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.
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.
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.