Workers Compensation - Washington

Tara Reck, Managing L&I 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

2367 Tacoma Ave S #110
Tacoma, WA 98402

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(253) 999-9828

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

L&I Claim Board Decision: A Story About Significant Board Decisions

The Board of Industrial Insurance Appeals hears and decides L&I claim appeals. Usually, the Board makes decisions in standard and routine cases. These decisions are typically straightforward. However, on occasion, a Board decision may require special legal analysis. In fact, certain Board decisions have unusual facts. Therefore, in such cases, the Board sometimes makes new or different interpretations of the law.


A common L&I Board decision – examples

The Board regularly hears workers’ compensation claim appeals. Every day, the Board handles appeals to decide if a work injury claimant has temporarily totally disability. Another common example is deciding whether workers are eligible for more proper treatment under their L&I claim. Additional examples include decisions relating to permanent partial disability (PPD), and total disability or pension.


Significant L&I claim Board decisions

Each year, the Board determines if any of its decisions are “significant”. Under WAC 263-12-195, significant decisions are ones with “analysis or decision of substantial importance to the board in carrying out its duties”. To select these decisions, the Board collects input from its staff. They also ask for input from the public.


Under RCW 51.52.160, the law mandates the Board to publish significant decisions. On top, they must make these decisions available to the public at reasonable cost. Consequently, the Board indexes and summarizes significant decisions on a designated page on its website.


Significant cases and decisions are very important. In fact, there are special legal rules for these Board decisions. For example, take the rule regarding citations. When writing legal arguments, you can only cite cases as “significant” if the Board specifically designated them as such.


My experience with significant L&I Board decisions and cases

In 2021, the Board designated one of my cases as significant. This case involved two things:

1) The application of well-established law to unique facts; and

2) A distinction in the interpretation of the law.

The case includes an important decision about segregated conditions in an L&I claim. But first, let’s set some context and provide background. When L&I makes a decision, it communicates the decision to all the parties. Then, if neither party appeals the decision, it becomes final and binding 60 days later. This means that no party may revisit or litigate the matter later.


In addition, L&I may decide that a specific medical condition does not relate to the L&I claim. With that, L&I issues an order segregating the condition. Hence the term “segregated condition”. However, a work injury claimant can disagree with this order. As before, the worker has 60 days to tell L&I to reverse the decision. But, before we proceed, I must make an important distinction: A medical condition can relate to an L&I claim in two ways:

a) If the industrial injury or occupational disease causes the condition; or

b) If the workplace injury or occupational illness permanently aggravates the condition.


Specific example of significant cases

My experience with L&I claim significant cases comes from my work with Katherine Bard. For context, here is the timeline of the case:

  • In 2013, the Department of Labor and Industries (L&I) issued an order segregating lumbar degenerative disc disease from the L&I claim.
  • The order became final and binding.
  • Bard’s L&I claim closed in 2014. The closing of the claim also became final and binding.
  • Next, Ms. Bard reopened her L&I claim in 2015 for worsening of conditions that relate to the claim.
  • In 2019, L&I issued a new order. In it, they reconsidered the 2013 order and decided to segregate lumbar degenerative disc disease.
  • Finally, L&I determined the 2013 order was correct, to the worker’s detriment.


The L&I order from 2019 was new. Hence, Ms. Bard exercised her right to protest or appeal the decision within 60 days. On appeal, L&I filed a motion for summary judgment. In its motion, L&I argued that Ms. Bard cannot appeal the 2019 decision. Their argument was that the segregation of lumbar degenerative disc disease was final and binding. Furthermore, L&I said it issued the order by “mistake”. Initially, the Board judge agreed with L&I’s argument. Therefore, the judge granted their motion for summary judgment. However, I petitioned the Board to review the judge’s decision. The Board agreed and issued a new Decision and Order (D&O). Eventually, the Board designated Ms. Bard’s case as significant.


