WSR 98-18-086

PROPOSED RULES

BOARD OF

INDUSTRIAL INSURANCE APPEALS

[Filed September 2, 1998, 8:28 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-15-132 through 98-15-136.

Title of Rule: Chapter 263-12 WAC, Practice and procedure before the Board of Industrial Insurance Appeals.

Purpose: To revise the board's rules of practice and procedure by amending WAC 263-12-010, 263-12-015, 263-12-01501, 263-12-020, 263-12-175, and 263-12-180.

Statutory Authority for Adoption: RCW 51.52.020.

Summary: All the rule changes are intended to make the rules easier to understand by removing unduly formal language, in addition changes reflect the following:

(1) A subsection is added to WAC 263-12-010 to reflect a statutory change to chapter 41.26 RCW.

(2) Changes to WAC 263-12-015 and 263-12-01501 are intended to make the rules easier to understand and use by separating rule on organization from rule which explains how to file documents with the agency.

(3) Changes to WAC 263-12-020 define representation of parties in proceedings before the board, restricting lay representatives to persons who meet the defined criteria.

(4) Changes to WAC 263-12-175 mirror statutory changes to RCW 1.12.040.

(5) Changes to WAC 263-12-180 reflect the board's interpretation of its authority to issue declaratory rulings.

Reasons Supporting Proposal: Executive Order 97-02 requiring agencies to review its rules. Making rules consistent with statutory changes and the board's statutory interpretation of authority granted to the board.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: David Threedy, 2430 Chandler Court S.W., Olympia, WA, 753-9646.

Name of Proponent: Board of Industrial Insurance Appeals, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: (1) Amends and updates jurisdiction of appeals heard at the board; (2) amends and adds clarity to communications with the board; this is not a change, but moves description of the current process; and (3) to clarify the description of those persons who may appear before the board; to change the definition of lay representation before the board and, to clarify action the board will take for violations of ethical conduct by representatives.

Proposal Changes the Following Existing Rules: See Purpose, Summary and Explanation of Rule above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The regulatory changes are exempt under RCW 34.05.310 (4)(g)(i).

RCW 34.05.328 does not apply to this rule adoption. The regulatory changes are procedural, not legislative as defined by RCW 34.05.328(5) or are clarifying changes that clarify the rule without changing its effect.

Hearing Location: Board of Industrial Insurance Appeals, Main Conference Room, 2430 Chandler Court S.W., Olympia, WA 98504, on October 6, 1998, at 9:30 - 11:30 a.m.

Assistance for Persons with Disabilities: Contact Dee Mathews by September 31, 1998, (360) 753-9646.

Submit Written Comments to: David Threedy, P.O. Box 42401, Olympia, WA 98504, fax (360) 586-5611, by October 5, 1998.

Date of Intended Adoption: October 7, 1998.

September 2, 1998

David E. Threedy

Executive Secretary

AMENDATORY SECTION (Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-010 Function and jurisdiction. It is the function of the board as an agency to review, hold hearings on, and decide appeals filed from final orders, decisions or awards of the department of labor and industries. The jurisdiction of the board extends to:

(1) Appeals arising under the Industrial Insurance Act (Title 51 RCW);

(2) Appeals arising under the Crime Victims Compensation Act (chapter 7.68 RCW);

(3) Appeals arising under the Washington Industrial Safety and Health Act (chapter 49.17 RCW);

(4) Appeals from assessments issued under the Worker and Community Right to Know Act (chapter 49.70 RCW);

(5) Appeals arising under chapter 49.26 RCW concerning the denial, suspension or revocation of certificates involving asbestos projects; ((~~and~~))

(6) Appeals arising under chapter 49.22 RCW concerning safety procedures in late night retail establishments((.)); and

(7) Appeals arising under RCW 41.26.048 concerning the death of a law enforcement officer or firefighter in the course of employment.

[Statutory Authority: RCW 51.52.020. 91-13-038, § 263-12-010, filed 6/14/91, effective 7/15/91; Order 7, § 263-12-010, filed 4/4/75; Order 4, § 263-12-010, filed 6/9/72; General Order 3, § 1, filed 10/29/65; General Order 2, § 1, filed 6/12/63; General Order 1, § 1, filed 3/23/60. Formerly WAC 296-12-010.]

