BOARD OF INDUSTRIAL

INSURANCE APPEALS

(1) Where to file communications with the board. (((a) Where to file.)) Except as provided elsewhere in this section all written communications((, except those listed below,)) shall be filed with the board at its headquarters in Olympia, Washington. With written 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))) (2) 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, or by electronic filing.

(((i))) (a) Filing personally. The filing of a written communication with the board personally is ((perfected)) accomplished by delivering the written communication to an employee of the board at the board's headquarters in Olympia during customary office hours.

(((ii))) (b) Filing by mail. The filing of a written communication with the board is ((perfected)) accomplished 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))) (c) Filing by telephone facsimile.

(((A))) (i) The filing of a written communication with the board by telephone facsimile is ((perfected)) accomplished when a legible copy of the written communication is reproduced on the board's telephone facsimile equipment during the board's customary office hours. All facsimile communications((, except those listed below, shall)) must 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)) via fax numbers listed on the board's web site.

(((B))) (ii) The hours of ((operation)) staffing 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)) the board's customary office hours. Documents sent by facsimile communication comments outside of the board's customary office hours will be deemed filed on the board's next business day.

(((C))) (iii) 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. A separate transmission must be used for each appeal. Transmissions containing more than one docket number will be rejected and filing will not be accomplished, unless the multiple docket numbers have been previously consolidated by the board.

(((D) No)) (iv) Written communication should not exceed fifteen pages in length, exclusive of the cover page required by this rule.

(((E))) (v) The party attempting to file ((the)) a written communication by telephone facsimile bears the risk that the written communication will not be received or 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))) (vi) The board may require a party to file an original of any document previously filed by telephone facsimile.

(((iv))) (d) Electronic filing. Electronic filing is accomplished by using the electronic filing link on the board's web site. Communication sent by e-mail will not constitute or accomplish filing. Communication filed using the board's web site outside of the board's customary office hours will be deemed filed on the board's next business day. A separate transmission must be used for each appeal. Transmissions containing more than one docket number will be rejected and filing will not be accomplished, unless the multiple docket numbers have been previously consolidated by the board.

(3) 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)) web 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.)) Appeals received via the board's web site outside of the board's customary office hours will be deemed filed on the board's next business day. The board ((shall)) will 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)) will notify the filing party of the rejection.

(((v))) (4) Electronic filing of application for approval of claim resolution structured settlement agreement. An application for approval of claim resolution structured settlement agreement must be filed electronically using the form for electronic filing of applications for approval of claim resolution structured settlement agreement as provided on the board's ((internet)) web site. An electronic application for approval of claim resolution structured settlement agreement 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.)) Applications received by the board via the board's web site outside of the board's customary office hours will be deemed filed on the board's next business day. The board ((shall)) will issue confirmation to the filing party that an electronic application for approval of claim resolution structured settlement agreement has been received. An electronic copy of the signed agreement for claim resolution structured settlement agreement must be submitted as an attachment to the application for approval. The board will reject an application for approval of claim resolution structured settlement agreement that fails to comply with the board's filing requirements. The board ((must)) will notify the filing party of the rejection.

(((c))) (5) 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))) (6) 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.

(1) In accordance with requirements of chapter (( 42.17 RCW that agencies prevent unreasonable invasions of privacy, protect public records from damage or disorganization, and prevent excessive interference with essential functions of the agency, public records may be inspected or copied, or copies of such records may be inspected or copied, or copies of such records may be obtained, by members of the public, upon compliance with the following procedures:)) 42.56 RCW, the board will make nonexempt "public records" available for inspection and copying.

(2) A request ((shall)) to inspect or copy public records should be made in writing upon ((a form prescribed by)) the ((board)) board's request form, which ((shall be)) is available at its Olympia headquarters or its web site. The form ((shall)) may be presented to the public records officer, or to any member of the board's staff, if the public records officer is not available, at the headquarters of the board during customary office hours. The form may also be mailed, faxed, or e-mailed to the attention of the public records officer at the address or fax number provided on the board's web site.

The request ((shall)) should include the following information:

(a) The name and address of the person requesting the record and any other contact information, such as phone number or e-mail address, that may aid in responding to the request;

(b) The date ((of which)) the request ((was)) is made;

(c) The ((nature of the request;

(e) If the request matter is not identifiable by reference to the board's current index, and appropriate description of the record requested)) identity of the record(s) requested. If the record(s) requested is referenced within the current index maintained by the records officer, a reference to the requested record as it is described in such current index should be included whenever possible. If the requested record(s) is not identifiable by reference to the board's current index, as detailed a description as possible should be included to aid staff in identifying the records sought; and

(d) Whether the request is for copies or to inspect records.