My personal significant case and the L&I Board decision

In Ms. Bard’s L&I case, the Board clarified that she cannot argue her injury caused the lumbar degenerative disc disease. Yet, the law doesn’t prevent her from arguing her injury aggravated the disease. Here, we recall that aggravation of a condition happens when:

i. A non-symptomatic pre-existing condition lit up or is now active because of the work injury; or

ii. An industrial injury or work disease worsened a symptomatic pre-existing condition.

In other words, the Board decided an industrial injury can aggravate a condition any time throughout the life of the claim.


Takeaways from Ms. Bard’s significant case at the Board of Appeals

The Board ruled that Ms. Bard cannot argue that L&I’s 2013 decision was wrong. In fact, the Board went a step further. They stated her lumbar degenerative disc disease wasn’t claim related as of 2014, when her claim closed. That’s because the L&I claim closure became final and binding, and the issue wasn’t raised back in 2014. However, the Board allowed to present evidence to prove her work injury aggravated her lumbar degenerative disc disease between 2014 and 2019.


Summary & conclusions

Personally, I believe the Board properly designated this case as significant. It changed how L&I and L&I attorneys look at aggravation of conditions. It also altered our view on final and binding L&I segregation orders. Since then, I’ve had many conversations with workers’ compensation professionals regarding this matter. I explained my thought process. I also elaborated on the facts of the case and the Board’s analysis. Admittedly, I feel proud to have had the opportunity to be part of this case. Moreover, I’m glad it helped clarify important distinctions. The outcome of this case will surely help workers and workers’ compensation cases in the future.


My L&I Claim Doctor Says I Need to Lose Weight Before Surgery: Does L&I Cover Weight Loss Treatment?

The Department of Labor and Industries (L&I) covers medical treatment after a work injury or occupational disease. For treatment, L&I accepts certain conditions. Typically, L&I doesn’t cover conditions that do not relate to the workplace injury. However, in some cases, L&I allows temporary treatment of “unrelated conditions”. Specifically, when unrelated conditions prevent recovery from an accepted condition. In fact, L&I allows medical treatment of an unrelated condition as “aid-to-recovery”. Therefore, workers can sometimes receive treatment for obesity or being overweight. L&I considers this an unrelated condition.


L&I weight loss coverage

If you weigh too much, it can hold back your recovery after a work injury. For example, when your injuries involve weight-bearing muscles and joints. Explicit examples include foot injuries, ankles, knees, and hips. Additionally, excess weight can make it challenging to attend rehab treatments. Many times, overweight workers find it difficult to undergo physical therapy. Also, a diagnosis of obesity can delay surgery. This is until weight drops to appropriate levels. Hence, if obesity is a roadblock to recovery, then L&I may cover weight loss treatment.


Criteria for weight loss treatment

A worker must meet certain criteria for L&I to allow weight loss treatment. These criteria include:

1) The worker is “severely obese” with BMI of 35 or more.

2) Obesity is the main barrier to recovery. It’s preventing the worker from making progress on their L&I claim accepted conditions.

3) Weight loss is necessary to allow further treatment, surgery, physical rehabilitation, or returning to work.


How to get L&I pre-authorization for weight loss treatment

L&I requires several steps to pursue weight treatment coverage. First, the worker must request weight loss treatment. Here, L&I must pre-authorize the treatment. Otherwise, L&I will not pay for treatment expenses. To receive pre-authorization, your L&I doctor or attending provider needs to:

  • Notify L&I or the self-insured employer of the worker’s weight and level of function before the injury. Also, your provider must explain how your weight impacts treatment and recovery.
  • Describe the medical need for L&I obesity treatment. This includes tests, consultations, or diagnostic studies.
  • If appropriate, your L&I doctor can request nutrition counseling. A Certified Dietician or Certified Registered Dietician Nutritionist are available.


Unfortunately, L&I won’t approve many popular weight loss methods. Specifically, L&I regularly denies coverage of:

  • Weight loss surgery, drugs, or medication.
  • Certain programs or special foods that include meals, supplements, and vitamins.
  • Cookbooks and educational materials.
  • Exercise programs and exercise equipment.
  • Food scales and bathroom scales.


