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Notice of BIIA Proposed Rulemaking (WSR 24-19-013)

Here is a link to proposed rule changes to WAC 263-12 BIIA Rules of Practice and Procedure. Proposal published today in the Washington State Register.

This is identical to the early preview I emailed to you in July.

Comments

You may submit written comments to the proposed rule changes by October 28, 2024, or you can orally comment at the rulemaking hearing by Zoom (see below).

Submit Written Comments to: Brian Watkins, P.O. Box 42401, Olympia, WA 98501, email brian.watkins@biia.wa.gov, or fax to 855-586-5611.

Hearing

A public hearing on the proposed rule changes will be held October 30, 2024, at 10:00 a.m. by Zoom videoconference. Please use your computer or mobile app to join on Zoom by clicking https://us06web.zoom.us/j/2427334324 or call-in (for audio only) at 253-205-0468,
Meeting ID 242 733 4324.

Reasons Supporting the Proposed Changes

(1) Filings with the board: 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 the board 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 de-termination 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 of 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 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 ap-peals, 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 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. Note: A change was made after early comment from stakeholder. The Washington State Association for Justice requested that we clarify that this applies only when there is a claim rejection and it is disputed as to whether a presumption applies.

(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) to ensure that deposition transcripts are Americans with Disabilities Act 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 con-forming 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 proposed decisions and orders (PDO) by limited-English-proficient persons: Amend WAC 263-12-145 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 informa-tion) after in camera review are not part of CABR and shall not be furnished to the parties unless ordered by the superior court.

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 colloquially called the board's 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 third party administrators 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 industrial appeal judges (IAJ) 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 has been proposed that the exhibits/testimony the IAJ excludes on privilege or trade secrets grounds would, presumably, not be initially included in 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.

The board should develop a system to keep a sealed portion of the CABR file in these limited circumstances that contains the submitted, but ruled privilege or trade secret materials. The board members can of course conduct their own review if/when they review a petition for review of a proposed decision and order from an IAJ.

Question: How, whether, and when should the board transmit this sensitive information to superior court. We need to amend our rule to make it clear that documents sealed by the board after in camera re-view are not part of the certified appellate board record and shall not be furnished to the parties unless ordered by the superior court. The party who wants the superior court to review this information should file a motion in superior court to order the board to provide the documents so this sensitive information can be handled carefully in the manner directed by the courts.