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



Can I collect unemployment while my workers’ compensation claim is open?

I’m often asked if injured workers can collect unemployment benefits while their workers’ compensation claim is open. In general, the short answer is – usually no. Injured workers cannot collect unemployment benefits and time-loss compensation benefits at the same time. Unemployment benefits are for individuals who are willing and able to work but are unable to get a job. Time-loss compensation is for people who are unable to work because of work injuries or occupational diseases.

 

Examples when injured workers can collect unemployment benefits

There are some circumstances whereby injured workers can collect unemployment benefits. The best example I can think of is when an injured worker is declared as capable of working but haven’t obtained a job yet. Usually, once a vocational counselor determines that an injured worker can return to work, then time-loss compensation benefits are immediately terminated. However, finding that an injured worker can return to work doesn’t mean they have a job to return too. When this happens, unemployment benefits can be a saving grace. They can provide the injured worker with some income and access to job search resources through WorkSource.

 

The takeaway

In summary, it is important for injured workers to know they cannot simultaneously collect unemployment and time-loss compensation benefits. However, under certain circumstances, it is fine to collect unemployment benefits. For example, when searching for a job or for options to return to work after an industrial injury or occupational disease. Additionally, WorkSource can provide many useful resources. These resources include help writing a resume, searching for available positions and work opportunities, and others.

Injured workers fear workers’ compensation claim misrepresentation charges

Last week L&I announced that a food service employee will be required to repay more than $11,000 in disability payments. The employee was caught working at a nursing home and hotel while collecting time-loss workers’ compensation benefits. Time-loss benefits are only payable when an injured worker is incapable of working. L&I provides these benefits while the injured worker is recovering from an industrial injury or occupational disease.

 

Workers’ compensation willful misrepresentation and fraud

Under RCW 51.32.240, it is “willful misrepresentation” for an injured worker to obtain workers’ compensation benefits they are not entitled too. Willful misrepresentation includes intentional, conscious, or deliberate false statements. It also includes misrepresentations, omissions, and concealment of facts. The key is that these actions are with the intent of obtaining or increasing workers’ compensation benefits. Injured workers failing to disclose work-type activities that results in income, repeatedly, may face willful misrepresentation.

 

If L&I determines that willful misrepresentation occurred, it can charge the injured worker 50% penalty in addition to recouping over-payments. On top, if L&I thinks it is warranted, it will seek criminal fraud charges. However, it is important to note that criminal charges are for fraud. And recall that fraud has a different legal definition than willful misrepresentation.

 

Misunderstanding and confusion among injured workers

Many injured workers that I represent do not understand the meaning of willful misrepresentation and fraud. The lack of understanding causes anxiety regarding simple activities and daily living. Some injured workers fear that activities such as grocery shopping or volunteering could be willful misrepresentation or fraud. To ease anxieties, I often remind injured workers that being totally disabled doesn’t mean being physically or mentally helpless. In other words, injured workers should certainly engage in appropriate activities.

 

L&I has an active fraud division to investigate alleged willful misrepresentation. According to L&I: “workers’ comp fraud is not a victim-less crime. Cheaters take resources away from legitimately injured workers and raise costs for employers and employees who pay into the […] system”. Most importantly, injured workers who collect appropriate benefits and are not engaging in intentionally deceptive behavior have nothing to worry about.

Non-cooperative injured workers are at risk of claim closure and loss of benefits

When you have an open and active L&I claim, it is imperative that you remain claim compliant. Injured workers who become non-compliant or non-cooperative, are likely to have their benefits suspended.

 

Non-cooperative injured worker behavior according to L&I

Behavior that L&I considers to be non-cooperative includes:

1) Failing to attend or not cooperating with medical examinations or vocational evaluations. These appointments are requested by the Department of Labor and Industries or self-insured employer;
2) Failing to attend scheduled appointments or evaluations with attending providers or vocational counselors;
3) Engaging in unsanitary or harmful actions that could jeopardize or inhibit recovery;
4) Refusing to accept medical or surgical treatment that is considered reasonably essential for recovery;
5) Refusing to transfer care to an attending provider within the Medical Provider Network; or
6) Failing to follow the accountability agreement in a vocational retraining plan.

