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

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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Work injury and L&I claim occurrences during the holiday season

Did you know that workplace injuries tend to increase around the holidays? According to organizations like the Department of Labor and Industries (L&I), many employers see an increase in workplace injuries just before or after the holidays.

 

Why do work injury rates increase during the holidays?

The US Department of Labor and the Occupational Safety and Health Administration (OSHA) performed studies to try and understand this phenomenon better. And, several studies suggest there are a variety of reasons for this. One reason is the number of new employees that are hired for holiday seasonal work. The studies have shown that work injury or injuries are much more common amongst new employees. Interestingly, another reason is that some employers ask workers to increase their workday and work more hours to meet holiday demand. Finally, the holiday season creates a busy and stressful work environment.

 

Back in 2016, the CDC published an article outlining the various dangers for workplace injuries and diseases for seasonal employees, especially in retail. In that article, the CDC identifies risks for work injury including crowd management, workplace violence, as well as long hours and shiftwork. The article also mentions risks such as prolonged standing, musculoskeletal injuries, and young workers.

 

Work injury and L&I claims for retail workers

By far, retail sales commands the greatest numbers of employees during the holidays. Explicitly, retailers hired an estimated 650,000 seasonal retail employees in 2018 to supplement the 4.6 million people that already work in retail year-round. Working to meet the demand of holiday shoppers takes a significant toll on workers’ physical and psychological health. Exposure to stressful working conditions decreases retail wellness.

 

Retail workers exposed to repeated stress at work demonstrate a number of symptoms. The symptoms include headaches, stomach problems, increased blood pressure, difficulty sleeping, and mental fatigue. Those symptoms, in turn, cause difficulty focusing, concentrating and paying attention to detail. As a result, it produces a work environment that is a “perfect storm” for workplace injuries. Furthermore, injuries in environments involving industrial equipment can be severe and even deadly.

 

Final notes and summary

The CDC and OSHA wrote several guides and publications to help retailers improve the working environment for seasonal employees. Simple processes designed to provide support for employees and reduce workplace stresses have been effective in lowering the number of workplace injuries that happen around the holidays.

 

If you are an employee in a stressful holiday work environment, please be safe this holiday season. Make sure that you take breaks when needed, that you are getting proper nutrition and hydration, and that you are getting plenty of sleep. When working, do your best to ensure that you are clear minded and focused. Please stay safe out there!

L&I claim for Thoracic Outlet Syndrome and Cervicobrachial Syndrome

I am a workers’ compensation attorney and L&I attorney representing work injury claimants in Washington State. Over the years, I’ve seen a wide variety of work injuries and occupational diseases. As a result, I’ve learned a lot about a wide range of medical diagnoses. I’ve also come to recognize diagnoses that are likely to complicate an L&I claim, potentially resulting in a highly complex workers compensation claim. In my experience, an L&I claim for Thoracic Outlet Syndrome and Cervicobrachial Syndrome are likely to become very convoluted. Thankfully, our office has vast experience handling these conditions and claims.

 

What is Thoracic Outlet Syndrome?

In order to understand thoracic outlet syndrome, you need to understand some basic facts about human anatomy. The human body has a network of cervical nerve roots that join to connect signals between the brain and the shoulders, and upper extremities or arms. This network is often called the brachial plexus. Injuries to the brachial plexus cause pain, numbness, tingling and even paralysis of the shoulders and arms.

 

The medical community is still working to fully understand brachial plexus injuries. There seems to be a general consensus that there are at least two primary varieties of thoracic outlet syndrome (TOS) that can result from brachial plexus injuries. These are: (1) Vascular thoracic outlet syndrome; and (2) Neurogenic thoracic outlet syndrome. Vascular TOS occurs as a result of trauma to the arteries or veins around the brachial plexus. Neurogenic TOS occurs when the brachial plexus nerve fibers are compressed.

 

As far as the Department of Labor and Industries (L&I) is concerned, certain criteria must be met to allow a diagnosis of neurogenic TOS under an L&I claim in Washington State. Those criteria are outlined in the L&I treatment guideline.

 

L&I treatment guidelines for Thoracic Outlet Syndrome

The L&I medical and treatment guidelines for TOS are complicated. In short, the diagnosing medical provider must produce certain clinical exam findings that are corroborated by an electrodiagnostic study showing that the brachial plexus nerves are being compressed.

 

Historically, a third kind of TOS called “disputed” TOS was recognized by some. According to the L&I treatment guidelines for TOS, “disputed” TOS occurs when there are positive clinical exam findings of neurogenic TOS, but the electrodiagnostic study is normal and does not confirm impingement of the brachial plexus nerves. In the past, work injury victims with disputed TOS diagnosis were facing challenges in their L&I claims. That’s because the treatment guidelines only include true neurogenic TOS and vascular TOS.

