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Rulemaking

2022 Changes to the BIIA Rules of Practice and Procedure

On May 16, 2022, the Board of Industrial Insurance Appeals (BIIA) proposed rule amendments to WAC 263-12 Practice and Procedure. On June 21, 2022, the BIIA held a rulemaking hearing during which no oral comments were offered. The Board members received and carefully considered one written comment filed prior to the rulemaking hearing. The BIIA adopted the proposed rules and rule amendments without changes on June24, 2022. The rules are effective 31 days later, on July 25, 2022.

The changes can be found at the following link: https://lawfilesext.leg.wa.gov/law/wsrpdf/2022/11/22-11-076.pdf

Reason for Adoption
To revise the Board's rules of practice and procedure by amending WAC 263-12-092, WAC 263 12-115, WAC 263-12-117, WAC 263-12-01501, WAC 263-12-020, WAC 263-12-054, and WAC 263-12-165. Rules are being modified to strengthen the confidential nature of mediation conferences and claim resolution settlement conferences, to clarify that the Board will apply the telephone hearing rule standards to videoconferences, and to make housekeeping changes to eliminate the word structured from claim resolution structured settlements. By statute, such agreements no longer must be structured.

Mediation and CRSA Conference Confidentiality: The existing mediation rule, WAC 263-12-092, identifies mediation and claim resolution settlement conference communications of participants as "privileged . . . unless waived." The provision doesn't explain what "privileged" means, nor does it explain how the privilege might be waived. The provision seems to suggest that a party can offer these otherwise privileged communications as evidence in a hearing or other Board proceeding, and it is up to the other parties or the mediation judge to expressly object or risk their admission by waiver. The current rule could be interpreted to mean that a mediation judge or claim resolution settlement conference judge could be required to disclose statements made by participants if no participant objects. The amended rule clarifies that a mediation or conference judge cannot disclose mediation communications and participants similar cannot disclose mediation communication unless waived by agreement or by operation of other law. The rule doesn't prohibit parties from introducing evidence obtained through means outside of mediation.

Videoconferencing: WAC 263-12-115(10) and 263-12-117. Updates to the Telephone Hearings/Depositions Rules to include videoconferencing - Updates WAC 263-12-115(10) and 263-12-117 - Add videoconferencing to the WACs. "Telephonic or videoconference by contemporaneous transmission."

Claim Resolution Settlement Agreements: WAC 263-12-01501: WAC 263-12-020: WAC 263-12-054: WAC 263-12-092: WAC 263-12-165. Housekeeping updates to recognize that claim resolution agreements need not be structured in nature due to changes by the Legislature to allow for lump sum claim resolution settlement agreements.

WERE CHANGES MADE SINCE THE RULE CHANGES WERE PROPOSED?
No. There were no changes from the text of the proposed rules.