 

If the Department or Self-Insured Employer believes that an injured worker is engaging in non-cooperative behavior, they will typically attempt to correct the issue. They normally do so by contacting the injured worker (or their attorney) to discuss the behavior and potential consequences. Additionally, they will send an informal letter recapping the discussion. If the non-cooperative behavior continues, a formal non-cooperation letter is sent to the injured worker (or their representative). The letter will outline the behavior believed to be non-cooperative. The letter will also request an explanation form the injured worker for the behavior. This letter must contain notice that benefits may be suspended under RCW 51.32.110. Under WAC 296-14-410, the injured worker has just 30 days to submit a response explaining the reasons for the behavior.

 

Claim closure and suspension of benefits

In some cases, injured workers fail to respond within 30 days. Alternatively, even if they respond, L&I may not believe the injured worker’s explanation. In either case, L&I may issue an order suspending the injured workers right to further benefits until cooperation resumes. If non-cooperation occurs during vocational retraining, the retraining plan must be salvageable despite the lack of cooperation. For retraining plans that lack additional time or funding, non-cooperation can result in plan failure. Plan failure due to the worker’s own actions usually results in swift claim closure.

 

The penalties for non-cooperation are very severe. Therefore, I always advise injured workers to remain cooperative and communicative throughout their claims. If benefits are suspended and the injured worker lacks good cause for the behavior deemed non-cooperative, it is difficult (if not impossible) to secure benefits while non-cooperation continues. However, in my experience, the analysis of whether good cause exists for non-cooperative behavior is very subjective. I do not always agree with the Department’s position regarding what constitutes good cause and what does not.

L&I discontinues use of its own PPD worksheet in favor of WAC rules

Back in January, I wrote an article outlining a frustrating experience I had cross-examining a witness regarding a low back Permanent Partial Disability (PPD) rating. The witness was an Independent Medical Examiner (IME)  that examined my client at the request of the Department of Labor and Industries (L&I). In his report, the doctor concluded that the PPD rating for my client’s low back condition was a Category 2. He based his opinion on the use of a worksheet that L&I developed and circulated to doctors for determining PPD ratings.

 

PPD Worksheet Rating

The problem was when I confronted the doctor with the language of the Washington Administrative Code (WAC). The WAC outlines the Categories of Low Back Impairment. After that, his opinion regarding the appropriate PPD rating changed. This wasn’t an uncommon occurrence with the use of the PPD worksheet, and as I explained in January:

“Some people argue that the worksheet yields more favorable ratings and some argue it yields less favorable ratings. But most experienced attorneys agree that it is inconsistent with the WAC.”

During the cross-examination, I attempted to ask questions designed to get the witness to think about the various categories outlined in the language of the WAC. Our exchange became increasingly argumentative and counterproductive. My takeaway from that experience was that I better use my energy to try and effectuate change with respect to the use of the misleading PPD rating worksheet. Fighting with a particular witness about the worksheet itself does not help the bigger picture problem.

 

Big win for Washington State injured workers

I’m pleased to report that last week L&I announced that effective June 1, 2019, it will no longer accept its own worksheets as a valid basis for supporting cervical and lumbar PPD ratings. Specifically, there are two worksheets that will no longer be valid. One is the “Doctor’s Worksheet for Rating Cervical and Cervico-Dorsal Impairment”. The other is called “Doctor’s Worksheet for Rating Dorso-Lumbar and Lumbo-Sacral Impairment”. According to L&I, if a rating report utilizes the discontinued worksheets, the provider must be asked for an addendum referencing the language from the appropriate WAC, and not the worksheet.

My hope is that this change will help ensure that PPD ratings for cervical and lumber conditions will be more consistent with WAC language. Hopefully, this will minimize disagreements like the one I descried back in January, which is an issue that I encounter frequently.