 

Until recently, if an injured worker was diagnosed with disputed TOS, L&I would issue an order or decision stating that thoracic outlet syndrome is not an accepted condition on the workers compensation claim. Luckily, that’s no longer the case.

 

What is Cervicobrachial Syndrome?

In February 2019, L&I updated its thoracic outlet syndrome treatment guideline to include cervicobrachial syndrome. According to L&I, the symptoms of cervicobrachial syndrome mimic those of neurogenic TOS but lack the required electrodiagnostic results to diagnose true neurogenic TOS. The symptoms of Cervicobrachial Syndrome include pain and muscle spasm in the cervical or brachial region.

 

Symptoms may also include neck and headache, and sometimes numbness and tingling in one or both upper extremities. However, cervicobrachial syndrome does not include other common characteristic of TOS such as decreased reflexes, dermatomal sensory loss, specific muscle weakness or atrophy of the upper extremity, and abnormal electrodiagnostic tests that corroborate the presence of objective brachial plexus involvement.

 

Thoracic Outlet Syndrome and Cervicobrachial Syndrome in a work injury

Thoracic outlet syndrome may develop when workers experience extended periods of time or postures limited to carrying heavy shoulder loads. Workers that their work involves pulling shoulders back and down, or reaching above shoulder level, can also develop thoracic outlet syndrome. This is because those kinds of work activities tend to cause swollen or inflamed mid-back, shoulder and neck muscles and tendons. When swelling occurs around the brachial plexus, it compresses the nerves and blood vessels between the neck and shoulders. And, the result is thoracic outlet syndrome.

 

L&I claim for jackhammer operators, welders and aircraft assemblers

In the worker’s compensation setting, neurogenic and disputed TOS are more commonly diagnosed than vascular. L&I acknowledges that certain work activities may exacerbate neurogenic TOS. These activities include (but are not limited to) lifting overhead, holding tools or objects above shoulder level, reaching overhead, and carrying heavy weights. Occupations often associated with neurogenic thoracic outlet syndrome include dry wall hangers, plasterers, welders, beauticians, assembly line workers, shelf stockers and dental hygienists.

 

With respect to cervicobrachial syndrome, the medical community still doesn’t fully understand the types of activities that cause the condition. However, some activities thought to cause cervicobrachial syndrome include sprains and strains involving the cervical or brachial region, shoulder joint dislocation or fracture, rheumatoid arthritis, and degenerative disease (i.e., arthritis).

 

In my experience, in workers’ compensation claims, common work activities that seem to contribute to the development of cervicobrachial syndrome include prolonged use of vibratory tools such as jackhammers, repetitive heavy and overhead lifting, and working in prolonged and awkward overhead postures. I’ve seen the condition impact laborers, dental hygienists, aircraft assemblers, steel workers and more.

 

Treatment for Thoracic Outlet Syndrome and Cervicobrachial Syndrome

Going back to L&I claims in Washington State, it is easier to get authorization for thoracic outlet syndrome and cervicobrachial syndrome treatment that follows the L&I treatment guidelines, rather than treatment that falls outside the guidelines. While neurogenic TOS may respond to surgical treatment, L&I favors non-surgical or conservative treatment. That’s because L&I conducted a study of surgical outcomes and the results were bleak.

 

Surgically, it is not easy to access the brachial plexus region. Also, there’s high risk of damaging other important nerves including the phrenic nerve, which innervates the lungs. Damage to the phrenic nerve during surgery can cause permanent asthma and reduced lung function. Therefore, L&I says surgery should only be considered in severe cases of true neurogenic TOS that do not improve with conservative treatment and interfere with work or daily life activity.

 

Conservative treatment options for thoracic outlet syndrome and cervicobrachial syndrome are similar. Treatment focuses on reducing inflammation of the affected muscles and tendons, while simultaneously increasing strength, mobility and overall function. In my recent experience, effective treatment involves the use of Botox injections to calm muscle spasm and inflammation and reduce the impact on the brachial plexus. This conservative treatment is authorized under the 2019 amendment to the L&I medical treatment guidelines.

 

Conclusion and L&I improvements

I’ve worked through many challenging and complex cases involving disputed thoracic outlet syndrome diagnosis. Hence, I was very encouraged by the February 2019 update to the medical treatment guidelines and the inclusion of cervicobrachial syndrome. However, I believe that the administration of workers compensation claims and L&I claims for thoracic outlet syndrome or cervicobrachial syndrome has to improve.

