Workers Compensation - Washington

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

Month: April 2019

Workers’ compensation claims and structured settlement

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

 

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

I often describe claims as having three phases:

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

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

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

 

Workers’ Compensation Claim Closure

Typically, claims close in one of three ways:

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

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

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

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

 

Conditions and Requirements

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

 

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

 

Additional Resources

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

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

Reopening an L&I claim

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

 

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

 

Conditions to reopen a workers’ compensation claim

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

 

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

 

Conclusions and recommendations

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

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

Background

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

 

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

 

The new Early Case Reserve (ECR) system

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

 

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

 

The impact on injured workers

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

 

For more information

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

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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Filing a complaint against independent medical examination doctors

Did you know that you can file a complaint against an IME doctor if the doctor does not perform his or her professional duties? And that L&I takes these complaints very seriously? This applies for both L&I claims and self-insured employer claims.

 

The role of the IME doctor

One of the most common complaints I receive as an attorney for injured workers has to do with Independent Medical Examinations (IMEs) . L&I and self-insured employers can compel injured workers to attend IMEs, and failure to attend an IME when requested can result in suspension of benefits. However, IMEs are designed to establish clinical observations and conclusions about an injured workers’ condition. L&I expects IMEs to be high quality, and to help protect the rights of workers and employers in Washington state by enabling accurate and even-handed industrial insurance benefit payment.

 

According to the Department of Labor and Industries (L&I), IMEs should provide unbiased, accurate and comprehensive information, and should be carried out with dignity and respect for the worker. Therefore, whenever I hear a report that an injured worker has had an un-dignified experience during an IME, I recommend filing a written complaint with L&I so that the undignified behavior is documented and investigated. The complaint form can be found here: http://www.lni.wa.gov/forms/pdf/F245-053-000.pdf .

 

IME Statistics for 2018

Because I am a member of WSAJ (The Washington State Association for Justice), today I received a summary of a recent Labor and Business committee meeting in which IME complaints were discussed. I was very interested to learn that when data from 2018 was studied, it was discovered that 21,431 independent medical examinations occurred
on state funded claims in 2018. Those exams were performed by 448 approved IME examiners. Out of over twenty-thousand examinations preformed, 419 complaints were logged, mostly regarding orthopedic, neurologic and psychiatric examiners. However, even more interestingly, of the 419 complaints logged, 48% of the complaints came from case managers and occupational nurse consultations, while only 38% of the complaints came from injured workers. This statistical data suggests that L&I is genuinely interested in having IMEs conducted in an appropriate manner and actively takes steps internally to document inappropriate IMEs.

 

Were you mistreated? File a complaint!

In addition to documenting IME complaints, L&I has an occupational nurse consultant whose job is to review IME reports, to investigate complaints, and to conduct random reviews. The occupational nurse consultant will also review
the companies that perform IMEs through site visits to learn about on-boarding and examiner training. Moreover, the consultant will review confidentiality and chain of custody for sensitive medical information, provide quality oversight, review scheduling, and address the requirement for 14 day turn around for IME reports and addendums.

 

However, to a certain extent, L&I’s ability to ensure quality in IMEs is only as good as the information it receives. L&I has dedicated resources to implement quality assurance in the IME process. Therefore, it is important for injured workers to document any IME behavior that deviates from L&Is goals of having dignified, respectful, unbiased, accurate and comprehensive IMEs, by filing a written complaint so that L&I can investigate. In addition to completing L&I’s IME comment form, complaints can also be submitted via email to imecomplaints@lni.wa.gov. However, it should be noted that the IME complaint will likely be shared with IME examiner so that
they are given an opportunity to respond to the complaint.