WHEN A DEPARTMENT ORDER IS PROTESTED, BIIA CONSIDERS CONTENT – NOT INTENT
By Katherine A. Lubiani, Attorney at Law
The Board of Industrial Insurance Appeals recently issued a significant decision In re David O. Gheorghita regarding the contents of an employer’s protests to orders issued by the Department of Labor and Industries. The case involved a roofing estimator who sustained a left knee injury during the course of his employment in August 2022. The Department allowed the claim and issued its first wage/time-loss compensation order just a few days after the industrial injury. Over several months, the claimant received treatment and time-loss compensation. On July 19, 2023, the Department issued a second wage order based upon a recalculation of the claimant’s wages. On the same date of the July 19, 2023 wage order, the employer filed several protests to the Department’s time-loss compensation orders. The protests were due to the claimant having been working and earning commission checks from the onset of the claim, despite stating otherwise. None of the employer’s protests indicated they were protesting the July 19, 2023 wage order. In January 2024, the claimant asked the Department to “review and reevaluate” the July 19, 2023 wage order, alleging both he and the employer were aggrieved by the order. The Department declined to reconsider the order, determining the claimant’s protest was not timely. The claimant filed an appeal with the Board.
To determine whether the claimant’s protest was timely, the Board was tasked with answering the crucial question – did the employer actually protest the July 19, 2023 wage order? In the claimant’s request to reconsider the July 19, 2023 wage order, he indicated “the Department had constructive timely notice that the wage order was incorrect.” The employer and the Department, however, maintained the employer did not protest the Department’s decision. Therefore, they contended the Department was not put on notice of any request for reconsideration of the July 19, 2023 wage order.
As part of their analysis, the Board turned to Boyd v. City of Olympia, the leading case defining a protest. Under Boyd, the content and the context of the written communication must be considered, but not the intent of the filing party. The Board first looked to the content of the employer’s written communications to the Department which included very specific references to the dates of time-loss orders being protested. There was no mention of the July 19, 2023 wage order. Next, the Board looked at the context of the time-loss compensation protests, again noting there was no mention of the July 19, 2023 wage order. Additionally, the Board reasoned the probability of a protest to a Department order being filed on the same date was unlikely based on the presumption there would be communication delays due to mailing. Therefore, the Board determined, by content and context, no timely protest was filed to the July 19, 2023 wage order. Thus, the order denying reconsideration of said order was affirmed.
While it is standard practice for claimants’ attorneys to file blanket protests to Department orders adverse to their clients, the nuance more often lies when claimants are unrepresented by counsel. It is not uncommon for claimants or their doctors to write to the Department regarding a myriad of issues. Depending on the circumstances, these issues may or may not be construed as protests by the Department. While the Boyd rule directs courts to apply an objective standard to an alleged protest, “reasonable” interpretations are still largely subjective. The ability to identify separate types of communication is critical both when filing a protest and defending a Department order.
For employers seeking guidance on navigating claims involving protests and requests for consideration, the attorneys in our Washington practice group are always available to discuss a specific case or your general claims handling processes.
[1] BIIA Dec., 24 12743 (2025).
[2] 1 Wn. App. 2d 17, 30 (2017).