Category: IME (Page 1 of 5)

Pre-existing conditions can be a big concern for work injury claimants. Many workers worry that pre-existing conditions will prevent them from getting L&I benefits. This is a reasonable concern. After all, pre-existing conditions can complicate your L&I claim.

 

What are pre-existing conditions in workers’ compensation claims?

A pre-existing condition is a condition that a worker already has, before a work injury or occupational disease. Furthermore, it can be a physical condition or a mental condition. There are many types of pre-existing conditions. For example, common pre-existing conditions include:

1) A congenital condition that existed since birth

2) Accidents or injuries during childhood or adolescence

3) Past injuries that happened outside of work

4) Many conditions that arise from the natural aging process.

 

Work injury and pre-existing conditions

The Department of Labor and Industries (L&I) oversees workers’ compensation claims in Washington State. After a work injury, L&I sometimes uses pre-existing conditions to deny medical coverage. However, Washington State law provides protection for work injury claimants. In fact, certain sections of the law specifically address pre-existing conditions after a work injury. Under the law, the workman’s comp legal system protects workers with pre-existing conditions in two ways:

a) Disability: L&I must consider pre-existing conditions when they evaluate your overall disability; and

b) Aggravation: Sometimes, a work injury or occupational disease aggravates pre-existing conditions. In such cases, L&I must take responsibility for aggravated pre-existing conditions.

 

We take the work injury claimant as we find them

When a work injury happens, L&I must accept injured workers as they are. Funnily enough, there’s a saying among worker’s compensation professionals: “We take the injured worker as we find them”. This phrase can be a bit confusing. Let’s explain what it means.

 

When claim managers handle an L&I claim, they must evaluate the long-term impact of the industrial injury. During their analysis, L&I has to consider the worker as a whole person. In other words, future-looking analysis and disability evaluation must include pre-existing conditions. In fact, L&I’s analysis may combine pre-existing conditions with new ones that arise from the work injury. This is a requirement under the Industrial Insurance Act in Washington State.

 

To simplify things, let’s review some examples. After a workplace injury, say that new medical conditions do not show total disability. However, if you combine pre-existing conditions with the new ones, then together they result in temporary total disability. Hence, the law entitles the worker to temporary or total disability benefits. Another name for this L&I benefit is time-loss compensation. In workers’ compensation, we call this “combined effects” of pre-existing and claim-related conditions.

 

Aggravated pre-existing conditions in an L&I claim

Another important aspect of L&I claims is aggravation of pre-existing conditions. Here, a work injury can activate or aggravate pre-existing conditions. Consequently, L&I must take responsibility for these pre-existing conditions. But, before going over the details, let’s first talk about symptomatic vs asymptomatic conditions.

 

At the time of the work injury, a certain medical condition may be symptomatic or asymptomatic. A symptomatic condition refers to one that produces symptoms. Also, a condition is symptomatic if it’s disabling or needs treatment. Symptomatic conditions can be a combination of all three of these effects. Or, a condition is asymptomatic if there are no symptoms. In other words, if it’s not disabling and the person doesn’t need treatment.

 

A workplace injury may “light up” or activate a pre-existing asymptomatic condition. In such cases, L&I must provide coverage for the pre-existing condition. Similarly, a work accident can worsen or aggravate pre-existing symptomatic conditions. For those, L&I needs to cover the conditions under the L&I claim. In addition, the law acknowledges there may be more than one cause for a condition. Similarly, more than one cause can activate or aggravate pre-existing conditions. However, for L&I coverage, it’s enough to show that the work injury is one of the causes.

 

How to take advantage of pre-existing condition legal protections

Many people have pre-existing conditions before they suffer a work injury. If you are one, then it’s important to follow the 2 recommendations below:

i) Admit that you have pre-existing conditions (if you know of them); and

ii) Describe your conditions and any symptoms caused by the industrial injury. Here, you must explain how the new symptoms are different than before.

These steps can be very confusing. Let’s talk about them in greater length below.

 

Disclosing pre-existing conditions after a work injury

You cannot hide pre-existing conditions. It never works. Don’t waste your time trying. If you try, it’ll create bigger problems later in your L&I claim. So, it’s very important to be open and honest. Tell your L&I doctor about your pre-existing conditions. If your conditions were symptomatic before the work accident, then let your doctor know. Also, if you didn’t have symptoms before the work injury, then tell your doctor. It’s important for the doctor to know everything from the start.

 

Sometimes, L&I may ask for a list of providers that have treated you for the conditions. If they ask for the list, then you must give it to them. The list and your treatment history will assist L&I and your treating providers. With it, they can determine if your pre-existing conditions impact your workplace injury and how. Also, it’ll be easier to consider pre-existing conditions when the decide your L&I benefits.

 

Pre-existing conditions before and after the work injury

Let’s say you have symptomatic or disabling pre-existing conditions. Here, it’s very important to describe your conditions as they were before the injury. Next, it’s equally important to explain how they changed because of the work injury. You must describe the conditions accurately and in detail.

 

Personally, I often recommend my clients to practice describing the conditions with family and friends. On top, I recommend writing down everything you remember about the condition before and after. Finally, think if your friends or family members saw your symptoms. If so, have them write down what they saw prior to the injury. Also, ask them to document what they observed after the workplace injury.

 

What happens if L&I doesn’t cover pre-existing conditions?

For some, a work injury doesn’t impact pre-existing conditions. In such instances, L&I won’t take responsibility and won’t provide coverage. For example, let’s imagine you have pre-existing migraines. Your industrial injury doesn’t activate or make them worse. Thus, L&I won’t take responsibility for your migraines. Furthermore, the migraines weren’t activated or aggravated. Therefore, there’s probably no legal action you need take if L&I denies benefits for these migraines.

