WSR 00-17-143

PROPOSED RULES

BOARD OF INDUSTRIAL

INSURANCE APPEALS

[ Filed August 22, 2000, 11:18 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-12-053 through 00-12-060; 00-12-062 through 00-12-064; and 00-12-066 through 00-12-068.

Title of Rule: Chapter 263-12 WAC, Practice and procedure before the Board of Industrial Insurance Appeals.

Purpose: To revise the board's rules of practice and procedure by amending WAC 263-12-016, 263-12-020, 263-12-045, 263-12-050, 263-12-060, 263-12-090, 263-12-093, 263-12-095, 263-12-100, 263-12-115, 263-12-120, 263-12-135, 263-12-140, and 263-12-145.

Statutory Authority for Adoption: RCW 51.52.020.

Summary: The proposed revisions make a number of housekeeping changes by correcting the address of the headquarters; clarifying and simplifying language; clarifying representation before the board; subpoena power of industrial insurance appeals judge; provide for new types of appeals identified by legislative changes; change contents of notice of proceedings; allow judges to make record of agreed resolutions; to create record of proceedings consistent with changes to WAC 263-12-093; to clarify judges ability to exclude evidence from a record that is admissible and who can request interlocutory review from the chief industrial appeals judge; to include litigation orders and judges report of proceedings identified.

Reasons Supporting Proposal: Rules are being rewritten to meet the WAC migration and clear-writing mandates.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: David E. Threedy, 2430 Chandler Court S.W., Olympia, WA, (360) 753-9646.

Name of Proponent: Board of Industrial Insurance Appeals, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 263-12-016, the rule corrects the board's address and will allow parties to properly address mailings for public disclosure requests; WAC 263-12-020, to clarify who may represent employees in adjudicative proceedings involving industrial insurance and WISHA; WAC 263-12-045, clarifies the subpoena power of industrial appeals judges; WAC 263-12-050, to consolidate several rules into a single rule that will clarify the requirements for the contents of a notice of appeal. Contains provisions for new types of appeals due to legislative changes to chapter 41.26 RCW; WAC 263-12-060, to clarify and simplify language regarding time limitations for filing appeals; WAC 263-12-090, to change contents of notice of proceedings so it will no longer specify the industrial appeals judge assigned to a particular conference; WAC 263-12-093, to allow judges to make a record of an agreed resolution without use of a court reporter; WAC 263-12-095, to clarify judges prehearing activities and to reflect ability to create record of proceedings consistent with changes to WAC 263-12-093; WAC 263-12-115, to clarify judge's ability to exclude evidence from a record that is inadmissible under WAC 263-12-095(5) and clarifies who may request an interlocutory review from the chief industrial appeals judge; WAC 263-12-135, to clarify definition of board record to include litigation orders and judges report of proceedings identified by WAC 263-12-093; and WAC 263-12-100, 263-12-120, 263-12-140, and 263-12-145, to clarify and simplify language used in the rules.

Proposal Changes the Following Existing Rules: See Purpose, Summary and Explanation of Rule above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no impact on financial issues in the amendments being made. They are basically clarification of rules in order to make them easier to understand.

RCW 34.05.328 does not apply to this rule adoption. These rule changes are not legislative, they relate to procedures related to agency hearing or clarify language of a rule without changing its effect.

Hearing Location: Board of Industrial Insurance Appeals, 2430 Chandler Court S.W., Main Conference Room, Olympia, WA, on October 10, 2000, at 9:30 - 11:30.

Assistance for Persons with Disabilities: Contact Dee Mathews by September 30, 2000.

Submit Written Comments to: David E. Threedy, P.O. Box 42401, Olympia, WA 98504-2401, fax (360) 586-5611, by October 9, 2000.

Date of Intended Adoption: November 7, 2000.

August 22, 2000

David E. Threedy

Executive Secretary


AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-016
Public records -- Location.

(1) Public records available. All public records of the board as defined in chapter 42.17 RCW are deemed to be available for public inspection and copying pursuant to these rules, except as otherwise provided by RCW 42.17.310.

(2) General information concerning the board may be obtained at its headquarters, 2430 Chandler Ct. S.W., ((MS FL-13)) P.O. Box 42401, Olympia, Washington 98504-2401.

(3) Public records officer. The public records officer shall be responsible for the following: The implementation of the board's rules and regulations regarding release of public records, coordinating the staff of the board in this regard, and generally insuring compliance by the staff with the public records disclosure requirements of chapter 42.17 RCW.

(4) Indices are available providing identifying information as to the following: (a) Final decisions and orders of the board, including concurring and dissenting opinions; (b) proposed decisions and orders of the board's industrial appeals judges; (c) ((industrial appeals judge's handbook; (d))) in addition, any indices maintained for intra-agency use are available for public inspection and copying.

(5) No fee will be charged for inspection of public records. Inspection will be during office hours in a space provided by the board and must be accomplished without excessive interference with the essential functions of the agency, and without causing damage or disorganization to ((said)) public records.

(6) A fee shall be charged for copies of documents made with the board's equipment in an amount necessary to cover the cost to the agency of providing such service.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-016, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), 263-12-016, filed 1/10/86. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-016, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-016, filed 1/18/82; Order 10, 263-12-016, filed 4/5/76; Order 7, 263-12-016, filed 4/4/75.]


AMENDATORY SECTION(Amending WSR 98-20-109, filed 10/7/98, effective 11/7/98)

WAC 263-12-020
Appearances of parties before the board.

(1) Who may appear.

(a) Any party to any appeal may appear before the board at any conference or hearing held in such appeal, either on the party's own behalf or by an attorney at law or other authorized lay representative of the party's choosing as prescribed by section 3 below.

(b) Appeals under the Washington Industrial Safety and Health Act.

(i) In an appeal by an employee or employee representative under the Washington Industrial Safety and Health Act, the cited employer may enter an appearance as prescribed in subsection (2) below and will be deemed a party to the appeal.

