Workers Compensation - Washington

Tara Reck, Managing Attorney at Reck Law PLLC - Workers' Compensation Attorneys

Workers Compensation Attorney and L&I Lawyer

Thank you for visiting my blog. My name is Tara Reck and I am a managing attorney at Reck Law, PLLC. Our Workers’ Compensation and L&I attorneys are dedicated 100% to representing injured workers in Washington State. We have several offices in the Puget Sound area and we represent injured workers all over the state.

If you need help with your L&I claim, self-insured employer claim, or any other workers’ compensation or work injury claim, please give us a call to schedule a free consultation. We help with claim management, appeals and litigation with L&I and the Board of Industrial Insurance Appeals, Washington State Superior Court, Court of Appeals, and Washington State Supreme Court, as needed.

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Reck Law, PLLC – Office Locations
Seattle & Bellevue
2731 77th Ave SE #203
Mercer Island, WA 98040

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(206) 395-6141

Tacoma
2367 Tacoma Ave S #110
Tacoma, WA 98402

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(253) 999-9828

Renton
707 S Grady Way #600 Suite R
Renton, WA 98057

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(425) 800-8195

Port Orchard
219 Prospect St
Port Orchard, WA 98366

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(360) 876-4123

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L&I workers’ compensation claim appeal in BIIA and Superior Court

Workers’ compensation is a unique legal practice. A big part of what I do as a workers’ compensation attorney is help people who have been injured at work understand and navigate their L&I claim or workers’ compensation claim. It is highly administrative work that sometimes doesn’t feel terribly like legal work.

 

Judicial appeals in workers’ compensation claims

When we appeal administrative decisions to the Board of Industrial Insurance Appeals (BIIA) our representation becomes much more legal in nature. That’s because the BIIA is a quasi judicial entity that decides workers’ compensation disputes. Appeals to the BIIA frequently involve decisions that are unfavorable to our client. Consequently, we must identify the issues and present a legal case to meet the burden of proof, to show that the administrative decision is wrong. This typically requires presenting expert and lay witness testimony in addition to appropriate legal arguments. Then, based on the evidence we present, the BIIA issues a written decision.

 

Representing work injury victims at Superior Court

If any party disagrees with the BIIA they may appeal the decision to Superior Court. In Washington State, each county has a Superior Court that hears criminal and civil cases. For example, we commonly litigate cases in King County Superior Court, Pierce County Superior Court, Snohomish County Superior Court, Kitsap County Superior Court, and others.

 

In workers’ compensation appeals, the Superior Court decides whether the BIIA decision is correct. To do that, the law requires Superior Court to consider the same evidence, or record, that we present to BIIA. That means that parties cannot introduce new evidence at Superior Court. Workers’ compensation appeals to Superior Court can be done in a bench trial or a jury trial. A bench trial is when the judge reviews the BIIA record and decides if BIIA made the correct decision. A jury trial is when we read the BIIA record to a 6 or 12 person jury. After hearing the record and arguments from attorneys, the jury enters a verdict deciding whether the BIIA decision is correct. If an injured worker wins a Superior Court appeal, they may be get reimbursement for attorney fees and costs.

 

Pros and Cons for workers compensation attorneys

These kinds of appeals have pros and cons. On one hand, this appeal process limits the number of cases tried in Superior Court while preserving the right to have a case in front of a jury of peers. On the other hand, there is a significant downside. By the time the case is decided by Superior Court, it may be two or more years after the original administrative decision was made.

 

For attorneys representing injured workers, Superior Court appeals are a significant time investment. It means at least a week that I am in Court and away from the office. While not in the office, I’m unable to speak with other clients or manage my usual day to day activities. However, most attorneys representing people with work injury claims will agree that it is one of our best opportunities to ensure that injured workers are treated fairly.

L&I claim for cancer treatment and proton beam therapy

The Department of Labor and Industries (L&I) recently made a coverage decision regarding proton beam therapy. Proton beam therapy delivers high doses of radiation to tumors with limited scatter impact to the surrounding tissues. This makes it ideal for treating deep tumors that are close to critical organs and body structures.

 

What cancer types are covered under my L&I claim?

