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Rite Aide Employee Waited Too Long To File Sex Assaults As Industrial Injury

The Washington Court of Appeals upheld a ruling that a drug store clerk who alleges she was sexually assaulted by a supervisor 15 times over a three-month period waited too long to file a claim for industrial injury three years after the last assault. The court also affirmed the Board’s decision that she could not pursue an occupational disease claim.
Marcia Magee worked for a Rite Aid store in Bellevue, Wash., from 1987 until she quit in May 2001.

In September 2001, Magee filed a petition for an anti-harassment order against her former supervisor at the drug store, alleging he had sexually assaulted her 15 times from October 2000 until January 2001. She also contacted the Bellevue Police Department, which concluded that she did not make any physical attempt to stop the sex acts and never "verbalized her unwillingness," other than to say that the sex was not good and that he had caused her medical problems.

On Jan. 23, 2004, Magee filed an application for workers' compensation benefits, claiming she suffered autism, dyslexia and dysgraphia.

The Department of Labor & Industries denied the claim, because Magee had not filed the application within one year after the date the alleged injury occurred.

Magee appealed to the Industrial Appeals Board. The board affirmed the denial of Magee's claim, finding that she had alleged an industrial injury and she was required to file a claim within a year of the date of injury.

The board also concluded that Magee did not suffer an occupational disease. Under Revised Code of Washington Section 51.08.140, claimants have two years from the date they become aware of an occupational disease to file a workers' compensation claim.

Magee appealed the board's decision and order to superior court, which affirmed the ruling. The Court of Appeals also upheld the decision.

In December 2008, Magee asked the Department of Labor & Industries to consider whether she was entitled to benefits for an occupational disease. The Department denied the petition, finding that the 2006 decision and order was binding. The Industrial Appeals Board and superior court affirmed the ruling.

Magee appealed to the Court of Appeals, arguing the Board of Industrial Appeals did not have subject-matter jurisdiction to determine whether she had suffered an occupational disease.

"Assuming the Board exceeded the scope of review by addressing whether Magee's claim constituted an occupational disease, because Magee did not challenge that conclusion of law in the appeal of the 2006 Decision and Order, that decision is final and binding," the court concluded.

The opinion can be viewed for 90 days
here.
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