(ii) In an appeal by an employer, under the Washington Industrial Safety and Health Act, an employee or employee representative may enter an appearance as prescribed in subsection (2) below, and will be deemed a party to the appeal.

(c) Where the party appears representing himself or herself, he or she may be accompanied, both at conference and at hearing, by a lay person of his or her choosing who shall be permitted to accompany the party into the conference or hearing room and with whom he or she can confer during such procedures.

(d) Although the industrial appeals judge may not advocate for either party, all parties who appear either at conferences or hearings are entitled to the assistance of the industrial appeals judge presiding over the proceeding. Such assistance shall be given in a fair and impartial manner consistent with the industrial appeals judge's responsibilities to the end that all parties are informed of the procedure which is to be followed and the issues which are involved in the proceedings. Any party who appears representing himself or herself shall be advised by the industrial appeals judge of the burden of proof required to establish a right to the relief being sought.

(2) How to make an appearance.

(a) Appearances shall be made either by:

(i) Filing a written notice of appearance with the board containing the name of the party to be represented, and the name and address of the representative; or by

(ii) Appearing at the time and place of a conference or hearing on the appeal, and notifying the industrial appeals judge of the party to be represented, and the name and address of the representative.

(b) The appearing party shall furnish copies of every written notice of appearance to all other parties or their representatives of record at the time the original notice is filed with the board.

(c) The board shall serve all notices and orders on each representative and each party represented. Service upon the representative shall constitute service upon the party. Where more than one individual associated with a firm, or organization, including the office of the attorney general, has made an appearance, service under this subsection shall be satisfied by serving the individual who filed the notice of appeal, or who last filed a written notice of appearance or, if no notice of appeal or written notice of appearance has been filed on behalf of the party, the individual who last appeared at any proceeding concerning the appeal.

(3) Lay representation. Duly authorized lay representatives may be permitted to appear in proceedings before the board without a formal request for admission to practice before the board so long as the lay representative does not charge a fee and is not otherwise compensated for the representation except as provided below:

(a) A worker or beneficiary may be represented by a person employed by the worker's labor union whose duties include handling industrial insurance matters for the union. Lay persons may not represent workers before the board in return for remuneration received from the worker or from the worker's receipt of benefits under this act.

(b) An employer may be represented by an employee. An employer may also be represented by a firm or firms that contracts with the employer to handle matters pertaining to industrial insurance without regard to whether a fee is charged.

(c) In appeals involving the Washington Industrial Safety and Health Act under chapter 49.17 RCW and assessments under chapter 51.48 RCW, an employer may be represented by a lay person without regard to whether a fee is charged.

(cd) Paralegals supervised by an attorney licensed in the state of Washington to practice law may represent any party appealing before the board.

(4) Withdrawal or substitution of representatives. An attorney or other representative withdrawing from a case shall immediately notify the board and all parties of record in writing. The notice of withdrawal shall comply with the rules applicable to notices of withdrawal filed with the superior court in civil cases. Withdrawal shall be subject to approval by the industrial appeals judge or the executive secretary. Any substitution of an attorney or representative shall be accomplished by written notification to the board and to all parties of record together with the written consent of the prior attorney or representative. If such consent cannot be obtained, a written statement of the reason therefor shall be supplied.

(5) Conduct. All persons appearing as counsel or representatives in proceedings before the board or before its industrial appeals judges shall conform to the standards of ethical conduct required of attorneys before the courts of the state of Washington.

(a) Industrial appeals judge. If any such person does not conform to such standard, the industrial appeals judge presiding over the appeal, at his or her discretion and depending on all the circumstances, may take the following action:

(i) Admonish or reprimand such person, or

(ii) Exclude such person from further participation in the proceedings and adjourn the same, or

(iii) Certify the facts to the appropriate superior court for contempt proceedings as provided in RCW 51.52.100, or

(iv) Report the matter to the board.

(b) The board. In its discretion, either upon referral by an industrial appeals judge as stated above or on its own motion, after information comes to light that establishes to the board a question regarding a persons ethical conduct and fitness to practice before the board, and after notice and hearing, may take appropriate disciplinary action including, but not limited to:

(i) A letter of reprimand,

(ii) Refusal to permit such person to appear in a representative capacity in any proceeding before the board or its industrial Appeals judges, or

(iii) Certification of the record to the superior court for contempt proceedings as provided in RCW 51.52.100. If the circumstances require, the board may take action as described above prior to notice and hearing if the conduct or fitness of the person appearing before the Board requires immediate action in order to preserve the orderly disposition of the appeal or appeals.

(c) Proceedings. If any person in proceedings before the board disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered so to do, any pertinent book, paper or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take oath as a witness, or after having the oath refuses to be examined according to law, the industrial appeals judge ((shall)) may, at his or her discretion and depending on all the circumstances:

(i) Admonish or reprimand such person, or

(ii) Exclude such person from further participation in the proceedings and adjourn the same, or

(iii) Certify the facts to the appropriate superior court for contempt proceedings as provided in RCW 51.52.100, or

(iv) Report the matter to the board for action consistent with (b) above.

[Statutory Authority: RCW 51.52.020. 98-20-109, 263-12-020, filed 10/7/98, effective 11/7/98; 91-13-038, 263-12-020, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-020, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-020, filed 1/18/82; Order 7, 263-12-020, filed 4/4/75; Order 6, 263-12-020, filed 9/29/72; Order 4, 263-12-020, filed 6/9/72; General Order 2, 3.1, filed 6/12/63; General Order 1, filed 3/23/60; General Order 3, 3.1(b), Subsection (2), filed 10/29/65.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-045
Industrial appeals judges.

(1) Definition. Whenever used in these rules, the term "industrial appeals judge" shall include any member of the board, the executive secretary, as well as any duly authorized industrial appeals judge assigned to conduct a conference or hearing.