L&I decided that proton beam therapy is a coveted treatment for injured workers presenting with certain primary cancers. These kinds of cancer include: esophageal cancer, head/neck cancer, skull-based cancer, hepatocellular carcinoma cancer, brain cancer, spinal cancer, and ocular cancer. Also, other types of cancers are included when all other treatment options are contraindicated, after review by a multidisciplinary tumor board.

 

Proton beam therapy was under review in 2014. Thereafter, it was reviewed again in May 2019 by the State Health Technology Clinical Committee (HTCC). On re-review, the HTCC expanded the kinds of primary cancer proton beam therapy can be used to treat. L&I has adopted the HTCC coverage determination for workers’ compensation claims.

 

Cancer treatment authorization in L&I claims

Generally, in workers’ compensation claims, proton beam therapy requires prior authorization. For State funded claims, a pre-authorization form can be completed to obtain the necessary authorization. To obtain pre-authorization in a self-insured workers compensation claim, you must go through the employer or their third party administrator.

 

More information about proton beam therapy in L&I claims and workers’ compensation claims can be found on the L&I website.

Permanent Partial Disability (PPD) rating in Workers’ Compensation and L&I claims

What’s my L&I claim case worth? I get this question all the time. The answer is always the same: It depends. One way to determine the value of a work injury L&I claim case is based on the Permanent Partial Disability or PPD award. And, the same holds true for a workers’ compensation claim with private insurance companies and self-insured employers.

 

What is Permanent Partial Disability or PPD?

PPD is a monetary award that some injured workers receive when L&I closes their claim. In short, if the injured worker has: (a) Reached maximum medical improvement; (b) Continues to experience permanent residuals from the industrial injury or occupational disease; and (c) Is still capable of working, then a PPD award may be appropriate.

 

PPD award rating is based upon medical evidence. When the body part involved in the work injury is one that cannot be amputated, the PPD rating usually uses categories of impairment from the Washington Administrative Code or Washington Administrative Code (WAC). However, if the body part could potentially be amputated, the PPD is rated according to criteria from the American Medical Association (AMA) Guides to the Valuation of Impairment.

 

Who can provide PPD rating for my claim?

Within the medical provider network or MPN, some providers feel comfortable and are willing to provide PPD ratings. Yet, others do not. Consequently, from my perspective, it is always ideal when the attending provider (AP) that’s assigned to the claim is willing to rate the PPD. This is because that provider usually has the best sense of the injured worker’s permanent residuals from the work injury.

 

If an AP does not do PPD ratings, they will usually refer the injured worker to a provider that does. Alternatively, they can request an Independent Medical Examination (IME).

 

How much is my right arm worth?

On a personal note, before you continue reading, please know that I’m very uncomfortable placing a monetary value on parts of the body. The human body is sacred. Body parts are priceless. However, this is the world and the reality we live in.

 

Injured workers often want to know what the monetary value of the PPD will be. It is important to know that the value is a set number that varies based upon the date of injury. L&I publishes a “Permanent Partial Disability Award Schedule”  that lists PPD values based on the date of injury. For example, the value of a 10% right arm PPD for a person injured on December 31, 2015 is $12,004.04. Here, it’s because 100% of the value of an arm for a 2015 date of injury is $120,040.41. However, without a medical opinion rating the PPD, it is virtually impossible to estimate the dollars-and-cents value for the award.

Solving problems and overcoming roadblocks in your workers’ compensation or L&I claim

If you don’t succeed the first time, then you should try and try again. I think this should be the motto for injured workers dealing with their L&I claim as they navigate their workers compensation claim process and issues.

 

The Industrial Insurance Act (RCW 51) was created to provide “sure and certain” relief for people injured at work. However, this doesn’t mean that workers’ compensation claims go smoothly or without roadblocks. Far from it. In fact, much of what I do is figuring out the best way to navigate obstacles that arise in L&I claims and self-insured employer claims.

 

L&I and workers’ compensation claims are full of tough obstacles

Whether it is getting treatment authorized, a condition accepted, or finding resolution to a conflict that has arisen, problem solving is my job. I’ll be the first to admit that sometimes problem solving feels more like trial and error. This isn’t because I don’t know what I am doing. It is because over the years I’ve learned that there’s almost always more than one way to solve a workers’ compensation problem. The key is finding the most successful approach, which is usually based on the unique facts and circumstances of the case at hand.

