Workers Compensation - Washington

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

Month: December 2019

L&I claim fraud hurts people with work injury claims

Over the last week, the Department of Labor and Industries (L&I) issued two separate news bulletins about L&I claim fraud. Without question, people who defraud the workers’ compensation system in Washington State hurt other work injury claimants. It is a very serious matter. Again, anyone that commits any type of fraud relating to a workers’ compensation claim hurts injured workers.


Workers compensation fraud in L&I news

In one case, L&I received an anonymous tip that a Renton delivery truck driver was collecting workers compensation pension benefits while working. L&I says that this has resulted in one of the largest fraud cases in recent history. The accused man has been charged with theft of $325,000 in disability benefits that he wasn’t entitled to. Over the course of a 2-year investigation, L&I uncovered evidence including traffic infractions, payroll records, and trucking logs. The evidence shows that the man worked transporting apples between 2012 and 2017 while collecting disability pension benefit.


In addition to driving, the man was also reportedly lifting loads of 100-500 pounds. Clearly, it’s a very physical demanding work. Individuals are only entitled to pension benefits under their L&I claim or workers’ compensation claim if they are incapable of working as a result of their industrial injury or occupational disease. The man filled out declarations under oath stating that he wasn’t working, even though he was. Consequently, as is permitted under the Industrial Insurance Act, the Attorney General’s office is now prosecuting the man for felony fraud. At the same time L&I found that he willfully misrepresented himself and has demanded repayment of the benefits he wrongfully collected (with a 50% penalty on top).


Another case of workers compensation claim fraud

In another case this week, a 65 year old commercial real estate broker from Bothell pleaded guilty to attempted second-degree theft. As a result, he has been sentenced to 60 days jail time (with home monitoring) and 2 years probation. In addition, he must repay $86,484 to L&I in benefits that he shouldn’t be receiving. Upon investigation, L&I obtained damning surveillance footage, business records, and even exchanged undercover emails with the man regarding his services.


Workers compensation attorney and L&I attorney point of view

First and foremost, as an L&I attorney and workers’ compensation attorney representing workplace injury claimants in Washington State, our office condemns any and all claim fraud activity. At the same time, when I read stories like these, I am very conflicted.


On the one hand, fraud must not be tolerated. It is fraudulent activity that places all people that suffer a work injury under suspicion. On top, it drains the accident fund in Washington State: I believe L&I spends tremendous resources chasing cases of alleged fraud. Often, the injured workers that are investigated are innocent. They go through hell before that’s determined. Additionally, many work injury claimants spend their days fearful of doing something that will be perceived as fraud. That’s because work injury victims have been accused of fraud for engaging in simple activities like grocery shopping.


L&I claim videos showing work injury claimants

I regularly receive video footage from L&I or from opposing counsels showing “fraud” activity concerning my clients. The resources spent by L&I to obtain such videos are significant, and in my opinion, are also misused. I’ve received many videos showing the wrong person. Moreover, I regularly get videos of clients that show nothing more than usual daily activities.


Injured workers should know that it is not fraud to engage in the activities of daily living. However, it is important to modify activities and avoid doing things that exceed limitations imposed by medical providers. This is not only to prevent fraud accusations. It is for recovery and to avoid a reoccurrence of an injury. If you are an injured worker who is contacted by an L&I investigator, it is probably a good idea to speak with an L&I attorney first.

Causation in L&I claims and Workers’ Compensation Claims

After you get hurt on the job or suffer a work injury, you then file an L&I claim or a workers’ compensation claim. From that point on, the Department of Labor and Industry (L&I) decides what is going to happen with your claim. If you work for a self-insured employer, then a third-party administrator (TPA) is also involved in some decisions. With each decision, L&I issues a formal letter and sends you the decision notice.


L&I decisions in workers’ compensation claims

Surprisingly, there is lack of consistency in workers’ compensation and L&I decisions. For example, I regularly see inconsistencies in workers’ compensation claims involving the upper extremities. In many cases, these L&I claims are carpal tunnel syndrome, cubital tunnel syndrome, lateral epicondylitis, or radial tunnel syndrome. It is also common to see conditions such as wrist sprains and strains, trigger finger, cervical degenerative disc disease, thoracic outlet syndrome, and cervicobrachial syndrome fall under this category. In my opinion, this is because these conditions can be caused by a variety of occupational and non-occupational factors.


Work injury claimants with the same medical condition

As an L&I attorney and workers compensation attorney, I sometime represent multiple people with a similar work injury claim. Moreover, they all have identical occupations and they develop the same medical condition. However, they receive very different decisions from L&I regarding their L&I claim. I’ve seen this in people that work as park aides, sheet metal workers, retail cashiers or checkers, and office clerks. Furthermore, this also happens with laborers such as drywall workers, painters, stone masons, nurses or certified nursing assistants, as well as medical records clerks.


