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.

Send me a message

Call for free consultation

 

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

Map and directions

(206) 395-6141

Tacoma
2367 Tacoma Ave S #110
Tacoma, WA 98402

Map and directions

(253) 999-9828

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

Map and directions

(425) 800-8195

Port Orchard
219 Prospect St
Port Orchard, WA 98366

Map and directions

(360) 876-4123



 Best Workmans comp lawyer workers comp attorney

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.

Some workers’ compensation treatments do not require prior authorization for injured workers in Washington State

Sometimes workers’ compensation cases have diagnostic or therapeutic challenges. In those cases, attending providers are allowed to arrange most consultations with specialists without obtaining prior authorization.

 

Treatments that do not require authorization

It’s true! But, for some reason both injured workers and treatment providers rarely believe me. Don’t take my word for it. Here is what L&I says about it: http://www.lni.wa.gov/ClaimsIns/Providers/AuthRef/Specialists/default.asp. There are only two exceptions to this rule:

(1) mental health evaluations require prior authorization; and

(2) Independent Medical Examinations (IMEs) can only be arranged by the Department of Labor and Industries (L&I) or Third-Party Administrator.

That leaves the door open for many kinds of consultations to happen without prior authorization.

In fact, there are many treatments that do not require pre-authorization. Every year L&I publishes an updated fee scheduled and payment policy (MARFS) excel sheet. These sheets contain a column identifying whether an item requires pre-authorization. Did you know most items do not require pre-authorization? While surprising, it is a terrific benefit for injured workers!

 

More information and conclusions

L&I wants to keep claims moving forward. There’s no doubt about it. That means there is less red tape for making referrals and providing treatment than providers and injured workers often realize. If a claim is presenting challenges, so long as the referral is not for an IME or mental health evaluation, providers should feel empowered to arrange the referrals they feel are appropriate. If treatment providers are reluctant to schedule consultative appointments, injured workers should feel empowered to tell providers that pre-authorization is not required.

 

For more information, the L&I website contains lots of information regarding treatment authorizations and referrals.

L&I and the 2019 Washington State Governor’s Lifesaving Award

Do you know any workplace heroes? Now is the time to nominate them for the 2019 Governor’s Lifesaving Awards.

 

Recognizing lifesaving workers in Washington State

L&I and the Washington State Governor’s office are calling for nominations for the 2019 Governor’s Lifesaving Awards. The purpose of the award is to recognize heroic workers whose quick actions have made the difference between life and death. According to the L&I newsletter, there are workplace lifesavers in Washington State every year. The Governor’s award is a chance to recognize them for their heroic deeds.

 

The 2018 award recipients included six Washington State Department of Transportation (WSDOT) workers. Some of these workers saved two people and two dogs from a canoe that tipped over into the frigid waters of Hood Canal. The others are coworkers who rescued a fellow worker that was pinned by a remote-controlled demolition machine.

 

Nominating workplace heroes

Now through June 30, 2019, nominations are open for the 2019 award. To be eligible, the heroic act must have occurred during work hours between June 1, 2018 and May 31, 2019. All workers covered by the Washington State Industrial Insurance Act are eligible for nomination. In addition, the Governor’s office gives a humanitarian award to people who engaged in a heroic act, but despite best efforts, were unable to save the victim’s life.

 

According to the L&I Newsletter, the 2019 award recipients will be featured guests at the Governor’s Industrial Safety & Health Conference. The conference will take place on September 25, 2019 at the Tacoma Convention Center. To nominate someone for the award, you can complete the online nomination form at www.gishab.org. You can find out more information about this award by calling 1-888-451-2004 or emailing info@gishab.org.

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.

« Older posts