 

One L&I case in particular

Explicitly, since October, I’ve been trying to solve a series of issues in one particular case. I’ve had difficult conversations with my own client. I’ve had even more difficult conversations with the Claim Manager at the Department of Labor and Industries (L&I). Moreover, I had some loud and rough calls with assistant attorney generals and their paralegals representing L&I.

 

While I was able to get my client on board with some aspects of my plan, other pieces remained an unresolved challenge. On no less than six separate occasions since October, my proposals were formally rejected. Each time, I went back to the drawing board to try and develop a plan that would succeed. I clearly am not allowed to disclose specific details about this case. However, I’m pleased to report that today I managed to successfully resolve all the remaining issues. Interestingly, the solution wasn’t much different than what I had proposed about ten months ago. Yet, this time around, I just needed to take the right approach, at the right time.

 

Personal notes

Today’s perseverance to try and try again really paid off. I secured time loss compensation  benefits to an injured worker that desperately needed them. To satisfy their mounting debt, to make some urgent payments, and to get a brief temporary break. Equally important, we now have some much-needed breathing room. We are already preparing to tackle the next roadblock that we’re anticipating in this complicated L&I claim.

Work injury and workers’ compensation claims for minor workers under 18 years old

Not all workers are over 18 years old. Unfortunately, it is not uncommon for teenage workers to suffer from a workplace injury. Especially when school is out over the summer. Therefore, it is important to know that in Washington State, workers’ compensation claim and work injury coverage applies to all injured workers. No matter what age.

 

Work injury legal reference for teens and minors

Under RCW 51.04.070, people injured at work who are minors are considered sui juris. This is a fancy Latin legal term that means having the full legal capacity to act on your own behalf. So what does it mean? It means that if you had a work injury and you are under the age of 18, are entitled to your own workers’ compensation or L&I claim for benefits.

 

Important notes

However, there are some nuance. For example, if an injured worker is under 18 years of age and receives disability payments. Here, those payments are paid to the parent, guardian or legal custodian of the minor injured worker. If the parent, guardian or legal custodian gives written permission, L&I can make payments directly to the minor injured worker. Aside from this one caveat regarding disability payments, workers’ compensation claims for injured workers under the age of 18 are treated the same as all other claims.

L&I work injury claim programs: Incentivizing employers with Retrospective Rating Groups

Have you ever heard of the term Retrospective Rating? It is an incentive program that the Department of Labor and Industries (L&I) created for employers. Any employer with industrial insurance and in good standing can participate in Retrospective Ratings. Employers can do this individually or by joining a “Retro Group”. Through Retrospective Rating, employers can earn a partial refund of their workers’ compensation premiums by reducing workplace injuries and lowering the associated claim costs.

 

What is a Retrospective Rating Group?

Very simply, Retrospective Rating is a new way of calculating employer premiums for workers’ compensation. Here, premiums are calculated retrospectively after the fact. Coverage periods last for twelve months and may begin any calendar quarter. Roughly ten months after a coverage period ends, L&I reviews the actual experience and calculates a retrospective premium.

 

If the claims cost for the coverage year are below expectations, the employer or retro group earns a partial refund. The refund is the difference between the retro premium and the regular premium. If costs are higher than the regular premium, the employer or retro group may be penalized with an additional assessment.

 

Theory vs. Reality

This seems like a fair and equitable incentive program. After all, shouldn’t employers be rewarded for increasing safety and reducing work injuries and occupational diseases? If that is how this program really worked, it would have my full and most ardent support. Unfortunately, I think more effort is spent “lowering associated claim costs” than “reducing workplace injuries”.

 

Since Retrospective Rating came into existence, I have seen an increase in contentious relations between retrospective rating employers and groups, and work injury claimants. This often results in tension with return to work options, breakdowns in effective communication, contentiousness throughout claim administration, and increased litigation.

 

Personal notes and takeaways

I’m not opposed to incentivizing employers. Far from it. But, I think the Retrospective Rating program needs to be thoroughly re-evaluated to determine if it is accomplishing what it should. Reducing claim costs is important. But at what expense? Some food for thought…

L&I takes workers’ comp willful misrepresentation very seriously in work injury claims

Last month I posted about a food worker that L&I  said wrongfully obtained over $11,000 in workers’ compensation benefits. Today L&I announced that it has accused a Washington State woman with stealing over $11,000 in workers’ comp benefits. L&I has been investigating this case since 2015. Now, she has been charged criminally with first degree theft. Revised Code of Washington, Title 9A, is the relevant criminal statute. The statute allows a business or individual to be charged for theft against L&I.

