WSR 02-19-088

PROPOSED RULES

BOARD OF INDUSTRIAL

INSURANCE APPEALS

[ Filed September 17, 2002, 10:15 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-11-144.

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 263-12-045, 263-12-050, 263-12-059, 263-12-060, 263-12-065, 263-12-093, 263-12-115, 263-12-150; and adding new sections WAC 263-12-117, and 263-12-156.

Statutory Authority for Adoption: RCW 51.52.020.

Summary: The proposed revisions make a number of housekeeping changes by clarifying and simplifying language and punctuation; clarifying duties and powers of industrial appeals judges regarding the closing of the record; clarifies limitation of time for filing appeals under the special death benefit provision of the law enforcement officers' and fire fighters' retirement system (chapter 41.26 RCW); clarifies denial of appeals based on the department record. Creates two new sections, WAC 263-12-117, regarding evidence by deposition and procedure at deposition; and WAC 263-12-156, which defines board review of a final order.

Reasons Supporting Proposal: Rules are being modified to meet the WAC migration and clear writing mandates.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: David E. Threedy, 2430 Chandler Court S.W., Olympia, WA, (360) 753-6823.

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: WAC 263-12-045, the rule clarifies the duties and powers of industrial appeals judges by allowing the judge to close the record in the event the parties do not confirm witnesses or present evidence within the timelines prescribed by the judge.

WAC 263-12-050, to clarify the language and punctuation used in the rule.

WAC 263-12-059, to clarify the language used in the rule.

WAC 263-12-060, to clarify the language regarding time limitations for filing of appeals under the special death benefit provision of the law enforcement officers' and fire fighters' retirement system (chapter 41.26 RCW).

WAC 263-12-065, clarifies the language regarding the denial of appeals based on the department record.

WAC 263-12-093, clarifies the language used in the rule by making reference to the appropriate WAC.

WAC 263-12-115, to simplify the language used in the rule regarding depositions. The rule change eliminates language that is included in a separate rule regarding evidence by deposition and procedure at deposition (WAC 263-12-117).

WAC 263-12-150, clarifies the language used in the rule by referring to the appropriate WAC.

New section WAC 263-12-117, creates new section regarding evidence by deposition and procedure at deposition.

New section WAC 263-12-156, creates a new section regarding board review of a final order.

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. There is no impact on financial issues in the amendments being made. They are basically clarification of procedural rules relating to administrative hearings.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. These rule changes are not legislative; they relate to procedures related to agency hearings or clarify language of a rule without changing its effect.

Hearing Location: Board of Industrial Insurance Appeals, Main Conference Room, 2430 Chandler Court S.W., Olympia, WA, on November 19, 2002, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Donalda Ball by November 7, 2002, (360) 753-6823 ext. 183.

Submit Written Comments to: David E. Threedy, P.O. Box 42401, Olympia, WA 98504-2401, fax (360) 586-5611, by November 18, 2002.

Date of Intended Adoption: November 19, 2002.

September 16, 2002

David E. Threedy

Executive Secretary


AMENDATORY SECTION(Amending WSR 00-23-021, filed 11/7/00, effective 12/8/00)

WAC 263-12-045   Industrial appeals judges.   (1) Definition. Whenever used in these rules, the term "industrial appeals judge" shall include any member of the board, the executive secretary, as well as any duly authorized industrial appeals judge assigned to conduct a conference or hearing.

(2) Duties and powers. It shall be the duty of the industrial appeals judge to conduct conferences or hearings in cases assigned to him or her in an impartial and orderly manner. The industrial appeals judge shall have the authority, subject to the other provisions of these rules:

(a) To administer oaths and affirmations;

(b) To issue subpoenas on request of any party or on his or her motion. Subpoenas may be issued to compel:

(i) The attendance and testimony of witnesses at hearing and/or deposition, or

(ii) The production of books, papers, documents, and other evidence for discovery requests or proceedings before the board;

(c) To rule on all objections and motions including those pertaining to matters of discovery or procedure;

(d) To rule on all offers of proof and receive relevant evidence;

(e) To interrogate witnesses called by the parties in an impartial manner to develop any facts deemed necessary to fairly and adequately decide the appeal;

(f) To secure and present in an impartial manner such evidence, in addition to that presented by the parties, as he or she deems necessary to fairly and equitably decide the appeal, including the obtaining of physical, mental, or vocational examinations or evaluations of workers;