 

According to the L&I guidelines, people with a work injury claim who are diagnosed accurately and early were far more likely to return to work than workers whose conditions were diagnosed weeks or months later. Unfortunately, in my experience, administrative delays make early diagnosis difficult if not impossible. L&I, Independent Medical Examiners (IMEs), and even some attending providers are quick to relegate injuries to mere sprains and strains. As a result, TOS and cervicobrachial syndrome diagnoses are often delayed, sometimes indefinitely.

 

I believe that L&I can do a much better job at encouraging and supporting accurate and early diagnoses. This would dramatically improve outcomes in many L&I claims. Unfortunately, in nearly every case of thoracic outlet syndrome or cervicobrachial syndrome that I’ve encountered, the accurate diagnosis has not been made until more than a year following the original injury or onset of symptoms.

Find a doctor for an L&I claim in Washington State

Every workers compensation claim in Washington State must have an attending provider, which is sometimes referred to as the attending physician or attending doctor. Whether you have a state-funded L&I claim or a workers comp claim with a self-insured employer, you must have an attending physician on the record. This attending doctor sees you regularly throughout your L&I claim and is primarily responsible for medical opinions supporting your entitlement to benefits. These benefits include both medical treatment and coverage, as well as monetary benefits such as time loss compensation. Moreover, the attending physician is usually the person who makes referrals to other treating doctors and specialists.

 

The L&I Medical Provider Network (MPN)

The Department of Labor and Industries (L&I) maintains a list of attending physicians. This list is called the Medical Provider Network or MPN in short. Looking at the list, you’ll see that there are LOTS of doctors on the Medical Provider Network. Some are local and reside here in Washington State and serve patients in your area. Others are out-of-state doctors that serve work injury victims that got hurt in Washington State and later moved out of state.

 

If you got injured at work in Washington State, you can choose your own primary doctor for your L&I claim. Here, the only rule is that your doctor must be a member of the Medical Provider Network. Also, when your attending physician refers you to other doctors and specialists, with very rare exceptions, all those other treating providers must also be part of the medical network. These include physicians, surgeons, chiropractors, naturopathic physicians, podiatric physicians, ARNP providers, PA-C physicians, dentists, optometrists, and so on.

 

Challenges finding a medical provider for your L&I claim

The MPN was enacted by the legislature in 2011. It was implemented and later launched by L&I in 2013. Since then, I have seen a significant increase in difficulties for work injury claimants to find an attending physician. Some challenges that we regularly see at our office include:
(a) Trouble finding willing MPN attending providers in a location reasonably close to the injured worker;
(b) Inability to find a new attending provider if the prior attending provider is no longer available for whatever reason; and
(c) Difficulty finding an attending provider willing to take over if the claim is more than a few months old.

 

The reason for these challenges (in my opinion) is because L&I claims are time consuming, they are riddled with challenges, and they are not lucrative. Being an attending provider is very time consuming. As a doctor, you have to examine the injured worker roughly every 30 days. On top, you must also complete regular administrative paperwork like the Activity Prescription Form or APF. You must also respond to inquiries from the claim manager and vocational counselor. If a work injury claimant has an attorney, the doctors are likely to get inquiries from their workers compensation law firm as well. If that’s not enough, doctors have to complete the relevant paperwork outside clinical practice hours.

 

Being a medical doctor on a claim is time consuming

Being an AP is tough. Members of the MPN are required to follow strict treatment guidelines that L&I says are evidence-based best practices. These requirements limit a provider’s ability to exercise their own knowledge and expertise in formulating opinions and making recommendations. However, claims are contentious. Medical providers often find themselves unable to move a claim forward due to legal disputes. Sometimes, attending doctors must provide a testimony in a deposition to help resolve the dispute. All these activities take time away from other aspects of their medical practice.

 

Finally, while I’m not an expert on rates, I frequently hear medical doctors complain that L&I pay rates are very low. So, combining the extra time and frustration providers put into these claims, they also get paid at a bottom dollar rate. Consequently, I’ve seen some good doctors still willing to help and take on L&I claim cases, but they limit the number of L&I patients they treat at any given time.

 

L&I is not helping

Since the MPN was launched in 2013, I’ve seen L&I do nothing to help incentivize medical providers to treat injured workers. Furthermore, L&I makes injured workers jump through hoops before willing to assist in finding a willing attending provider. I represent many injured workers currently looking for a new attending provider because their previous doctor recently retired. With claims that are years old, it’s nearly impossible to find willing attending physicians in the Medical Provider Network.