(2) Duties and powers. It shall be the duty of the industrial appeals judge to conduct conferences or hearings in cases assigned to him or her in an impartial and orderly manner. The industrial appeals judge shall have the authority, subject to the other provisions of these rules:

(a) To administer oaths and affirmations;

(b) To issue subpoenas on request of any party or on his or her own motion. Subpoenas may be issued to compel:

(i) The attendance and testimony of witnesses at hearing and/or deposition, or

(ii) The production of books, papers, documents, and other evidence for discovery requests or proceedings before the board;

(c) To rule on all objections and motions including those pertaining to matters of discovery or procedure;

(d) To rule on all offers of proof and receive relevant evidence;

(e) To interrogate witnesses called by the parties in an impartial manner to develop any facts deemed necessary to fairly and adequately decide the appeal;

(f) To secure and present in an impartial manner such evidence, in addition to that presented by the parties, as he or she deems necessary to fairly and equitably decide the appeal, including the obtaining of physical, mental, or vocational examinations or evaluations of workers;

(g) To take appropriate disciplinary action with respect to representatives of parties appearing before the board;

(h) To issue orders joining other parties, on motion of any party, or on his or her own motion when it appears that such other parties may have an interest in or may be affected by the proceedings;

(i) To consolidate appeals for hearing when such consolidation will expedite disposition of the appeals and avoid duplication of testimony and when the rights of the parties will not be prejudiced thereby;

(j) To take any other action necessary and authorized by these rules and the law.

(3) Substitution of industrial appeals judge. At any time the board or a chief industrial appeals judge or designee may substitute one industrial appeals judge for another in any given appeal.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-045, filed 6/14/91, effective 7/15/91; 84-02-024 (Order 15), 263-12-045, filed 12/29/83. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-045, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-045, filed 1/18/82; Order 8, 263-12-045, filed 5/2/75; Order 7, 263-12-045, filed 4/4/75; Order 4, 263-12-045, filed 6/9/72; Rules 4.1 - 4.3, filed 6/12/63.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-050
((Appeals arising under the Industrial Insurance Act -- ))Contents of notice of appeal.

((In cases arising under the Industrial Insurance Act (Title 51 RCW) t)) The board's jurisdiction ((of the board)) shall be invoked by filing a written notice of appeal((,)). (1) General Rule. In all appeals, the notice of appeal ((which)) shall contain where applicable:

(((1))) (a) The name and address of the appealing party and of the party's representative, if any;

(((2) The name and address of the injured worker;

(3) The name and address of the worker's employer at the time the injury occurred;

(4) In the case of occupational disease, the name and address of all employers in whose employment the worker was allegedly exposed to conditions that gave rise to the occupational disease;

(5) The time when and the place where the injury occurred or the occupational disease arose;

(6) The nature of the injury or occupational disease;

(7))) (b) A statement identifying the date and content of the department order, decision or award being appealed. This requirement may be satisfied by attaching a copy of the order, decision or award;

(((8))) (c) The ((grounds upon which)) reason why the appealing party considers such order, decision or award to be unjust or unlawful;

(((9))) (d) A statement of facts in full detail in support of each ((ground)) stated reason;

(((10))) (e) The specific nature and extent of the relief sought;

(((11) In the case of an appeal from a notice of assessment arising under chapter 51.48 RCW, a statement setting forth with particularity the reason for the appeal and the amounts, if any, that the party admits are due;))

(((12))) (f) The place, most convenient to the appealing party and ((said)) that party's witnesses, where board proceedings are requested to be held;

(((13))) (g) A statement that the person signing the notice of appeal has read it and that to the best of his or her knowledge ((or information and belief)) the contents ((thereof)) are true.

(h) ((A notice of appeal may be signed by)) The signature of the appealing party or ((by)) the party's representative.

(2) Industrial Insurance Appeals. In appeals arising under the Industrial Insurance Act (Title 51 RCW), the notice of appeal shall also contain: (a) The name and address of the injured worker;

(b) The name and address of the worker's employer at the time the injury occurred;

(c) In the case of occupational disease, the name and address of all employers in whose employment the worker was allegedly exposed to conditions that gave rise to the occupational disease;

(d) The nature of the injury or occupational disease;

(e) The time when and the place where the injury occurred or the occupational disease arose;

(3) Crime Victims' Compensation Act. In appeals arising under the Crime Victims' Compensation Act (chapter 7.68 RCW), the notice of appeal shall also contain: (a) The time when and the place where the criminal act occurred;

(b) The name and address of the alleged perpetrator of the crime; and

(c) The nature of the injury.

(4) Assessment Appeals. In appeals from a notice of assessment arising under chapter 51.48 RCW or in cases arising from an assessment under the Worker and Community Right to Know Act (chapter 49.70 RCW), the notice of appeal shall also contain: (a) A statement setting forth with particularity the reason for the appeal; and

(b) The amounts, if any, that the party admits are due;

(5) LEOFF Appeals. In appeals arising under the special death benefit provision of the Law Enforcement Officers' and Fire Fighters' Retirement System (chapter 41.26 RCW), the notice of appeal shall also contain: (a) The time when and the place where the death occurred; and

(b) the name and address of the decedent's employer at the time the injury occurred;

(6) Asbestos Certification Appeals. In appeals arising under chapter 49.26 RCW concerning the denial, suspension or revocation of certificates involving asbestos projects, the notice of appeal shall also contain: (a) A statement identifying the certification decision appealed from;

(b) The reason why the appealing party considers such certification decision to be incorrect.