AMENDATORY SECTION (Amending WSR 95-02-065, filed 1/2/95 [1/3/95], effective 2/3/95)

WAC 263-12-015 Administration and organization. (1) Composition of the board. The board is an independent agency of the state of Washington composed of three members appointed by the governor. One member is a representative of workers, one member is a representative of employers, and the chairperson, who must be an active member of the Washington State Bar, is the representative of the public.

(2) Location of the board. The headquarters, and principal office of the board, is located at 2430 Chandler Ct. S.W., PO Box 42401, in Olympia, Washington 98504-2401.

(3) Customary office hours. The customary office hours of the board shall be from 8 a.m. to 5 p.m., Monday through Friday, excluding legal holidays.

(4) Formal board meetings. The board shall meet in formal session at its headquarters in Olympia, Washington at 9 a.m. on the first Tuesday of each month, and at such other times and places as the board may deem necessary, subject to 24-hour notice as required by law.

(5) Staff organization.

(a) The board's headquarters in Olympia is staffed with executive, administrative and clerical personnel.

(b) The board has a staff of industrial appeals judges who travel throughout the state in the performance of their duties and who have their offices in Olympia and in other areas of the state as is deemed necessary for efficient and cost effective handling of agency business.

(((6) Communications with the board. All written communications by parties pertaining to a particular case, including notices of appeal, applications, notices of appearance, briefs, memoranda, motions, requests, or petitions for review, shall be filed with the board at its headquarters in Olympia, Washington. All correspondence and written communications filed with the board pertaining to a particular case, before the entry of a proposed decision and order, should be sent to the attention of the industrial appeals judge assigned to the case. Interlocutory appeals should be sent to the attention of the chief industrial appeals judge. In all other instances written communications shall be directed to the executive secretary of the board. Any written communications with the board concerning an appeal should reference the docket number which was assigned by the board to the appeal, if known. Copies of any written communications filed with the board shall be furnished to all other parties or their representatives of record, and the original shall demonstrate compliance with this requirement. All written communications with the board shall be on paper 8 1/2" x 11" in size.))

[Statutory Authority: RCW 51.52.020. 95-02-065, § 263-12-015, filed 1/3/95, effective 2/3/95; 91-13-038, § 263-12-015, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), § 263-12-015, filed 1/10/86. Statutory Authority: RCW 51.52.020. 84-02-024 (Order 15), § 263-12-015, filed 12/29/83. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), § 263-12-015, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), § 263-12-015, filed 1/18/82; Order 10, § 263-12-015, filed 4/5/76; Order 7, § 263-12-015, filed 4/4/75; Order 4, § 263-12-015, filed 6/9/72; General Order 2, § 2, filed 6/12/63; General Order 1, § 2, filed 3/23/60; General Order 3, Subsection 4, filed 10/29/65. Formerly WAC 296-12-015.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

AMENDATORY SECTION (Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-01501 ((~~Filing~~)) Communications and filing with the board. (1) ((Filing generally. Unless otherwise provided by statute or these rules any written communication may be filed with the board personally, by mail, or by telephone facsimile.)) Communications with the board. (a) Where to file. All written communications by parties pertaining to a particular case, including notices of appeal, applications, notices of appearance, briefs, memoranda, motions, requests, or petitions for review, shall be filed with the board at its headquarters in Olympia, Washington.

(b) Methods of filing. Unless otherwise provided by statute or these rules any written communication may be filed with the board personally, by mail, or by telephone facsimile.

((~~(2)~~)) (i) Filing personally. The filing of a written communication with the board personally is perfected by delivering the written communication to an employee of the board at the board's headquarters in Olympia during customary office hours.

((~~(3)~~)) (ii) Filing by mail. The filing of a written communication with the board is perfected by mail when the written communication is deposited in the United States mail, properly addressed to the board's headquarters in Olympia and with postage prepaid. Where a statute or rule imposes a time limitation for filing the written communication, the party filing the same should include a certification demonstrating the date filing was perfected as provided under this subsection. Unless evidence is presented to the contrary, the date of the United States postal service postmark shall be presumed to be the date the written communication was mailed to the board.

