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2016 Final Rulemaking

On October 18, 2016, the Board of Industrial Insurance Appeals proposed rule amendments to WAC 263-12 Practice and Procedure. The link to the State Register for the proposed rules is here. On December 1, 2016, the BIIA held a rulemaking hearing during which no oral comments were offered. The Board members received and carefully considered three written comments filed prior to the rulemaking hearing. The BIIA adopted the proposed rules without changes on December 2, 2016. The rules are effective January 2, 2017.

Reason for Adoption

To revise the Board's rules of practice and procedure by amending WAC 263-12-01501, WAC 263-12-020, WAC 263-12-059, WAC 263-12-095, WAC 263-12-116, WAC 263-12-117, WAC 263-12-118, and WAC 263-12-145. Rules are being modified to meet current business needs including changes necessary for the Board of Industrial Insurance Appeals to transition to electronic filing and a paperless file, to provide specific guidance on non-attorney representation of parties, and to clarify current practice and procedure for conferences, hearings, perpetuation deposition, and motion or petition filing before the BIIA. Other amendments are made to correct typographical errors.

Summaries of Rule Changes

Amendments to WAC 263-12-01501
This amendment deletes the facsimile page limit, which the agency has determined is no longer needed. It also adds language to codify what has happened in practice; failure of a party to comply with filing requirements may prevent consideration of the communication.

Amendments to WAC 263-12-020
These amendments clarify and codify the agency's current practice regarding individuals permitted to appear and participate in proceedings. An attorney who has been disciplined, suspended, or resigns in lieu of discipline, for any reason must request permission to practice in advance. A process to certify compliance for a non-union lay representative in an industrial insurance claim appeal is created. The phrase "lay representative" also includes non-attorneys who appear for employers and retrospective rating groups. A description of individuals permitted to represent the Department of Labor and Industries in proceedings has been added. Any party may be represented by a legal intern licensed in compliance with Washington Admission to Practice Rule 9. Finally, employee representatives appearing in WISHA appeals may receive compensation.

Amendments to WAC 263-12-059
This amendment allows the agency to waive the appeal-worksite-posting requirement if an employer shows posting of the appeal is impossible or infeasible. A provision allowing for this type of waiver existed in the pre-2014 version of the rules but was inadvertently removed during 2014 rulemaking. This section is also amended to correct a scrivener's error in the numbering of the provisions in subsection (4).

Amendments to WAC 263-12-095
A typographical error in section (2) is corrected. The section addressing a party's failure to provide information sufficient to schedule a hearing is amended to reflect the Board's or an industrial appeals judge's discretionary authority.

Amendments to WAC 263-12-116
These amendments support our transition to an electronic appeal process by defining the format for a media (audio or video) exhibit. Formatting changes have been made to improve readability and specific direction. A new subsection is added to address issues arising from recent public records requests in appeals under the Washington Industrial Safety and Health Act ("WISHA" - chapter 49.17 RCW). Parties need to identify, at the time of submission, exhibits that implicate trade secret protection provided by the Uniform Trade Secrets Act (chapter 19.108 RCW) and possible exemption from disclosure under RCW 42.56.270.

Amendments to WAC 263-12-117
These amendments support our transition to an electronic appeal file process and reflect the statutory limitation on what constitutes the agency's official record. Perpetuation depositions, court reporter transcription certification and exhibits must be filed electronically, through a portal on the agency's website. Previously, electronic filing of exhibits had been permissive. The electronic deposition format must be searchable, and media (audio or video) exhibits must conform to the MP4 format standard. Video depositions will not be considered because RCW 51.52.100 requires oral testimony to be stenographically reported and transcribed.

Amendments to WAC 263-12-118
This amendment allows nondispositive motions to be heard on a conference notice rather than as formal hearings requiring a hearing notice. Written motions must clearly identify the action requested on the first page of a submission.

Amendments to WAC 263-12-145
This amendment requires a petition for review of a proposed decision and order be filed separately from any other pleading or communication with the board and must note "PETITION FOR REVIEW" on the first page of the submission. The remaining sections are renumbered because a new subsection has been added.