(7) WISHA Appeals. In appeals arising under the Washington Industrial Safety and Health Act (chapter 49.17 RCW), the appeal shall also contain: (a) A statement identifying the citation, penalty assessment, or notice of abatement date appealed from;

(b) The name and address of the representative of any labor union representing any employee who was or who may be affected by the alleged safety violation(s);

(c) A statement certifying compliance with WAC 263-12-057;

(8) Other Safety Appeals. In appeals arising under chapter 49.22 RCW concerning alleged violations of safety procedures in late night retail establishments, chapter 70.74 RCW concerning alleged violations of the Washington State Explosives Act, or chapter 88.04 RCW concerning alleged violations of the Charter Boat Safety Act, the notice of appeal shall also contain: (a) A statement identifying the citation, penalty assessment, or notice of abatement date appealed from;

(b) The name and address of the representative of any labor union representing any employee who was or who may be affected by the alleged safety violation or violations;

(c) A statement certifying compliance with WAC 263-12-057;

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-050, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), 263-12-050, filed 1/10/86. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-050, filed 1/18/82; Order 7, 263-12-050, filed 4/4/75; Order 4, 263-12-050, filed 6/9/72; Rule 5.1, filed 6/12/63; Rules 3.1 - 3.2, filed 3/23/60, amended by General Order 3, Rule 5.1, filed 10/29/65. Formerly WAC 296-12-050.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-060
Filing appeals -- Limitation of time.

(1) In cases arising under the Industrial Insurance Act, or the Worker and Community Right to Know Act, ((or the Crime Victims Compensation Act,)) the notice of appeal shall be filed within sixty days from the date the copy of the order, decision or award of the department was received by the appealing party, except ((as follows:

(a) An appeal from a notice of assessment, filed pursuant to RCW 51.48.131, shall be filed within thirty days from the date the notice of assessment was served;

(b) A)) an appeal from an order or decision making demand for repayment of sums paid to a provider of medical, dental, vocational or other health services shall be filed within twenty days from the date the order or decision was received by the provider((;)).

(2) ((As required by the provisions of RCW 49.17.140, an appeal from a citation, abatement period or penalty assessment under the Washington Industrial Safety and Health Act is be initiated by giving the director of the department of labor and industries notice of intent to appeal within fifteen working days from the date of notification of such citation, abatement period or penalty assessment. If the director does not reassume jurisdiction over the matter to which notice of intent to appeal is given, the department shall promptly transmit the notice of intent to appeal together with the department's record in the matter to the board, whereupon the matter shall be deemed an appeal before the board. If the director reassumes jurisdiction pursuant to a notice of intent to appeal, there shall be, within thirty working days of such reassumption or within the extended redetermination period up to an additional fifteen working days upon agreement of all parties to the appeal, a further determinative order issued in the matter. Any appeal from such further determinative order must be made directly to the board, with a copy filed with the director of the department, within fifteen working days from the date of notification of such further determinative order.)) In appeals arising under the Crime Victims Compensation Act (chapter 7.68 RCW), the notice of appeal shall be filed within ninety days from the date the copy of the order, decision or award of the department was received by the appealing party.

(3) ((Appeals from certification decisions under chapter 49.26 RCW or citation, abatement period or penalty assessments under chapter 49.22 RCW shall be filed in the manner and within the time allowed for filing appeals under RCW 49.17.140 and WAC 263-12-060(2).)) In appeals from a notice of assessment arising under chapter 51.48 RCW, the notice of appeal shall be filed within thirty days from the date the notice of assessment was served.

(4) ((The board shall forthwith acknowledge receipt of any appeal filed with the board and the board's stamp placed thereon shall be prima facie evidence of the date of receipt. The board may thereafter require additional copies to be filed.)) In appeals arising under the Washington Industrial Safety and Health Act (chapter 49.17 RCW), the appeal shall be initiated by giving the director of the department of labor and industries notice of intent to appeal within fifteen working days from the date of notification of such citation, abatement period or penalty assessment. If the director does not reassume jurisdiction over the matter to which notice of intent to appeal is given, the department shall promptly transmit the notice of intent to appeal together with the department's record in the matter to the board, whereupon the matter shall be deemed an appeal before the board. If the director reassumes jurisdiction pursuant to a notice of intent to appeal, there shall be, within thirty working days of such reassumption or within the extended redetermination period up to an additional fifteen working days upon agreement of all parties to the appeal, a further determinative order issued in the matter. Any appeal from such further determinative order must be made directly to the board, with a copy filed with the director of the department, within fifteen working days from the date of notification of such further determinative order.

(5) In appeals arising under chapter 49.26 RCW concerning the denial, suspension or revocation of certificates involving asbestos projects or in appeals arising under chapter 49.22 RCW concerning alleged violations of safety procedures in late night retail establishments, chapter 70.74 RCW concerning alleged violations of the Washington State Explosives Act, or chapter 88.04 RCW concerning alleged violations of the Charter Boat Safety Act, the notice of appeal shall be filed in the manner and within the time allowed for filing appeals under RCW 49.17.140 and WAC 263-12-060(3).

(6) The board shall forthwith acknowledge receipt of any appeal filed with the board and the board's stamp placed thereon shall be prima facie evidence of the date of receipt. The board may thereafter require additional copies to be filed.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-060, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), 263-12-060, filed 1/10/86. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-060, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-060, filed 1/18/82; Order 7, 263-12-060, filed 4/4/75; Order 4, 263-12-060, filed 6/9/72; Rule 5.3, filed 6/12/63; Rule 3.3, filed 3/23/60; Rule 5.3, amended by General Order 3, filed 10/29/65. Formerly WAC 296-12-055.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-090
Conferences -- Notice of conferences.