(g) To take appropriate disciplinary action with respect to representatives of parties appearing before the board;

(h) To issue orders joining other parties, on motion of any party, or on his or her own motion when it appears that such other parties may have an interest in or may be affected by the proceedings;

(i) To consolidate appeals for hearing when such consolidation will expedite disposition of the appeals and avoid duplication of testimony and when the rights of the parties will not be prejudiced thereby;

(j) To schedule the presentation of evidence and the filing of pleadings, including the filing of perpetuation depositions;

(k) To close the record on the completion of the taking of all evidence and the filing of pleadings and perpetuation depositions. In the event that the parties do not confirm witnesses or present their evidence within the timelines prescribed by the judge, the judge may close the record and issue a proposed decision and order;

(l) To take any other action necessary and authorized by these rules and the law.

(3) Interlocutory review. A party may request interlocutory review pursuant to WAC 263-12-115(6) of any exercise of authority by the industrial appeals judge under this rule.

(4) Substitution of industrial appeals judge. At any time the board or a chief industrial appeals judge or designee may substitute one industrial appeals judge for another in any given appeal.

[Statutory Authority: RCW 51.52.020. 00-23-021, 263-12-045, filed 11/7/00, effective 12/8/00; 91-13-038, 263-12-045, filed 6/14/91, effective 7/15/91; 84-02-024 (Order 15), 263-12-045, filed 12/29/83. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-045, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-045, filed 1/18/82; Order 8, 263-12-045, filed 5/2/75; Order 7, 263-12-045, filed 4/4/75; Order 4, 263-12-045, filed 6/9/72; Rules 4.1 - 4.3, filed 6/12/63.]


AMENDATORY SECTION(Amending WSR 01-09-031, filed 4/11/01, effective 5/12/01)

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

(1) General Rule. In all appeals, the notice of appeal shall 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 shall 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 shall 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 shall 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 Appeals. In appeals arising under the special death benefit provision of the Law Enforcement Officers' and Fire Fighters' Retirement System (chapter 41.26 RCW), the notice of appeal shall also contain:

(a) The time when and the place where the death occurred; and

(b) ((t)) 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 shall 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), the appeal shall also contain:

(a) A statement identifying the citation, penalty assessment, or notice of abatement date appealed from;

(b) The name and address of the representative of any labor union representing any employee who was or who may be affected by the alleged safety violation(s);

(c) A statement certifying compliance with WAC 263-12-059((;)).

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

[Statutory Authority: RCW 51.52.020. 01-09-031, 263-12-050, filed 4/11/01, effective 5/12/01; 00-23-021, 263-12-050, filed 11/7/00, effective 12/8/00; 91-13-038, 263-12-050, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.52.104, 51.52.020 and chapters 51.48 and 42.17 RCW. 86-03-021 (Order 20), 263-12-050, filed 1/10/86. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-050, filed 1/18/82; Order 7, 263-12-050, filed 4/4/75; Order 4, 263-12-050, filed 6/9/72; Rule 5.1, filed 6/12/63; Rules 3.1 - 3.2, filed 3/23/60, amended by General Order 3, Rule 5.1, filed 10/29/65. Formerly WAC 296-12-050.]


AMENDATORY SECTION(Amending WSR 01-09-032, filed 4/11/01, effective 5/12/01)

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

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

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

[Statutory Authority: RCW 51.52.020. 01-09-032, 263-12-059, filed 4/11/01, effective 5/12/01.]


AMENDATORY SECTION(Amending WSR 00-23-021, filed 11/7/00, effective 12/8/00)

WAC 263-12-060   Filing appeals -- Limitation of time.   (1) In cases arising under the Industrial Insurance Act, or the Worker and Community Right to Know Act, the notice of appeal shall be filed within sixty days from the date the copy of the order, decision or award of the department was received by the appealing party, except an appeal from an order or decision making demand for repayment of sums paid to a provider of medical, dental, vocational or other health services shall be filed within twenty days from the date the order or decision was received by the provider.

(2) In appeals arising under the Crime Victims Compensation Act (chapter 7.68 RCW), the notice of appeal shall be filed within ninety days from the date the copy of the order, decision or award of the department was received by the appealing party.

