WSR 09-13-089

PROPOSED RULES

DEPARTMENT OF CORRECTIONS


[ Filed June 16, 2009, 1:58 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-09-085.

Title of Rule and Other Identifying Information: Chapter 137-78 WAC, Employee assault benefits.

Hearing Location(s): Department of Corrections, 7345 Linderson Way S.W., Conference Room, #1028 ABC, Tumwater, WA 98504, on July 22, 2009, at 11 a.m.

Date of Intended Adoption: July 22, 2009.

Submit Written Comments to: John R. Nispel, P.O. Box 41114, Olympia, WA 98504-1114, e-mail JRNISPEL@DOC1.WA.GOV, fax (360) 664-2009, by July 21, 2009.

Assistance for Persons with Disabilities: Contact Kim French by July 21, 2009, (360) 725-8367.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of these amendments are to update the WAC to reflect current department structure and make clear the procedure for approval of assault benefits.

Reasons Supporting Proposal: The WAC should accurately reflect the organizational structure of the department.

Statutory Authority for Adoption: RCW 72.01.090.

Statute Being Implemented: RCW 72.09.240.

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

Name of Proponent: Department of corrections, administrative services division, governmental.

Name of Agency Personnel Responsible for Drafting: John R. Nispel, P.O. Box 41114, Olympia, WA 98504-1114, (360) 725-8365; Implementation and Enforcement: Kathy Gastreich, P.O. Box 41103, Olympia, WA 98504-1103, (360) 725-8587.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This WAC has no impact on small business.

A cost-benefit analysis is not required under RCW 34.05.328. Rules relating only to internal governmental operations that are not subject to violation by a nongovernment party.

June 16, 2009

E. Vail

Secretary

OTS-2477.1


AMENDATORY SECTION(Amending WSR 03-21-088, filed 10/17/03, effective 11/17/03)

WAC 137-78-010   Definitions.   For the purposes of this chapter the following words shall have the following meanings:

(1) "Assault" means an ((intentional)) unauthorized touching, including spitting and/or throwing a substance/object, striking, cutting, or shooting ((of a person or the body of another)) by an offender resulting in physical injury to an employee.

(2) "Assault benefits" means reimbursement to employees of some of their costs attributable to being the victim of an offender assault.

(3) (("Administrator, safety and risk management" means the individual who is appointed by the secretary to head the safety and risk management section or his/her designee.)) "Assistant secretary" means the executive head of one of the department's organizational divisions.

(4) "Department" means the department of corrections.

(5) "Employee" means any individual who is appointed by the secretary, and who serves under the supervision and authority of the department. The term "employee" shall not include an individual performing personal services under contract or offenders.

(6) "Deputy secretary" is the deputy secretary for the ((office of correctional operations)) department or his/her designee.

(7) "Doctor" means a person licensed to practice one or more of the following professions: Medicine and surgery; osteopathic; chiropractic; drugless therapeutics; podiatry; dentistry; optometry.

(8) "Offender" means any person in the custody of or subject to the jurisdiction of the department of corrections.

(9) "Secretary" means the secretary of the department of corrections or the secretary's designee.

[Statutory Authority: RCW 72.01.090. 03-21-088, 137-78-010, filed 10/17/03, effective 11/17/03. Statutory Authority: RCW 72.13.170. 89-15-059 (Order 89-05), 137-78-010, filed 7/19/89, effective 8/19/89.]


AMENDATORY SECTION(Amending Order 89-05, filed 7/19/89, effective 8/19/89)

WAC 137-78-020   Eligibility.   Employees who apply to the department may be eligible for assault benefits if the ((secretary)) department finds that each of the following has occurred:

(1) An offender has assaulted the employee and as a result thereof the employee has sustained injuries which have required the employee to miss one or more days of work;

(2) The assault is not attributable to any extent to the employee's negligence, misconduct, or failure to comply with any rules or conditions of employment;

(3) The assault occurred while the employee was in the performance of his/her official duties; and

(4) The employee has made application for compensation under Title 51 RCW and the claim has been approved for an injury related to the assault.

[Statutory Authority: RCW 72.13.170. 89-15-059 (Order 89-05), 137-78-020, filed 7/19/89, effective 8/19/89.]


AMENDATORY SECTION(Amending WSR 03-21-088, filed 10/17/03, effective 11/17/03)

WAC 137-78-030   Application process.   Employees who meet the eligibility requirements of WAC 137-78-020 and elect to apply for assault benefits shall submit a signed application for assault benefits ((and)), a properly completed report of ((personal injury form (DOC 3-133), together with the certificate of the doctor that attended him or her)) accident/injury and a copy of his or her L&I Report of Industrial Injury or Occupational Disease form (F242-130-000), to his or her locally designated representative or human resource office within ((ten)) sixty working days of the occurrence of the assault or, if the application could not be reasonably submitted within that period, within ((ten)) sixty working days of the time when application could reasonably have been made. Applications shall be reviewed through the employee's chain of command. The ((deputy secretary shall forward the application, with appropriate recommendations, to the safety and risk management section. The administrator, safety and risk management)) department shall grant or deny the request for assault benefits within ((ten)) thirty working days after ((written notification from the employee or the department of labor and industries that the employee's application for compensation under Title 51 RCW has been approved)) receipt of the completed application, but may extend that time to gather additional information. A completed application shall include information that the department of labor and industries has approved the employee's claim for benefits related to the assault.

