Rule-making
On September 5, 2024, the Board of Industrial Insurance Appeals (BIIA) proposed rule amendments to WAC 263-12 Practice and Procedure. On October 30, 2024, the BIIA held a rulemaking hearing during which no oral comments were offered. The Board members received and carefully considered the one written comment filed. The Board adopted the proposed rules and rule amendments with two changes on November 8, 2024. The rules are effective 31 days after filing on December 16, 2024. Changes are described beginning on page 3, below.
Reason for Adoption
To revise the Board's rules of practice and procedure by amending WAC 263-12-01501, -115, 117, -11801, -145, and -170.
RULE CHANGES
(1) Filings with the board
Amend WAC 263-12-01501(1) to clarify that Amend WAC 263-12-01501(1) to clarify that written communications can only be filed at the Board's Olympia office. We no longer accept mail at BIIA field offices. Also amend WAC 263-12-01501(6) to ensure that written communication filed with the Board shall not include personal identifiers as described in GR 31(e), and, if present, shall be redacted. Change would prohibit or discourage parties from filing social security numbers, financial account numbers, and driver’s license numbers.
(2) Order of Presentation in worker appeals from claim rejection orders where the worker argues that a presumption applies.
Amend WAC 263-12-115 to clarify that if a claimant or beneficiary appeals a determination rejecting an industrial insurance claim and asserts that a statutory presumption applies, the appealing party will first present evidence in support of that assertion. The employer or Department may then present evidence in opposition to the assertion a statutory presumption applies. The judge shall then rule on whether a statutory presumption applies. If a statutory presumption applies, the Department or self-insured employer may present evidence to rebut the statutory presumption. The claimant or beneficiary may then present additional evidence. Nothing in this subsection prohibits the industrial appeals judge or Board from consolidating or bifurcating trial to decide issues or appeals, consistent with CR 42.
Explanation: With the advent of occupational disease presumptions now present in the Industrial Insurance Act, it is time to reexamine the Board's strict rule on the order of presentation at trial. Change the rule to recognize the difference in the order of presentation when a worker appeals a claim rejection order and claims entitlement to a statutory presumption. The notion is that when a worker appeals a claim rejection order and claims entitlement to a statutory presumption, the worker should first show that the presumption applies, then the defense should go next to have an opportunity to rebut the presumption, then the claimant should be allowed to present evidence in response to the case presented by the defense.
(3) Perpetuation depositions
Amend WAC 263-12-117(4) to clarify that the court reporter hired by the party taking a perpetuation deposition is responsible for filing perpetuation deposition transcripts. Why? There have been some instances where there was confusion about whether the court reporter or the attorney should file it. Also, amend WAC 263-12-117(4)(b) to ensure that deposition transcripts are ADA compliant (readable by reader software for people with vision impairment).
(4) Affidavits and declarations
Housekeeping change. WAC 263-12-11801(2) currently refers to affidavits or declarations conforming to the requirements of RCW 9A.72.085. But that RCW has been repealed. Chapter 5.50 RCW is titled Uniform Unsworn Declarations Act. We should change the reference to Chapter 5.50 RCW.
(5) Requests for translation of PDOs by limited-English-proficient persons.
Amend WAC 263-12-145(3)(b) to clarify that to toll the deadline to file a petition for review, a request for translation of a PDO must be received before the deadline to file a petition for review has expired.
(6) Certified Appellate Board Record (CABR).
WAC 263-12-170 (governing the Board's final record) should be amended to add that documents sealed by the board (e.g., trade secrets or privileged information) after in camera review required special handling.
Background: When a party files an appeal to the superior court from a Board order, the chief legal officer or designee must certify the record made before the Board to the court. RCW 51.52.110 and WAC 263-12-170. This is called the Board's Certified Appellate Board Record or CABR.