Once an appeal has been granted, it shall be assigned to an industrial appeals judge with direction to conduct a settlement conference or a conference to schedule the appeal for hearing. If a conference is scheduled in a case, it shall be upon written notice to all parties specifying ((the industrial appeals judge assigned to hear the case as well as)) the time and place set for such conference, and such notice shall be mailed not less than seven days prior to the date of the conference, unless such notice is waived by all parties. The industrial appeals judge assigned to conduct hearings in an appeal or his or her designee shall conduct the conference at which hearings are scheduled.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-090, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-090, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-090, filed 1/18/82; Order 7, 263-12-090, filed 4/4/75; Order 4, 263-12-090, filed 6/9/72; General Order 2, Rules 6.1-6.4, filed 6/12/63; General Order 1, Rules 5.3-5.4, filed 3/23/60; Subsection (6), General Order 3, Rule 6.4, filed 10/29/65. Formerly WAC 296-12-090.]


AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-093
Conferences -- Disposition of appeals by agreement.

(1) If an agreement concerning final disposition of any appeal is reached by all the parties present or represented at a conference, an order shall be issued in conformity ((therewith)) with their agreement, providing the board finds ((said)) the agreement is in accordance with the law and the facts.

(a) In industrial insurance cases, if an agreement concerning final disposition of the appeal is reached by the employer and worker or beneficiary at a conference at which the department is represented, and no objection ((thereto)) is interposed by the department, an order shall be issued in conformity ((therewith)) with their agreement, providing the board finds that ((said)) the agreement is in accordance with the law and the facts. If an objection is interposed by the department on the ground that ((said)) the agreement is not in accordance with the law or the facts, a hearing shall be scheduled.

(b) In cases involving the Washington Industrial Safety and Health Act, an agreement concerning final disposition of the appeal among the parties must include regardless of other substantive provisions covered by the agreement: (((a))) (i) A statement reciting the abatement date for the violations involved, and (((b))) (ii) ((a)) A statement confirming that the penalty assessment for contested and noncontested violations has ((been paid)) or will be paid.

(c) Where all parties concur in the disposition of an appeal but the industrial appeals judge is not satisfied that the agreement is in conformity with the facts and the law or that the board has jurisdiction or authority to order the relief sought, the industrial appeals judge may require such evidence or documentation ((as is deemed)) necessary to adequately support the agreement in fact and/or in law.

(2) All agreements reached at a conference concerning final disposition of the appeal shall be stated on the record by the industrial appeals judge and the parties shall indicate their concurrence on the record. The record may either be transcribed by a court reporter or recorded and certified by the industrial appeals judge conducting the conference.

(((2) Ordinarily an agreement concerning final disposition of an appeal will be accepted only at a conference attended by all agreeing parties.)) The industrial appeals judge may, ((however,)) in his or her discretion accept ((the)) an agreement for submission to the board in the absence of one or more of the parties from the conference, or without holding a conference.

(a) In such cases the agreement ((shall)) may be confirmed in writing by the parties to the agreement not in attendance at a conference, except that the written confirmation of a party to the agreement not in attendance at a conference will not be required where the industrial appeals judge is satisfied of the concurrence of the party or that the party received notice of the conference and ((chose)) did not ((to)) appear.

(b) In cases where no conference has been held but the parties have informed the judge of their agreement, yet no written confirmation has been received, the judge may submit a judge's report of proceedings which encompasses the agreement. The judge will submit copies of the report to the parties and, if no objection is received within ten days, the agreement may be submitted to the board for approval.

(3) In the event concurrence of all affected employees or employee groups cannot be obtained in cases involving agreements for final disposition of appeals under the Washington Industrial Safety and Health Act, a copy of the proposed agreement shall be posted by the employer at each establishment to which the agreement applies in a conspicuous place or places where notices to employees are customarily posted. The agreement shall be posted for ten days before it is submitted to the board for entry of the final order. The manner of posting shall be in accordance with WAC 296-350-400 (4) and (5). If an objection to the agreement is interposed by affected employees or employee groups prior to entry of the final order of the board, further proceedings shall be scheduled.

(((3))) (4) The parties present at a conference may agree to a vocational evaluation or a further medical examination of a worker or crime victim, including further evaluative or diagnostic tests, except such as require hospitalization, by medical or vocational experts acceptable to them, or to be selected by the industrial appeals judge. In the event the parties agree that an order on agreement of parties or proposed decision and order may be issued based on the report of vocational evaluation or medical examination, the industrial appeals judge may arrange for evaluation or examination and the board will pay reasonable and necessary expenses involved. Upon receipt by the board, copies of the report of such examination or evaluation will be distributed to all parties represented at the conference and further appropriate proceedings will be scheduled or an order on agreement of parties or proposed decision and order issued. If the worker or crime victim fails to appear at the evaluation or examination, the party or their representative may be required to reimburse the Board for any fee charged for their failure to attend.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-093, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-093, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-093, filed 1/18/82; Order 7, 263-12-093, filed 4/4/75.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-095
Conference procedures.

(1) Scheduling information. If no agreement is reached by the parties as to the final disposition of an appeal, the industrial appeals judge presiding at a settlement conference may direct that the appeal be assigned to an industrial appeals judge for the purpose of scheduling and conducting a hearing in the appeal. Any industrial appeals judge assigned to conduct proceedings in an appeal, or his or her designee may elicit from the parties such information as is necessary and helpful to the orderly scheduling of hearing proceedings and as may aid in expediting the final disposition of the appeal.

