John Klor
Wallace Klor & Mann, PC
WSIA Amicus Subcommittee Chair
August 2009
Attending Physician Receipt of Closing Order
- Order Is Not Final & Binding Until Received
Shafer v. Department of Labor & Industries
Dckt. No.
81049-4, August 13, 2009
The Washington Supreme Court has held that a Department Order closing a claim is not final and binding unless a copy is communicated to claimant’s attending physician.
In Shafer, the Department sent a copy of the order closing the claim to Claimant, but not to her attending physician. The doctor did not learn of the order’s existence until 2003, nearly three years after it was sent to Claimant. Claimant returned for further treatment, and the attending physician requested reopening for aggravation. The reopening request was denied. Claimant appealed, arguing her initial claim never effectively closed because her attending physician never received a copy of the closing order. The Board ruled against Claimant, and Claimant then appealed. The Court of Appeals found the closing order never became final and binding because it was not received by the attending physician.
The Supreme Court agreed and concluded a worker’s claim is not properly closed until the attending physician has received a copy of the closing order. The dispositive factor was the interrelationship between RCW 51.52.060(1)(a) and RCW 51.52.050(1). Under RCW 51.52.060(1)(a), the expiration of the 60-day appeal deadline is contingent on the order being communicated to the injured worker. However, under RCW 51.52.050(1), an order becomes final and binding 60 days after it is communicated to “the parties.” That definition includes the attending physician. The Court noted the attending physician is a “critical component to the final resolution of claims.” In addition, the Court could find no basis to explain how WAC 296-20-09701, which allows attending physicians to protest closing orders, can be followed by a physician who is not sent a copy of the closing order. As such, the Court ruled this particular claim had never closed because the order was not communicated to the attending physician.
In light of this ruling, it may be necessary for self-insured employers and third party administrators to send copies of closing orders to the attending physician to ensure claim closure will become final and binding. This is especially true if, on the face of the order, it is apparent the Department failed to copy the attending physician. It may also be prudent to prepare a Certificate of Service to establish mailing to the physician.
as of 19 August 2009
