Steps of the appeal process
What is the BIIA?
The Board of Industrial Insurance Appeals (BIIA) is a state agency that is independent from the Department of Labor and Industries (L&I). The BIIA hears appeals from decisions made by L&I in several areas. The three principal types of appeals are:
- Industrial insurance (workers' compensation)
- Safety citations under the Washington Industrial Safety and Health Act (WISHA)
- Employer Premium (tax assessments and classifications)
The BIIA is administered by three full-time Board Members appointed by the Governor and employs dozens of judges and support staff personnel to process appeals, hold conferences and hearings, and assist with the resolution of appeals.
Where do I find rules about appeals?
When the BIIA receives an appeal, it will:
- Assign a docket number to the appeal.
- Mail a Notice of Receipt of Appeal to the parties.
- Send a copy of the appeal to L&I.
In workers' benefits appeals, L&I must either:
- Send its record to the BIIA, which permits the appeal to proceed; or
- Change or reverse the order under appeal; or
- Advise the BIIA that they will reconsider their decision.
The BIIA has 60 days to decide whether the appeal will be granted. L&I must respond to the appeal within this time frame.
If L&I decides to change or reconsider its
The BIIA will return the appeal to L&I for further action.
If L&I does not reconsider its decision:
The BIIA will:
- Decide whether the BIIA has jurisdiction (the right to hear the appeal).
- If the BIIA does not have jurisdiction, the appeal will be denied and an Order Denying Appeal will be sent to the parties.
- If the BIIA has jurisdiction, the appeal will be granted and an Order Granting Appeal will be sent to the parties. An Order Granting Appeal does not mean that anyone has won or lost the appeal. It only means that the BIIA agrees to hear the appeal.
The Legislature passed a law in 2008 that provides for continued benefits during an employer appeal. The law also allows the employer to request those benefits be stopped by filing a motion to stay benefits with the appeal, or filing within fifteen (15) days after the appeal is granted. The employer's motion should specifically request that benefits be stayed during the appeal process.
This law does not apply to appeals filed by injured workers.
The BIIA will decide to grant or deny the motion based on only the information in the L&I file as it existed on the date of the order on appeal. New medical or vocational information in the file or offered by the parties in connection with the motion cannot be considered.
If you did not file the appeal, you may choose whether to participate in the conferences and/or hearings. If you choose not to participate, it is possible that your interests could be substantially affected by the outcome of the appeal. In some instances, the outcome of the appeal might not have any effect on you.
If you have an interest in the outcome of an appeal, you should participate in order to voice your opinion.
You can represent yourself before the BIIA. You can also bring someone with you to give advice and support, or you can be represented by an attorney. You may also ask a non-attorney or lay representative to represent you, so long as the lay representative does not charge a fee or is not otherwise compensated. WAC 263-12-020(3).
L&I will be represented by a paralegal or an attorney. The employer may also be represented by a lay representative or attorney.
What happens when an appeal is granted?
After an appeal is granted, a mediation conference will be held in most cases. A mediation conference is an informal meeting of the parties with a mediation judge.
A notice will be sent to all parties
All parties will receive a notice indicating the date, time, and location of the conference.
- The conference may be held in person or by telephone.
- Mediation is not a hearing—witnesses will not be called to testify. An attorney is not required, although the assistance of an attorney may be helpful.
- The mediation judge may schedule further conferences, if needed.
Advantages of mediation
- In mediation, parties are able to discuss the appeal in a relaxed and informal setting. The discussions are confidential and will not be shared with the hearings judge.
- If a settlement can be reached in mediation, the parties avoid the uncertainty, expense, and delay of a formal hearing.
The mediator's role
- The mediator will not decide the outcome of the appeal, but will discuss options for settling the appeal.
- The mediator can speak to parties privately. This process allows the mediator to meet separately with each party to explore settlement options.
- The mediator may look at the information supporting a party's position and may suggest what additional information may be necessary.
- The mediator cannot give legal advice, but will answer questions about the process.
What to bring to the mediation conference
- Look at the L&I decision that was appealed. Consider what it would take to settle the appeal. Gather all documents that support your position and bring them to the mediation conference. Don't bring originals. Instead, bring copies.
- Bring the Jurisdictional History (yellow sheets sent with the order granting the appeal). This is a summary of the history of the case. Be ready to discuss whether this history is correct.
What happens if the appeal is resolved?
An appeal can be resolved in two ways:
- The party that filed the appeal can voluntarily dismiss the appeal.
- The parties can agree on a settlement.
The BIIA will then issue either an Order Dismissing Appeal or an Order on Agreement of Parties.
What happens if the appeal is not resolved?
When a settlement cannot be reached, the case will be given to a hearings judge, who will schedule a formal hearing. To ensure confidentiality, the mediator is not allowed to discuss facts of the case with the hearings judge.
Rules for BIIA hearings
BIIA hearings are like trials. The Rules of Evidence and Superior Court Civil Rules apply. Parties must be familiar with these rules in order to ensure that all their testimony and evidence will be admitted at the hearings.
Should I hire an attorney?
Once the case has been assigned to a hearings judge, the appealing party should consider finding an attorney. An experienced attorney will represent L&I or the self-insured employer. An attorney can negotiate with the other parties, help obtain necessary witnesses, and make objections. Each party is responsible for paying their attorneys fee.
The judge's role
The judge assigned to the case can help question witnesses, but will not act as an attorney for the parties. The hearings judge must remain neutral and cannot discuss the facts of the case without all parties present.
Location of BIIA hearings
All parties will receive a notice indicating the date, time, and location of the hearing. The first hearing in a workers' compensation case is usually held either in the county where the injury occurred or the county where the worker lives.
At the hearing, witnesses will testify under oath. All testimony will be recorded by a court reporter. In most cases, a doctor will be required to testify. Doctor's notes, reports, and letters cannot become part of the record if a party objects to it. Each party is responsible for arranging for their doctors and other witnesses to testify, and for paying witness fees.
A doctor's testimony is required if a party is requesting or challenging the following benefits:
- Allowance of the claim, or acceptance of medical conditions
- Reopening of the claim for aggravation of an industrially-related condition
- Further proper and necessary medical services
- Payment of unpaid medical bills
- Time-loss compensation
- Loss of earning power
- Permanent partial disability
- Permanent total disability
All evidence must be presented at the hearing. The evidence presented at the hearing will be the only basis for the decision at the BIIA or at a higher court.
In an industrial insurance case, the appealing party must present evidence first to show that L&I’s decision is incorrect.
In a willful misrepresentation case, L&I or self-insured employer must present evidence first.
In a WISHA case, L&I must present evidence first.
When all hearings are completed and all evidence has been received, the hearings judge will issue a Proposed Decision and Order, which is the hearings judge's decision on the appeal.