 

However, L&I does need to consider the “combined effects” when assessing your total disability. They must consider your migraines together with your L&I claim conditions. Unfortunately, L&I sometime ignores pre-existing conditions when performing total disability evaluations. This is a red flag. If this happens, it’s important to speak with a workers’ compensation attorney or L&I attorney.

 

Secondly, L&I may deny pre-existing conditions when they think they’re congenital. Other times, L&I will blame certain conditions on aging. Most commonly, we see this happening with degenerative conditions. Many medical diagnostic tests show arthritis and neuropathy. Other exams reveal muscle and cartilage tears. Sadly, L&I often concludes that these conditions are not related early in the L&I claim process, without proper diagnostics.

 

IME exams and pre-existing conditions

Almost always, L&I will schedule an Independent Medical Examination (IME). Unfortunately, I can tell you the IME outcome ahead of time. Most likely, the IME exam will say that: (1) The pre-existing conditions weren’t caused by the work injury; and that (2) they were not activated or aggravated by the workplace accident.

 

When this happens, you must provide L&I with a different medical opinion. For that, it’s best to have an attending provider (AP) who’s a strong advocate. Your L&I attending provider can (and should) review the IME report. The attending physician may also provide a non-concurring opinion to L&I on their own. However, not every work injury claimant has a caring attending provider. If you don’t have one, it might be best to call a workers’ compensation attorney. Many good L&I lawyers can help address this issue.

 

Summary and final comments

To summarize, pre-existing conditions can complicate workers’ compensation claims. Yet, work injury claimants don’t need to worry if they have pre-existing conditions. The law in Washington State provides many protections. Workers can take very simple steps to take full advantage of these protections. On occasion, pre-existing conditions may cause problems in L&I claims. When those arise, it’s important to consult with a workers’ compensation attorney.

 

Surveillance in an L&I claim is relatively common. In fact, work injury claimants encounter surveillance in both self-insured claims and state-funded L&I claims. It isn’t against the law. Private investigators usually conduct the surveillance. Moreover, they know exactly what they can and cannot do under the law.

 

Willful misrepresentation in a workers’ compensation claim

The Department of Labor and Industries (L&I) is the administrator for state-funded claims. Here, surveillance is more likely to occur after someone reports fraud relating to a work injury claim. For example, when a person receives workers’ compensation benefits but appears able to work. Another example is when the injured worker is working while collecting time loss compensation.

 

Under the Industrial Insurance Act, there is no such thing as fraud. There’s only willful misrepresentation. The relevant law for willful misrepresentation is RCW 51.32.240. In short, it’s willful misrepresentation to receive payments or other benefits in greater amounts than a person deserves. Simply put, it refers to making a false statement, misrepresentation, omission, or concealment of facts to deliberately obtain or increase benefits. Moreover, it also includes willful failure to disclose work-type activities.

 

L&I claim surveillance

Fraud isn’t part of the workers’ comp ecosystem in Washington State. However, the word “fraud” is a trigger to describe people that abuse or take advantage of the system. In fact, L&I encourages the public to report potential fraud. L&I takes these reports very seriously. For one, they built an entire fraud investigation unit. There, investigators frequently take statements and conduct surveillance. Hence, one of the easiest ways to “avoid” surveillance is to not give L&I reasons to suspect you.

 

Still, I’ve seen cases where people file reports against work injury claimants even when they’ve done nothing fraudulent. Luckily, surveillance in these instances reveals nothing more than workers trying to get through everyday life the best they can. Of course, I’ve also seen surveillance showing that an injured worker is lying about their injuries and limitations. I’m always very disheartened when I see blatant willful misrepresentation. This kind of behavior negatively impacts all workplace injury claimants.

 

 

Self-insured claims and surveillance

With self-insurance, there’s a third-party administrator (TPA) that manages the claim. In my experience, surveillance occurs much more frequently in self-insured claims. What’s more, third-party admins can request surveillance even when there’s no accusation of fraud. Many times, the surveillance is useless. Usually, the film shows workers doing nothing more than struggling to get in and out of cars. Or attending appointments and spending a lot of time at home. Consequently, we only find out about the surveillance later during the discovery phase when the case goes to litigation.

 

Workers’ compensation surveillance and bias

However, sometimes injured workers are surveilled doing normal things. For example, going for walks, grocery shopping, and taking out the garbage. I commonly watch tapes showing workers doing yard work, attending family outings, going out to eat, or walking their dog. Sometimes, attorneys or claim administrators share the footage with treating doctors and independent medical examiners (IME).  They do it to demonstrate that the work injury claimant is more physically capable than they lead on.

 

Depending on the film, this can be very effective in getting doctors to ease up or even remove physical restrictions. Sometimes this is very appropriate. Yet, many times the surveillance video doesn’t present a complete picture. Often, it shows things out of context. This typically leads to significant disagreements and litigation. There’s no easy way to prevent surveillance in self-insured claims. Therefore, it’s always best to ensure that you are being open and truthful. Describe your abilities and limitations to doctors honestly.

 

Takeaways and final notes

To summarize, surveillance is a standard practice in L&I claims. It’s legal and it happens all the time. It’s common in both self-insured and state-funded claims. When surveillance reveals behavior that’s consistent with doctors’ reports, then nothing will come of it. However, there are cases when a work injury claimant engages in activity beyond what they report. In such instances, the claim manager will likely use the footage to terminate benefits. In particularly egregious cases, claim handlers will use the surveillance records to push for willful misrepresentation charges.

 

If you suffer an injury at work and have a claim – it’s best to assume that someone is watching you. Therefore, your outward behavior must match your reports. Finally, it’s important to be honest. Describe your workplace injury and limitations honestly to doctors. Report the injury conditions in simple words the best way you can and you’ll be fine.