Developing a weight loss treatment plan

Next, L&I requires a plan before they can grant the pre-authorization. In state-funded claims, the L&I claim manager will draft a treatment authorization letter. This letter documents the terms of the plan. Work injury claimants must sign the authorization letter. This way, everyone agrees on the terms of the weight loss plan from the start. Therefore, work injury claimants and their providers must develop a treatment plan and specify:

a) How much weight the worker must lose.

b) Time estimate to complete the weight loss process.

c) The diet and exercise plan or the weight loss plan and methods.

d) The medical provider’s plan for monitoring progress.

e) Plans for documenting weekly weigh-ins.

f) Counseling and education from trained staff as appropriate.


Keeping the L&I authorization for weight loss active

L&I authorizes weight loss treatment in 90-day increments. However, work injury claimants must follow additional requirements to keep the authorization active. These requirements include:

i) Losing at least 5 pounds every 6 weeks.

ii) Attending weekly treatment sessions.

iii) Complying with the treatment plan.

iv) Checking in with the attending provider at least every 30 days.

v) Having the program coordinator sign a weekly weigh-in sheet.

vi) Sending the L&I claims manager the weekly weigh-in sheets.


It’s very important for the attending provider to see the worker every 30 days (or less). Also, the provider must notify the L&I claims manager if:

1) The work injury claimant reaches the weight goal.

2) Weight is no longer a barrier to treatment.

3) If the worker isn’t meeting their weight loss goals.

4) The work injury claimant isn’t cooperating with the treatment plan.


When will my L&I weight loss coverage end?

L&I coverage for weight loss treatment can end. One reasons for ending the coverage is when the work injury claimant reaches the weight goal. A second reason is if the worker’s obesity no longer impedes their recovery. Furthermore, another scenario is when the worker fails to drop the 5-pound minimum requirement over 6 weeks. Finally, L&I can end the treatment authorization if the worker isn’t cooperating with the plan.


Personally, I’ve seen good success with L&I weight loss treatments. Yet, the treatment is very bare-bones and basic. L&I uses mainstream programs, such as Weight Watchers or Noom. However, most plans come down to food modifications and calories deficits.


Concerns for workers receiving weight loss treatment

Due to work injuries, workers rarely take part in exercise programs. Although, walking exercises can be a successful and an integral part of L&I weight loss plans. Also, carefully designed strength training can be very beneficial.


In reality, the public nature of this L&I program can be frustrating to workers. Weight loss is often a very personal experience. Therefore, it can get extremely unpleasant having so many people­ monitoring your weight loss progress. Weekly weigh-ins can be stressful and demoralizing. Particularly, if the worker is having trouble meeting the mandatory weight loss goals.


Summary and conclusions

That said, L&I coverage for weight loss treatment is a huge benefit. Without it, excess weight can hinder recovery and stall the L&I claim indefinitely. Even worse, it can result in suspension of L&I benefits. In conclusion, there are some issues with these weight loss programs. However, they’re still an incredible benefit within the L&I claim process.




L&I Attorney Fees: Costs and Benefits for Injured Workers

If you’re a work injury claimant, you may need to hire a workers compensation attorney. In Washington State, we sometimes use the term L&I attorney instead. If you’re concerned about L&I attorney fees – you’re not alone. The cost of hiring an L&I attorney can be stressful for workers. In fact, some people wait too long to reach out to a workers compensation attorney. Most workers worry about the cost. I wish I could say that attorney fees aren’t a concern. Unfortunately, that isn’t true. The law allows workman’s comp attorneys to receive reasonable attorney fees for their services. However, the law also sets the limits for what they can charge.


Managing your L&I attorney fees and cost

In Washington State, the Industrial Insurance Act has rules regarding fees. And, these rules make it easier for workers to manage their L&I attorney fees. Specifically, these rules include:

1) Mandatory contingent fees

2) Fixed fee percentages for structured settlements (CRSSA)

3) L&I attorney fee and cost reimbursements for Superior Court appeals.

