Boyd appeals the superior court's order affirming the
decision of the Board of Industrial Insurance Appeals (Board)
to grant summary judgment in favor of the City of Olympia in
Boyd's appeal under the Industrial Insurance Act (IIA).
received workers' compensation benefits for a low back
injury he suffered while in the City's employ. After
several years, the Department of Labor and Industries
(Department) issued a final order closing Boyd's claim
and finding his medical condition stable. Boyd did not file a
timely protest to that order, but one of his health care
providers, Dr. Ashwin Rao, sent a chart note and bill to the
City. The City did not construe the chart note and bill as a
months later, Boyd appealed the Department's final order
to the Board, which assigned it to an industrial appeals
judge (IAJ). Boyd argued that Rao's chart note and bill
were a protest to the closing of Boyd's claim that should
have automatically put the Department's final order in
abeyance. The IAJ, and later the Board and superior court,
determined that Rao's chart note and bill did not put the
Department on notice that he was protesting the
Department's final closure order of Boyd's claim.
agree with these rulings and hold that the chart note and
bill did not reasonably put the Department on notice that Rao
was protesting the Department's final closure order
of Boyd's claim. We also reject Boyd's additional
arguments related to evidentiary matters, judicial estoppel,
and attorney fees. Accordingly, we affirm.
October 2009, during his employment as a firefighter with the
City, Boyd injured his low back. In November, he filed a
claim for workers' compensation benefits for that injury,
which the Department allowed.
October 10, 2013, the Department issued an order closing
Boyd's claim and directing the City to pay him a
permanent partial disability award for his "Permanent
Dorso-Lumbar and/or Lumbosacral
Impairments." Certified Appeal Board Record (CABR) at
November 15, 2013, Carrie Fleischman of Matrix Absent
Management, the City's third party workers'
compensation administrator, received a chart note dated
September 24, 2013 from Dr. John Green, providing the
following details regarding Boyd's condition:
1. Left internal and external snapping hip.
2. Status post left arthroscopic debridement and osteoplasty.
3. Chronic low back pain with primarily right-sided lower
I am sending [Boyd] to see one of my partners for an
ultrasound-guided injection of both his psoas and his greater
trochanteric bursa, and then, he is going to do physical
therapy for stretching and strengthening of both his psoas
and hip abductors, iliotibial band.
He has some difficulties resolving his . . . [labor and
industries'] claim as he has got 2 separate I[ndependent]
M[edical] E[xamination] [IME] assessments. I recommended to
him a third EVIE assessment to break the tie. These are some
new symptoms of his hips that are unlikely to be related [to]
his previously work-related problem.
CABR at 475. As a result of Green's chart note, the
October 10, 2013 closure order was held in abeyance.
January 10, 2014, the City's attorney sent a letter to
the Department's claims adjudicator, indicating that
Green's chart note "served as a protest to the
October 10, 2013 closing order." CABR at 87. In this same
letter, the City also protested the order closing Boyd's
low back injury claim, contending that Boyd's permanent
partial disability award overpaid him because he had received
a comparable award for a similar injury several years before.
approximately January 15, 2014, Fleischman received a
concurrence report from Green, which clarified his September
24, 2013 chart note. Among other things, Green confirmed that
"Mr. Boyd had new hip symptoms [that] . . . were
probably unrelated to his industrial injury under this
claim." CABR at 234.
January 27, 2014, the Department issued a new order, which
addressed the City's protest and reversed the October 10,
2013 order. It states, in part:
order and notice dated 10/10/13 is reversed.
Labor and Industries is closing this claim [SC770117] [for
Boyd's 2009 low back injury] because the covered medical
condition ... is stable. No additional permanent partial
disability will be paid over and above that paid under claim
number S.C. 74311 [Boyd's comparable award raised by the
[Boyd is] directed to pay the [City] for the overpayment of
permanent partial disability.
CABR at 244.
January 27, 2014 order was sent to Boyd's attorney and to
Michael Lee, who was identified as Boyd's attending
physician. On January 29 Boyd protested the Department's
January 27 order. On February 18 the Department issued an
order affirming its January 27 order.
February 24, 2014, Fleishmann received a chart note and bill
from Rao, to whom Green had referred Boyd for his hip
injection, as noted in Green's chart note. Although these
documents were received on February 24, 2014, Rao's chart
note reflected treatment provided to Boyd on February 13,
five days before the Department's February 18 order
affirming the closing of Boyd's claim. In pertinent part,
the chart note states:
2/13/2014 Occupational Health Richard Lee Boyd . . .
. . .
Reason for Visit
Procedure hip injection
. . .
. . .
CC: Ongoing L hip, referral by Dr. Green
HPI: Richard Lee Boyd is a 63 year old male[ ]presenting
today for f/u L hip pain. He had arthroscopic labral[
]debridement in early 2012, and last met me for a diagnostic
hip[ ]injection. He did get several months of benefit from
the surgery, but the pain has since returned, maybe more
severe than before. . . . [H]istory is complicated somewhat
by back pain and suspected lumbar[ ]radiculopathy, affecting
the calf, causing atrophy, for which he's[ ]seen Dr.
Michael Lee. Richard reports pain along the anterolateral[
]hip, particularly with sleeping at night, which causes pain
to[ ]linger t[hr]ough the night, challenging his sleep. He
has some added[ ]lateral groin pain, and initially Dr[.]
Green has suggested injectionsto the trochanter and psoas.
He remains active, and hopes that hecan make progress with
injections, as he's been doing home[ ]PT.
. . .
Hip[ ]pain - Primary
Trochanteric bursitis of left[ ...