((~~(4)~~)) (iii) Filing by telephone facsimile. ((~~(a)~~)) (A) The filing of a written communication with the board by telephone facsimile is perfected when a legible copy of the written communication is reproduced on the board's telephone facsimile equipment in Olympia. The hours of operation of the board's telephone facsimile equipment are 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding legal holidays. If a transmission of a written communication commences after these hours of operation the written communication shall be deemed filed on the next succeeding business day.

((~~(b)~~)) (B) Any written communication filed with the board by telephone facsimile should be preceded by a cover page identifying the party making the transmission, listing the address, telephone and telephone facsimile number of such party, referencing the appeal to which the written communication relates, and indicating the date of, and the total number of pages included in, such transmission.

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

((~~(d)~~)) (D) The party attempting to file the written communication by telephone facsimile bears the risk that the written communication will not be legibly printed on the board's telephone facsimile equipment due to error in the operation or failure of the equipment being utilized by either the party or the board.

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

(c) Sending written communication. All correspondence or written communication filed with the board pertaining to a particular case, before the entry of a proposed decision and order, should be sent to the attention of the industrial appeals judge assigned to the case. Interlocutory appeals should be sent to the attention of the chief industrial appeals judge. In all other instances, written communications shall be directed to the executive secretary of the board.

(d) Form requirements. Any written communications with the board concerning an appeal should reference the docket number which was assigned by the board to the appeal, if known. Copies of any written communications filed with the board shall be furnished to all other parties or their representatives of record, and the original shall demonstrate compliance with this requirement. All written communications with the board shall be on paper 8 1/2" x 11" in size.

[Statutory Authority: RCW 51.52.020. 91-13-038, § 263-12-01501, filed 6/14/91, effective 7/15/91.]

AMENDATORY SECTION (Amending WSR 91-13-038, filed 6/14/91, effective 7/15/91)

WAC 263-12-020 Appearances of parties before the board. (1) Who may appear.

(a) ((In an appeal by an employee or employee representative under the Washington Industrial Safety and Health Act, the cited employer may enter an appearance as prescribed in subsection (2) below and shall thereafter be deemed a party to the appeal.)) Any party to any appeal may appear before the board at any conference or hearing held in such appeal, either on the party's own behalf or by an attorney at law or other authorized representative of the party's choosing.

(b) ((In an appeal by an employer, under the Washington Industrial Safety and Health Act, an employee or employee representative may enter an appearance as prescribed in subsection (2) below, and shall thereafter be deemed a party to the appeal)) Appeals under the Washington Safety and Health Act.

(i) In an appeal by an employee or employee representative under the Washington Industrial Safety and Health Act, the cited employer may enter an appearance as prescribed in subsection (2) below and will be deemed a party to the appeal.

(ii) In an appeal by an employer, under the Washington Industrial Safety and Health Act, an employee or employee representative may enter an appearance as prescribed in subsection (2) below, and will be deemed a party to the appeal.

(c) ((Any party to any appeal may appear before the board at any conference or hearing held in such appeal, either on the party's own behalf or by an attorney at law or other authorized representative of the party's choosing)) Where the party appears representing himself or herself, he or she may be accompanied, both at conference and at hearing, by a lay person of his or her choosing who shall be permitted to accompany the party into the conference or hearing room and with whom he or she can confer during such procedures.

(d) ((Where the party appears representing himself or herself, he or she may be accompanied, both at conference and at hearing, by a lay person of his or her choosing who shall be permitted to accompany the party into the conference or hearing room and with whom he or she can confer during such procedures)) Although the industrial appeals judge may not advocate for either party, all parties who appear either at conferences or hearings are entitled to the assistance of the industrial appeals judge presiding over the proceeding. Such assistance shall be given in a fair and impartial manner consistent with the industrial appeals judge's responsibilities to the end that all parties are informed of the procedure which is to be followed and the issues which are involved in the proceedings. Any party who appears representing himself or herself shall be advised by the industrial appeals judge of the burden of proof required to establish a right to the relief being sought.