L&I approves acupuncture to treat injured workers in Washington State

There’s good news for injured workers in Washington State that seek alternative treatment options for industrial injuries or occupational diseases! I previously wrote an article about the L&I pilot program enabling acupuncture treatment for injured workers . It turns out that the pilot program is near completion. Consequently, L&I adopted rules for the authorization of acupuncture to treat symptoms associated with low back pain.

 

Workers’ Compensation Claims and Acupuncture

Throughout the acupuncture pilot, L&I used information and data collected during the pilot project to draft WAC 296-23-238. Effective June 1st 2019, under WAC 296-23-238, L&I and self-insurers may pay for acupuncture to treat low back pain in workers’ compensation claims. Under this rule, the low back condition generating the pain must be an accepted condition in the claim. However, this week L&I reported that:

other conditions may be considered at a later date based on L&I’s review of available scientific and clinical evidence.

 

It is important to note that the pilot program will continue through May 31st 2019. Prior to June 1st 2019, only participants in the pilot program can use acupuncture to treat injured workers for work injuries. Beginning June 1st 2019, other non-pilot L&I providers that have a license to provide acupuncture treatment may begin using acupuncture to treat injured workers. Any providers who are new to treating injured workers will need to apply for an L&I provider number. Once an L&I provider number is obtained, L&I can release payments for acupuncture providers that treat injured workers.

 

Workers’ comp claim conditions for treatment

On top, there are several other important facts to remember regarding acupuncture treatment. For example, L&I allows up to a maximum of 10 acupuncture treatments over the course of the lifetime of a claim to treat low back pain associated with a casually related condition. In order for L&I to cover the treatment, the claim file must include documentation for the referral from the attending provider. On top, the treatment provided must be only for covered conditions, and the claim must be allowed and open. Furthermore, the treatment provider must submit validated functional instruments to track and document the treatment progress for the initial, middle and final treatment sessions. Validated functional instruments include the “2-item Graded Chronic Pain Scale” and the “Oswestry Disability Index”.

 

Acupuncture treatment isn’t for everyone. There are a variety of valid reasons injured workers may decline to consider acupuncture as a treatment option. When it comes to invasive procedures like the use of needles, injured workers always have the right to decide if they are willing to undergo the proposed treatment. However, for individuals who might like to explore alternative treatment options, especially for chronic pain, it is nice that L&I decided to extend coverage for this kind of treatment. More information can be found on the L&I website.

L&I claims and free interpretation services for injured workers

What language do you speak? Español? русский? Tiếng Việt? Qué idioma hablas? на каком языке ты говоришь? Bạn nói tiếng gì? Did you know that L&I pays for interpreters during medical or vocational services to injured workers and crime victims who have open and allowed claims?

 

How to get an interpreter for my L&I claim?

Medical practices receiving Federal funding are legally required to provide interpretation services to patients who need it. Consequently, when medical or vocational providers feel an injured worker needs interpretation services, they can reach out to the Department of Labor and Industries (L&I). In turn, L&I will arrange interpretation services and will also cover those costs. L&I does not decide whether an injured worker needs an interpreter. Instead, L&I leaves that determination to medical and vocational providers. If a medical or vocational provider determines that interpretation services are warranted, L&I will provide those services without pre-authorization.

 

If injured workers feel they may experience language barriers or that they can facilitate claim-related communications better with the help of an interpreter, then I strongly encourage injured workers to ask their medical and vocational providers for help with interpretation. In my experience, it is not uncommon for injured workers with difficulties communicating in English to ask a friend or family member to assist. Yet, it is important to note that L&I does not require the medical provider or vocational providers to use the interpreter that arrives with the injured worker.

 

Video and phone interpretation for workers’ compensation claims

The L&I website contains helpful information to assist providers in understanding how to arrange video, over-the-phone, or face-to-face interpretation services. Video interpretation is a relatively new service from L&I and their current vendor offers video interpreting for most commonly used languages. Phone interpretation is a versatile service with interpreters in over 200 languages available within minutes via a toll-free number. Each toll free number may be different based on the type of claim. Finally, for face-to-face interpretation, L&I provides an Interpreter Lookup Service on their website. All face-to-face interpreters are expected to adhere to a professional code of conduct. The code governs what they may and may not do, and requires them to maintain strict confidentiality, impartiality, accuracy, completeness, and competency.

