WSR 98-20-109
PERMANENT RULES
BOARD OF
INDUSTRIAL INSURANCE APPEALS
[Filed October 7, 1998, 11:59 a.m.]
Date of Adoption: October 7, 1998.
Purpose: To revise the board's rules of practice by amending WAC 263-12-010, 263-12-015, 263-12-01501, 263-12-020, 263-12-175, and 263-12-180.
Citation of Existing Rules Affected by this Order: Amending WAC 263-12-010, 263-12-015, 263-12-01501, 263-12-020, 263-12-175, and 263-12-180.
Statutory Authority for Adoption: RCW 51.52.020.
Adopted under notice filed as WSR 98-18-086 on September 2, 1998.
Changes Other than Editing from Proposed to Adopted Version: The words "person employed by the employer or employed by a firm" were deleted from proposed WAC 263-12-020 (3)(b). The sentence now reads, "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 all matters pertaining to industrial insurance."
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, amended 6, repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 6, repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.
Effective Date of Rule: Thirty-one days after filing.
October 7, 1998
Thomas E. Egan
Chairperson
AMENDATORY SECTION (Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)
WAC 263-12-010 Function and jurisdiction. It is the function of the board as an agency to review, hold hearings on, and decide appeals filed from final orders, decisions or awards of the department of labor and industries. The jurisdiction of the board extends to:
(1) Appeals arising under the Industrial Insurance Act (Title 51 RCW);
(2) Appeals arising under the Crime Victims Compensation Act (chapter 7.68 RCW);
(3) Appeals arising under the Washington Industrial Safety and Health Act (chapter 49.17 RCW);
(4) Appeals from assessments issued under the Worker and Community Right to Know Act (chapter 49.70 RCW);
(5) Appeals arising under chapter 49.26 RCW concerning the
denial, suspension or revocation of certificates involving
asbestos projects; ((and))
(6) Appeals arising under chapter 49.22 RCW concerning
safety procedures in late night retail establishments((.)); and
(7) Appeals arising under RCW 41.26.048 concerning the death of a law enforcement officer or firefighter in the course of employment.
[Statutory Authority: RCW 51.52.020. 91-13-038, § 263-12-010, filed 6/14/91, effective 7/15/91; Order 7, § 263-12-010, filed 4/4/75; Order 4, § 263-12-010, filed 6/9/72; General Order 3, § 1, filed 10/29/65; General Order 2, § 1, filed 6/12/63; General Order 1, § 1, filed 3/23/60. Formerly WAC 296-12-010.]
AMENDATORY SECTION (Amending WSR 95-02-065, filed 1/3/95, effective 2/3/95)
WAC 263-12-015 Administration and organization. (1) Composition of the board. The board is an independent agency of the state of Washington composed of three members appointed by the governor. One member is a representative of workers, one member is a representative of employers, and the chairperson, who must be an active member of the Washington State Bar, is the representative of the public.
(2) Location of the board. The headquarters, and principal office of the board, is located at 2430 Chandler Ct. S.W., PO Box 42401, in Olympia, Washington 98504-2401.
(3) Customary office hours. The customary office hours of the board shall be from 8 a.m. to 5 p.m., Monday through Friday, excluding legal holidays.
(4) Formal board meetings. The board shall meet in formal session at its headquarters in Olympia, Washington at 9 a.m. on the first Tuesday of each month, and at such other times and places as the board may deem necessary, subject to 24-hour notice as required by law.
(5) Staff organization.
(a) The board's headquarters in Olympia is staffed with executive, administrative and clerical personnel.
(b) The board has a staff of industrial appeals judges who travel throughout the state in the performance of their duties and who have their offices in Olympia and in other areas of the state as is deemed necessary for efficient and cost effective handling of agency business.
(c) The office of the executive secretary of the board is located at the headquarters and principal office of the board.
(((6) Communications with the board. All written
communications by parties pertaining to a particular case,
including notices of appeal, applications, notices of appearance,
briefs, memoranda, motions, requests, or petitions for review,
shall be filed with the board at its headquarters in Olympia,
Washington. All correspondence and written communications filed
with the board pertaining to a particular case, before the entry
of a proposed decision and order, should be sent to the attention
of the industrial appeals judge assigned to the case.
Interlocutory appeals should be sent to the attention of the
chief industrial appeals judge. In all other instances written
communications shall be directed to the executive secretary of
the board. Any written communications with the board concerning
an appeal should reference the docket number which was assigned
by the board to the appeal, if known. Copies of any written
communications filed with the board shall be furnished to all
other parties or their representatives of record, and the
original shall demonstrate compliance with this requirement. All
written communications with the board shall be on paper 8 1/2" x
11" in size.))
