Board of Industrial Insurance Appeals Conducts Stakeholder Meeting
On May 21, 2021, the Board of Industrial Insurance Appeals held a Stakeholder’s meeting to discuss several important topics.
COVID-19 Reopening Status
The Board announced they will continue with only telephone or video proceedings through at least September 30, 2021. The Board indicated there is no firm date for resuming live hearings, but they are developing a reopening plan in accordance with Governor Inslee’s Roadmap to Recovery. Once the Board resumes conducting live proceedings, there will be social distancing protocols including mask wearing regardless of vaccine status and health screenings for all individuals entering the facility. Additionally, the Board is likely to install sneeze guards in all hearing and conference rooms and implement maximum occupancy limits to allow for social distancing. Finally, the Board announced that video hearings will likely remain an option to parties on a permanent basis going forward. If the parties disagree regarding a video or live hearing, it will be conducted at the Industrial Appeals Judges’ discretion based on an analysis of the factors outlined in WAC 263-12-115(10) and In re Peter Kim, BIIA Dec., 00 21147 (2002). The factors include the need to weigh a witness’s demeanor or credibility, difficulty in handling documents and exhibits, the number of parties participating in the hearing, whether any of the testimony will need to be translated, ability of the witness to travel, feasibility of taking a perpetuation deposition, and availability of quality telecommunications equipment and service.
Around the state, there have been mixed reactions to virtual hearings with many parties speaking favorably about avoiding travel and ease of access for parties who might be disadvantaged due to remote locations of witnesses. Conversely, there have been concerns about the handling of exhibits and the use of quality video and/or telephone communications, especially during cross-examination. In Washington, most of the Board Record is established via testimony without the submission of medical or vocational records. For self-insured employers and third-party administrators, this means that effective examination of witnesses with the availability of records for reference is of the utmost importance. Effective examination can be performed sufficiently via video or telephone in many cases, but there are instances were in-person examination is better, particularly for assessing credibility and confronting adverse witnesses with inconsistent records. Allowing the parties to conduct both in-person and virtual hearings on an as-needed basis is a positive development as it allows self-insured employers to benefit from the cost-savings due to the decreased travel while also allowing for thorough in-person examination when necessary.
Proposed Changes to Washington Administrative Codes
WAC 263-12-052: As SBH noted in April, the Washington legislature recently amended RCW 51.04.063 to allow parties the option of a single lump sum payment rather than scheduled payments pursuant to the periodic payment schedule for structured settlements. Consistent with that legislation, the Board is proposing an amendment changing the name to Claim Resolution Settlement Agreement (“CRSA”). In a related move, the Board is also proposing a new rule, WAC 263-12-053, which permits the parties to amend existing CRSA’s without the need to re-file agreements for Board approval.
WAC 263-12-091: This proposed amendment would allow for the filing of affidavits of prejudice in order to remove reference to RCW 4.12.050 concerning disqualification and to allow the filing of an affidavit of prejudice if an appeal is assigned to a new Industrial Appeals Judge after a hearing is conducted to write the Proposed Decision & Order. This would fix the problem created by In re Gail Gomez, BIIA Dec., 17 15610 (2018), wherein the Board held that parties may not disqualify a judge who was reassigned solely for the purpose of issuing a Proposed Decision & Order. This is a much-needed procedural fix after several self-insured employers found themselves stripped of any right to remove a potentially prejudiced judge who did not conduct the hearing but was nonetheless writing the decision.
The Board is accepting written comments on the proposed changes through July 7, 2021. Please do not hesitate to reach out if you would like any assistance in submitting written comment. If you have any questions about Board litigation strategy in one of your Washington workers’ compensation cases, or if you have any other Washington workers’ compensation questions or concerns, please contact me at or (503) 595-6105.
Posted by Michael Godfrey.