 

What is willful misrepresentation in an L&I claim?

Here again, this story illustrates how seriously L&I takes fraud allegations. Under the Industrial Insurance Act, fraud is called willful misrepresentation. It means obtaining workman’s compensation benefits you are not entitled too. It includes intentional, conscious, or deliberate false statements and misrepresentations, omissions, or concealment of fact to obtain or increase benefits. L&I has a detailed checklist it provides self-insured administrators that outlines reporting requirements for willful misrepresentation. Simply put, in L&I’s view, it is willful misrepresentation for a person to intentionally obtain benefits they are not entitled to by willfully misrepresenting or omitting material facts.

 

The impact on L&I work injury claims in Washington State

According to L&I, this type of fraudulent behavior costs the system millions of dollars each year. Employers, employees, insurance carriers and Washington consumers pay the cost of fraud. These costs include lost jobs and profit, and lower wages and benefits. On top, there are increased costs for services and premiums. Fraud can be committed by employees, employers, health care providers, attorneys and others. To this end, RCW 51.48.020 allows felony (class C) charges to be filed against any employer that knowingly misrepresents to L&I the amount of payroll or worker hours. The employer is liable for up to ten times the difference in premiums due. Furthermore, the employer is liable for any reasonable expenses of auditing the employer’s books.

If interested, more information about L&I’s efforts to investigate and prosecute fraudulent behavior can be found on the L&I website.

Complex Regional Pain Syndrome (CRPS) in L&I Workers’ Compensation Claims

In workers’ compensation we see all kinds of work injuries and occupational diseases resulting in various medical diagnoses. These things are never easy, no matter what the diagnosis. However, some conditions seem to have a straighter claim path than others. Complex Regional Pain Syndrome (CRPS), for one, is a diagnosis that often leads to an irregular and challenging claim path.

 

L&I treatment guideline for CRPS

It seems that CRPS is a somewhat controversial diagnosis. The medical community is still working to better understand the condition. However, L&I does recognize CRPS as a medical diagnosis and has a treatment guideline for it. According to L&I, there are two sub-types of CRPS. Type I is what used to be called RSD, while type II used to be called Causalgia. The central difference between CRPS type I and type II is that type II occurs following a known peripheral nerve injury. On the other hand, type I occurs in the absence of any known nerve injury.

 

CRPS is a relatively uncommon condition. Also, it is not necessarily the right diagnosis for individuals with widespread pain in an extremity. Typically, true CRPS develops within 2 months of an injury in a single extremity. Symptoms include burning pain and severe pain caused by something that is typically not painful (such as a breeze or very light touch). Other symptoms are swelling, irregular or asymmetrical temperature and color of the limb, irregular or asymmetrical sweating of the limb, and skin, nail and hair changes in the impacted limb. While not required, a three-phase bone scan with a characteristic pattern of abnormality can help confirm the diagnosis.

 

Challenges with Complex Regional Pain Syndrome

One of the reasons I think CRPS becomes so challenging in workers’ compensation is because it is best treated early. Unfortunately, there are often many administrative claim related hurdles to be crossed before the condition is accepted. Consequently, early detection and treatment might not occur. CRPS is difficult because it produces extreme pain.

 

It makes it difficult for those who suffered a work injury to use the impacted limb. However, inactivity only worsens the condition. Therefore, studies have shown that early mobilization of a limb following an injury or surgery can help prevent CRPS. Yet, if symptoms do occur, the most effective treatment is early pain control and mobilization or restoring physical function. According to L&I, individuals with CRPS “must commit themselves to physical restoration on a 24-hour per day basis”. This is not an easy feat to accomplish.

 

L&I has divided treatment into six-week phases and will authorize a maximum of three phases. The first phase should include up to 5 sympathetic blocks to help control pain. The second phase should include up to 3 sympathetic blocks to help control pain. An additional 3 blocks may be authorized in the third phase as well. In addition to pain control through sympathetic blocks, the treatment phases should also include therapy and other pain control. The goal of therapy is physical restoration of function. The pain control is so that the injured worker can participate in therapy more fully.