(3) In appeals from a notice of assessment arising under chapter 51.48 RCW, the notice of appeal shall be filed within thirty days from the date the notice of assessment was served.

(4) In appeals arising under the Washington Industrial Safety and Health Act (chapter 49.17 RCW), the appeal shall be initiated by giving the director of the department of labor and industries notice of intent to appeal within fifteen working days from the date of notification of such citation, abatement period or penalty assessment. If the director does not reassume jurisdiction over the matter to which notice of intent to appeal is given, the department shall promptly transmit the notice of intent to appeal together with the department's record in the matter to the board, whereupon the matter shall be deemed an appeal before the board. If the director reassumes jurisdiction pursuant to a notice of intent to appeal, there shall be, within thirty working days of such reassumption or within the extended redetermination period up to an additional fifteen working days upon agreement of all parties to the appeal, a further determinative order issued in the matter. Any appeal from such further determinative order must be made directly to the board, with a copy filed with the director of the department, within fifteen working days from the date of notification of such further determinative order.

(5) In appeals arising under chapter 49.26 RCW concerning the denial, suspension or revocation of certificates involving asbestos projects or 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 shall be filed in the manner and within the time allowed for filing appeals under RCW 49.17.140 and WAC 263-12-060(((3)))(4).

(6) In appeals arising under the special death benefit provision of the Law Enforcement Officers' and Fire Fighters' Retirement System (chapter 41.26 RCW), the notice of appeal shall be filed within sixty days from the date the copy of the order, decision or award of the department was received by the appealing party.

(7) The board shall forthwith acknowledge receipt of any appeal filed with the board and the board's stamp placed thereon shall be prima facie evidence of the date of receipt. The board may thereafter require additional copies to be filed.

[Statutory Authority: RCW 51.52.020. 00-23-021, 263-12-060, filed 11/7/00, effective 12/8/00; 91-13-038, 263-12-060, 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), 263-12-060, filed 1/10/86. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-060, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-060, filed 1/18/82; Order 7, 263-12-060, filed 4/4/75; Order 4, 263-12-060, filed 6/9/72; Rule 5.3, filed 6/12/63; Rule 3.3, filed 3/23/60; Rule 5.3, amended by General Order 3, filed 10/29/65. Formerly WAC 296-12-055.]


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

WAC 263-12-065   Disposition on department record.   In cases arising under the Industrial Insurance Act, the Worker and Community Right to Know Act, and the Crime Victims Compensation Act, the board may, within the times prescribed by RCW 51.52.090, enter an order making final disposition of an appeal, without prejudice to any party's right to appeal from any subsequent order, decision or award issued by the department, based solely upon review of the notice of appeal and the record of the department in the case, as follows:

(1) If the notice of appeal raises no issue or issues of fact and the board finds that the department properly and lawfully decided all matters raised therein, the board may deny the appeal and affirm the department's decision or award; or

(2) If the department's record sustains the contention of the appealing party, the board may allow the relief asked in such appeal((.));

(3) If the appeal is brought prior to the taking of appealable action or issuance of an appealable order, decision or award by the department, the board may deny the appeal ((and return the matter to the department without prejudice to the right of any party to appeal from any further order, decision or award of the department.));

(4) If the department has (a) held the order, decision or award under appeal in abeyance or modified, reversed or changed the order, decision or award under appeal within the time limited for appeal or within thirty days after receiving a notice of appeal, or (b) directed the submission of further evidence within the time limited for filing a notice of appeal, the board may deny the appeal on the basis that the appealing party is no longer aggrieved by the order, decision or award under appeal; or

(5) If an employer has filed an appeal from a notice of assessment, and the department, within thirty days after receiving a notice of appeal, modifies, reverses or changes any notice of assessment or holds any such notice of assessment in abeyance pending further investigation the board may deny the appeal.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-065, filed 6/14/91, effective 7/15/91; 82-03-031 (Order 11), 263-12-065, filed 1/18/82; Order 7, 263-12-065, filed 4/4/75; Order 4, 263-12-065, filed 6/9/72; Rule 5.4, filed 6/12/63. Formerly WAC 296-12-065.]


AMENDATORY SECTION(Amending WSR 00-23-021, filed 11/7/00, effective 12/8/00)

WAC 263-12-093   Conferences -- Disposition of appeals by agreement.   (1) If an agreement concerning final disposition of any appeal is reached by all the parties present or represented at a conference, an order shall be issued in conformity with their agreement, providing the board finds the agreement is in accordance with the law and the facts.