 

Finding a doctor for an L&I claim can be tough

The first step in obtaining a new attending provider is using the L&I Find a Doc search to identify potential providers. At first, the prospects look promising. For example, searching all providers within 15 miles of our Port Orchard office yields 1,819 options. Removing specialties such as dentistry, we still see 617 providers in general practice, orthopedics, internal medicine, occupational medicine and the like. With 617 options to choose from, you’d think it would be easy to find a willing provider. I can tell you from first-hand experience – it is extremely difficult, daunting, and disheartening.

 

Injured workers must call the providers to determine if the doctor is willing to see them. In most cases, the answer is a simple No. However, before saying no, some providers ask for medical records or access to review the claim file on Claims and Account Center (CAC). In those cases, it can take weeks to get an answer. Usually, this process continues for months.

 

In our office, we ask our clients to maintain a journal to document the providers they call, when they call, and the provider’s response. In several cases, we have clients who called hundreds of providers without any success. During that time, the Department is often threatening to terminate benefits.

 

Conclusions and final notes

L&I requires that injured workers have an attending physician. Yet, L&I fails to adequately incentivize or encourage medical providers to take on workers’ compensation claims. As an L&I attorney representing work injury claimants in Washington State, it makes the life of my clients very difficult. It’s hard for injured workers to find doctors that are willing to see them. And, throughout this entire process and struggle, L&I almost always threatens to terminate benefits.

 

Workers compensation attorneys like me report these issues with the MPN all the time. However, when an injured worker asks L&I for help to find a doctor for a claim, L&I forces the work injury claimant to prove they aren’t able to find a doctor on their own. This is just another example of how L&I is not making injured workers a priority.

L&I claim for head injury and traumatic brain injuries (TBI) in Washington State

As an L&I attorney representing injured workers, I see all kinds of work injuries and specific problems that arise. That includes L&I claims for head injury and L&I claim issues for traumatic brain injuries (TBI). Workers compensation clients suffering from head injury or brain injury can be very difficult to work with. But often, they are also the ones that need my help the most.

 

What is a traumatic brain injury?

The CDC defines TBI as “a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury“. The CDC reports that everyone is at risk for TBI. However, children and the elderly are particularly vulnerable. TBI is considered a serious public health concern resulting in death and disability for thousands yearly. Not all bumps, blows, or jolts to the head result in a TBI. However, if a TBI does occur it can vary in severity from mild to severe.

 

Mild TBI cases, often referred to as a simple concussion, usually resolve fairly quickly. More severe cases may involve extended periods of unconsciousness or amnesia following the injury. According to the CDC, TBI symptoms may affect a person’s ability to think, ability to remember, and their physical well-being. Furthermore, it can also affect one’s emotions, mood and sleep. Some symptoms may appear quickly. Others may take days or even months to appear.

 

L&I claim for head injuries or brain injury

An L&I claim for TBI or head injury can be a very challenging case. In fact, as an L&I attorney, these cases are probably the most challenging ones I handle. This is due to a variety of things:

(1) The symptoms are largely subjective – There isn’t much objective medical evidence available to support the extent of the injury.

(2) Head injuries are often accompanied by physical injuries impacting other parts of the body. Those other injuries often take priority, and the head injury is overlooked.

(3) Significant efforts are being made to research and understand head injuries, especially related to professional athletes. However, in L&I claims and workers’ compensation setting there seem to be significant medical delays in TBI diagnosis and treatment.

(4) Fourth, it seems to me that there is an institutional resistance within the L&I claim administration system to accepting and authorizing necessary and proper treatment for TBI.

(5) Finally, due to the nature of the injury itself, clients who have suffered TBI are often difficult to work with.

 

Subjectivity in L&I claims for head or brain injury

In the L&I workers’ compensation system, if the work injury claimant makes statements or complaints to a medical provider, then those statements are considered subjective. On the other hand, objective findings of disability are those that a medical provider can see, feel or measure. It is widely acknowledged that mental health conditions such as depression and anxiety lack objectivity. Most other injuries in the L&I claim system require objective evidence to substantiate the extent of disability. Head injuries and TBI are complicated because it is a physical injury, but the extent can’t be seen, felt, or measured.

 

Usually, a TBI diagnosis is based on the worker’s description of how the injury occurred and their subjective symptom complaints. Common symptom complaints that I see all the time include difficulty thinking clearly, headaches, blurred vision, irritability, and sadness. Other symptoms include excessive sleeping, difficulty sleeping, noise sensitivity, concentration problems, problems remembering, lack of energy, nervousness, anxiety, and dizziness. Doctors simply cannot objectively verify these symptom complaints. Especially when the onset may be days or months following the injury.

