STATE
OF WASHINGTON
BOARD OF INDUSTRIAL INSURANCE APPEALS
2430 Chandler Court SW PO Box 42491 * Olympia,
Washington 98504-2401 * (360) 753-6823
November
19, 1998
The
Joint Legislative Audit and Review Committee
Attn: Mr. Larry Brubaker
506 16th Avenue Southeast
Olympia, Washington 98501-2323
Campus
MaiI P.O. Box 40910
Dear
Mr. Brubaker;
Thank
you for allowing our agency the opportunity to state
our position on recommendations made in the Washington
State Workers' Compensation System and Performance
Audit.
Although
we were invited to comment on each of the Study's
32 Recommendations, I feel that it is more appropriate
to comment only on Recommendation 17, which directly
applies to the Board of Industrial Insurance Appeals
and briefly regarding Recommendation 15, which might
directly apply to the Board:
Recommendation
17
Superior
Court review of decisions by the Board of Industrial
Insurance Appeals should be eliminated.AGENCY
POSITION:
Neutral
COMMENTS:
This
is a recommendation that obviously could have major
repercussions for the Board of Industrial Insurance
Appeals and the entire Workers' Compensation system.
Without more detailed explanation of how the auditors
envision the Board's role and the process under this
scenario, it is impossible to accurately gauge what
the fiscal impact might be. It could be huge.
Although
not entirely clear, the analysis for this recommendation
implies that in conjunction with the elimination of
Superior Court appeals, rules of evidence and procedure
would be relaxed at Board proceedings. Because the
analysis presents no model for what form and process
would exist at the Board, the recommendation presents
a myriad of questions without answers.
Eliminating
Superior Court review, in and of itself, might have
little impact on the Board's caseload. The Board would
still be the only forum in which parties get to present
evidence. However, if, in conjunction with eliminating
appeals to Superior Court, the Legislature changed
the Board process and eliminated application of Superior
Court civil rules and evidence rules at Board hearings,
the result could be a two or three fold increase in
appeals filed at the Board. Certainly, making the
process less formal and eliminating requirements for
presenting live expert testimony would greatly reduce
the expense and energy required to take an appeal
through the hearing process. Whether increased workloads
attributable to increased appeals would be offset
by less formal hearings is problematic.
Additional
judges and support staff might be required to keep
up with increased workloads. If so, it is likely that
the Attorney General's office would require additional
staffing to represent the Department at the Board.
At any rate, fiscal impact is impossible to predict
although it could be significant.
Recommendation
15:
The
Department should create a system of mediators or
ombudsmen to provide assistance to workers and employers.
AGENCY
POSITION: Neutral
COMMENTS:
Although
this recommendation may have some merit, the suggestion
that the office of ombudsman might be a function of
the Board could present difficulties in cases appealed
to the Board in which an ombudsman has been active
prior to the appeal. I can anticipate many situations
in which the ombudsman would be called as a witness
for either side to testify about aspects of a case
and the ombudsman's involvement in the case. This
certainly would present appearance of fairness problems
for both judges and ombudsmen in many instances as
well as potential conflict of interest issues.
Once
again, thank you for allowing our agency to respond
to the audit.
Sincerely,Thomas
E. Egan, Chair
