WSR 11-20-083

PROPOSED RULES

BOARD OF INDUSTRIAL

INSURANCE APPEALS

[ Filed October 4, 2011, 12:03 p.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 November 9, 2011, at 1:30 p.m.

Date of Intended Adoption: November 10, 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 November 2, 2011.

Assistance for Persons with Disabilities: Contact Donalda Ball by October 26, 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 263-12-01501 and 263-12-165; and by adding two new sections, WAC 263-12-052, regarding contents of claim resolution structured settlement agreements; and WAC 263-12-054, regarding petitions to enforce terms of claim resolution structured settlement agreements.

WAC 263-12-01501, changes are necessary to meet current business needs and to meet the legislative mandate for enacting rules to implement EHB 2123, chapter 37, Laws of 2011, effective June 15, 2011. The proposed amendments add language setting forth the criteria for electronic filing of an application for approval of claim resolution structured settlements.

WAC 263-12-165, changes are necessary to meet current business needs and to meet the legislative mandate for enacting rules to implement EHB 2123, chapter 37, Laws of 2011, effective June 15, 2011. The proposed amendments add language so the rule also applies to claim resolution structured settlement agreements.

WAC 263-12-052, adds a section regarding contents of claim resolution structured settlement agreements.

WAC 263-12-054, adds a section regarding petitions to enforce terms of claim resolution structured settlement agreements.

Reasons Supporting Proposal: Rules are being modified to meet current business needs and to meet the legislative mandate for enacting rules to implement EHB 2123, chapter 37, Laws of 2011, effective June 15, 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.

October 4, 2011

J. Scott Timmons

Executive Secretary


NEW SECTION
WAC 263-12-052   Contents of claim resolution structured settlement agreement.   A claim resolution structured settlement agreement shall be submitted electronically with a signed copy of the agreement. The agreement shall contain the following information:

(1) The names and mailing addresses of the parties to the agreement;

(2) The date of birth of the worker;

(3) The date the claim was received by the department or the self-insured employer, and the claim number;

(4) The date of the order allowing the claim and the date the order became final;

(5) The payment schedule and amounts to be paid through the claim resolution structured settlement agreement;

(6) The nature and extent of the injuries and disabilities of the worker and the conditions accepted and segregated in the claim;

(7) The life expectancy of the worker;

(8) Other benefits the worker is receiving or is entitled to receive and the effect that a claim resolution structured settlement agreement may have on those benefits;

(9) The marital or domestic partnership status of the worker;

(10) The number of dependents, if any, the worker has;

(11) A statement that:

(a) The worker knows that he/she has the right to:

(i) continue to receive all the benefits for which they are eligible under this title,

(ii) participate in vocational training if eligible, or

(iii) resolve their claim with a structured settlement;

(b) All parties have signed the agreement. If a state fund employer has not signed the agreement, a statement that:

(i) the cost of the settlement will no longer be included in the calculation of the employer's experience factor used to determine premiums, or

(ii) the employer cannot be located, or

(iii) the employer is no longer in business, or

(iv) the employer failed to respond or declined to participate after timely notice of the claim resolution settlement process provided by the department;

(c) The parties are seeking approval by the board of the agreement;

(d) The agreement binds parties with regard to all aspects of the claim except medical benefits;

(e) The periodic payment schedule is equal to at least twenty-five percent but not more than one hundred fifty percent of the average monthly wage in the state pursuant to RCW 51.08.018, except for the initial payment which may be up to six times the average monthly wage in the state pursuant to RCW 51.08.018;

(f) The agreement does not set aside or reverse an allowance order;

(g) The agreement does not subject any employer who is not a signatory to the agreement to any responsibility or burden under any claim;

(h) The agreement does not subject any department funds covered under the title to any responsibility or burden without prior approval from the director or his/her designee;

(i) The unrepresented worker or beneficiary of a self-insured employer was informed that he/she may request that the office of the ombudsman for self-insured injured workers provide assistance or be present during the negotiations;

(j) The claim will remain open for treatment or that the claim will be closed;

(k) The worker will either be required to or not be required to demonstrate aggravation of accepted conditions as contemplated by RCW 51.32.160 if the worker applies to reopen the claim;

(l) The parties understand and agree to the terms of the agreement;

(m) The parties have entered into the agreement knowingly and willingly, without harassment or coercion;

(n) The parties have represented the facts and the law to each other to the best of their knowledge;

(o) The parties believe that the agreement is reasonable under the circumstances;

(p) The parties know that they may revoke consent to the agreement by providing written notice to the other parties and the board within thirty days after the agreement is approved by the board.

(q) The designation of the party that will apply for approval with the board;

(r) Restrictions on the assignment, if any, of rights and benefits under the claim resolution structured settlement agreement.

