Workers Compensation - Washington

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

Month: October 2019

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.