 

Lack of Priority for L&I claims for TBI

TBI generally occurs from a blow to the head, or a jolt or a bump. Consequently, it is not uncommon for other physical injuries to occur in addition to the head injury. For example, someone may have fallen from a ladder breaking their arm and hitting their head. In most cases, the initial medical treatment is so focused on the arm injury that the head injury is ignored or overlooked. If the worker was working alone, they may not recall whether they lost consciousness. In fact, they may have significant difficulty recalling the details of the injury entirely.

 

According to the CDC, TBI symptoms are challenging to sort out. It is not uncommon for symptoms to be overlooked by the person injured, their family, friends, and even doctors. I have seen many severe TBI diagnosis made long after the original work injury. In my experience, this creates difficulty for getting the condition accepted under the claim.

 

L&I claim for head injury often result in medical delays

From my experience as an L&I attorney, it seems that many of the providers within the Department’s Medical Provider Network (MPN) overlook the importance of making an early and accurate TBI diagnosis. There seems to be a lack of urgency in making appropriate referrals for TBI diagnosis and treatment.

 

For example, I have seen cases where a blow to the head has been reported as the primary injury and wasn’t referred for MRI for more than a year. I’ve also seen work injury victims discharged from medical care and released to return to work without restriction, based on resolution of their other physical injuries, despite having numerous ongoing symptoms consistent with TBI. Unsurprisingly, the lack of attentive medical care leaves work injury claimants, who are already struggling with the symptoms of their TBI, feeling scared, hopeless, and angry.

 

Institutional Resistance within the Department of Labor and Industries (L&I)

From my perspective, L&I claim administrators tend to view the conditions causally related to an injury very narrowly. Generally, the administrator accepts the initial diagnosis on the accident report. It can be very difficult to add another condition to the claim later.

 

In some head injury and TBI cases, the initial diagnosis may include “concussion”. However, it is not uncommon for the head injury not to be reported at all on the initial paperwork. If the person suffering a work injury develops symptoms, or if the TBI diagnoses appears sometime later, then adding the condition to the L&I claim is often met with administrative resistance.

 

L&I attorney dealing with TBI work injury clients

As I’ve already noted, there are many symptoms for TBI. Side effects such as difficulty thinking clearly, irritability, sadness, and concentration problems, can be very challenging. Other issues such as problems remembering, nervousness, and anxiety, don’t make things easier. Add these kinds of symptoms to the normal stress of a workplace injury including financial instability and recovery uncertainty – clients who have suffered a TBI are often challenging to represent.

 

In my experience, they have good days and bad days. They aren’t always good at recalling past conversations, keeping appointments, or following through with requests. But I am always reminded that these are the people that need me the most. And I never discount this fact. On the positive side, our office has vast experience representing injured workers who have suffered a TBI. Because we understand the symptoms and their impact on our clients, we always do our best to help those clients understand the current status, difficulties, and needs of their claim.

 

L&I attorney and TBI workers compensation claims – additional resources

Remember, just because TBI claims are difficult does not mean they are impossible. The good news is that TBI is a condition that’s undergoing significant research by the medical community, professional athletic organizations, and the CDC. Every year it seems that new developments are made, to better understand the diagnosis and treatment. In fact, the CDC has several resources available related to TBI. One of those resources is the “Acute Concussion Evaluation” or ACE forms available for medical providers. The CDC also has a program called “HEADS UP” designed to help parents, sports and school coaches, as well as health care providers minimize and respond to the risk of TBI.

 

If you suspect that you, a friend, or family member sustained a TBI in a workplace injury, I would encourage you to review the helpful Brain Injury Basics information on the CDC website. If a TBI is complicating your workers’ compensation claim, don’t delay in consulting with an experienced L&I attorney who can help you understand your rights and determine if you need representation. You must ensure you receive appropriate benefits in such a challenging claim and difficult times.

The new L&I website and L&I claim portal

The Department of Labor and Industries (L&I) has revamped its website and the new site is now available publicly. You can have a look at https://www.lni.wa.gov/. According to L&I, the goal is for the new site to be more accessible with simplified and mobile friendly navigation, as well as larger and more readable fonts. Other goals include easier access to sign in to secure online services, and a clean and streamlined look.

 

The new L&I website: Updates and changes

While the website address has not changed, they have restructured some internal pages. Because of that, the L&I news release indicates users may have to update bookmarks and favorites. For Spanish-speaking work injury claimants, L&I says that its Spanish website is still up and running. As of the time of this writing, the links to the Spanish L&I claim site are broken and are not working, as are other sections of the site. However, the English site still contains help links for people with limited English language abilities.