Good Faith and Fair Dealing Issue: Under SHB 1521, effective July 1, 2024, all self-insured municipal employers, self-insured private sector firefighter employers, and their TPAs have a duty of good faith and fair dealing to workers. Penalties can be imposed by the Department of Labor and Industries for the breach of this duty. Appeals will be heard by the Board, resulting in "good faith litigation." With the new good faith litigation, the Board will expect motions from workers to pierce attorney-client privilege under Cedell v. Farmers Ins., 176 Wn.2d 686, 295 P.3d 239 (2013), which permits piercing of that privilege in first-party bad faith insurance claims. There will be motions relying upon Cedell to the Board. Cedell requires an in camera review in superior court to rule on privilege issues. Obviously, CR 53.3 applies to the Board, so the IAJs can perform in camera reviews.
Trade Secrets Issue: Another issue is that the Board is beginning to see industrial safety appeals where employers assert that certain exhibits or testimony contain trade secrets and should be placed under seal under GR 15 and Chapter 19.18 RCW (Uniform Trade Secrets Act), which apply to Board appeals.
It was proposed that sealed evidence would, presumably, not be initially included in the CABR until ordered by the superior court. But that potentially hampers the superior court from conducting its own de novo review of those documents/evidence.
In our CR-102, we proposed to add a requirement that documents sealed by the board after in camera review are not part of the certified appellate board record and shall not be submitted to the superior court unless ordered by the superior court. See change 1 below.
WERE CHANGES MADE SINCE THE RULE CHANGES WERE PROPOSED?
YES. TWO (2) CHANGES.
1. We changed the language from the CR-102 for WAC 263-12-170, regarding the certified board record for superior court appeals. This rulemaking aims to ensure that we don't casually submit sealed records to the court when a party appeals a board decision to the court. The concern is that sealed documents submitted to the court might be publicly available without special handling. Sealed documents require special handling by both the board and the court unless otherwise directed by the court. We carefully considered the written comment we received from the Office of the Attorney General:
Comment from the AGO:
We would ask the BIIA to consider adopting practices similar to GR 15 for sealed records. This is for situations when the BIIA has admitted evidence in the hearing but has deemed that evidence should be sealed. The current WAC appears to state that those records will simply be withheld from the CABR pending an order by the superior court. In that scenario we think including an indication in the CABR that records were sealed similar to 15(c)(5) would be useful to alert the court to the issue. Or the BIIA could consider whether there is a feasible way to transmit a sealed portion of the CABR alongside the unsealed record. In making these comments, we recognize the challenge of trying to set a rule that works across the much wider variety of county superior courts vs. the three divisions of the Court of Appeals.
The comment is well taken. We can achieve the same aim without unnecessary burden/expense on the parties (Having to obtain a court order being the burden/expense). Instead, we will follow the Industrial Insurance Act and the Court General Rules. Under RCW 51.52.140, "[e]xcept as otherwise provided in this chapter, the practice in civil cases shall apply to appeals prescribed in this chapter. This includes the applicable GRs, such as GR 15, which governs the sealing of documents.
We changed the language from the language proposed in the CR-102 to "Documents sealed by the board will be maintained by the board and forwarded to the court consistent with the process outlined in GR 15(c)(5). In such instances, the board will place all sealed records in a separate packet and alert the court that the sealed records require special handling."
Additionally, we will ensure our judges are trained on GR 15 and our superior court record staff will submit sealed records in a separate packet labeled "SEALED — Special Handling Required" together with a copy of the board's order sealing the records.
Our Superior Court staff will coordinate with the courts clerks in these situations to orally ask for special handling
2. The second change we made was to correct a clerical error/oversight in the proposed language in the CR-102 for the change to WAC 263-12-115. We corrected the language to be clear that if the defense presents evidence to rebut a statutory presumption, the claimant or beneficiary may then present additional evidence. Not just the claimant. That was an obvious oversight in the CR-102. We added or beneficiary. This is for the situation where a claimant is deceased and the beneficiary is the appealing party.