(((e) All parties who appear either at conferences or hearings are entitled to the assistance of the industrial appeals judge presiding over the proceeding. Such assistance shall be given in a fair and impartial manner consistent with the industrial appeals judge's responsibilities to the end that all parties clearly understand the procedure which is to be followed and the issues which are involved in the proceedings. Any party who appears representing himself or herself shall be carefully advised by the industrial appeals judge of the burden of proof required to establish a right to the relief being sought.))

(2) ((~~Manner of~~)) How to make an appearance.

(a) Appearances shall be made either by:

(i) Filing a written notice of appearance with the board containing the name of the party to be represented, and the name and address of the representative; or by

(ii) Appearing at the time and place of a conference or hearing on the appeal, and notifying the industrial appeals judge ((~~conducting the same~~)) of the party to be represented, and the name and address of the representative.

(b) The appearing party shall furnish ((C))copies of every written notice of appearance ((~~shall be furnished by the appearing party~~)) to all other parties or their representatives of record at the time the original notice is filed with the board.

(c) The board shall serve ((A))all notices and orders ((~~shall be served by the board upon such~~)) on each representative ((~~in addition to the~~)) and each party represented. Service upon the representative shall constitute service upon the party. Where more than one individual associated with a firm, or organization, including the office of the attorney general, has made an appearance, service under this subsection shall be satisfied by serving the individual who filed the notice of appeal, or who last filed a written notice of appearance or, if no notice of appeal or written notice of appearance has been filed on behalf of the party, the individual who last appeared at any proceeding concerning the appeal.

(3) ((~~No formal admission to practice~~)) Lay Representation. Duly authorized lay representatives ((~~shall~~)) may be permitted to appear in proceedings before the board without a formal request or admission to practice before the board so long as the lay representative does not charge a fee or is otherwise compensated for the representation except as provided below:

(a) A worker or beneficiary may be represented by a person employed by the worker's labor union whose duties include handling industrial insurance matters for the union. Lay persons may not represent workers before the board in return for remuneration received from the worker or from the worker's receipt of benefits under this act.

(b) An employer may be represented by a person employed by the employer or employed by a firm that contracts with the employer to handle all matters pertaining to industrial insurance.

(c) Paralegals supervised by an attorney licensed in the state of Washington to practice law may represent any party appealing before the board.

(4) Withdrawal or substitution of representatives. An attorney or other representative withdrawing from a case shall immediately ((so)) notify the board and all parties of record in writing. The notice of withdrawal shall comply with the rules applicable to notices of withdrawal filed with the superior court in civil cases. Withdrawal shall be subject to approval by the industrial appeals judge or the executive secretary. Any substitution of an attorney or representative shall be accomplished by written notification to the board and to all parties of record together with the written consent of the prior attorney or representative. If such consent cannot be obtained, a written statement of the reason therefor shall be supplied.

(5) Conduct.((a)) All persons appearing as counsel or representatives in proceedings before the board or before its industrial appeals judges shall conform to the standards of ethical conduct required of attorneys before the courts of the state of Washington.

(a) Industrial Appeals Judge. If any such person does not conform to such standard, the industrial appeals judge presiding over the ((~~proceeding shall~~)) appeal, at his or her discretion and depending on all the circumstances, may take the following action:

(i) admonish or reprimand such person, or

(ii) exclude such person from further participation in the proceedings and adjourn the same, or

(iii) certify the facts to the appropriate superior court for contempt proceedings as provided in RCW 51.52.100, or

(iv) report the matter to the board((~~, which may,~~)).

(b) The board. ((i)) In its discretion, either upon referral by an industrial appeals judge as stated above or on its own motion, after information comes to light that establishes to the board a question regarding a persons ethical conduct and fitness to practice before the board, and after notice and hearing, may take appropriate disciplinary action including, but not limited to((,)):

(i) a letter of reprimand,

(ii) refusal to permit such person to appear in a representative capacity in any proceeding before the board or its industrial appeals judges, or

(iii) certification of the record to the superior court for contempt proceedings as provided in RCW 51.52.100.

If the circumstances require, the board may take action as described above prior to notice and hearing if the conduct or fitness of the person appearing before the Board requires immediate action in order to preserve the orderly disposition of the appeal or appeals.

