Workers Compensation - Washington

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

Month: October 2019

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.