I find particularly irritating when an L&I claim is rejected on the basis that there is no connection between the job of injury and the medical condition or diagnosis. It rubs me the wrong way because I can usually think of multiple examples from within my caseload where one can easily reach an opposite conclusion. But, in workers’ compensation claims, the problem is that an argument such as “other workers in the same profession have allowed claims for the same condition” is generally irrelevant. That’s because the law requires L&I to evaluate each workers’ compensation claim based on the facts and circumstances particular to the individual injured worker.


L&I claim for Carpal Tunnel Syndrome

I accept the importance of considering each work injury claim based on the individuality of the injured worker. However, I go from being irritated to indignant when the reasons given for an L&I claim rejection are outright false. For example, an L&I claim for carpal tunnel syndrome may be rejected on the basis that the work activity does not cause or contribute to the development of the condition. Many times, this argument is stated as if it’s a black-and-white fact. It’s not!


The AMA medical guide in workers’ compensation claims

One publication frequently cited in workers’ compensation is called “The AMA Guides to the Evaluation of Disease and Injury Causation”. This publication compiles medical research and literature to provide insight into the risk factors for developing various conditions. Many Independent Medical Examination (IME) reports reference this guide, especially in the context of causation.


Take an L&I claim for carpal tunnel syndrome as an example. According to the AMA guide, there is very strong evidence that a combination of force and repetition, or force and posture, contribute to the development of carpal tunnel syndrome. In fact, several studies referenced in the guide show that blue collar work is a significant risk factor for carpal tunnel syndrome. Moreover, they report that there is an increased risk of developing carpal tunnel syndrome with frequent wrist flexion and extension in combination with the use of vibratory tools. On top, they mention that carpal tunnel syndrome is associated with jobs involving using a forceful power grip for long periods.


Other risk factors include highly repetitive work combined with other factors or with forceful work. Obviously, there are also non-occupational factors as well that impact the condition such as age, gender, genetics, diabetes, and body mass index.


The legal definition of proximate cause

When we speak about cause in workers’ compensation, you have to remember that we’re talking about proximate cause. Proximate cause has a very specific legal definition:

The term proximate cause means a cause which in a direct sequence produces the condition complained of and without which such condition would not have happened.


In my experience, IME doctors often follow this definition when they need to express their opinion regarding causation. Often, IME doctors reference other factors (especially age, gender and genetics) to support their conclusion that the condition would have happened independent of work activity. The problem is, there is more to the definition of proximate cause. Specifically:

There may be one or more proximate causes of a condition. For a worker to be entitled to benefits under the industrial Insurance Act, the work conditions must be a proximate cause of the alleged condition for which entitlement to benefits is sought. The law does not require that the work conditions be the sole proximate cause of such condition.


Simply put, if a person is an overweight female with a family history of carpal tunnel syndrome, she has several risk factors for developing carpal tunnel syndrome. When she is diagnosed with the condition, those risk factors cannot be ignored. However, if she also works in a job where she spends much of her workday forcefully grasping and operating a tool like a sander, then I would argue that you cannot exclude work activity as a proximate cause of her carpal tunnel syndrome.


Summary and some personal notes

I find it unacceptable that work activities that significantly increase the risk of developing conditions like carpal tunnel syndrome are ignored in the presence of other risk factors. Even worse, this kind of exclusion happens inconsistently across the board. The Industrial Insurance Act was enacted to provide protections for ALL workers. That means all workers deserve the exact same level of consideration regarding the facts, supporting medical literature and studies, and application of the law.


If an L&I claim manager rejects a workers’ comp claim because he or she only applied part of the definition of proximate cause, and they completely exclude work activity from the definition or consideration, then the rejection is unfair. When the worker is then saddled with the financial burden of proving that the rejections is incorrect based on the law and facts, the very intent and purpose of the Industrial Insurance Act has failed. And, when the purpose and intent of the Industrial Insurance Act fails, it hurts injured workers, their families, their employers, and society in general. The health of our workforce is critical to the health of our society.


Work injury and L&I claim occurrences during the holiday season

Did you know that workplace injuries tend to increase around the holidays? According to organizations like the Department of Labor and Industries (L&I), many employers see an increase in workplace injuries just before or after the holidays.


Why do work injury rates increase during the holidays?

The US Department of Labor and the Occupational Safety and Health Administration (OSHA) performed studies to try and understand this phenomenon better. And, several studies suggest there are a variety of reasons for this. One reason is the number of new employees that are hired for holiday seasonal work. The studies have shown that work injury or injuries are much more common amongst new employees. Interestingly, another reason is that some employers ask workers to increase their workday and work more hours to meet holiday demand. Finally, the holiday season creates a busy and stressful work environment.