[Statutory Authority: RCW 72.01.090. 03-21-088, 137-78-030, filed 10/17/03, effective 11/17/03. Statutory Authority: RCW 72.13.170. 89-15-059 (Order 89-05), 137-78-030, filed 7/19/89, effective 8/19/89.]


AMENDATORY SECTION(Amending Order 89-05, filed 7/19/89, effective 8/19/89)

WAC 137-78-040   Conditions of reimbursement.   (1) Assault benefits authorized ((the employee)) by the ((secretary)) department under this chapter shall not continue longer than the date of termination of ((time-loss)) time loss benefits by the department of labor and industries or three hundred sixty-five consecutive days from the date of the injury, whichever date is earlier, and shall be limited to the following:

(a) For each workday missed due to assault for which the employee is not eligible to receive compensation under chapter 51.32 RCW, the employee shall receive full pay pursuant to RCW 72.09.240 and this chapter; and

(b) In respect to workdays missed due to assault for which the employee shall be reimbursed compensation under chapter 51.32 RCW, the employee shall receive full pay, less any industrial insurance payments for time loss during the period in which assault benefits are received.

(2) As the intent of this chapter is to reimburse the employee the difference of salary compensation paid by the department of labor and industries and the full pay the employee would have received but for the time loss from the injury sustained as a result of an inmate assault, the employee shall not be entitled to receive greater than one hundred percent of his or her base salary as a result of payments by the department of labor and industries and the department unless such overpayment is the result of the employee's election to use accumulated ((vacation)) annual leave, holiday leave, compensatory time off, or exchange time.

(3) Employees granted assault benefits shall accrue full annual leave, sick leave, and insurance benefits during the time period they are approved to receive assault benefits.

(4)(a) Employees applying to the department for assault benefits may elect to use accrued sick leave until such application is approved or denied, provided that the employee shall return any subsequent overpayment to the department.

(b) The employee's accumulated sick leave hours shall not be reduced for the workdays missed due to the assault, provided that the employee has returned any overpayments to the department.

(c) If the employee fails to return any overpayments to the department, sick leave hours charged to an employee who receives worker's compensation as a result of the time loss and assault benefits shall be proportionate to the overpayment by the department during the claim period.

(5) The employee shall not be entitled to assault benefits provided in this section for any workday for which the ((secretary)) department finds ((that)) the employee has not diligently pursued his or her compensation remedies under chapter 51.32 RCW.

(6) While the employee is receiving assault benefits authorized under this chapter, the employee shall continue to be classified as a state employee and receive full service credit.

(7) The employee shall be entitled to assault benefits only for absences ((which)) that the ((chief of the office of employee services)) department believes are justified.

(8) No employee eligible to receive or receiving benefits under this chapter shall be entitled to continue to receive benefits should the legislature revoke the reimbursement authorized under this chapter.

[Statutory Authority: RCW 72.13.170. 89-15-059 (Order 89-05), 137-78-040, filed 7/19/89, effective 8/19/89.]


AMENDATORY SECTION(Amending WSR 03-21-088, filed 10/17/03, effective 11/17/03)

WAC 137-78-060   Denial of application for assault benefits.   If the employee's request for assault benefits is denied by the ((safety and risk management administrator)) department, the employee may, within ten working days from the date of denial, file a petition ((with the office of administrative services (OAS) deputy secretary)) for reconsideration, stating the specific grounds upon which the application should be granted. The ((OAS deputy secretary)) department shall respond within twenty working days from the date the petition was received; provided that the time may be extended to gather additional information.

[Statutory Authority: RCW 72.01.090. 03-21-088, 137-78-060, filed 10/17/03, effective 11/17/03. Statutory Authority: RCW 72.13.170. 89-15-059 (Order 89-05), 137-78-060, filed 7/19/89, effective 8/19/89.]


AMENDATORY SECTION(Amending WSR 03-21-088, filed 10/17/03, effective 11/17/03)

WAC 137-78-070   ((Appeal from denial of assault benefits/)) Overpayment((s)) disputes.   (((1) If the employee's petition for assault benefits to the office of administrative services deputy secretary is denied, the employee may appeal that decision to the secretary in accordance with chapter 34.05 RCW and this section. The employee shall file a written petition with the Office of the Secretary at 410 W. 5th, P.O. Box 41101, Olympia, Washington 98504-1101, within thirty days after the denial of assault benefits.

(2))) If a dispute exists between the employee and department concerning the amount of any overpayment to be repaid the department, the employee may request a hearing in accordance with chapter 34.05 RCW and this section. The employee shall file a written petition with ((the Office of)) the Deputy Secretary at ((410 W. 5th,)) P.O. Box 41101, Olympia, Washington 98504-1101, within thirty days after the dispute arises.

[Statutory Authority: RCW 72.01.090. 03-21-088, 137-78-070, filed 10/17/03, effective 11/17/03. Statutory Authority: RCW 72.13.170. 89-15-059 (Order 89-05), 137-78-070, filed 7/19/89, effective 8/19/89.]

Washington State Code Reviser's Office