Appeal Process

Click on the headings below to learn more about the steps in the Appeal process. You can also view or order a copy of the video about the Appeal process.

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Receipt of Appeal

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; and
  • Send a copy of the appeal to the Department of Labor and Industries.

If the Department reconsiders its decision, the BIIA will:

  • Issue an Order Returning Case to Department for Further Action.

If the Department does not reconsider its decision, the BIIA will:

  • Decide whether it 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

Representation Before the BIIA

A party may represent themselves before the BIIA. They may also bring someone with them to give advice and support, or they may be represented by a lay person (non-attorney) or an attorney.

The Department of Labor and Industries will be represented by a paralegal or an attorney.

Mediation Conference

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.

  • 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

  • The advantage of mediation is that the parties are able to discuss the appeal in a relaxed, confidential, and informal setting.
  • 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.
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  • 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.

It is important for the parties to come prepared to the mediation conference.

  • Look at the Department 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.
  • 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 Board 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 the case with the hearings judge.

Hearing

Rules for BIIA hearings

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.

Attorneys

At this point, the appealing party should consider finding an attorney. An experienced attorney will represent the Department or the self-insured employer. An attorney can negotiate with the opposing parties, help obtain necessary witnesses, and make objections.

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 case without all parties present.

Location of Board 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.

Witnesses

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 appear in person to testify. Doctor's notes and letters may not be received into evidence if a party objects to it as hearsay. [See ER 801, 802, 803, 804]. 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 and surgical services
  • Payment of unpaid medical bills
  • Time loss compensation
  • Loss of earning power
  • Permanent partial disability
  • Permanent total disability

Evidence

All evidence must be presented at the hearing. The evidence presented at the hearing will be the only basis for the decision at the Board or at a higher court.

In an industrial insurance case, the appealing party must present evidence first to show that the Department's decision is incorrect.

In a willful misrepresentation case, the Department or self-insured employer must present evidence first.

In a WISHA case, the Department must present evidence first.

Proposed Decision & Order

When all hearings are completed and all evidence has been received, the hearing judge will issue a “Proposed Decision and Order,” which is the hearing judge's decision on the appeal.

Petition for Review

Any party who disagrees with any portion of the Proposed Decision and Order may request a review by the three Board Members. The request must be in writing and should be titled “Petition for Review.”

For information on how to file a Petition for Review, click here

You can also read or print all information about the appeal process.