Back in 2016, the CDC published an article outlining the various dangers for workplace injuries and diseases for seasonal employees, especially in retail. In that article, the CDC identifies risks for work injury including crowd management, workplace violence, as well as long hours and shiftwork. The article also mentions risks such as prolonged standing, musculoskeletal injuries, and young workers.


Work injury and L&I claims for retail workers

By far, retail sales commands the greatest numbers of employees during the holidays. Explicitly, retailers hired an estimated 650,000 seasonal retail employees in 2018 to supplement the 4.6 million people that already work in retail year-round. Working to meet the demand of holiday shoppers takes a significant toll on workers’ physical and psychological health. Exposure to stressful working conditions decreases retail wellness.


Retail workers exposed to repeated stress at work demonstrate a number of symptoms. The symptoms include headaches, stomach problems, increased blood pressure, difficulty sleeping, and mental fatigue. Those symptoms, in turn, cause difficulty focusing, concentrating and paying attention to detail. As a result, it produces a work environment that is a “perfect storm” for workplace injuries. Furthermore, injuries in environments involving industrial equipment can be severe and even deadly.


Final notes and summary

The CDC and OSHA wrote several guides and publications to help retailers improve the working environment for seasonal employees. Simple processes designed to provide support for employees and reduce workplace stresses have been effective in lowering the number of workplace injuries that happen around the holidays.


If you are an employee in a stressful holiday work environment, please be safe this holiday season. Make sure that you take breaks when needed, that you are getting proper nutrition and hydration, and that you are getting plenty of sleep. When working, do your best to ensure that you are clear minded and focused. Please stay safe out there!

L&I claim for Thoracic Outlet Syndrome and Cervicobrachial Syndrome

I am a workers’ compensation attorney and L&I attorney representing work injury claimants in Washington State. Over the years, I’ve seen a wide variety of work injuries and occupational diseases. As a result, I’ve learned a lot about a wide range of medical diagnoses. I’ve also come to recognize diagnoses that are likely to complicate an L&I claim, potentially resulting in a highly complex workers compensation claim. In my experience, an L&I claim for Thoracic Outlet Syndrome and Cervicobrachial Syndrome are likely to become very convoluted. Thankfully, our office has vast experience handling these conditions and claims.


What is Thoracic Outlet Syndrome?

In order to understand thoracic outlet syndrome, you need to understand some basic facts about human anatomy. The human body has a network of cervical nerve roots that join to connect signals between the brain and the shoulders, and upper extremities or arms. This network is often called the brachial plexus. Injuries to the brachial plexus cause pain, numbness, tingling and even paralysis of the shoulders and arms.


The medical community is still working to fully understand brachial plexus injuries. There seems to be a general consensus that there are at least two primary varieties of thoracic outlet syndrome (TOS) that can result from brachial plexus injuries. These are: (1) Vascular thoracic outlet syndrome; and (2) Neurogenic thoracic outlet syndrome. Vascular TOS occurs as a result of trauma to the arteries or veins around the brachial plexus. Neurogenic TOS occurs when the brachial plexus nerve fibers are compressed.


As far as the Department of Labor and Industries (L&I) is concerned, certain criteria must be met to allow a diagnosis of neurogenic TOS under an L&I claim in Washington State. Those criteria are outlined in the L&I treatment guideline.


L&I treatment guidelines for Thoracic Outlet Syndrome

The L&I medical and treatment guidelines for TOS are complicated. In short, the diagnosing medical provider must produce certain clinical exam findings that are corroborated by an electrodiagnostic study showing that the brachial plexus nerves are being compressed.


Historically, a third kind of TOS called “disputed” TOS was recognized by some. According to the L&I treatment guidelines for TOS, “disputed” TOS occurs when there are positive clinical exam findings of neurogenic TOS, but the electrodiagnostic study is normal and does not confirm impingement of the brachial plexus nerves. In the past, work injury victims with disputed TOS diagnosis were facing challenges in their L&I claims. That’s because the treatment guidelines only include true neurogenic TOS and vascular TOS.


Until recently, if an injured worker was diagnosed with disputed TOS, L&I would issue an order or decision stating that thoracic outlet syndrome is not an accepted condition on the workers compensation claim. Luckily, that’s no longer the case.


What is Cervicobrachial Syndrome?

In February 2019, L&I updated its thoracic outlet syndrome treatment guideline to include cervicobrachial syndrome. According to L&I, the symptoms of cervicobrachial syndrome mimic those of neurogenic TOS but lack the required electrodiagnostic results to diagnose true neurogenic TOS. The symptoms of Cervicobrachial Syndrome include pain and muscle spasm in the cervical or brachial region.


