WSR 11-16-010

PROPOSED RULES

BOARD OF INDUSTRIAL

INSURANCE APPEALS

[ Filed July 22, 2011, 11:05 a.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: Chapter 263-12 WAC, Practice and procedure before the board of industrial insurance appeals.

Hearing Location(s): Board of Industrial Insurance Appeals, Main Conference Room, 2430 Chandler Court S.W., Olympia, WA 98502, on September 7, 2011, at 1:30 p.m.

Date of Intended Adoption: September 9, 2011.

Submit Written Comments to: J. Scott Timmons, P.O. Box 42401, Olympia, WA 98504-2401, e-mail scott.timmons@biia.wa.gov, fax (360) 586-5611, by August 31, 2011.

Assistance for Persons with Disabilities: Contact Donalda Ball by August 24, 2011, (360) 753-6823 ext. 183.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To revise the board's rules of practice and procedure by amending WAC 263-12-050 and 263-12-059, as follows:

WAC 263-12-050, changes are necessary to meet current business needs and to meet the legislative mandate for enacting rules to implement ESSB 5068, 2011 legislative session, effective July 22, 2011. The proposed amendments add language setting forth the procedure for filing a motion to stay abatement in WISHA appeals.

WAC 263-12-059, changes are necessary to meet current business needs and to meet the legislative mandate for enacting rules to implement ESSB 5068, 2011 legislative session, effective July 22, 2011. The proposed amendments add language setting forth the procedure for providing notice in WISHA appeals involving a motion to stay abatement.

Reasons Supporting Proposal: Rules are being modified to meet current business needs and to meet the legislative mandate for enacting rules to implement ESSB 5068, 2011 legislative session, effective July 22, 2011.

Statutory Authority for Adoption: RCW 51.52.020.

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

Name of Proponent: Board of industrial insurance appeals, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: J. Scott Timmons, 2430 Chandler Court S.W., Olympia, WA 98502, (360) 753-6823.

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. The amendments are to clarify procedural rules relating to administrative hearings.

A cost-benefit analysis is not required under RCW 34.05.328. These rule changes are not legislative; they relate to procedures related to agency hearings.

July 22, 2010 [2011]

J. Scott Timmons

Executive Secretary


AMENDATORY SECTION(Amending WSR 04-16-009, filed 7/22/04, effective 8/22/04)

WAC 263-12-050   Contents of notice of appeal.   The board's jurisdiction shall be invoked by filing a written notice of appeal.

(1) General rule. In all appeals, the notice of appeal should contain where applicable:

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

(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;

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

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

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

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

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

(h) The signature of the appealing party or the party's representative.

(2) Industrial insurance appeals. In appeals arising under the Industrial Insurance Act (Title 51 RCW), the notice of appeal should 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 should 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 should 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 and public employee death benefit appeals. In appeals arising under the special death benefit provision of the Law Enforcement Officers' and Firefighters' Retirement System (chapter 41.26 RCW), the notice of appeal should 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 should 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), where the employer has moved for a stay of abatement pursuant to RCW 49.17.140, the employer shall, within seven calendar days of the date of the board's notice of filing of appeal, file with the board, the department, and any affected employees all documents supporting the request for a stay of the abatement of the violation(s). The supporting documents shall conform to rule 56(e) of the Superior Court Civil Rules of the State of Washington and be limited to evidence addressing: (1) whether there is good cause to stay the abatement of the violation(s) set forth in the citation and notice or corrective notice of redetermination; and (2) whether it is more likely than not that a stay of the abatement of the violation(s) would result in death or serious physical harm to a worker.

If an employer fails to file the supporting documents within seven calendar days of the date of the board's notice of filing of appeal, the request for a stay of the abatement of the violation(s) will be denied. Within fourteen calendar days of the date of the board's notice of filing of appeal, the department of labor and industries and any affected employees shall file all supporting documents opposing the motion to stay the abatement. The supporting documents shall be limited to evidence addressing: (1) whether there is good cause to stay the abatement of the violation(s) set forth in the citation and notice or corrective notice of redetermination; and (2) whether it is more likely than not that a stay of the abatement of the violation(s) would result in death or serious physical harm to a worker.

In appeals arising under the Washington Industrial Safety and Health Act (chapter 49.17 RCW), the appeal should 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 263-12-059.

(i) In appeals where the employer has made or renewed its request for a stay of the abatement of the violation(s) alleged in the citation and notice or corrective notice of redetermination, if the employer fails to comply with WAC 263-12-059, the motion for a stay of the abatement of the violation(s) will be denied.

(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 should 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) If applicable, a statement certifying compliance with WAC 263-12-059.

[Statutory Authority: RCW 51.52.020. 04-16-009, 263-12-050, filed 7/22/04, effective 8/22/04; 03-02-038, 263-12-050, filed 12/24/02, effective 1/24/03; 01-09-031, 263-12-050, filed 4/11/01, effective 5/12/01; 00-23-021, 263-12-050, filed 11/7/00, effective 12/8/00; 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.]


AMENDATORY SECTION(Amending WSR 03-02-038, filed 12/24/02, effective 1/24/03)

WAC 263-12-059   Appeals arising under the Washington Industrial Safety and Health Act -- Notice to interested employees.   In the case of any appeal by an employer concerning an alleged violation of the Washington Industrial Safety and Health Act, the employer shall give notice of such appeal to its employees by either: (1) Providing copies of the appeal to each employee member of the employer's safety committee; or (2) by posting a copy of the appeal in a conspicuous place at the work site at which the alleged violation occurred. Any posting shall remain during the pendency of the appeal.

The employer shall also provide notice advising interested employees that an appeal has been filed with the board and that any employee or group of employees who wish to participate in the appeal may do so by contacting the board. Such notice shall include the address of the board.

In appeals where the employer has moved for a stay of the abatement of the violation(s) alleged in the citation and notice or corrective notice of redetermination, the employer shall include in the notice of appeal the names and addresses of any unions representing workers for the employer. If the employer fails to provide the names and addresses of union representatives at the time of filing of the notice of appeal, the motion to stay the abatement of the violation(s) will be denied. Additionally, the employer shall include with the notice of appeal a certification that the employer has posted the notice of appeal and the motion to stay the abatement of the violation(s) in a conspicuous place at the work site at which the alleged violation(s) occurred. If the employer fails to file a certification of the posting of the notice of appeal and the motion to stay the abatement of the violation(s), the motion to stay the abatement of the violation(s) will be denied. Any posting shall remain during the pendency of the appeal.

The employer shall file with the board a certificate of proof of compliance with this section within fourteen days of receipt of the board's notice acknowledging receipt of the appeal. If notice as required by this section is not possible the employer shall advise the board or its designee of the reasons why notice cannot be accomplished. If the board, or its designee, accepts the impossibility of the required notice it will prescribe the terms and conditions of a substitute notice procedure reasonably calculated to give notice to affected employees.

[Statutory Authority: RCW 51.52.020. 03-02-038, 263-12-059, filed 12/24/02, effective 1/24/03; 01-09-032, 263-12-059, filed 4/11/01, effective 5/12/01.]

Washington State Code Reviser's Office