 

If you follow my posts, you know I use the L&I website all the time. In my opinion, it is filled with useful information, news bulletins, and important links. For this reason I’ve been both eager and apprehensive for this website upgrade. Today I spent some time exploring the new site. I’m not surprised to discover that it is going to take me a while to get good at using the new site. On the old site, I regularly used the search feature to find specific forms, data, or to research aspects of claim administration. I am a little concerned that the search feature on the new site isn’t as efficient as the old site. I’m also concerned that many of the old information and links are no longer available on the new L&I website.

 

Searching for L&I forms and links

For example, as a test I searched for both WSF (which is the term for Work Status Form) and WVF (for Work Verification Form). It is a very common form that our injured worker clients fill and file all the time with L&I to keep their time-loss benefits going for their L&I claim. Unfortunately, for both “content” and “forms & publications”, the new site did not return any results. When I searched for Work Status Form, it returned over 800 results. The form wasn’t one of the top results. Finally, I put my search term “Work Status Form” in quotes. Alas, that returned 3 results, one of which was the form.

 

Therefore, for the record, this is the new link for the Work Status Form. Another important form, the Activity Prescription Form (or APF) can be found in this APF link. This simple exercise suggests that it is going to take time before anyone will be able to effectively navigate the new website. I have to say that they did succeed to make the site look clean with streamlined content. Also, it did work well on mobile.

 

L&I claim and Account Center

For the L&I Claim and Account Center portal, where anyone can view the status of an L&I claim, there hasn’t seem to be any changes for right now. However, the link for Claims and Accounts Center has changed and it is now https://secure.lni.wa.gov/home/.

 

L&I is accepting questions, comments and concerns about the new site. Here, feedback can be submitted to WebFeedback@Lni.wa.gov. I think that injured workers and people with L&I claims should spend some time to go over the site and provide feedback. As it stands right now, while new and exciting, the fact remains that older links are not working and a lot of great information that was there before is no longer available.

L&I claims for back injury and spinal injury or disease

Back or spinal injuries and illnesses are one of the most common conditions I see as an attorney representing people injured at work. I thought it might be helpful to share some basic information about the topic of back injury or spinal injury in the workers’ compensation setting. However, I am not a doctor and nothing in this post is intended to be medical advice. Simply put, the goal of this write-up is to help injured workers understand some of the terms and issues that may arise.

 

Back injury in workers’ compensation claims

The spine has roughly three regions:
(1) The cervical or neck region, which includes the cervical vertebra C1-C7;
(2) Thoracic or mid-back region where the T1-T12 vertebra are located;
(3) The lumbar area (L1-L5) and sacral back area (S1 through S5), which is also called the low back region.
In my experience, the most common region where work injuries and illnesses occur is the low back. The second most common is the neck. Mid-back injuries and illnesses do occur, but they are much less frequent.

There are two types of claims when it comes to a back injury in a workers’ compensation claim: Industrial injury claim and occupational disease claim. An industrial injury is a sudden and tangible event. Often, back injuries at work involve lifting or a combination or lifting and twisting with the sudden onset of pain or other symptoms. In contrast, occupational diseases are illnesses that develop as a result of the “distinctive conditions of employment”. Usually, they develop over time and it can be difficult to determine if work activities are a contributing cause.

 

Back injury treatment under an L&I claim

People who injure their backs at work are usually treated conservatively in the beginning. This means resting while taking over-the-counter medication to control pain and inflammation. Normally, that’s all that is needed to recover from a basic sprain or strain, or soft-tissue type of injury. In these cases, symptoms can improve within days or weeks after the injury. If symptoms don’t improve, additional treatment may be needed including but not limited to diagnostic imaging such as X-ray, cat scan (CT), or MRI. In some cases, physical therapy and massage therapy can help as well.

More severe injuries involving acute spinal fractures, injuries to spinal discs, and injuries impacting nerves require more invasive treatment. Our office represents many injured workers with significant back injury or illness diagnoses. Among others, we regularly see conditions such as spondylosis, spondylolisthesis, radiculopathy, nerve impingement, instability, disc bulge, disc herniation, stenosis, degenerative disc disease, and even thoracic outlet syndrome. The most common treatments for many of these severe cases are back injection and surgery.

 

Proving causation for back injuries in workers’ comp claims

From a legal standpoint, our experience shows that the more severe the back injury, the more challenging causation becomes. In fact, proving causation can be very difficult because all of us experience “degenerative” changes in our back and spine as we age. Some people call it arthritis and others call it degenerative changes. Furthermore, not all people experience the same symptoms from spine injuries, arthritis, or degeneration.

To complicate things even further, there is also a pretty lengthy medical study of spine disease called the “Twin Spine Study”. The study concludes that genetics is the most significant factor impacting back or spine health. Because of this, more severe aspects of back injuries or illnesses in workers’ compensation are often attributed to genetics or aging and not the injury or work exposure.