[Statutory Authority: RCW 51.52.020. 95-02-065, § 263-12-015, filed 1/3/95, effective 2/3/95; 91-13-038, § 263-12-015, 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), § 263-12-015, filed 1/10/86. Statutory Authority: RCW 51.52.020. 84-02-024 (Order 15), § 263-12-015, filed 12/29/83. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), § 263-12-015, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), § 263-12-015, filed 1/18/82; Order 10, § 263-12-015, filed 4/5/76; Order 7, § 263-12-015, filed 4/4/75; Order 4, § 263-12-015, filed 6/9/72; General Order 2, § 2, filed 6/12/63; General Order 1, § 2, filed 3/23/60; General Order 3, Subsection 4, filed 10/29/65. Formerly WAC 296-12-015.]
AMENDATORY SECTION (Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)
WAC 263-12-01501 ((Filing)) Communications and filing with
the board. (1) ((Filing generally. Unless otherwise provided by
statute or these rules any written communication may be filed
with the board personally, by mail, or by telephone facsimile.))
Communications with the board. (a) Where to file. All written
communications by parties pertaining to a particular case,
including notices of appeal, applications, notices of appearance,
briefs, memoranda, motions, requests, or petitions for review,
shall be filed with the board at its headquarters in Olympia,
Washington.
(b) Methods of filing. Unless otherwise provided by statute or these rules any written communication may be filed with the board personally, by mail, or by telephone facsimile.
(((2))) (i) Filing personally. The filing of a written
communication with the board personally is perfected by
delivering the written communication to an employee of the board
at the board's headquarters in Olympia during customary office
hours.
(((3))) (ii) Filing by mail. The filing of a written
communication with the board is perfected by mail when the
written communication is deposited in the United States mail,
properly addressed to the board's headquarters in Olympia and
with postage prepaid. Where a statute or rule imposes a time
limitation for filing the written communication, the party filing
the same should include a certification demonstrating the date
filing was perfected as provided under this subsection. Unless
evidence is presented to the contrary, the date of the United
States postal service postmark shall be presumed to be the date
the written communication was mailed to the board.
(((4))) (iii) Filing by telephone facsimile. (((a))) (A)
The filing of a written communication with the board by telephone
facsimile is perfected when a legible copy of the written
communication is reproduced on the board's telephone facsimile
equipment in Olympia. The hours of operation of the board's
telephone facsimile equipment are 8:00 a.m. to 5:00 p.m., Monday
through Friday, excluding legal holidays. If a transmission of a
written communication commences after these hours of operation
the written communication shall be deemed filed on the next
succeeding business day.
(((b))) (B) Any written communication filed with the board
by telephone facsimile should be preceded by a cover page
identifying the party making the transmission, listing the
address, telephone and telephone facsimile number of such party,
referencing the appeal to which the written communication
relates, and indicating the date of, and the total number of
pages included in, such transmission.
(((c))) (C) No written communication should exceed fifteen
pages in length, exclusive of the cover page required by this
rule.
(((d))) (D) The party attempting to file the written
communication by telephone facsimile bears the risk that the
written communication will not be legibly printed on the board's
telephone facsimile equipment due to error in the operation or
failure of the equipment being utilized by either the party or
the board.
(((e))) (E) The board may require a party to file an
original of any document previously filed by telephone facsimile.
(c) Sending written communication. All correspondence or written communication filed with the board pertaining to a particular case, before the entry of a proposed decision and order, should be sent to the attention of the industrial appeals judge assigned to the case. Interlocutory appeals should be sent to the attention of the chief industrial appeals judge. In all other instances, written communications shall be directed to the executive secretary of the board.
(d) Form requirements. Any written communications with the board concerning an appeal should reference the docket number which was assigned by the board to the appeal, if known. Copies of any written communications filed with the board shall be furnished to all other parties or their representatives of record, and the original shall demonstrate compliance with this requirement. All written communications with the board shall be on paper 8 1/2" x 11" in size.
[Statutory Authority: RCW 51.52.020. 91-13-038, § 263-12-01501, filed 6/14/91, effective 7/15/91.]
AMENDATORY SECTION (Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)
WAC 263-12-020 Appearances of parties before the board. (1) Who may appear.
(a) ((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 shall thereafter be deemed a party to the appeal.)) 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 representative of
the party's choosing.