Below, let’s go over the 3 rules and how they affect your L&I claim benefits.


Contingent fee as one form of L&I attorney fees

Outside the workers’ compensation setting, most attorneys charge a retainer. The retainer is an upfront fee. Clients pay the retainer before receiving legal services. After that, clients typically pay an hourly rate. In contrast, a workers compensation attorney doesn’t charge a retainer. Similarly, an L&I attorney fee isn’t hourly. In fact, under RCW 51.52.120, the law allows a workers compensation attorney to charge a reasonable “contingent fee”. This fee is up to 30% of the monetary benefits that an L&I attorney gets for his or her client. So, a workers compensation attorney doesn’t collect fees unless the worker receives payments from L&I. Namely, these L&I monetary benefit payments include:

a) Time-loss compensation benefits

b) Loss of earning power benefits

c) Permanent partial disability (L&I PPD) awards

d) Permanent total disability or L&I pension benefits.


Again, the 30% contingent fee comes out of these benefits. That is, after the L&I attorney helped their client secure them. Obviously, sharing a percentage of these benefits can cause significant stress. However, contingent fees are best in a worker compensation claim. Why? Because they ensure that the worker and the L&I attorney both have “skin in the game”. The L&I attorney doesn’t receive payments until the worker also receives them. Most importantly, contingent L&I attorney fees ensure that workers have early access to legal representation.


L&I claim resolution settlement agreements & fixed fee

Claim Resolution Settlement Agreement (CRSA) is a new way of resolving L&I claims. It’s the “new version” of CRSSA. Here, instead of continuing with the L&I claim, the worker and L&I decide on a monetary settlement. In short, the worker gives up the claim. In exchange, L&I pays the worker to walk away. So, let’s say an L&I attorney secures a CRSA. Then, under RCW 51.52.120(3), the L&I attorney fee for securing the CRSA is 15%.


Superior court appeals

Workers can appeal L&I decisions. Appeals take place at the Board of Industrial Insurance Appeals (i.e., the Board). First, let’s go over the steps of the Board appeal process. If the matter goes to a full hearing, the Board judge will issue a Proposed Decision & Order. Then, any party that disagrees with the decision can file a Petition for Review. Next, the Board will either deny or grant the petition. Finally, the Board will issue a Decision and Order.


Either party can disagree with any of these Board rulings. Therefore, either party can file an appeal to Superior Court for a Bench trial or Jury trial. In a Superior Court appeal, the law presumes the Board’s decision is correct. Hence, the appealing party has the burden of proof. Now, let’s discuss how this affects your L&I attorney fees.


L&I attorneys fee and cost reimbursement in successful Superior Court appeal

If successful, under RCW 51.52.130, the Superior Court may award L&I attorney fees and costs. To clarify, this means L&I or the self-insured employer will reimburse the worker for their workers compensation attorney fees. Put another way, the law will award attorney fees if Superior Court does 2 things. First, if Superior Court reverses or modifies the Board decision. And second, when Superior Court grants more relief to a work injury claimant.


Furthermore, trial witnesses cost money. Especially when it comes to medical testimony. The Court may waive these witness fees upon a successful outcome. Therefore, winning a Superior Court appeal can have many benefits. And that’s on top of securing your L&I benefits. However, remember, reimbursements only apply in successful Superior Court appeals. In contrast, fee and cost waivers aren’t available when working with L&I or the Board. It’s only available when an L&I attorney litigates your claim in Superior Court.


Takeaways and final remarks

In summary, work injury claimants may need to hire an L&I attorney, resulting in fees. Contingent attorney fees will be a percentage of the monetary L&I benefits. For percentages, L&I attorney fee will always be 30% or less. In CRSA, the law limits the fee percentage to 15%. Typically, L&I and self-insured employers aren’t responsible for paying your L&I attorney fees. However, a worker may make a successful appeal to Superior Court. There, the Superior Court may order L&I or the self-insured employer to pay attorney fees and costs.


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