(2) Prehearing matters. At any proceeding a stipulation of facts may be obtained to show the board's jurisdiction in the matter. In addition, agreement as to the issues of law and fact presented and the simplification or limitation thereof may be obtained. The industrial appeals judge may also determine: (a) ((t)) The necessity of amendments to the notice of appeal or other pleadings; (b) ((determine)) the possibility of obtaining admissions of facts and authenticity of documents which will avoid unnecessary proof((,)); (c) the admissibility of exhibits((,)); (d) a stipulation as to all or part of the facts in the case((,)); (e) obtain information as to the number of expert and lay witnesses expected to be called by the parties and their names when possible, the place or places where hearings will be required, the approximate time necessary for the presentation of the evidence of the respective parties, and all other information which may aid in the prompt disposition of the appeal; (f) the limitation of the number of witnesses((,)); (g) the need for interpretive services; (h) ((and the)) exchange of medical and vocational reports and other relevant documents; (i) receive and rule on motions pertaining to pre-hearing discovery. These include ((including)) motions by a party for a vocational evaluation of a claimant which may be granted upon a showing of surprise which ordinary prudence could not have guarded against or upon an equivalent showing of circumstances constituting good cause and upon notice to all parties of the time, place, manner, conditions, and scope of the evaluation and the person or persons by whom it is to be made, provided that the industrial appeals judge shall impose all conditions necessary to avoid delay and prejudice in the timely completion of the appeal((; obtain information as to the number of expert and lay witnesses expected to be called by the parties and their names when possible, the place or places where hearings will be required, the approximate time necessary for the presentation of the evidence of the respective parties, and all other information which may aid in the prompt disposition of the appeal)).

(3) ((Statement on the r)) Record of results of conferences. The results of ((such)) any conferences ((proceedings)) shall be stated on the record. The record may be a transcript of the proceeding, a judge's report of proceedings, and/or written interlocutory order. ((and t)) The ((statement)) record shall include, where applicable, agreements concerning issues, admissions, stipulations, witnesses, time and location of hearings, the issues remaining to be determined, and other matters that may expedite the hearing proceedings. The statement of agreement and issues, and rulings of the industrial appeals judge, shall control the subsequent course of the proceedings, subject to modification ((to prevent manifest injustice)) by the industrial appeals judge or by interlocutory review pursuant to WAC 263-12-115(6).

(4) Failure to supply information. If any party fails to supply the information reasonably necessary to schedule the hearing in a case, the board or the industrial appeals judge may suspend setting a hearing pending receipt of the required information, or may impose such conditions upon the presentation of evidence by the defaulting party as may be deemed appropriate.

(5) Admissibility of matters disclosed at conference. If no agreement of the parties is reached resolving all issues presented, no offers of settlement, admissions, or statements made by any party shall be admissible at any subsequent proceeding unless they are independently admissible therein.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-095, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-095, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-095, filed 1/18/82; Order 7, 263-12-095, filed 4/4/75; Order 4, 263-12-095, filed 6/9/72; Rules 6.5-6.9 filed 6/12/63; Rule 5.6, filed 3/23/60; Subsection 5, General Order 3, Rule 7.1, filed 10/29/65. Formerly WAC 296-12-100.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending Order 11, filed 1/18/82)

WAC 263-12-100
Hearings -- Notice of hearing.

(1) Time. In those cases that proceed to hearing, the board shall mail notice ((thereof)) of scheduled hearings to all parties at their last known address as shown by the records of the board or department of labor and industries not less than fifteen days prior to the hearing date: ((Provided, That the h)) Hearings may be held on less than fifteen days' notice upon agreement of all parties that have ((theretofore)) made an appearance in the appeal.

(2) Contents. The notice shall identify the appeal to be heard, the names of the parties to the appeal and their representatives, if any, and shall specify the time and place of hearing((, together with the evidence which shall be expected to be presented thereat)).

[Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-100, filed 1/18/82; Order 4, 263-12-100, filed 6/9/72; General Order 1, Rule 5.2, filed 3/23/60; Subsection 2, General Order 3, Rule 7.1, filed 10/29/65. Formerly WAC 296-12-100.]


AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-115
Procedures at hearings.

(1) Industrial appeals judge. All hearings shall be conducted by an industrial appeals judge who shall conduct the hearing in an orderly manner and rule on all procedural matters, objections and motions.

(2) Order of presentation of evidence.

(a) In any appeal under either the Industrial Insurance Act, the Worker and Community Right to Know Act or the Crime Victims Compensation Act, the appealing party shall initially introduce all evidence in his or her case-in-chief except that in an appeal from an order of the department that alleges fraud the department or self-insured employer shall initially introduce all evidence in its case-in-chief.

(b) In all appeals subject to the provisions of the Washington Industrial Safety and Health Act, the department shall initially introduce all evidence in its case-in-chief.

(c) After the party with the initial burden has presented his or her case-in-chief, the other parties may then introduce the evidence necessary to their cases-in-chief. In the event there is more than one other party, they may either present their cases-in-chief successively or may join in their presentation. Rebuttal evidence shall be received in the same order.

Witnesses may be called out of turn in contravention of this rule only by agreement of all parties.

(3) Objections and motions to strike. Objections to the admission or exclusion of evidence shall be in short form, stating the legal grounds of objection relied upon. Extended argument or debate shall not be permitted.

(4) Rulings. The industrial appeals judge on objection or on his or her own motion shall exclude all irrelevant or unduly repetitious evidence and statements that are inadmissible pursuant to WAC 263-12-095(5). ((a)) All rulings upon objections to the admissibility of evidence shall be made in accordance with rules of evidence applicable in the superior courts of this state.

(5) Interlocutory appeals to the board - Confidentiality of trade secrets. A direct appeal to the board shall be allowed as a matter of right from any ruling of an industrial appeals judge adverse to the employer concerning the confidentiality of trade secrets in appeals under the Washington Industrial Safety and Health Act.

(6) Interlocutory review by a chief industrial appeals judge.

(a) Except as provided in ((WAC 263-12-115)) subsection (5) of this section interlocutory rulings of the industrial appeals judge are not subject to direct review by the board. A party to an appeal or a witness who has made a motion to quash a subpoena to appear at board related proceedings, may within five working days of receiving an adverse ruling from an industrial appeals judge request a review ((of such ruling)) by a chief industrial appeals judge or his or her designee. Such request for review shall be in writing and shall be accompanied by an affidavit in support ((thereof)) of the request and setting forth the grounds ((therefor)) for the request, including the reasons for the necessity of an immediate review during the course of conference or hearing proceedings. Within ten working days of receipt of the written request, the chief industrial appeals judge, or designee, may decline to review the ruling based upon the written request and supporting affidavit; or, after such review as he or she deems appropriate, may either affirm or reverse the ruling, or refer the matter to the industrial appeals judge for further consideration.