(b) ((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 shall thereafter be deemed a party to
the appeal)) Appeals under the Washington 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) ((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
representative of the party's choosing)) 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) ((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))
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.
(((e) 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 clearly understand 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 carefully
advised by the industrial appeals judge of the burden of proof
required to establish a right to the relief being sought.))
(2) ((Manner of)) 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
((conducting the same)) of the party to be represented, and the
name and address of the representative.
(b) The appearing party shall furnish ((C))copies of every
written notice of appearance ((shall be furnished by the
appearing party)) 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 ((A))all notices and orders
((shall be served by the board upon such)) on each representative
((in addition to the)) 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) ((No formal admission to practice)) Lay Representation.
Duly authorized lay representatives ((shall)) may be permitted to
appear in proceedings before the board without a formal request
or admission to practice before the board so long as the lay
representative does not charge a fee or is 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.
(c) 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 ((so)) 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. ((a)) 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 ((proceeding shall)) 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((, which may,)).
(b) The board. ((i))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.
(((b))) (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, 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((, which may, in its
discretion, after notice and hearing, take appropriate
disciplinary action including, but not limited to, a letter of
reprimand, refusal to permit such person to appear in a
representative capacity in any proceeding before the board or its
industrial appeals judges, or certification of the record to the
superior court for contempt proceedings as provided in RCW
51.52.100)) for action consistent with (b) above.
[Statutory Authority: RCW 51.52.020. 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.
AMENDATORY SECTION (Amending Order 11, filed 1/18/82)
WAC 263-12-175 Computation of time. The time within which
any act shall be done, as provided by these rules, shall be
computed by excluding the first day and including the last,
unless the last day is a Saturday, Sunday, or legal state
holiday, and then it is also excluded. ((and the next succeeding
business day included.))
[Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), § 263-12-175, filed 1/18/82; Order 4, § 263-12-175, filed 6/9/72; General Order 2, Rule 11, filed 6/12/63. Formerly WAC 296-12-175.]
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 20, filed 1/10/86)
WAC 263-12-180 Petitions for declaratory ruling. (1) Right
to petition for declaratory ruling. As prescribed by RCW
((34.04.080)) 34.05.240, any interested party may petition the
board for a declaratory ruling with regard to the board's
policies, procedures, and rules.
(2) Form of petition. The form of the petition for a declaratory ruling shall generally adhere to the following:
(a) ((At the top of the)) On the first page shall appear the
wording (("Before the board of industrial insurance appeals,
state of Washington." On the left side of the page before the
foregoing the following caption shall be set out:)) "In the
matter of the petition of (name of petitioning party) for a
declaratory ruling."
((Opposite the foregoing caption shall appear the word
"petition."))
(b) The body of the petition shall be set out in numbered
paragraphs. The first paragraph shall state the name and address
of the petitioning party. The second paragraph shall state all
rules or statutes that may be brought into issue by the petition.
Succeeding paragraphs shall set out the ((state of)) facts
relied upon in form similar to that applicable to complaints in
civil actions before the superior courts of this state. The
concluding paragraphs shall contain the ((prayer of)) relief
sought by the petitioner. ((The petition shall be subscribed and
verified in the manner prescribed in these rules.)) The petition
shall be signed by the petitioner or its representative and
contain a statement that the person signing the petition has read
it and that to the best of his or her knowledge or information
and belief the contents thereof are true.
(((c) The original and two legible copies shall be filed
with the board. Petitions shall be on white paper, 8 1/2" x 11"
in size.))
(3) Consideration of petition. The entire board shall consider the petition, and within a reasonable time shall:
(a) Issue a non-binding declaratory ruling; or
(b) Notify the ((person)) petitioner that no declaratory
ruling is to be issued; or
(c) Set a reasonable time and place for a hearing or for
submission of written evidence on the matter, and give reasonable
notification to the ((person)) petitioner of the time and place
for such hearing or submission, and of the issues involved.
(4) Disposition of petition. If a hearing is held or evidence is submitted, the board shall, within a reasonable time:
(a) Issue a binding declaratory ruling; or
(b) Issue a nonbinding declaratory ruling; or
(c) Notify the ((person)) petitioner that no declaratory
ruling is to be issued.
[Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), § 263-12-180, filed 1/10/86; Order 4, § 263-12-180, filed 6/9/72; General Order 2, Rules 12.1-12.4, filed 6/12/63; Subsection (3), General Order 3, Rule 12.3, filed 10/29/65. Formerly WAC 296-12-180.]
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.