SANCTIONS
Civil Rule 11
The Board will consider a motion for sanctions based on CR 11 at the time it considers a petition for review. Motions filed for sanctions under RCW 4.84.185 must be filed after a final order. ….Steven Baer, 98 10319 (1999) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 99-2-01464-3.]
A motion for terms pursuant to CR 11 may be considered before a Board order has become final. ….David Harrington, 97 A033 (1999)
WAC 263-12-125 and RCW 51.52.140 provide that the rules of practice in civil cases shall apply to appeals before the Board. The Board is therefore empowered to impose terms under CR 11 if the facts warrant such a sanction. It was proper to award attorney's fees and costs to a witness required to defend against being recalled to testify concerning documents which a reasonable inquiry would have disclosed to be inadmissible. ....Donald Anderson, 87 3724 (1989) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 89-2-11598-1]
Discovery
Sanctions are mandatory under CR 26(g) where counsel failed to make a reasonable inquiry by asking his client for the material or deliberately withheld discoverable material. ….Danny Dow,
08 14859 (2011)
The sanction chosen for violation of a discovery rule must be the least severe sanction necessary to remedy prejudice caused by noncompliance with discovery rules. If the only prejudice shown by failure to comply with the discovery was additional attorney's fees, striking the testimony of a witness was excessive. ….Judith Overby, 09 19369 (2011) [dissent]
[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 11-2-11646-8 KNT.]
When considering sanctions for discovery violations, the Board is guided by the principle that it should impose the least severe sanction that does not undermine the purpose of discovery. Citing Physicians Ins. Exch. v. Fisons Corp., 122 Wn.2d 299 (1993). ....Waheed Al-Maliki, 01 14923 (2003) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 03-2-11311-5 KNT.]
Failure to attend CR 35 medical examination
It was proper to require the worker's attorney to personally pay the employer the cancellation fee incurred when, on the advice of the attorney and without notice to the employer, the worker failed to appear at a Board ordered CR 35 examination. ....Harold Thrasher, 55,183 (1982)
Frivolous defense
Because the Department had no evidence to support its order and chose to rely on an untenable legal theory, sanctions are appropriate. ....Robynhawk Freebyrd-Brown, 02 10758 (2003)
Sanctions may be appropriate if the Department requires the worker to present evidence merely because the worker has the burden of proof. ....Shimangus Gaim, 00 14616 (2002)
Because a series of Board significant decisions place the Department on notice of the likely outcome in a similar fact pattern, and the Department has not sought review when it had the opportunity, it is frivolous for the Department to proceed in the defense of its order when there is no debatable issue based on the Board's significant decisions. ....Michael Burke, 99 14179 (2001)
RCW 4.84.185, which provides for imposition of sanctions in instances where a defense was frivolous and advanced without reasonable cause, applies in appeals before the Board. A party may not seek sanctions under RCW 4.84.185 until such time as the Board's order is final. ....Don Eerkes, 90 2532 (1992)