Symptoms may also include neck and headache, and sometimes numbness and tingling in one or both upper extremities. However, cervicobrachial syndrome does not include other common characteristic of TOS such as decreased reflexes, dermatomal sensory loss, specific muscle weakness or atrophy of the upper extremity, and abnormal electrodiagnostic tests that corroborate the presence of objective brachial plexus involvement.


Thoracic Outlet Syndrome and Cervicobrachial Syndrome in a work injury

Thoracic outlet syndrome may develop when workers experience extended periods of time or postures limited to carrying heavy shoulder loads. Workers that their work involves pulling shoulders back and down, or reaching above shoulder level, can also develop thoracic outlet syndrome. This is because those kinds of work activities tend to cause swollen or inflamed mid-back, shoulder and neck muscles and tendons. When swelling occurs around the brachial plexus, it compresses the nerves and blood vessels between the neck and shoulders. And, the result is thoracic outlet syndrome.


L&I claim for jackhammer operators, welders and aircraft assemblers

In the worker’s compensation setting, neurogenic and disputed TOS are more commonly diagnosed than vascular. L&I acknowledges that certain work activities may exacerbate neurogenic TOS. These activities include (but are not limited to) lifting overhead, holding tools or objects above shoulder level, reaching overhead, and carrying heavy weights. Occupations often associated with neurogenic thoracic outlet syndrome include dry wall hangers, plasterers, welders, beauticians, assembly line workers, shelf stockers and dental hygienists.


With respect to cervicobrachial syndrome, the medical community still doesn’t fully understand the types of activities that cause the condition. However, some activities thought to cause cervicobrachial syndrome include sprains and strains involving the cervical or brachial region, shoulder joint dislocation or fracture, rheumatoid arthritis, and degenerative disease (i.e., arthritis).


In my experience, in workers’ compensation claims, common work activities that seem to contribute to the development of cervicobrachial syndrome include prolonged use of vibratory tools such as jackhammers, repetitive heavy and overhead lifting, and working in prolonged and awkward overhead postures. I’ve seen the condition impact laborers, dental hygienists, aircraft assemblers, steel workers and more.


Treatment for Thoracic Outlet Syndrome and Cervicobrachial Syndrome

Going back to L&I claims in Washington State, it is easier to get authorization for thoracic outlet syndrome and cervicobrachial syndrome treatment that follows the L&I treatment guidelines, rather than treatment that falls outside the guidelines. While neurogenic TOS may respond to surgical treatment, L&I favors non-surgical or conservative treatment. That’s because L&I conducted a study of surgical outcomes and the results were bleak.


Surgically, it is not easy to access the brachial plexus region. Also, there’s high risk of damaging other important nerves including the phrenic nerve, which innervates the lungs. Damage to the phrenic nerve during surgery can cause permanent asthma and reduced lung function. Therefore, L&I says surgery should only be considered in severe cases of true neurogenic TOS that do not improve with conservative treatment and interfere with work or daily life activity.


Conservative treatment options for thoracic outlet syndrome and cervicobrachial syndrome are similar. Treatment focuses on reducing inflammation of the affected muscles and tendons, while simultaneously increasing strength, mobility and overall function. In my recent experience, effective treatment involves the use of Botox injections to calm muscle spasm and inflammation and reduce the impact on the brachial plexus. This conservative treatment is authorized under the 2019 amendment to the L&I medical treatment guidelines.


Conclusion and L&I improvements

I’ve worked through many challenging and complex cases involving disputed thoracic outlet syndrome diagnosis. Hence, I was very encouraged by the February 2019 update to the medical treatment guidelines and the inclusion of cervicobrachial syndrome. However, I believe that the administration of workers compensation claims and L&I claims for thoracic outlet syndrome or cervicobrachial syndrome has to improve.


According to the L&I guidelines, people with a work injury claim who are diagnosed accurately and early were far more likely to return to work than workers whose conditions were diagnosed weeks or months later. Unfortunately, in my experience, administrative delays make early diagnosis difficult if not impossible. L&I, Independent Medical Examiners (IMEs), and even some attending providers are quick to relegate injuries to mere sprains and strains. As a result, TOS and cervicobrachial syndrome diagnoses are often delayed, sometimes indefinitely.


I believe that L&I can do a much better job at encouraging and supporting accurate and early diagnoses. This would dramatically improve outcomes in many L&I claims. Unfortunately, in nearly every case of thoracic outlet syndrome or cervicobrachial syndrome that I’ve encountered, the accurate diagnosis has not been made until more than a year following the original injury or onset of symptoms.