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

Category: LNI Benefits (Page 2 of 16)

Can I retire when I have an open L&I claim in Washington State?

Figuring out when to retire is always a big decision. Even if you don’t have an open workers’ compensation claim. However, retiring with an open L&I claim is even more complex. In fact, if you voluntarily retire while you have an open L&I claim, it can have serious impact on your L&I benefits.


Voluntary retirement during an L&I claim

The term Voluntary Retirement has a special meaning in workers’ compensation claims. Under WAC 296-14-100, you are “voluntarily retired” if:

  • You are not getting salary or wages from gainful employment; and
  • After your retirement, you don’t show any real attempts to go back to work.

Voluntary retirement can have negative effects on your L&I claim benefits. Specifically, under RCW 51.32.090(10), if L&I “determines that the worker is voluntarily retired and is no longer attached to the workforce”, then they won’t pay temporary total disability benefits. Moreover, under RCW 51.32.060(6), the same rule applies to permanent total disability benefits. That means, if a person voluntarily retires, they won’t receive L&I pension benefits.


Can I retire because of a work injury?

There are important nuances to the rules above. For one, a work injury claimant isn’t “voluntarily retired” when a proximate cause for their retirement is a workplace injury or occupational disease. What does it mean? If at least one reason for your retirement is directly because of your work injury, then your retirement isn’t “voluntary”.

Some people have severe disabilities because of their industrial injury or workplace illness. They can never return to work. These people may be eligible for an L&I pension. A pension is essentially a lifetime annuity. People that receive pension benefits under their L&I claim can also collect retirement money. Therefore, it’s usually better to make retirement decisions after L&I decides if you have permanent total disability.


Documenting your retirement reasons

However, delaying retirement isn’t always possible. Also, sometimes, it’s not practical. There are many reasons why people retire before L&I decides on permanent total disability. Unfortunately, in my experience, L&I usually assumes the retirement was “voluntary”. That is, if it happens while the claim is open and active. Yet, this assumption is often wrong. Many times, it’s not easy to decide if the retirement fits the legal definition of “voluntary retirement”. This is especially true when the retirement facts and circumstances are not well-documented.

Some people choose to retire while their claim is open. If the retirement has nothing to do with your work injury or disease, be ready to lose your time-loss benefits. Furthermore, you will not receive an L&I pension. But, if your decision to retire is based (at least in part) on the work injury or workplace illness, then you must document all claim-related reasons.


In summary…

If you retire with an open L&I claim, you’ll probably be giving up some benefits. You should seriously think about whether to retire while your workers’ comp claim is open. Make sure you understand the rules and consequences. I tried to explain some of the considerations in this article. However, retiring during an L&I claim is not a simple matter. Hence, I always recommend speaking with an experienced workers’ compensation attorney before making any retirement decisions.


My Self-Insured Employer Has a TPA – What Does That Mean?

The Industrial Insurance Act governs every workers’ compensation claim in Washington State. This act provides benefits to workers and their dependents for disabilities or death after a work injury or occupational disease. Therefore, every L&I claim or self-insured employer claim must follow this law.


Self-insured employers

The Department of Labor and Industries (L&I) is a Washington State agency. The agency is responsible for administering all L&I claims under the act. With every work injury claim, L&I must decide which claim benefits are appropriate. Benefits include medical treatment, monetary compensation, vocational services, and more.


For payments, there are two sources of funding. The first is the Accident Fund. L&I manages this fund directly. The money in the fund comes from workers’ compensation insurance premium that Washington State collects from employers and employees. Then, there’s also private insurance for self-insured companies. If you work for a self-insured employer, then benefit payments come from your employer and their insurance company. Not sure if your employer is self-insured? You can find all self-insured employers on the L&I website.


What is a self-insured claim?

L&I qualifies and certifies employers to become self-insured. Employers wanting to be self-insured must apply with L&I. In fact, the qualification requirements are significant. Therefore, it doesn’t make sense for all employers in Washington State to become self-insured. Overall, self-insured employers have long term obligations. They must pay benefits for the lifetime of their workers’ claims. Moreover, this obligation remains the employer’s responsibility even after they surrender their self-insurance certification.


What is a third-party administrator or TPA?

Self-insured employers may elect to manage their own workmen’s compensation claims. Alternatively, they can have a third-party administrator (TPA) manage their claims. Most self-insured employers utilize TPA companies to manage workers’ comp claims. Every TPA in Washington State must carry a license from L&I. For that, to receive the license, a TPA must follow the requirements below:

1) Have a current Washington State business license

2) Demonstrate they meet the WAC 296-15-350 requirements for handling claims

3) Comply with reporting requirements under the Industrial Insurance Act

4) Complete and submit an application to L&I

5) Provide a list of employers with whom the TPA is contracted

6) Submit a list of certified claim administrators working for the TPA

7) Provide a list of claim administrators in the process of obtaining their WAC 296-15-360 certification.