((~~(b)~~)) (c) Proceedings. If any person in proceedings before the board disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered so to do, any pertinent book, paper or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take oath as a witness, or after having the oath refuses to be examined according to law, the industrial appeals judge shall, at his or her discretion and depending on all the circumstances((,)):

(i) admonish or reprimand such person, or

(ii) exclude such person from further participation in the proceedings and adjourn the same, or

(iii) certify the facts to the appropriate superior court for contempt proceedings as provided in RCW 51.52.100, or

(iv) report the matter to the board((, which may, in its discretion, after notice and hearing, take appropriate disciplinary action including, but not limited to, a letter of reprimand, refusal to permit such person to appear in a representative capacity in any proceeding before the board or its industrial appeals judges, or certification of the record to the superior court for contempt proceedings as provided in RCW 51.52.100)) for action consistent with (b) above.

[Statutory Authority: RCW 51.52.020. 91-13-038, § 263-12-020, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), § 263-12-020, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), § 263-12-020, filed 1/18/82; Order 7, § 263-12-020, filed 4/4/75; Order 6, § 263-12-020, filed 9/29/72; Order 4, § 263-12-020, filed 6/9/72; General Order 2, § 3.1, filed 6/12/63; General Order 1, filed 3/23/60; General Order 3, § 3.1(b), Subsection (2), filed 10/29/65.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION (Amending Order 11, filed 1/18/82)

WAC 263-12-175 Computation of time. The time within which any act shall be done, as provided by these rules, shall be computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or legal state holiday, and then it is also excluded. ((~~and the next succeeding business day included.~~))

[Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), § 263-12-175, filed 1/18/82; Order 4, § 263-12-175, filed 6/9/72; General Order 2, Rule 11, filed 6/12/63. Formerly WAC 296-12-175.]

AMENDATORY SECTION (Amending Order 20, filed 1/10/86)

WAC 263-12-180 Petitions for declaratory ruling. (1) Right to petition for declaratory ruling. As prescribed by RCW ((~~34.04.080~~)) 34.05.240, any interested party may petition the board for a declaratory ruling with regard to the board's policies, procedures, and rules.

(2) Form of petition. The form of the petition for a declaratory ruling shall generally adhere to the following:

(a) ((~~At the top of the~~)) On the first page shall appear the wording ((~~"Before the board of industrial insurance appeals, state of Washington." On the left side of the page before the foregoing the following caption shall be set out:~~)) "In the matter of the petition of (name of petitioning party) for a declaratory ruling."

((~~Opposite the foregoing caption shall appear the word "petition."~~))

(b) The body of the petition shall be set out in numbered paragraphs. The first paragraph shall state the name and address of the petitioning party. The second paragraph shall state all rules or statutes that may be brought into issue by the petition. Succeeding paragraphs shall set out the ((~~state of~~)) facts relied upon in form similar to that applicable to complaints in civil actions before the superior courts of this state. The concluding paragraphs shall contain the ((~~prayer of~~)) relief sought by the petitioner. ((~~The petition shall be subscribed and verified in the manner prescribed in these rules.~~)) The petition shall be signed by the petitioner or its representative and contain a statement that the person signing the petition has read it and that to the best of his or her knowledge or information and belief the contents thereof are true.

((~~(c) The original and two legible copies shall be filed with the board. Petitions shall be on white paper, 8 1/2" x 11" in size.~~))

(3) Consideration of petition. The entire board shall consider the petition, and within a reasonable time shall:

(a) Issue a non-binding declaratory ruling; or

(b) Notify the ((~~person~~)) petitioner that no declaratory ruling is to be issued; or

(c) Set a reasonable time and place for a hearing or for submission of written evidence on the matter, and give reasonable notification to the ((~~person~~)) petitioner of the time and place for such hearing or submission, and of the issues involved.

(4) Disposition of petition. If a hearing is held or evidence is submitted, the board shall, within a reasonable time:

(a) Issue a binding declaratory ruling; or

(b) Issue a nonbinding declaratory ruling; or

[Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), § 263-12-180, filed 1/10/86; Order 4, § 263-12-180, filed 6/9/72; General Order 2, Rules 12.1-12.4, filed 6/12/63; Subsection (3), General Order 3, Rule 12.3, filed 10/29/65. Formerly WAC 296-12-180.]