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Rule-making

New and amended rules effective January 2, 2015

Complete 2014 rules from Washington State Code Reviser Office:

Synopsis of new and amended rules:

New Rule: Motion Practice before the Board.
Three new rules are proposed to be added to chapter 263-12 WAC to provide clear instructions for filing motions at the Board:

  1. WAC 263-12-118 Motions: This rule addresses motions generally and distinguishes motions to be filed with an industrial appeals judge or the Executive Secretary.
  2. WAC 263-12-11801 Motions that are dispositive—motions to dismiss; motion for summary judgment; voluntary dismissal: This rule codifies the existing practice for filing dispositive motions at the Board, including motions to dismiss and motions for summary judgment.
  3. WAC 263-12-11802 Employer's motion for a stay of the order on appeal: This rule clarifies the procedures for employers filing a motion for a stay of benefits pending appeal.

Amendments to WAC 263-12-017 Request for Public Records.
This amendment updates the agency’s rule to: (1) reflect the legislature's recodification of the public records statutes from chapter 42.17 RCW to chapter 42.56 RCW; (2) assure it is consistent with case law; and (3) reflect the agency's current public records request processing practices.

Amendments to WAC 263-12-020 Appearances of parties before the Board. The purpose of this amendment is to codify the agency's current practice and to reorganize the rule so that it is more user-friendly. The rule lists the type of representatives that may represent parties in different proceedings, how appearances are made by representatives, and duties of the industrial appeals judge.

Amendments to WAC 263-12-050 Contents of notice of appeal. This section deletes references to appeals filed under the Washington Industrial Safety and Health Act ("WISHA"). The deleted information in subsection (7) has been moved to WAC 263-12-059. The goal is to make the WISHA filing rules easier for readers to locate. This section is also amended to refer parties to WAC 263-12-059, which will contain all filing requirements for WISHA appeals in one location.

Amendments to WAC 263-12-059 Appeals arising under the Washington Industrial Safety and Health Act-Notice to interested employees. This section is amended to make it easier for parties in appeals arising under the Washington Industrial Safety and Health Act to find the procedural filing requirements. The filing information will be found in one rule instead of the current two. In addition to moving what is currently contained in WAC 263-12-050(7) to this rule, the amendment also extends the amount of time parties have to file documents when an appeal includes a request for stay of abatement, clarifies some filing requirements consistent with current practice, and clarifies when the Board will deny a request to stay abatement pending appeal.

Amendments to WAC 263-12-092 Mediation conferences. Amendments to this section are proposed to incorporate and reflect changes made by Laws of 2014, ch. 142, §§ 1 and 2, which exempt Claim Resolution Structured Settlement Agreement information from public disclosure under RCW 42.56.230 and RCW 51.04.063, and to clarify that no one is permitted to make an audio or video recording of mediation conferences.

Amendments to WAC 263-12-115 Procedures at hearings. The purpose of this amendment is to clarify and codify the agency's current practice with regard to testimony. Telephone testimony may be presented with the agreement of all parties. If the parties cannot agree, the Judge may for good cause allow telephonic testimony. The rule outlines several relevant factors for the judge to consider in deciding the matter. The factors are drawn from existing case law.

Amendments to WAC 263-12-116 Exhibits. This section is amended to codify the Board's current practice into the rule. The goal is to avoid having a contaminated or hazardous device connected to agency computers and the Board network. If a party wants to play electronic media (other than a videotape), the party must supply the equipment for viewing the item during the hearing. This is necessary because many agency hearings are taken at locations outside the Board's Olympia office. If a party does not have equipment to play the electronic media, the rule provides for contacting the industrial appeals judge in advance of the hearing so that arrangements can be made to play the device on agency equipment. The rule further provides that if an infected device is submitted, the exhibit can be rejected as any other hazardous exhibit.

Amendments to WAC 263-12-117 Perpetuation depositions. The purpose of this amendment is to codify the agency's current practice. Telephone depositions may be taken without restriction if all parties agree. The rule also provides a summary of relevant factors for the judge to consider if a party objects to telephone deposition and the judge must intercede to resolve the dispute. The judge may for good cause order telephonic depositions.  The factors are drawn from existing case law.

Amendments to WAC 263-12-052 Contents of claim resolution structured settlements agreement.
The purpose of this amendment is to conform the filing requirements for a structured settlement agreement, where the worker is represented by an attorney, to the Court of Appeals Division II decision in Board of Industrial Insurance Appeals v. South Kitsap School District No. 43688-4-II (May 20, 2014)

Amendments to WAC 263-12-01501 Communications and filing with the board.
This amendment clarifies the current practice of the Board regarding when communication is deemed filed if it is sent via facsimile or through the internet. Housekeeping changes are also made and are limited to formatting and numbering. Additionally this amendment adds a section on electronic filing with the Board. This would allow the parties to file any document with the Board via the Board's internet site.