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NEW SECTION
WAC 263-12-054   Petition to enforce terms of claim resolution structured settlement agreement.   A petition to enforce the terms of a claim resolution structured settlement agreement must include:

(1) a copy of the agreement;

(2) a copy of the board order approving the agreement;

(3) a statement setting forth the basis for the parties' failure to comply with the agreement; and

(4) the current mailing address of each party to the agreement.

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AMENDATORY SECTION(Amending WSR 10-14-061, filed 6/30/10, effective 7/31/10)

WAC 263-12-01501   Communications and filing with the board.   (1) Communications with the board.

(a) Where to file. All written communications, except those listed below, shall be filed with the board at its headquarters in Olympia, Washington. With permission of the industrial appeals judge assigned to an appeal, depositions, witness confirmations, motions (other than motions for stay filed pursuant to RCW 51.52.050), briefs, stipulations, agreements, and general correspondence may be filed in the appropriate regional board facilities located in Tacoma, Spokane, or Seattle.

(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.

(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.

(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.

(iii) Filing by telephone facsimile.

(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. All facsimile communications, except those listed below, shall be filed with the board at its headquarters in Olympia, Washington. With permission of the industrial appeals judge assigned to an appeal, depositions, witness confirmations, motions (other than motions for stay filed pursuant to RCW 51.52.050), briefs, stipulations, agreements, and general correspondence may be filed in the appropriate regional board facilities located in Tacoma, Spokane, or Seattle.

(B) 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 business day.

(C) 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.

(D) No written communication should exceed fifteen pages in length, exclusive of the cover page required by this rule.

(E) 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.

(F) The board may require a party to file an original of any document previously filed by telephone facsimile.

(iv) Electronic filing of a notice of appeal. A notice of appeal may be filed electronically when using the appropriate form for electronic filing of appeals as provided on the board's internet site. An electronic notice of appeal is filed when it is received by the board's designated computer during the board's customary office hours pursuant to WAC 263-12-015. Otherwise the notice of appeal is considered filed at the beginning of the next business day. The board shall issue confirmation to the filing party that an electronic notice of appeal has been received. The board may reject a notice of appeal that fails to comply with the board's filing requirements. The board must notify the filing party of the rejection.

(v) Electronic filing of application for approval of claim resolution structured settlement. An application for approval of claim resolution structured settlement must be filed electronically using the form for electronic filing of applications for approval of claim resolution structured settlement as provided on the board's internet site. An electronic application for approval of claim resolution structured settlement is filed when received by the board's designated computer during the board's customary office hours pursuant to WAC 263-12-015. Otherwise the application for approval of claim resolution structured settlement is considered to be filed at the beginning of the next business day. The board shall issue confirmation to the filing party that an electronic application for approval of claim resolution structured settlement has been received. An electronic copy of the signed agreement for claim resolution structured settlement must be submitted as an attachment to the application for approval. The board will reject an application for approval of claim resolution structured settlement that fails to comply with the board's filing requirements. The board must notify the filing party of the rejection.

(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. 10-14-061, 263-12-01501, filed 6/30/10, effective 7/31/10; 06-12-003, 263-12-01501, filed 5/25/06, effective 6/25/06; 04-22-047, 263-12-01501, filed 10/28/04, effective 11/28/04; 04-16-097, 263-12-01501, filed 8/3/04, effective 9/3/04; 98-20-109, 263-12-01501, filed 10/7/98, effective 11/7/98; 91-13-038, 263-12-01501, filed 6/14/91, effective 7/15/91.]


AMENDATORY SECTION(Amending WSR 08-01-081, filed 12/17/07, effective 1/17/08)

WAC 263-12-165   Attorney's fees.   (1) Applications for attorney's fees.

(a) For the fixing of attorney fees as provided by RCW 51.52.120, the board shall fix a reasonable attorney fee to be paid by the worker, crime victim or beneficiary for services rendered before the board, or before the department in a claim resolution structured settlement agreement, if written application therefor is made by the attorney, worker, crime victim or beneficiary, within one year after the board's final decision and order, or approval of the claim resolution structured settlement agreement, is communicated to the party making the application. If such application for fixing of a fee is made by the attorney, it shall set forth therein the monetary amount which the attorney considers reasonable for all services rendered before the board in an appeal, or before the department in a claim resolution structured settlement agreement, and the justification supporting the requested fee. The board shall afford to all parties affected a minimum of ten days in which to submit comments and material information which may be helpful to the board in setting a fair and reasonable fee.

(b) For the ordered payment of attorney fees as provided by RCW 51.32.185, the board shall set the attorney fee in a manner consistent with applicable provisions of subsections (2) and (3) below.

(2) Fee fixing criteria. All attorney fees fixed by the board, where application therefor has been made, shall be established in accordance with Rule 1.5 of the Rules of Professional Conduct and the following general principles:

(a) Only one fee shall be fixed for legal services in any one appeal or claim resolution structured settlement agreement regardless of the number of attorneys representing the worker, crime victim or beneficiary, except that in cases of multiple beneficiaries represented by one or multiple attorneys the board has the discretion to set more than one attorney fee if so requested.