(3) Requestors desiring copies of records shall make arrangements with the records officer to pay for the cost of providing the records. Costs shall include the cost of copies and the cost of mailing the records. The per page cost for standard size (8 1/2" x 11") black and white or color photocopies will be as posted on the board's web site. Nonstandard-sized documents and documents produced on something other than paper will be provided at the actual cost to reproduce and may include the cost of the materials used. Mailing cost will include actual postage and the cost of the container.

(5) In all cases in which a member of the public is making a request, ((it shall be the obligation of)) the public records officer or staff member to whom the request is made ((to)) will assist the member of the public in appropriately identifying the public record requested.

(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 in subsection (3) below)) a representative as described in subsections (3) and (4) of this section.

(iv) A firm that contracts with the employer or retrospective rating group to handle matters pertaining to industrial insurance.

(((b))) (4) Appeals under the Washington Industrial Safety and Health Act.

(((i))) (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)) (7) of this section and will be deemed a party to the appeal.

(((ii))) (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)) (7) of this section and will be deemed a party to the appeal.

(((c))) (5) May a self-represented party be accompanied by another person? 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. If the lay person is also a witness to the proceeding, the industrial appeals judge may exclude the lay person from the proceeding as provided by Evidence Rule 615.

(((d))) (6) Assistance by the industrial appeals judge. 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))) (7) How to make an appearance.

(a) Appearance by employer representative. Within fourteen days of receipt of an order granting appeal, any representative of an employer or retrospective rating group must file a written notice of appearance that includes the name, address, and telephone number of the individual who will appear.

(b) Appearances by a worker or beneficiary representative 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))) (8) Notice to other parties.

(a) 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))) (b) The board ((shall)) will serve all of its 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.

(4))) (9) 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)) is 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))) (10) 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 any of the following actions:

(i) Admonish or reprimand such person((;)).

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

(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 person's ethical conduct and fitness to practice before the board, and after notice and hearing, the board 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)) appeal(s).

(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 may, at his or her discretion and depending on all the circumstances:

(i) Admonish or reprimand such person((;)).

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

(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) of this subsection.

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 working days of the date of the board's notice of filing of appeal, file with the board, the department, and any affected employees affidavits and documents supporting the request for a stay of the abatement of the violation(s). Supporting affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Copies of individual relevant supporting documents shall be specifically referred to in the affidavit and shall be attached to the affidavit. Such supporting documents shall not be excluded from consideration based on a hearsay objection. All such affidavits and 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.

(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.)) For appeals arising under the Washington Industrial Safety and Health Act, refer to WAC 263-12-059.

(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.

(a) 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))) (i) Providing copies of the appeal to each employee member of the employer's safety committee; or

(((2))) (ii) 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.

(b) 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.

(c) The employer shall file with the board a certificate of proof of compliance with this section within fourteen days of ((receipt)) issuance of the board's notice ((acknowledging receipt of the appeal. 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. 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)) of filing of appeal. A certification form is provided on the board's web site.

(5) Expedited nature of requests to stay abatement/requests to enlarge time. Requests to stay abatement pending appeal must be decided in accordance with a strict statutory timeline. Oral argument will not be permitted. The board will grant requests to enlarge time to file documents or certifications only after receipt of a written motion with supporting affidavit filed with the board and all other parties before the filing deadline and only upon a showing of good cause.

(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 or willful misrepresentation 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). 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 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 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 of the request and setting forth the grounds 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) 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.

(1) Whenever possible, exhibits should be submitted on paper 8 1/2" x 11" in size. A larger version may be shown to the judge or witness for purpose of demonstration and a smaller version marked and offered as the exhibit.

(2) Exhibits containing audio, video, or other electronic material may be submitted on a CD, DVD, flash drive, or similar device, subject to the following conditions:

(3) The board will not accept any hazardous exhibit. A hazardous exhibit is an exhibit that:

(a) Threatens the health and safety of persons handling the exhibit, including exhibits having potentially toxic, explosive, or disease-carrying characteristics.

(b) Threatens the security of the board's electronic equipment or network. Nonexclusive examples of hazardous exhibits include:

• Biohazards (bodily fluid samples, bloody clothing).

• Used medical implements or devices (surgical screws, cables, plates, pins, prosthetic devices).