 

Recommendations and conclusions

To ensure appropriate case and optimal resolution of the L&I claim or self-insured workers’ compensation claim, it is important that injured workers are able to communicate effectively with treatment and vocational providers. The interpretation services offered by L&I are versatile, useful, and important for ensuring that claims are progressing appropriately. They also help injured workers understand recommendations and requirements for remaining in compliance with medical treatment and forward progress of the claim.

Workers’ compensation claims and structured settlement

Have you ever heard the term “structured settlement” as it relates to workers’ compensation claims or L&I claims? Ever wondered if it might make sense for your case?

 

The Stages of an L&I claim or Self-Insured Employer Workers’ Compensation Claim

I often describe claims as having three phases:

(1) The open and active phase. This is when a claim is open and the injured worker is actively receiving treatment. Here, the goal of the treatment is to cure their condition or improve the overall level of disability;

(2) The employability determination phase. In this stage there is an assessment of the injured worker’s ability to return to work given their permanent limitations;

(3) Claim closure. I usually tell people that all claims must close (with a few very rare exceptions). However, the main question is how they close.

 

Workers’ Compensation Claim Closure

Typically, claims close in one of three ways:

(a) Simple claim closure. In this case, the injured worker completely recovers and returns to work at the job of injury;

(b) Permanent partial disability (PPD) claim closure. This is when an injured worker fails to make a complete recovery but is capable of working; and

(c) Total permanent disability claim closure. This happens when an injured worker is permanently incapable of returning to work.

The description above covers most common cases phases of L&I claims and workers’ compensation cases. However, in general, there is another option for claim resolution through a structured settlement or CRSSA. The Department of Labor and Industries (L&I) describes structured settlement as an alternative to monthly time-loss benefits. Under this outcome, the injured worker and L&I agree to a sum of money that is received as a series of payments over a relatively short period of time. It’s important to note that medical benefits may continue for industrially related conditions.

 

Conditions and Requirements

Certain additional conditions apply for structured settlement. If you are an injured worker over 50 years old, and you have an accepted claim that is at least 180 days old, then you may qualify. Under the right circumstances, a structured settlement can be a very satisfying way of resolving a claim more expeditiously. From my experience, structured settlements make sense for injured workers who have become frustrated or tired of the claim process. They are also suitable for injured workers who have alternative sources of income, and have concrete plans for their financial future.

 

In my opinion, however, injured workers should never enter into a structured settlement because they are frustrated or desperate to resolve a claim. Injured workers should never feel like a structured settlement is their only option. It is only one of many options available under the Industrial Insurance Act and it may involve giving up other benefits. I strongly urge injured workers to consult with an experienced workers’ compensation attorney before agreeing to a structured settlement. In addition, you must remember that before it becomes final, the Board of Industrial Insurance Appeals (BIIA or Board) must review and approve the terms of the structured settlement.

 

Additional Resources

If you are looking for additional information, you can check out the following L&I flow chart. This chart can help injured workers better understand the various steps and process. Also, keep in mind that following Board approval, there is a 30-day revocation period in which any party may revoke consent to the settlement for any reason. L&I will continue to administer the claim and provide benefits during the time the Board reviews the structured settlement. Claim administration and benefits also continue with the 30-day revocation period.

Reopening L&I claim or self-insured employer claim in Washington State

Reopening an L&I claim

You may have heard that L&I claims can be reopened after they close. This is true, but there are a few important things to remember regarding claim reopening. First, a claim can be reopened any time following claim closure for additional medical treatment. However, for an injured worker to receive additional monetary benefits such as time-loss compensation, loss of earning power benefits, increased permanent partial disability or permanent and total disability, the claim must be reopened within 7 years of the original claim closure. After 7 years, only medical treatment will be provided if the claim is reopened. The only exception is when the Director of L&I exercises discretion to grant additional benefits.

