protest “automatically operates to set aside the Department’s order and hold in abeyance the final adjudication of the matter until the Department officially acts to issue its final decision by a ‘further appealable order.’” Santos Alonzo, 56,833 and 56,833A, 1981 WL 375946, at *3 (Wash. Bd. of Indus. Ins. Appeals Dec. 9, 1981); (RCW 51.52.060).
Who May Protest
Any aggrieved party to a workers’ compensation claim may file a protest. Agents, including self-insured employers and their representatives, may also file protests on behalf of the aggrieved party. In Re: Harry D. Pittis, 88 3651, 1989 WL 168610, at *4 (Wash. Bd. of Indus. Ins. Appeals Dec. 13, 1989). Attending medical providers may file protests on behalf of their patients. Shafer v. Dep’t of Labor & Indus., 140 Wn.App. 1, 11, 159 P.3d 473 (2007), aff’d, 166 Wn.2d 710, 213 P.3d 591 (2009). A L&I protest received from a treating physician is generally referred to as a “provider protest.” Sometimes the Department or self-insured employer incorrectly informs the injured workers that an adverse order, such as a claim closure order, has become final and binding against them. An experienced L&I attorney will find a writing within the injured worker’s claim file that can be asserted as a protest.
What Constitutes an L&I Protest?
An L&I protest is any writing submitted by or on behalf of an injured worker, filed with the Department of Labor & Industries or self-insured employer within 60 days of receipt of an adverse order, containing information contrary to the content of the adverse order. A request for reconsideration, i.e., “protest,” neither requires the use of “magical” statutory words, special formatting, nor observation of any other formalities. In Re: Mike Lambert, 91 0107, 1991 WL 11008451, at *1 (Wash. Bd. Of Indus. Ins. Appeals Jan. 29, 1991).
This rule of informality is known as the “Lambert rule.”
Under the Lambert rule, a written document timely received by the Department constitutes a valid protest if its contents can reasonably be “calculated to put the Department on notice” that the Department should take action inconsistent with a prior decision for which protest/appeal is still available (based on timeliness). Id. As such, an L&I protest does not actually require the words “protest”, “request for consideration”, or other words or phrases of intent to be valid.
Protests Follow a Reasonable Person Standard
Recently, the Washington State Court of Appeals clarified the Lambert rule in Boyd v. City of Olympia, 1 Wash. App, 2d 17, 403 P.3d 956 (Div. 1, 2017). The Boyd Court singled out the phrase “calculated to put the Department on notice…,” concluding that the proper test to determine whether a writing constitutes a valid protest should be an objective one. Id., 1 Wash. App.2d 17 at 33. Accordingly, courts are not to look at the intent of the document’s drafter, but instead at whether an experienced Department claims manager should construe the document’s contents as contrary to a prior Department order still eligible for reconsideration.
Example of L&I Protests
The Department issues a wage order stating that the injured worker’s monthly wage is based purely on sales commissions. The worker’s Attending Provider documents in a treatment note filed within 60 days of the Department’s wage order that the worker’s industrial injury occurred when the worker fell from a ladder while washing windows. An experienced Department claims manager should reasonably know (and is therefore legally charged with knowing) that “pure commission” salaries are legally-improper unless the worker only performs a pure sales position. Here, the injured worker fell while washing windows, which is clearly not a pure “sales” position. In documenting the truth about the injured worker’s employment at the time of injury, the Attending Provider’s note also acts to protect the worker against an unjust and unfair wage order.
Because Department orders are sometimes confusing, and failure to timely protest will result in a waiver of the right to later protest or appeal, injured workers should consult the experienced L&I Attorneys of Washington Law Center whenever they receive an order which is not crystal clear to them. Get in contact with one today!