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Tollycraft Yachts Corp. v. McCoy9/16/1993
This is a case of first impression regarding a 1988 amendment to the Industrial Insurance Act (Act). The amendment, Laws of 1988, ch. 161, ยง 11 (codified at RCW 51.32.160), imposed an aggregate 150-day limit upon the time which the Department of Labor and Industries (Department) has to consider an application to reopen a workers' compensation claim due to the aggravation of an industrial injury . Construing and applying the amendment, the Board of Industrial Insurance Appeals (Board) determined that Clyde McCoy's reopening application was "deemed granted" since the Department had not acted within the 150-day limit. It therefore ordered the Tollycraft Yachts Corporation (Tollycraft), McCoy's employer and a self-insurer under the Act, to reopen McCoy's claim. On Tollycraft's appeal, the Superior Court for Cowlitz County granted summary judgment in favor of McCoy. We reverse.
I
In 1988, McCoy suffered an injury to his back while employed at Tollycraft, and Tollycraft requested a determinative
order from the Department on the compensability of the injury under the Act. The Department determined that the injury was work related and ordered compensation for time lost. McCoy's claim was then closed in early 1989, without an award of permanent partial disability.
Later, after moving to Ohio, McCoy filed an application to reopen his claim. According to his physician, McCoy was suffering from a strain of his lower back and left hip which had manifested itself approximately 4 months after the closing of the workers' compensation claim. The application to reopen was sent to Tollycraft and filed with the Department on December 7, 1989.
On March 6, 1990, 1 day before the expiration of the statutory deadline for processing McCoy's application, the Department issued an order extending the deadline for 60 days. The Department's explanation for the delay was that "the self-insured employer has been requested to schedule an independent medical examination" of McCoy. Clerk's Papers, at 28. The record does not indicate the requested examination ever took place. However, Tollycraft alleges that it requested medical information from McCoy's physician twice during this period, on March 9 and April 13, but did not receive a response. See Clerk's Papers, at 57-58.
On May 3, 4 days before the expiration of the extension period, the Department concluded McCoy had not shown an aggravation of his back injury and issued an order denying his application to reopen. The very next day, however, the Department issued an order placing the May 3 order "in abeyance pending further investigation." Clerk's Papers, at 30.
In July, while the Department's denial of McCoy's application was still in abeyance, an independent panel of physicians conducted a "records review" of McCoy's case. See In re McCoy, Bd. of Indus. Ins. Appeals Dec. 91,0701 (1991) (McCoy I), at 1. Tollycraft asserts the report concluded McCoy's back problems were not a result of his industrial
injury . According to the Board's description of the report, however, the panel was "unable to offer an opinion as to whether there was objective evidence of worsening." McCoy I, at 1.
On August 20, 1990, the Department issued another order, reinstating its original denial of McCoy's application (the denial which had been placed in abeyance on May 4). McCoy requested reconsideration. While McCoy's request for reconsideration was pending, he was examined by the same medical panel which had conducted the "records review" in July. According to the Board, the panel's report from this examination concluded that McCoy's condition was fixed and stable and
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