 

Conclusions

In my experience the Department prefers for CRPS treatment phases to be carried out through a SIMP program (i.e., Structured Intensive Multidisciplinary Program). However, there are a limited number of SIMP programs throughout the State. It is not always practical for an injured worker to travel to a SIMP program for up to 18 weeks of treatment. In these cases, it can be quite difficult to coordinate treatment recommendations and authorizations efficiently.

 

I believe that L&I is actively trying to improve this process. I can attest firsthand to the fact that the Medical Director’s office often becomes very involved in CRPS. The goal seems to be to help treatment providers stay on track in moving these claims forward and reducing the long term disabling effects of the condition. However, the fact remains that claims involving CRPS are often irregular and challenging. More information about CRPS and the L&I Medical Treatment Guidelines can be found on the L&I website.

Super Lawyers award for Workmans Comp and Workers Comp law

Let’s face it, attorneys are gluttons for positive attention. Knowing our affection for positive recognition, numerous awards varying in objective legitimacy have been developed to recognize “top” attorneys. As a result, most attorneys are used to receiving numerous award letters throughout the year. Usually these awards require some sort of membership or other fee to be paid before the award is officially conveyed. Consequently, I’ve become quite jaded regarding awards for lawyers and question the legitimacy of most.

 

Each year, Super Lawyers recognizes the top lawyers in Washington through a patented multi-phase selection process. The process requires attorneys to nominate their peers. In turn, Super Lawyers performs independent research and peer evaluation. According to Super Lawyers, the Washington attorneys who receive the highest point totals during the selection process are further recognized in Washington Super Lawyers Top Lists. Super Lawyers, within the legal community, is one of the more widely accepted and recognized awards conveyed on attorneys.

 

With that, I am pleased to share that I have been named a 2019 Super Lawyer’s Rising Star in Washington State. I previously received this award in 2013, 2014, 2015, and 2016. After a two-year break, I’m happy to again be recognized as a top workers’ compensation attorney. Thank you to my peers who nominated me. And, thank you to my clients who trust me to assist them as they navigate their L&I work injury and workers comp claims.

New rules for self-insured employers help L&I govern workers’ compensation claims in Washington State

Many employers in Washington State pay workers’ compensation insurance premiums to the Department of Labor and Industries (or L&I in short). Washington State supports and backs L&I. However, some employers choose to go with private workers’ compensation insurance provider. Such an employer is referred to as a self-insured employer.

 

Who manages self-insured workers’ compensation claims?

If you were injured at work or developed an occupational disease while working for a self-insured employer, then your claim is administered by a third-party. However, L&I still oversees the entire claim administration process. L&I often uses administrative codes to help its employees govern and oversee self-insured claims.

 

New rules help L&I oversee workers’ compensation claims

Effective today, July 1, 2019, the administration code WAC 296-15-425 governs self-insurer communication standards. What does that mean? It means that under this WAC code, self-insurers are now required to communicate with injured workers about certain decisions in writing using L&I templates.

 

Self-insurers must use L&I templates to communicate with injured workers within 5 days of taking action to:

1. Calculate an injured workers wage rate (form F207-227-000);
2. Start, stop or deny compensation benefits (form F207-224-000 and form F207-225-000);
3. Accept or deny a contended condition (form F207-220-000 and form F207-221-000);
4. Authorize or deny treatment (form F207-226-000); and/or
5. Assess an underpayment or overpayment of benefits (form F207-223-000 and form F207-222-000).

 

Why is this important? Is it good for injured workers?

This step is incredibly helpful because templates are designed to ensure timely and accurate delivery of claim decisions. The templates also promote efficient claim processing to protect injured workers and streamline L&I’s regulatory oversight. The templates inform injured workers of the action being taken and provide them with information about their right to dispute decisions. If an injured worker disputes a self-insurer decision within 60 days, L&I will intervene and issue an order to resolve the dispute. However, the Department’s decision may always be appealed to the Board of Industrial Insurance Appeals (BIIA) if either party disagrees with it.

 

If a self-insurer makes a decision and there is no dispute, then L&I will not intervene. While WAC 296-15-425 changes the process for how self-insurers communicate with injured workers, it does not change the reactionary process for injured workers. Just like any claim-related decision, it is important for injured workers to review claim decisions carefully. After that, it is extremely important to dispute any decision with which they do not agree in a timely manner.

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