1. (1) For all penalties assessed per WAC 296-15-266, RCW 51.48.017, 51.48.080, or 51.14.180, the penalty amount shall be determined by weighing the following factors:

   1. (a) Amount of delayed payment.
   2. (b) Length of time of the delay.
   3. (c) History or past practice.
   4. (d) Whether the department has issued an order directing the payment.
   5. (e) Required adjustments to the amount of the payment.
   6. (f) Number of unaddressed requests for action to be taken by the employer or third-party administrator made by the department, worker/beneficiary, or provider.
   7. (g) Efforts by the employer or third-party administrator to communicate with the worker, including communication of the basis for or calculation of a payment.

2. (2) For all penalties assessed subject to a multiplier of up to three times the amount of the penalty, the amount of the multiplier will be determined by weighing the following factors:

   1. (a) Number of prior violations in the past year of the same nature.
   2. (b) Harm or financial impact done due to the denial or delay of benefits.
   3. (c) Whether the employer or third-party administrator paid the undisputed amount of benefits.
   4. (d) The employer's or third-party administrator's timeliness or delay in responses to request from the department, worker/beneficiary, or provider.

3. (3) For all penalties assessed based on a violation of good faith and fair dealing, subject to a penalty of up to 52 times the average weekly wage, the amount of the multiplier will be determined by weighing the following factors:

   1. (a) Prior violations of good faith and fair dealing.
   2. (b) Harm or financial impact done due to the denial or delay of benefits.
   3. (c) Amount or number of other penalties assessed simultaneously.
   4. (d) Employer's or third-party administrator's participation in the investigation.
   5. (e) Whether the violation was based on WAC 296-15-270 or 296-15-272.

4. (4) The following mitigating factors may be a basis for reduction of the penalty calculation in subsections (1), (2), and (3) of this section, including a multiplier:

   1. (a) Efforts by the employer or third-party administrator to correct the actions.
   2. (b) Efforts by the employer or third-party administrator to communicate and educate employees and adjudicators of relevant policies and procedures.
   3. (c) Worker's failure to provide the employer or third-party administrator necessary documentation to complete a review or investigation.
   4. (d) Investigation attempts made by the employer or third-party administrator before it denied benefits.
   5. (e) Employer's or third-party administrator's participation in the department's investigation and timeliness of responses.
   6. (f) Any other factors deemed appropriate by the department.

5. (5) Penalties assessed based on a violation of the duty of good faith and fair dealing, within a five-year period, will be calculated as follows:

   1. (a) First time results in a minimum penalty of one times the average weekly wage.
   2. (b) Second time results in a minimum penalty of 15 times the average weekly wage.
   3. (c) Third time results in a minimum penalty of 25 times the average weekly wage.
   4. (d) Four or more times results in a minimum penalty of 40 times the average weekly wage.

[Statutory Authority: RCW 51.14.090, 51.14.095, and 51.14.180. WSR 24-11-121, § 296-15-268, filed 5/21/24, effective 7/1/24.]