 

Second, the reopening of a claim is not guaranteed. If an injured worker or provider believes that a claim should be reopened for whatever reason, a reopening application must be filed documenting the basis for reopening. L&I will carefully evaluate the evidence to determine whether reopening is appropriate. If L&I feels that it is not appropriate, reopening of the claim will be denied. Like any decision, the decision to deny reopening can be protested or appealed for physical conditions.

 

Conditions to reopen a workers’ compensation claim

For the reopening of a claim to be granted there must be an objective worsening of a claim related condition between the time the claim last closed and the time the application to reopen is filed. In workers’ compensation, we refer to these dates as the terminal dates. The first terminal date is the date of the most recent claim closure. The second terminal date is the date the application to reopen is filed. Findings of disability that can be seen, felt, or measured by an examining physician are called objective findings.

 

Therefore, whether there has been an objective worsening of claim related conditions between the relevant terminal dates often involves a comparison of the objective medical findings at or around each of the two dates. However, if L&I denies an application to reopen, a medical opinion regarding the objective worsening will be required to prove that the decision to deny reopening was incorrect.

 

Conclusions and recommendations

If you want to reopen your L&I claim, you should have your current findings and compare them to the objective findings from the time of most recent claim closure. It is also important that your medical provider clearly explains in what ways there has been an objective worsening. Non-physical conditions such as mental health conditions do not require objective worsening for reopening to be granted. These kinds of conditions inherently cannot be seen, felt or measured. However, for reopening to be granted, a medical opinion concerning worsening of the non-physical condition between terminal dates will still be necessary.

The New Automated 30-Day L&I Claim Cost Estimator for Employers

Background

As an attorney representing injured workers in Washington States, I believe it is important to stay abreast of developments in workers compensation. Amongst other things, changes to the law, new cases that have been decided, and administrative developments can all have a dramatic impact on claims. One of my goals in representing injured workers is to address claim related issues as proactively as possible. Workers’ compensation is often quite reactive because we must often first wait for the Department of Labor and Industries (L&I) or third party administrator to make a claim related decision before we can take the appropriate steps to address any flawed portions of the decision being made. However, I believe it is important to be well versed in the facts to give us the best chance of foreseeing potential issues that might arise and to have an effective strategy for dealing with those issues before they become impediments to claim progress.

 

The same is true for administrative developments that may impact claims. It is important to be aware of the developments being made, to anticipate potential claim related issues that might arise as a result of the developments, and to formulate an effective strategy for managing any negative impact on claims as a result of the development. As a result, I am subscribed to several news updates from L&I.

 

The new Early Case Reserve (ECR) system

Today I received a news update from the Retrospective Rating Program announcing that effective April 18, 2019, L&I will be implementing a new predictive modeling system to estimate claim costs called “Early Case Reserve” or ECR. According to the news bulletin, ECR will provide employers and their representatives with an estimate of future claim costs much sooner than has historically been available. In fact, the estimate costs will now be available just 30 days following the filing of a claim with L&I and once the initial value is applied to the claim, the system will re-evaluate and update her projected costs on a monthly basis.

 

According to the news bulletin, the goal of the ECR is to help employers and their representative improve their ability to manage claims and to support better-informed decisions by employers about return-to-work options for injured workers. After all, according to L&I, better return to work outcomes mean lower costs for employers.

 

The impact on injured workers

As you can imagine, this raises a significant concern for me as I endeavor to best represent my clients. I believe in the underlying intent and purpose of the Industrial Insurance Act, to reduce to a minimum the suffering and economic impact on injured workers and their beneficiaries. While I do not deny the importance for employers to be able to asses and evaluate workers compensation costs exposures, I worry that using statistical data to project the costs of current claims so early in the process will have significant negative impacts on injured workers. In short, because the ECR will be available 30 days after a claim is filed, it will be available within the 60-day time frame for protesting and appealing a decision allowing a claim. Rather than the intended result of supporting better informed decisions about return-to-work options for injured workers, I believe these early cost estimates will be used as a deciding factor in whether to contest the allowance of a claim to begin with. I think this is a significant issue that representatives of injured workers are going to need to be prepared to address moving forward.

 

For more information

Frequently asked questions and additional information about ECR can be found on the L&I website.

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