Workers Compensation - Washington

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

Month: September 2019

Workers’ Compensation and L&I Claim Benefits Versus Costs in Washington State

In Washington State, workers’ compensation is about providing benefits to workers and their dependents. Specifically, the benefits are for disabilities and deaths caused by a workplace injury and work-related disease. The Department of Labor and Industries (L&I) has a duty to administer your workers’ compensation claim. They decide what benefits to provide depending on the work injury and make decisions and issue orders for your L&I claim.


Benefits after a workplace injury under the Washington State workers’ compensation system

Some of the key financial benefits in a workers’ compensation claim are payments to a person injured at work (such as time loss compensation or temporary total disability), and coverage of medical expenses and treatment. For state claims, employers and workers make regular premium payments to L&I. Consequently, L&I makes the compensation payments to the injured work after a work accident. However, if the employer is a certified self-insured employer (i.e., the employer uses a private insurance for their workers’ compensation claims), then the employer or the insurance company makes these payments directly.


Personally, it seems to me that workers’ compensation rates and premiums often dictate how people feel about claims. L&I makes it loud and clear that the way to keep rates down is by reducing claim costs. From my viewpoint, employers and insurance companies keep their rates low by reducing medical expenses and keeping time off work to minimum (or eliminating the time off completely).


Workers’ compensation rates

Today, L&I sent out a press release boasting with a proposal to boast 0.8% reduction in workers’ compensation premiums for employers. The proposal applies to state funded claim. It does not apply to self-insured employer claims. This is the third year in a row where L&I is reducing employer insurance premium rates.


In 2018, L&I dropped the average employer premium rate by 2.5%. For 2019, L&I lowered the premium rates by another 5%. Interestingly, that was the largest rate decline in more than 10 years. Moreover, today’s press release states that employees will “see a very small increase in the amount they pay” due to increases in the average wage.


How to appeal the proposed workers’ compensation insurance rate changes

The 0.8% workers’ compensation claim rate reduction and the increase for employee premium rates is currently just a proposal. Clearly, public hearings will follow. That means we will all have an opportunity to comment on the rates proposed for 2020 at three public hearings:
(1) Tukwila, Oct. 29, 10 a.m., Dept. of Labor & Industries Tukwila Office
(2) Spokane Valley, Oct. 30, 9 a.m., Spokane CenterPlace
(2) Tumwater, Nov. 1, 10 a.m., Tumwater Labor & Industries Office


Another option for commenting is by writing to Jo Anne Attwood, administrative regulations analyst. Her address is P.O. Box 41448, Olympia, WA 98504-4148. You can also email Joanne at Comments are due no later than 5:00 pm on November 5, 2019. Thereafter, final rates will be adopted by early December and go into effect January 1, 2020.


Summary and personal notes

Whether we are employers or employees, none of us really want to pay higher rates. However, I think it is important to know that we are benefiting from reduced rates because injured workers are being denied workers’ compensation benefits. I can’t help but ask: What is a greater value, lower insurance rates or healthy workers who receive a full and fair opportunity to benefit from the Industrial Insurance Act? Finally, you can read the full press release on the L&I website.

L&I Workers’ Compensation Claim Appeal in BIIA and Superior Court

Workers’ compensation is a unique legal practice. A big part of what I do as a workers’ compensation attorney is help people who have been injured at work understand and navigate their L&I claim or workers’ compensation claim. It is highly administrative work that sometimes doesn’t feel terribly like legal work.


Judicial appeals in workers’ compensation claims

When we appeal administrative decisions to the Board of Industrial Insurance Appeals (BIIA) our representation becomes much more legal in nature. That’s because the BIIA is a quasi judicial entity that decides workers’ compensation disputes. Appeals to the BIIA frequently involve decisions that are unfavorable to our client. Consequently, we must identify the issues and present a legal case to meet the burden of proof, to show that the administrative decision is wrong. This typically requires presenting expert and lay witness testimony in addition to appropriate legal arguments. Then, based on the evidence we present, the BIIA issues a written decision.


Representing work injury victims at Superior Court

If any party disagrees with the BIIA they may appeal the decision to Superior Court. In Washington State, each county has a Superior Court that hears criminal and civil cases. For example, we commonly litigate cases in King County Superior Court, Pierce County Superior Court, Snohomish County Superior Court, Kitsap County Superior Court, and others.


In workers’ compensation appeals, the Superior Court decides whether the BIIA decision is correct. To do that, the law requires Superior Court to consider the same evidence, or record, that we present to BIIA. That means that parties cannot introduce new evidence at Superior Court. Workers’ compensation appeals to Superior Court can be done in a bench trial or a jury trial. A bench trial is when the judge reviews the BIIA record and decides if BIIA made the correct decision. A jury trial is when we read the BIIA record to a 6 or 12 person jury. After hearing the record and arguments from attorneys, the jury enters a verdict deciding whether the BIIA decision is correct. If an injured worker wins a Superior Court appeal, they may be get reimbursement for attorney fees and costs.


Pros and Cons for workers compensation attorneys

These kinds of appeals have pros and cons. On one hand, this appeal process limits the number of cases tried in Superior Court while preserving the right to have a case in front of a jury of peers. On the other hand, there is a significant downside. By the time the case is decided by Superior Court, it may be two or more years after the original administrative decision was made.


For attorneys representing injured workers, Superior Court appeals are a significant time investment. It means at least a week that I am in Court and away from the office. While not in the office, I’m unable to speak with other clients or manage my usual day to day activities. However, most attorneys representing people with work injury claims will agree that it is one of our best opportunities to ensure that injured workers are treated fairly.

L&I Claim for Cancer Treatment and Proton Beam Therapy

The Department of Labor and Industries (L&I) recently made a coverage decision regarding proton beam therapy. Proton beam therapy delivers high doses of radiation to tumors with limited scatter impact to the surrounding tissues. This makes it ideal for treating deep tumors that are close to critical organs and body structures.


What cancer types are covered under my L&I claim?

L&I decided that proton beam therapy is a coveted treatment for injured workers presenting with certain primary cancers. These kinds of cancer include: esophageal cancer, head/neck cancer, skull-based cancer, hepatocellular carcinoma cancer, brain cancer, spinal cancer, and ocular cancer. Also, other types of cancers are included when all other treatment options are contraindicated, after review by a multidisciplinary tumor board.


Proton beam therapy was under review in 2014. Thereafter, it was reviewed again in May 2019 by the State Health Technology Clinical Committee (HTCC). On re-review, the HTCC expanded the kinds of primary cancer proton beam therapy can be used to treat. L&I has adopted the HTCC coverage determination for workers’ compensation claims.


Cancer treatment authorization in L&I claims

Generally, in workers’ compensation claims, proton beam therapy requires prior authorization. For State funded claims, a pre-authorization form can be completed to obtain the necessary authorization. To obtain pre-authorization in a self-insured workers compensation claim, you must go through the employer or their third party administrator.


More information about proton beam therapy in L&I claims and workers’ compensation claims can be found on the L&I website.