TPA licensing and reporting requirements

Once licensed, every TPA must still submit an annual renewal application. Furthermore, they must update all information concerning employers they serve, as well as claims administrators that they employ. Any person making claim decisions must be a certified claims administrator. This is described in WAC 296-15-350. Moreover, to obtain certification you must participation in a 72 hour series of courses.


These courses cover:

i. Claim validity

ii. Medical management

iii. Compensation management, and

iv. Work disability prevention.

The course includes basic, intermediate, and advanced learning in each subject area. Once certified, claim managers must participate in continuing education, in three-year reporting cycles.


Work injury while working for a self-insured employer

Self-insured employers have many obligations to the state. However, despite these obligations, the TPA requirements, and claim manager qualifications, self-insured claims are often complicated. They are also very frustrating for the injured worker. For example, unlike L&I claims, the details and history for self-insured claims are not available online. Therefore, it can be very difficult to keep up with developments in the claim.


Self-insured employers and their TPA frequently hire or consult with attorneys. They do so regularly during the claim administration process. Hence, claims can progress very slowly and take a long time. Work injury claimants are often left in the dark about the progress of their claim. Many don’t really know what is happening in their claim. If that’s your case, then it’s probably a good idea to talk to a workers’ compensation attorney.


Vocational Recovery and Early Return to Work After a Work Injury

Some people can recover quickly and return to work after a workplace injury. For me, that’s the best L&I claim outcome. However, these are two separate topics. I genuinely believe that they must go together. First and foremost is the recovery. Then, it’s all about returning to work.


The return-to-work program

Sometimes, I worry that the Department of Labor and Industries (L&I) is cutting corners. I’m concerned that they lost sight of the importance of recovery. Instead, it feels like L&I focuses on early return to work. That’s because of academic studies. More specifically, they researched the length of time before returning to work.


If more time passes, it’s more likely that work injury claimants suffer longer term disability. Personally, I believe that if more time goes by, it’s certainly harder to start working again. However, I don’t think it’s a good idea to return people to work without proper recovery.


Vocational counselors and early intervention

It’s obvious that L&I is trying to return work injury claimants to work as quickly as possible. Evidently, they started assigning vocational counselors to claims earlier. Before, we used to call this “early intervention”. But now they call it “vocational recovery”.


Vocational counselors work with employers during the vocational recovery phase. They collaborate to get the injured worker back to work fast. Usually, the employer must decide if light duty or modified duty work is available. In other words, they consider any jobs that people can do within their activity prescription according to the attending provider.


Light duty and modified duty jobs

Employers receive financial incentives from light work or modified duty work. In my experience, some employers are surprised to learn about these incentives. When they do, they find accommodating options. Even when they previously said none were available.


Light duty work doesn’t have to be a job that’s generally available in the workforce. Unfortunately, to take advantage of incentives, L&I permits employers to create jobs that don’t really exist. For example, one light duty job was having workers watch safety videos the entire day. Ridiculous, isn’t it?


Made-up light duty job offers

Often, Work injury claimants often receive offers for light duty work they never expect to do. For instance, additional examples for light duty jobs include polishing silverware and dusting computer equipment. I’ve also seen workers scanning documents and greeting customers all day long.


Don’t get me wrong. There are cases where light jobs or work modifications serve the purpose perfectly. They keep work injury claimants attached to the workforce during recovery. Moreover, they help maintain good employer-employee relationship through the recovery process. However, sometimes these light or modified jobs are insulting and impractical. They can even interfere with getting proper treatment and recovery.


Is this helping injured workers?

When workers perform impractical jobs, it leads to frustration, stress, and anxiety. Furthermore, it doesn’t help the relationship between the employer and the worker. Consequently, it delays recovery. Many work injury claims report various degrees of retaliatory treatment.


Some clients tell me that they brought such issues to their vocational counselor and claim administrator. However, they weren’t given any serious consideration. What’s more, some work injury claimants decide to not accept a light duty or modified job. But then, they close their vocational recovery services. After that, L&I also stops paying time-loss benefits.


Summary and wrapping up

The vocational recovery program and early return to work can be wonderful. However, it doesn’t apply to everyone. We must advocate for proper light duty assignments. Otherwise, early return to work can be unfair to work injury claimants. When improper, it can easily impede and delay the recovery process.


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