Category Archives: Courts

WA Court of Appeals Cites Compensable Consequences Doctrine in Maphet Decision

From the Maphet decision:

“…the compensable consequences doctrine compels coverage of the ninth surgery; and the County conceded that the ninth surgery was proper and necessary. Accordingly, we reverse.”


Clark County, Et Al. v. Jennifer Maphet, (Wa. Ct. App. Div. II, 2019)

Maphet – the Story

The Court of Appeals opinion sets out the chronology of events in the Maphet case, in the most simple and dry manner, as follows:

Jennifer Maphet injured her right knee while at work. Her employer, Clark County, is a self-insured employer. Maphet underwent nine surgeries on her knee. The County contested its responsibility for the ninth surgery to the Department of Labor and Industries (L&I). L&I issued an order for the County to authorize and pay for the surgery. The County appealed. The Board of Industrial Insurance Appeals (BIIA) affirmed L&I’s order. The County appealed to the trial court, and the jury returned a verdict that the industrial injury did not cause the need for the ninth surgery and that the ninth surgery was not proper and necessary.

Undoubtedly, for Ms. Maphet this paragraph represents many years of ordeal, from injury through surgeries, peppered with administrative headaches and legal hassles. The end result, however, is that her set of circumstances has resulted in clarification of the laws, benefiting all injured workers in Washington. From this point forward, claimant attorneys will refer to the “Maphet decision” while representing injured workers.

Key Take-Aways from the Maphet Decision

I encourage you to read the full decision, here. This is a window into the world of legal wrangling in workers’ compensation matters, at the highest level. The Maphet decision also outlines, in detail, one story of one injured worker, with parallels and patterns that will be familiar to any injured worker.

The Maphet case stands for two important rules:

1)      If a self-insured employer (SIE) covers medical treatment, it is legally responsible for the underlying condition; and

2)      The Board’s “compensable consequences doctrine” is a correct statement of the law – if a claim-covered surgery results in some untoward consequence, it is the SIE’s responsibility.

We often litigate cases over the responsibility of the Department of Labor and Industries or self-insured employer for a medical condition or treatment, particularly when surgeries are involved. Like Ms. Maphet’s case, we have seen cases where treatment is authorized, covered by a claim, only later to be retroactively denied as not the responsibility of the Department or SIE.

With the publishing of the Maphet decision, a clear message has been sent that the Department or SIE’s are responsible for both the underlying condition and any untoward consequences arising from a surgery (whether it rises to the level of medical malpractice, or not) once a medical condition has been covered by a claim.

The Appeal Process, Simply Stated

Most workers’ compensation claims are handled administratively, many concluding without conflict or the need for legal representation. Some are more complicated, hard fought, and require litigation. Of these, the majority are resolved through proceedings before the Board of Industrial Insurance Appeals.

Aggrieved parties have the right to appeal from the Board’s decisions to superior court where a judge or, if requested, a jury issue an order on the issues at hand. However, in rare cases where matters of law remain at issue, appeals can be argued to the Court of Appeals and, from there, even more rarely, to the state Supreme Court. Ms. Maphet’s case was recently presented to the Court of Appeals, Division II, and the court opinion was just published.

More Information About Appeals

We have information on our website about appeals to the Board of Industrial Insurance Appeals or higher courts on workers’ compensation issues, here. If you have questions and wish to discuss your case in more detail, please contact our firm for assistance. You may call our office at (206) 292-8627 or email to: reachus @ causeywright.com (remove spaces when entering the email address – they have been added to avoid spam by bots).

Gorsuch, Chevron and Workplace Law

Judge Gorsuch

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

OUR SUPREME COURT: NOT FOR SALE

Usually, judicial elections are sleepy affairs. This is not one of those years, especially when it comes to our state’s Supreme Court.

All six candidates are good public servants – but three have not proven their qualifications for this office. The most contested race is for Justice Charlie Wiggins’ seat. We believe we should keep Justice Wiggins on the bench. We also urge support for Justice Yu and Chief Justice Madsen. 

Justice Wiggins has over 30 years of appellate experience, before election to the Supreme Court in 2010, as a judge on the Court of Appeals and as pro tem judge for the Superior Court. And in less than six years on the bench, he has authored over 110 judicial opinions. 

He has been a leading voice for judicial independence in our state and worked to support campaign contribution limits in state judicial elections. He chaired the committee to update the Civil Legal Needs Study and has been an advocate for meeting those needs. He has, in short, been the Justice we need.

We encourage you to support Justice Wiggins and to watch and share this positive video with your friends, family and colleagues. 

What is the Washington State Association for Justice?

This Newsletter – Fighting for Justice – is designed to bring you the latest issues facing our civil justice system in Washington and in our country – including other’s attempts to dismantle it and our efforts to protect it.

Our Mission: We stand up in the courtroom and in the halls of government for real people. We defend your Constitutional rights, including the right to have your day in court. We hold corporate and other powerful interests accountable. We are a community, creating and sharing the resources for our members to secure justice.

Our Membership includes 2,500 attorneys and legal professionals in communities large and small around Washington State. As trial lawyers, we fight for justice for citizens everyday in court. Our legislative team in Olympia is devoted to continuing the fight to ensure that citizens retain their civil justice rights.

Sincerely, 

Washington State Association for Justice