 

Conclusion

So, what’s the takeaway? If you are working a physical job that impacts your back or spine, then take a few extra steps of caution to try and minimize the likelihood of back injury. Wear protective gear when you can and if applicable. See a chiropractor on a regular basis to help with spine movement. Exercise your core and back muscles regularly to help ease the impact on your spine. And, if you are hurt on the job, go see a doctor immediately and have them file an L&I claim for back injury. But most importantly – be safe out there!

Firefighter wins Melanoma workers’ compensation claim in Washington State Supreme Court: Weaver vs City of Everett

If you recall, back in May I posted about a workers’ compensation case being decided by the Washington State Supreme Court: Weaver vs City of Everett. On October 17, the Court issued its decision affirming the Court of Appeals. In short, the Court declined to apply the common law principles of res judicata and collateral estoppel to preclude Mr. Weaver from seeking permanent totally disability benefits when he had previously filed a claim seeking temporary total disability benefits that was rejected.

 

Supreme Court upholds the rights of injured workers in Washington State

Clearly, the Supreme Court is committed to upholding the intent and purpose behind of Industrial Insurance Act: To protect and provide benefits for injured workers. Often referred to as “boilerplate” language, in its decision the Court referenced case law I reference all the time. “[T]he guiding principle in construing provisions of the Industrial Insurance Act is that the Act is… to be liberally construed… with doubts resolved in favor of the worker.” Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). LET THAT SINK IN. In fact, the Court referenced it TWICE in the Weaver decision, at page 6 and again at page 13!

 

RCW 51.32.185(10(a)(3) states that for firefighters, certain conditions are presumed to be occupational diseases. Melanoma is one of those conditions. Mr. Weaver was a firefighter. Mr. Weaver has melanoma. Mr. Weaver’s melanoma is a death sentence. As near as I can tell, there is no dispute that his melanoma is a direct result of his fire fighting occupation. Therefore, the Court declined to apply collateral estoppel because doing so to preclude Mr. Weaver’s claim would serve an injustice and would be contrary to public policy.

 

Legal arguments, common law and implications

The Court also declined to apply res judicata because Mr. Weaver couldn’t have made a claim for permanent total disability in the prior litigation. The Court acknowledged the Department of Labor and Industries (L&I) and Employer’s argument that the “threshold question of whether he had an occupational disease” was decided for purposes of that claim. They argued that the prior claim rejection also precludes future claims flowing from the same ailment (melanoma). The Court stated that while it might be true in theory, the Industrial Insurance Act does not use the term “claim allowance”. The Court concluded that the subject matters of Weaver’s two claims are distinct. His “permanent disability claim did not exist and could not have been brought at the time of his temporary disability claim”. Since his prior claim and current claim do not share identical subject matter, the Court held that res judicata does not apply.

 

I’ve read this new decision multiple times since last week. Every time I read it I notice something new. It is a nuanced and complex decision. I suspect it is going to take some time for the workers’ compensation legal community to figure out it’s full impact. However, one thing is certain: It is a victory for Mr. Weaver and his family. The Washington State Supreme Court adopted language from the Appellate Court decision in ruling that Mr. Weaver’s claim would not be precluded by collateral estoppel or res judicata, because

 

“Applying either doctrine here would be an apples-to-oranges application of common law principles to statutory claims, which would result in a “distasteful fruit salad of injustice.”.

L&I approves new treatment for severe upper cervical and neck injuries

The Department of Labor and Industries (L&I) recently announced that it will cover Diaphragmatic Phrenic Nerve Stimulation for select injured workers who have partial or complete ventilatory failure or respiratory insufficiency.

 

What is ventilatory failure and when does it happen?

This failure often occurs as a result of upper cervical spinal cord injury, to the neck for example. Now, L&I is going to allow a treatment that involves implanting an FDA-approved diaphragmatic/phrenic nerve stimulator. It is an alternative to mechanical ventilation. Moreover, it reduces and sometime even eliminates the need for ventilatory support.

 

What back injury is covered in the new treatment under my L&I claim?

Five conditions must be met for the treatment to be covered in an L&I claim. Those conditions are:

(1) The injured worker must have ventilatory failure due to upper cervical (neck) spinal cord injury;

(2) The work injury victim cannot breathe spontaneously for 4 continuous hours or more without use of a mechanical ventilator;

(3) The injured claimant’s diaphragm can be stimulated either directly or through the phrenic nerves to generate sufficient movement to accommodate independent breathing without the support of a ventilator for at least 4 continuous hours a day;

(4) The worker who suffered the workplace injury has normal chest wall anatomy and normal lung function; and

(5) The injured worker has normal cognitive function and the motivation to undertake the rehabilitation and training program associated with the use of the device.