(b) Failure to request review of an interlocutory ruling shall not constitute a waiver of the party's objection, nor shall an unfavorable response to the request preclude a party from subsequently renewing the objection whenever appropriate.

(c) No conference or hearing shall be interrupted for the purpose of filing a request for review of the industrial appeals judge's rulings; nor shall any scheduled proceedings be canceled pending a response to the request.

(7) Recessed hearings. Where, for good cause, all parties to an appeal are unable to present all their evidence at the time and place originally set for hearing, the industrial appeals judge may recess the hearing to the same or a different location so as to insure that all parties have reasonable opportunity to present their respective cases. No written "notice of hearing" shall be required as to any recessed hearing.

(8) Failure to present evidence when due. If any party is due to present certain evidence at a hearing or recessed hearing and, for any reason on its part, fails to appear and present such evidence, the industrial appeals judge may conclude the hearing and issue a proposed decision and order on the record, or recess or set over the proceedings for further hearing for the receipt of such evidence.

(9) Evidence by deposition. When a hearing is recessed or set over pursuant to ((WAC 263-12-115)) subsection (7) or (8) of this section, or if a party volunteers or desires to take the testimony of any witness in a proceeding by deposition, or if the admission of evidence cannot otherwise be accomplished in a reasonably timely manner, the industrial appeals judge may permit or require the perpetuation of testimony by deposition regardless of the witness' availability to testify at the hearing or at a future recessed hearing. Such ruling may only be given after the industrial appeals judge gives due consideration to: (a) The complexity of the issues raised by the appeal, (b) the desirability of having the witness' testimony presented at a hearing, (c) the costs incurred by the parties in complying with the ruling, and (d) the fairness to the parties in complying with the ruling. The industrial appeals judge may require that depositions be taken and published within prescribed time limits, ((with each party bearing its own costs,)) which time limits may be extended by the industrial appeals judge for good cause. Each party shall bear its own costs, except when appropriate the industrial appeals judge may allocate costs to parties or their representatives. The deposition must be transcribed in a reproducible format or it may be excluded from the record.

(10) Procedure at deposition. Unless the parties stipulate or the industrial appeals judge determines otherwise, all depositions permitted to be taken for the perpetuation of testimony shall be taken subject to the following conditions: (a) That all motions and objections, whether to form or otherwise, shall be raised at the time of the deposition, and if not raised at such time shall be deemed waived; (b) that all exhibits shall be marked and identified at the time of the deposition and, if offered into evidence, appended to the deposition; (c) that the deposition be published, without necessity of further conference or hearing, at the time it is received by the industrial appeals judge; (d) that all motions and objections raised at the time of the deposition shall be ruled upon by the industrial appeals judge in the proposed decision and order; and (e) that the deposition may be appended to the record as part of the transcript, and not as an exhibit, without the necessity of being re-typed into the record.

(11) Offers of proof in colloquy. When an objection to a question is sustained an offer of proof in question and answer form shall be permitted unless the question is clearly objectionable on any theory of the case.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-115, filed 6/14/91, effective 7/15/91; 84-08-036 (Order 17), 263-12-115, filed 3/30/84. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-115, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-115, filed 1/18/82; Order 9, 263-12-115, filed 8/8/75; Order 7, 263-12-115, filed 4/4/75; Order 4, 263-12-115, filed 6/9/72; General Order 3, Rule 7.5, filed 10/29/65; General Order 2, Rule 7.4, filed 6/12/63; General Order 1, Rule 5.10, filed 3/23/60. Formerly WAC 296-12-115.]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 12, filed 12/2/82)

WAC 263-12-120
Additional evidence by industrial appeals judge.

The industrial appeals judge may, when all parties have rested, present such evidence, in addition to that presented by the parties, as deemed necessary to decide the appeal fairly and equitably, and in the exercise of this power, a physical, mental or vocational examination or evaluation of a worker by one or more medical or vocational experts may be ordered to be conducted at the board's expense. Any such evidence secured and presented by the industrial appeals judge shall be presented in an impartial manner, and shall be received subject to full opportunity for cross-examination by all parties. If a party desires to present rebuttal evidence to any evidence so presented by the industrial appeals judge, ((he)) the party shall make application ((therefor)) immediately following the conclusion of such evidence. ((Such application shall be granted by assignment of a time and place for presentation of such rebuttal evidence.))

[Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-120, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-120, filed 1/18/82; Order 4, 263-12-120, filed 6/9/72; General Order 3, Rule 7.6, filed 10/29/65; General Order 2, Rule 7.5, filed 6/12/63. Formerly WAC 296-12-120.]


AMENDATORY SECTION(Amending Order 4, filed 6/9/72)

WAC 263-12-135
Record.

The record in any contested case shall consist of the order of the department, the notice of appeal therefrom, all orders issued by the board (including litigation orders and judge's report of proceeding), responsive pleadings, if any, and notices of appearances, and any other written applications, motions, stipulations or requests duly filed by any party. Such record shall also include all depositions, the transcript of testimony and other proceedings at the hearing, together with all exhibits offered. No part of the department's record or other documents shall be made part of the record of the board unless offered in evidence.

[Order 4, 263-12-135, filed 6/9/72; Rule 8.2, filed 6/12/63; Rule 6.2, filed 3/23/60, amended by General Order 3, Rule 8.2, filed 10/29/65. Formerly WAC 296-12-135.]


AMENDATORY SECTION(Amending WSR 95-02-065, filed 1/3/95, effective 2/3/95)

WAC 263-12-140
Proposed decisions and orders.