(b) The board shall defer fixing a fee until such time as information, which it deems sufficient upon which to base a fee, is available.

(c) A fee shall be fixed only in those cases where the attorney's services are instrumental in securing additional benefits to the worker, crime victim or beneficiary ((or in)), sustaining the worker's or beneficiary's right to benefits upon an appeal by another party, or in securing a claim resolution structured settlement agreement.

(d) Where increased compensation is obtained, the fee may be fixed without regard to any medical benefits secured.

(e) In setting all fees, the following factors shall be carefully considered and weighed:

(i) Nature of the appeal or the claim resolution structured settlement agreement.

(ii) Novelty and complexity of the issues presented or other unusual circumstances.

(iii) Time and labor expended.

(iv) Skill and diligence in conducting the case or in securing the claim resolution structured settlement agreement.

(v) Extent and nature of the relief. In computing the extent of additional benefits, or the retention of benefits awarded by the department, the cost to the worker, crime victim or beneficiary of the litigation, i.e., medical examination and witness fees, shall be first deducted and the net benefits considered.

(vi) The amount of accrued time-loss payments as a result of proceedings before the board.

(vii) The prevalent practice of charging contingency fees in cases before the board.

(viii) The worker's or crime victim's circumstances and the remedial social purposes of the Industrial Insurance Act and of the Crime Victims Compensation Act, which are intended to provide sure and adequate relief to injured workers and crime victims and their families.

(f) In those cases where the payment of accumulated benefits is insufficient to allow payment of the fee set and allow the worker, crime victim or beneficiary to retain a reasonable monetary amount, the board may also set the schedule and manner in which such fee shall be payable.

(3) Amount of fees.

(a) Where additional compensation for permanent partial disability, loss of earning power, or total temporary disability is obtained as a result of settlement of the appeal on agreement of the parties prior to presentation of testimony, a fee of from 10 to 25 percent of the increased compensation due the worker, crime victim or beneficiary on the date of the board's order on agreement of the parties and by reason thereof shall be fixed after considering all factors.

(b) Where additional compensation for permanent partial disability, loss of earning power or total temporary disability is obtained after the presentation of testimony, a fee of from 10 to 30 percent of the increased compensation shall be fixed after considering all factors. This provision shall also apply to retroactive permanent total disability (pension) benefits.

(c) Where no additional compensation is obtained, but the worker or crime victim is relieved of the payment for medical benefits, a fee of from 10 to 25 percent of the amount the worker or crime victim is so relieved of paying shall be fixed after considering all factors.

(d) Where permanent total disability (pension) benefits are obtained for the worker or crime victim, or death benefits are obtained for survivors of a deceased worker or crime victim, 10 percent of the first $40,000.00 of the pension reserve as calculated by the department of labor and industries, and 15 percent of the pension reserve in excess of $40,000.00 shall constitute the usual fee, which may be decreased or increased after weighing all factors.

(e) Where indeterminate additional compensation is obtained because the claimant is successful in establishing a proper claim for benefits which was previously rejected or for which responsibility was denied, a fee in accordance with the preceding principles and factors shall be fixed.

(f) Where, upon an appeal by a party other than the worker or his or her beneficiary, the right to receive the benefits awarded by the department is affirmed, a fee in accordance with the preceding principles and factors shall be fixed.

(g) Where a claim resolution structured settlement agreement is approved by the board, fees for attorney's services are limited to fifteen percent of the total amount to be paid to the worker after the agreement becomes final.

(4) Excess fee unlawful. Where the board, pursuant to written application by an attorney, worker, crime victim or beneficiary, fixes a reasonable fee for the services of the attorney in proceedings before this board, or before the department in securing a claim resolution structured settlement agreement, it is unlawful for the attorney to charge or receive any fee for such services in excess of that fee so fixed, per RCW 51.52.132.

[Statutory Authority: RCW 51.52.020. 08-01-081, 263-12-165, filed 12/17/07, effective 1/17/08; 95-12-062, 263-12-165, filed 6/5/95, effective 7/6/95; 91-13-038, 263-12-165, filed 6/14/91, effective 7/15/91; 82-03-031 (Order 11), 263-12-165, filed 1/18/82; Order 7, 263-12-165, filed 4/4/75; Order 4, 263-12-165, filed 6/9/72; Subsection 1 from General Order 3, Rule 9.1, filed 10/29/65; General Order 2, Rule 9.2, filed 6/12/63; General Order 1, Rule 6.4, filed 3/23/60; Subsection (2), General Order 3, Rule 9.2, filed 10/29/65; General Order 9.1, filed 6/12/63; General Order 1, Rule 6.4, filed 3/23/60. Formerly WAC 296-12-165.]

Washington State Code Reviser's Office