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February 20, 2020
Even for companies that have invested in mitigating safety risks, a visit from the Washington Department of Labor & Industries may still result in issuance of a citation and notice (C&N), warranted or not. If your company has just received a C&N, what do you do next?
First, pay attention to the appeal deadline. If there is any disagreement with the C&N, appeal to preserve your rights; at a minimum, this will allow time to consider options. The date you receive the C&N starts a strict appeal timeline. Pursuant to state law, an appeal must be filed with L&I within 15 working days of receipt of the C&N.
Your appeal must follow specific filing requirements, but generally should include:
The name and address of the appealing party (and representative).
The inspection number and date of the C&N being appealed.
The reasons why you believe L&I's decision is incorrect.
The name and address of any union representing affected employees.
The county in which you would like proceedings to be held.
L&I will either “reassume” the C&N to take further action or send the appeal to the Board of Industrial Insurance Appeals (BIIA). If L&I elects to take further action, it will issue a corrective notice of redetermination (CNR).
When jurisdiction is reassumed, an informal hearing is held at one of the L&I area offices. However, the “informal” aspect of the hearing does not make it any less important, as the conversation may be recorded and used in a subsequent hearing, unless certain clarifications are made at the onset of the discussion.
Any employer entering this process should have a clear understanding of how statements made at this level may impact potential litigation. Prepare for the hearing by obtaining a copy of the inspection file and having a clear goal for resolution.
After the informal hearing, L&I's Division of Occupational Safety and Health has 30 days to issue a CNR. If you are not satisfied with the findings of the CNR, you must again appeal within 15 business days.
When your appeal reaches the BIIA a mediation conference will be scheduled. Typical parties include the employer, industrial appeals mediation judge and an attorney with the Office of the Assistant Attorney General or a paralegal representing L&I.
The employer representative should be prepared to address the jurisdictional history, any issues of timeliness, the grounds upon which the employer seeks relief and whether a continued mediation is required or if the parties have reached an impasse and require a hearing.
If resolution cannot be reached at mediation, a hearings judge will hold a subsequent conference to confirm the issues on appeal and establish a litigation schedule that includes witness and discovery deadlines and hearing date(s). It is important to review and comply with the board's interlocutory order that sets out relevant dates.
Counsel is strongly encouraged at this juncture to level the playing field. An Assistant Attorney General attorney will represent the department and the Washington Rules of Evidence and Rules of Civil Procedure will be in effect. Once a hearing date is set, the parties will engage in discovery in the form of written questions and depositions. Participants may exchange preliminary motions.
The hearing typically involves live testimony before the BIIA unless the judge has allowed testimony presentation via deposition. With few exceptions, L&I has the prima facie burden of proof and it will present its case-in-chief first.
After L&I completes its presentation, the employer will then have an opportunity to present its defense. Following the hearing, the judge may allow the parties to submit post-hearing briefs, which are essentially a closing argument that highlights evidence presented in favor of the respective party.
A ruling by the BIIA can take up to 90 days and can be issued in the form of a proposed decision and order. The party that does not prevail can file a petition for review upon which the board will determine if an appeal is granted or denied. A final decision and order of the board must be appealed to Washington Superior Court within 30 days.
Engaging counsel for consultation early on may be beneficial to help identify and address potential procedural defects in the issuance of the citation, ensure you have received the complete DOSH inspection file, ensure abeyance requirements and consider available affirmative defenses.
Jenn Truong is an attorney with Reinisch Wilson Weier PC. She advises employers regarding risk management in compliance with WISHA standards, industrial insurance audits and workers' compensation claims.