(a) In industrial insurance cases, if an agreement concerning final disposition of the appeal is reached by the employer and worker or beneficiary at a conference at which the department is represented, and no objection is interposed by the department, an order shall be issued in conformity with their agreement, providing the board finds that the agreement is in accordance with the law and the facts. If an objection is interposed by the department on the ground that the agreement is not in accordance with the law or the facts, a hearing shall be scheduled.

(b) In cases involving the Washington Industrial Safety and Health Act, an agreement concerning final disposition of the appeal among the parties must include regardless of other substantive provisions covered by the agreement: (i) A statement reciting the abatement date for the violations involved, and (ii) A statement confirming that the penalty assessment for contested and noncontested violations has or will be paid.

(c) Where all parties concur in the disposition of an appeal but the industrial appeals judge is not satisfied that the agreement is in conformity with the facts and the law or that the board has jurisdiction or authority to order the relief sought, the industrial appeals judge may require such evidence or documentation necessary to adequately support the agreement in fact and/or in law.

(2) All agreements reached at a conference concerning final disposition of the appeal shall be stated on the record by the industrial appeals judge and the parties shall indicate their concurrence on the record. The record may either be transcribed by a court reporter or recorded and certified by the industrial appeals judge conducting the conference.

The industrial appeals judge may, in his or her discretion accept an agreement for submission to the board in the absence of one or more of the parties from the conference, or without holding a conference.

(a) In such cases the agreement may be confirmed in writing by the parties to the agreement not in attendance at a conference, except that the written confirmation of a party to the agreement not in attendance at a conference will not be required where the industrial appeals judge is satisfied of the concurrence of the party or that the party received notice of the conference and did not appear.

(b) In cases where no conference has been held but the parties have informed the judge of their agreement, yet no written confirmation has been received, the judge may submit a judge's report of proceedings which encompasses the agreement. The judge will submit copies of the report to the parties and, if no objection is received within ten days, the agreement may be submitted to the board for approval.

(3) In the event concurrence of all affected employees or employee groups cannot be obtained in cases involving agreements for final disposition of appeals under the Washington Industrial Safety and Health Act, a copy of the proposed agreement shall be posted by the employer at each establishment to which the agreement applies in a conspicuous place or places where notices to employees are customarily posted. The agreement shall be posted for ten days before it is submitted to the board for entry of the final order. The manner of posting shall be in accordance with ((WAC 296-350-400 (4) and (5))) WAC 263-12-059. If an objection to the agreement is interposed by affected employees or employee groups prior to entry of the final order of the board, further proceedings shall be scheduled.

(4) The parties present at a conference may agree to a vocational evaluation or a further medical examination of a worker or crime victim, including further evaluative or diagnostic tests, except such as require hospitalization, by medical or vocational experts acceptable to them, or to be selected by the industrial appeals judge. In the event the parties agree that an order on agreement of parties or proposed decision and order may be issued based on the report of vocational evaluation or medical examination, the industrial appeals judge may arrange for evaluation or examination and the board will pay reasonable and necessary expenses involved. Upon receipt by the board, copies of the report of such examination or evaluation will be distributed to all parties represented at the conference and further appropriate proceedings will be scheduled or an order on agreement of parties or proposed decision and order issued. If the worker or crime victim fails to appear at the evaluation or examination, the party or their representative may be required to reimburse the Board for any fee charged for their failure to attend.

[Statutory Authority: RCW 51.52.020. 00-23-021, 263-12-093, filed 11/7/00, effective 12/8/00; 91-13-038, 263-12-093, filed 6/14/91, effective 7/15/91. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-093, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-093, filed 1/18/82; Order 7, 263-12-093, filed 4/4/75.]