• Corrosive or toxic substances.

• Controlled substances (prescription drugs).

• Potential airborne contaminants (asbestos, silica).

• Flammable, explosive, or reactive materials.

• Live ammunition, firearms, knives, and other weapons.

(((3))) (4) Photographs, videotapes, or other facsimile representations may be used to demonstrate the existence, quantity, and physical characteristics of hazardous evidence consistent with this rule.

(((4))) (5) If a party is uncertain whether a proposed exhibit conforms to this rule or is not able to bring the necessary equipment to the hearing, that party must request a conference ((for)) with the judge at least fourteen days before submitting the exhibit, asking the judge to make a determination of conformity ((at least fourteen days before submitting the exhibit)) or to provide assistance in making the exhibit accessible at the proceeding.

(1) Evidence by deposition. The industrial appeals judge may permit or require the perpetuation of testimony by deposition, subject to the applicable provisions of WAC 263-12-115. 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's 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.

(2) Telephone depositions: When testimony is taken by perpetuation deposition, it may be taken by telephone if all parties agree. For good cause the industrial appeals judge may permit the parties to take the testimony of a witness by telephone deposition over the objection of a party after weighing the following nonexclusive factors:

(3) The industrial appeals judge may require that depositions be taken and published within prescribed time limits. The time limits may be extended by the industrial appeals judge for good cause. Each party shall bear its own costs except when the industrial appeals judge allocates costs to parties or their representatives.

(((3))) (4) The party filing a deposition must submit the deposition in a written format as well as an electronic format in accordance with procedures established by the board. Exhibits to the deposition do not have to be filed electronically but a legible hard copy must accompany the paper transcription of the deposition. If the deposition is not transcribed in a reproducible format it may be excluded from the record.

(((4))) (5) 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, including offers to admit exhibits 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 retyped into the record.

A claim resolution structured settlement agreement shall be submitted electronically with a signed copy of the agreement. ((The agreement shall contain the following information:)) If the worker is not represented by an attorney, the agreement shall contain all of the following information. If the worker is represented by an attorney, the agreement does not need to include the information requested in subsections (6) through (9) of this section:

(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.

(1) A statement made by any party, representative or other participant in the course of mediation conducted pursuant to RCW 51.52.095((,)) or a claim resolution structured settlement agreement conference conducted pursuant to RCW 51.04.063, whether verbal or written, is privileged as provided in subsection (2) of this section and is not subject to discovery or admissible in evidence in a proceeding unless waived or reduced to writing and made part of a settlement agreement.

(2) In a proceeding, the following privileges apply:

(a) A ((mediation)) party may refuse to disclose and may prevent any other person from disclosing a statement;

(b) A mediator or structured settlement conference judge may refuse to disclose and may prevent any other person from disclosing a statement ((of)) from the mediator or judge; and

(c) A nonparty participant may refuse to disclose and may prevent any other person from disclosing a statement of the nonparty participant.

(3) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation unless otherwise privileged by ((section 2 (a)-(c) above)) subsection (2) of this section.

(4) Mediation and claim resolution structured settlement agreement conferences are confidential and nonparties may be excluded from the proceedings.

(1) Definition. A party's written or oral request for the board to take action on a pending appeal is a "motion." Motions must be in writing unless made during a hearing before an industrial appeals judge. The board recognizes that there are two basic categories of motions:

(a) Nondispositive motions. Nondispositive motions include procedural motions, such as motions for a continuance, an extension of time, or to reopen the record; and discovery motions, such as motions in limine or motions to compel or request sanctions.

(b) Dispositive motions. Dispositive motions ask for a decision on one or more of the issues in an appeal or to dismiss the appeal. Examples of dispositive motions are motions to dismiss or motions for summary judgment. See WAC 263-12-11801.

(2) Motions made to the executive secretary. The procedural rules in subsections (3) through (6) of this section do not apply to motions made to the executive secretary for consideration by the three-member board:

(a) Motions for stay of the order on appeal under RCW 51.52.050 (2)(b). (See WAC 263-12-11802.)

(b) Motions to reconsider or vacate final board orders. (See WAC 263-12-156.)

(c) Motions to set reasonable attorneys' fees under RCW 51.52.120. (See WAC 263-12-165.)

(d) Requests for a stay of abatement pending appeal under RCW 49.17.140 (4)(a) in appeals filed under the Washington Industrial Safety and Health Act. (See WAC 263-12-059.)