 

What is the process to get the new upper back injury treatment?

As is typical for procedures of this nature, requests for Diaphragmatic Phrenic Nerve Stimulation require prior authorization. Also, it is  important to document how the 5 conditions above are met. Proper tracking and documentation can help make the authorization process more efficient. Authorization for State Funded workers’ compensation claims must go through Comagine. Authorization for Self-Insured claims must go through the Self-Insured employer or their third-party administrator (TPA).

Workplace injury and L&I claims: It doesn’t matter who’s at fault

Many times, work injury clients that that I represent feel that their employer should be held at fault for their workplace injury, work accident, or occupational disease. More often than not, I hear an injured worker say: “It is my employer’s fault I was hurt on the job. They should have to pay.”. However, employers also have frustrations when it comes to who is at fault for an injury. In a recent mediation conference, an employer representative argued that a particular claim shouldn’t be allowed. This is because it was the worker’s fault they got injured. The bottom line is that the whole subject of who’s at fault comes up in workers’ compensation claims and L&I cases a lot more than it should.

 

The Industrial Insurance Act and letter of the law

Realistically, the Industrial Insurance Act is a no-fault statute. According to RCW 51.04.010, workers’ compensation is designed to provide “sure and certain relief for workers, injured in their work, and their families and dependents […] regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation”. That’s it.

In fact, the Washington Administrative Code (WAC) describes workers’ compensation as “no-fault” insurance. It eliminates blame to either party for workplace injuries or illnesses. It doesn’t matter who’s fault it was. Consequently, injured workers are entitled to wage and medical benefits, while employers receive immunity from lawsuits, as a result of workplace injury or work related illness suffered by their workers or employees.

 

Applying the letter of the law: Jury instructions

As a result, when we go to trial, we have a pattern jury instruction that we read to jury members, as follows:

“The Industrial Insurance Act applies regardless of fault or negligence. Therefore, in resolving the issues before you, you are not to consider fault or negligence, if any, of the employer or the worker.”.

Our law makers enacted the Industrial Insurance Act to protect injured workers. Period. No matter who is responsible for the circumstances that led to the injury. Keep that in mind. Let us focus on remembering why our laws were written in the first place. Let’s help injured workers get back on their feet. Let’s help them get back to work if their can, or back to living their life to the full extent possible.

L&I report: Countertop stone fabricators should file an occupational disease claim for dust exposure

Manufactured stone countertops are popular. However, The Department of Labor and Industries (L&I) in Washington State warns that engineered stone fabricators are at risk for developing a severe lung illness called silicosis. Silicosis is an incurable lung disease caused by silica dust exposure. Exposure to this dust may also cause chronic obstructive pulmonary disease (COPD), kidney disease, lung cancer, and increased risk of developing tuberculosis (TB) or other lung infections.

 

How did fabricators develop the condition?

The CDC has documented 18 cases of workers developing silicosis in Washington State and 4 other states between 2017 and 2019. The workers had an exposure to silica dust from cutting and grinding engineered stone countertops. Interestingly, the countertops in question are mostly quartz countertops. Two of those cases were fatal.

 

One case in Washington State was a worker in his 30s. His diagnosis was silicosis, back in 2018. He had been exposed to silica dust for about six years working as a stone countertop fabricator. L&I says he is facing serious health issues and may need a lung transplant.

 

What are the symptoms of Silicosis?

Usually the symptoms of silicosis appear 15-20 years after exposure. Symptoms can appear earlier in instances of very high exposure to silica dust. Exposure occurs whenever silica dust gets in the air from sawing, grinding, polishing, shaping or installing natural or engineered stone. It also occurs from sweeping dry and dusty floors. Cleaning dusty clothing or equipment covered in silica dust also creates exposure.

 

As part of its Safety & Health Assessment & Research Program (SHARP), L&I is alerting at risk employees and employers of the dangers of silica dust. L&I warns that engineered stone can contain high amounts of silica. Exposure to that dust makes countertop fabrication a highly hazardous profession.

 

When should I file an L&I claim?

Early detection and diagnosis of conditions caused by silica dust exposure can make a big difference. L&I recommends that countertop workers talk with their doctor if they are regularly exposed to dust or if they experience breathing problems. Workers should know that developing silicosis from exposure to silica dust at work is probably an occupational disease condition. Workers must file an occupational disease workers’ compensation claim within two years of being notified by a medical provider that they have an occupational disease. More information about preventing silica dust exposure can be found on the L&I website.

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