AMENDATORY SECTION(Amending WSR 00-23-021, filed 11/7/00, effective 12/8/00)

WAC 263-12-115   Procedures at hearings.   (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 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) ((Evidence by deposition. When a hearing is recessed or set over pursuant to subsection (7) or (8) of this section, or if a party volunteers or desires to take the testimony of any witness in a proceeding by deposition, or if the admission of evidence cannot otherwise be accomplished in a reasonably timely manner, the industrial appeals judge may permit or require the perpetuation of testimony by deposition regardless of the witness' availability to testify at the hearing or at a future recessed hearing. 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' 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. The industrial appeals judge may require that depositions be taken and published within prescribed time limits, which time limits may be extended by the industrial appeals judge for good cause. Each party shall bear its own costs, except when appropriate and requested by a party the industrial appeals judge may allocate costs to parties or their representatives. The deposition must be transcribed in a reproducible format or it may be excluded from the record.

(10) 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 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 re-typed into the record.

(11))) 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.

[Statutory Authority: RCW 51.52.020. 00-23-021, 263-12-115, filed 11/7/00, effective 12/8/00; 91-13-038, 263-12-115, filed 6/14/91, effective 7/15/91; 84-08-036 (Order 17), 263-12-115, filed 3/30/84. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-115, filed 12/2/82. Statutory Authority: RCW 51.52.020. 82-03-031 (Order 11), 263-12-115, filed 1/18/82; Order 9, 263-12-115, filed 8/8/75; Order 7, 263-12-115, filed 4/4/75; Order 4, 263-12-115, filed 6/9/72; General Order 3, Rule 7.5, filed 10/29/65; General Order 2, Rule 7.4, filed 6/12/63; General Order 1, Rule 5.10, filed 3/23/60. Formerly WAC 296-12-115.]


AMENDATORY SECTION(Amending WSR 01-13-038 [91-13-038], filed 6/14/91, effective 7/15/91)

WAC 263-12-150   Finality of proposed decisions and orders.   (1) Where no petition for review is filed. In the event no petition for review is filed as provided herein by any party, the proposed decision and order of the industrial appeals judge shall be adopted by the board and become the decision and order of the board, and no appeal may be taken therefrom to the courts.

(2) Proposed decision and order deemed adopted without formal action. If an order adopting the proposed decision and order is not formally signed by the board on the day following the date the petition for review of the proposed decision and order is due, said proposed decision and order shall be deemed adopted by the board and become the decision and order of the board, and no appeal may be taken therefrom to the courts.

(3) Order adopting proposed decision and order -- delay in mailing to parties. To permit adequate time for postal delivery of petitions for review or requests for extension of time to file petitions for review which have been filed by mail pursuant to RCW 51.52.104 and WAC 263-12-01501(((3))) (b)(ii), the board will delay the mailing of its order adopting the proposed decision and order to all parties until three days after the date the petition is due. Notwithstanding the date of mailing of the order adopting the proposed decision and order, such order shall be effective immediately following the last day permitted for filing a petition for review.

(4) Setting aside final order due to delayed postal delivery. If, after entry or mailing of the order adopting proposed decision and order, a petition for review or a request for extension of time to file a petition for review is received which bears evidence of mailing within the time permitted for filing such petition or request for extension, the board will set aside the order adopting the proposed decision and order and consider the petition or request for extension as one timely filed.

[Statutory Authority: RCW 51.52.020. 91-13-038, 263-12-150, 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), 263-12-150, filed 1/10/86. Statutory Authority: RCW 51.41.060(4) and 51.52.020. 83-01-001 (Order 12), 263-12-150, filed 12/2/82; Order 4, 263-12-150, filed 6/9/72; Rule 8.5, filed 6/12/63. Formerly WAC 296-12-150.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
NEW SECTION
WAC 263-12-117   Perpetuation depositions.   (1) Evidence by deposition. The industrial appeals judge may permit or require the perpetuation of testimony by deposition. 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. The industrial appeals judge may require that depositions be taken and published within prescribed time limits, which time limits may be extended by the industrial appeals judge for good cause. Each party shall bear its own costs except when appropriate and requested by a party, the industrial appeals judge may allocate costs to parties or their representatives. If the deposition is not transcribed in a reproducible format it may be excluded from the record.

(2) 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 re-typed into the record.

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NEW SECTION
WAC 263-12-156   Board review of final order.   The board will consider motions to reconsider and motions to vacate final board orders. The procedure for review of final orders is as defined in CR 59 and CR 60 of the Washington Court Rules except that hearings on the motion will be held solely at the discretion of the board. After receipt of the motion the board will acknowledge receipt of the motion and direct the time frames for opposing parties to respond to the motion and for the moving party to reply.

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Washington State Code Reviser's Office