(3) Written motions must be filed separately. Parties must file motions separately from any pleading or other communication with the board. If a motion is contained in another pleading, the first page must clearly indicate in bold print that a motion is contained therein. See WAC 263-12-01501 (1)(a) for information about motions that must be filed with the board at its headquarters in Olympia.

(4) Oral motions. Any party may bring an oral motion during a hearing, unless prohibited from doing so at the industrial appeals judge's discretion. The industrial appeals judge may provide an opportunity for other parties to respond to any oral motion. The industrial appeals judge may require that an oral motion also be submitted in writing and may provide an opportunity for written response.

(5) Responses to nondispositive motions. Any party who opposes a written nondispositive motion may file a written response within five business days after the motion is served, or may make an oral or written response at such other time as the industrial appeals judge may set.

(6) Argument. All nondispositive motions will be ruled on without oral argument, unless oral argument is requested by the parties and approved by the industrial appeals judge, or at the discretion of the industrial appeals judge. Any party may request oral argument by placing "ORAL ARGUMENT REQUESTED" prominently on the first page of the motion or responsive pleading. The time and date for hearing on the motion shall be scheduled in advance by contacting the judicial assistant for the assigned industrial appeals judge.

(1) Motion to dismiss.

(a) General. A party may move to dismiss another party's appeal on the asserted basis that the notice of appeal fails to state a claim on which the board may grant relief. The board will consider the standards applicable to a motion made under CR 12(b)(6) of the Washington superior court's civil rules. Examples of other grounds for a motion to dismiss include, but are not limited to, a lack of jurisdiction, failure to present evidence when due, and failure to present a prima facie case.

(b) Time for filing motion to dismiss. A motion to dismiss for lack of jurisdiction should be filed as early as possible to avoid unnecessary litigation. In all cases other than appeals under the Washington Industrial Safety and Health Act, a motion to dismiss for failure to present evidence when due may be made if the appealing party fails to appear at an evidentiary hearing held pursuant to due and proper notice. A motion to dismiss for failure to present a prima facie case may be made at any time prior to closure of the record.

(c) Response. A party who opposes a written motion to dismiss may file a response within ten days after service of the motion, or at such other time as may be set by the industrial appeals judge. The industrial appeals judge may allow oral argument.

(2) Motion for summary judgment.

(a) General. A party may move for summary judgment of one or more issues in the appeal if the pleadings filed in the proceeding, together with any properly admissible evidentiary support (e.g., affidavits or declarations conforming to the requirements of RCW 9A.72.085, fact stipulations, matters of which official notice may be taken), show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In considering a motion made under this subsection, the industrial appeals judge will consider the standards applicable to a motion made under CR 56 of the Washington superior court's civil rules.

(b) Oral argument. All summary judgment motions will be decided after oral argument, unless waived by the parties. The assigned industrial appeals judge will determine the length of oral argument allowed. Summary judgment motions must be heard more than fourteen calendar days before the hearing on the merits unless leave is granted by the industrial appeals judge. The time and date for hearing shall be scheduled in advance by contacting the judicial assistant for the assigned industrial appeals judge.

(c) Dates for filing. The deadlines to file and serve a motion for summary judgment and opposing and reply documents shall be as set forth in CR 56 unless the industrial appeals judge establishes different deadlines in the litigation order.

(3) Motion for voluntary dismissal - General. The party who filed the appeal may move to have the appeal voluntarily dismissed in accordance with CR 41(a) at any time.

(1) General. Any employer may move for a stay of the department order on appeal, in whole or in part, as provided in RCW 51.52.050 (2)(b). The board will grant the motion to stay if the moving party demonstrates that it is more likely than not to prevail on the facts as they existed at the time of the order on appeal.

(2) Time for filing. As set forth in RCW 51.52.050 (2)(b), a motion filed by the employer for a stay of benefits pursuant to RCW 51.52.050 must be filed within fifteen days of the board order granting the appeal.

(3) Motion must be filed separately. An employer must file a motion for a stay of the order on appeal separately from any pleading or other communication with the board and must note "MOTION FOR STAY OF BENEFITS" prominently on the first page of the motion.

(4) Expedited review. The board will conduct an expedited review of the department claim file as it existed on the date of the department order on appeal. The board will issue a final decision on the motion for stay of benefits within twenty-five days of the filing of the motion for stay or the order granting appeal, whichever is later.

(5) Appeal to superior court. The board's final decision on the motion for stay of benefits may be appealed to superior court in accordance with RCW 51.52.110.