Upon completion of the record ((and submission of the issues for decision and order, the)) an industrial appeals judge shall enter a proposed decision and order which shall be in writing and contain findings of fact and conclusions of law as to each contested issue of fact and law, as well as the order based thereon((, and c)). Copies ((thereof)) of the proposed decision and order shall be mailed ((by the board)) to each party to the appeal and to his or her attorney or representative of record.

[Statutory Authority: RCW 51.52.020. 95-02-065, 263-12-140, filed 1/3/95, effective 2/3/95. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-140, filed 12/2/82; Order 4, 263-12-140, filed 6/9/72; Rule 8.3, filed 6/12/63. Formerly WAC 296-12-140.]


AMENDATORY SECTION(Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-145
Petition for review.

(1) Time for filing. Within twenty days from the date of communication of the proposed decision and order to the parties or their representatives of record, any aggrieved party ((aggrieved thereby)) may file with the board a written petition for review. ((In the event such)) When a petition for review is filed, the failure of any party not aggrieved by the proposed decision and order to file a petition for review shall not be deemed a waiver by such party of any objections or irregularities disclosed by the record.

(2) Extensions of time. The board may extend the time for filing a petition for review ((on application)) upon written request of a party filed within twenty days from the date of communication of the proposed decision and order to the parties or their representatives of record. Such extension of time, if granted, will apply to all parties to the appeal. Further extensions of time beyond any initial extension may be allowed only if (a) an application for further extension is filed within twenty days from the date of communication of the proposed decision and order to the parties or their representatives of record or (b) the board, on its own motion or at the request of a party, acts to further extend the time for filing a petition for review before the prior extended time for filing a petition for review has expired.

(3) Contents. ((Such)) A petition for review shall set forth in detail the grounds ((therefor and the)) for review. A party ((or parties)) filing ((the same shall be deemed to have waived)) a petition for review waives all objections or irregularities not specifically set forth therein. A general objection to findings of fact on the ground that the weight of evidence is to the contrary shall not be considered sufficient compliance, unless the objection shall refer to the evidence relied upon in support thereof. A general objection to all evidentiary rulings adverse to the party shall be considered adequate compliance with this rule. If legal issues are involved, the petition for review shall set forth the legal theory relied upon and citation of authority and/or argument in support thereof. ((In order to facilitate preparation of such petition for review in sufficient detail, t)) The board shall, ((on)) at the request of any party, ((serve upon said party)) provide a copy of the transcript of testimony and other proceedings at the hearing((, provided that such)). The requesting party shall sign an acknowledgement that receipt ((thereof)) of the transcript of proceedings shall constitute compliance by the board((, in the event of an appeal to superior court,)) with any statute requiring service on ((said)) the party of a certified copy of the testimony. ((With respect to rulings concerning admission or exclusion of evidence, a general objection to all such rulings adverse to the party shall be considered adequate compliance with this rule.))

(4) Action by board on petition for review. (a) ((Within twenty days a)) After receipt of a petition for review, the board shall enter an order within twenty days either: (i) denying the petition for review, in which case the proposed decision and order shall become the final order of the board, or (ii) granting the petition for review, in which case the board shall within one hundred and eighty days from the date the petition for review was filed issue a final decision and order based upon its review of the record ((or any part thereof deemed necessary:)). (b) After twenty days of receipt. ((Provided, That i)) If a petition for review is not acted upon by the board ((within twenty days from the date it is filed,)) it shall be deemed to have been granted. (c) Remands for further hearing. After review of the record, the board may set aside the proposed decision and order and remand the appeal to the hearing process, with instructions to the industrial appeals judge to whom the appeal is assigned on remand, to ((schedule a further hearing for the purpose of presenting such evidence in addition to that contained in the record as the board deems necessary to decide the appeal fairly and equitably. In the exercise of this power, a physical or mental examination of a worker or victim of crime by medical experts or evaluation by an expert vocational consultant may be ordered to be conducted at the board's expense. Any evidence presented by the industrial appeals judge shall be presented in an impartial manner, and shall be received subject to full opportunity for cross-examination by all parties. If a party desires to present rebuttal evidence to any evidence so presented, he must make application therefor immediately following the conclusion of such evidence. Such application will be granted by recessing the hearing to a time and place for taking such rebuttal evidence. Following the completion of the further hearing ordered by the board, the industrial appeals judge shall enter a proposed decision and order based upon the entire record. If an objection is made to a ruling or rulings of an industrial appeals judge sustaining an objection to admissibility of evidence, or denying a recess for the presentation of further evidence, or denying a motion for a physical or mental examination or vocational evaluation of a worker or victim of crime, and the board determines that said ruling or rulings were erroneous, the board may return the case to the industrial appeals judge with appropriate instructions, and a further proposed decision and order shall be issued by the industrial appeals judge after the additional evidence shall have been received.)) dispose of the matter in any manner consistent with WAC 263-12.

(5) Reply to petition for review. Any party may, within ten days of receipt of the board's order granting review, submit a reply to the petition for review, a written brief, or a statement of position regarding the matters to which objections were made, or the board may, on its own motion, require the parties to submit written briefs or statements of position or to appear and present oral argument regarding the matters to which objections were made, within such time and on such terms as may be prescribed. ((In such instances, copies of the transcript of testimony and other proceedings at the hearing shall be furnished to any party requesting same, and this shall be deemed compliance with any statute requiring service on said party of a certified copy of the testimony in the event of an appeal to superior court.))

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-145, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), 263-12-145, filed 1/10/86. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-145, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-145, filed 1/18/82; Order 9, 263-12-145, filed 8/8/75; Order 7, 263-12-145, filed 4/4/75; Order 4, 263-12-145, filed 6/9/72; General Order 3, Rule 8.4, filed 10/29/65; General Order 2, Rule 8.4, filed 6/12/63. Formerly WAC 296-12-145.]

Washington State Code Reviser's Office