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

Category: LNI Claim Appeal (Page 1 of 8)

Important Dates You Must Remember in Your L&I Claim

Calendar dates can be very important in an L&I claim. In fact, certain dates associated with specific events can impact your L&I claim benefits. In some cases, incorrect dates can even have long lasting negative implications in claims. The purpose of this article is to discuss some of the most important claim dates that work injury claimants must track and remember.


Date of injury in a workers’ compensation claim

The date of injury (DOI) is the date an Industrial Injury occurred. If you were injured at work on a specific day, that is your date of injury. It’s very important that you use the correct date of injury when filling the accident report. This date will also appear in other early claim documents. Personally, I’ve seen circumstances where L&I doubted the validity of the claim because the date of the work injury was wrong. For example, take a workplace injury that occurred on a Friday. Yet, the date of injury in the report form is listed as Saturday. This real-life error caused the employer to question the claim because the worker wasn’t at work on Saturday. One tiny mistake and the injured worker had to spend months convincing the employer and L&I that the injury actually happened on Friday while at work. Not at home over the weekend.


The date of injury is also very important because L&I uses it to calculate wages. Work injury claimants may be eligible to wage replacement benefits like time-loss compensation or loss of earning power. L&I pays these benefits when workers cannot work after their work injury. Or, when workers can only work in limited capacity. To determine compensation, L&I looks at the wages on the date of injury. Therefore, an accurate date of injury is important. It’s imperative that L&I calculates wages correctly and accurately.


Date of manifestation

The date of manifestation (DOM) is the date associated with the onset of an occupational disease claim. Under the law, the date of manifestation is “the date the disease required medical treatment or became totally or partially disabling, whichever occurred first”. The date of manifestation is set exactly according to this definition. It doesn’t matter when you actually filed your L& claim.


As with industrial injury, establishing a correct date of manifestation is very important. I’ve seen instances where L&I questioned a claim because the date of manifestation on the form was long after the first treatment date. This caused L&I to suspect that the work injury claimant wasn’t honest. It also opened the door for questions about whether the condition was actually an occupational disease. Or, for example, something that occurred naturally regardless of work activity.


If L& rejects a claim on this basis, it puts work injury claimants in a bad position. They end up having to fight an uphill battle to get the claim allowed. Using the correct date of manifestation from the beginning can eliminate this risk.


Incorrect dates can impact your claim benefits

The date of manifestation can also impact monetary benefits. Here are a few examples. Nearly every year, L&I sets a “compensation schedule”. For instance, say that the date of manifestation is in 2010. In addition, say that the work injury claimant is ultimately eligible for a permanent partial disability award. Eventually, L&I will pay the worker according to the PPD rates for 2010.


Another example is wage replacement benefits. Let’s assume that the work injury claimant is working when the industrial disease requires treatment. Then, L&I will base the wage replacement compensation on the monthly wage paid on that date. However, if the work injury claimant wasn’t employed at the date of manifestation, then L&I calculates the compensation using the last monthly wage of earnings. That is, so long as the worker didn’t retire voluntarily. In fact, voluntary retirement disqualifies work injury claimants from receiving wage replacement benefits.


L&I claim dates associated with letters and communications

Many L&I claim deadlines are a function of the date in which L&I sends out a document or notification. For example, if L&I sends an order, you have 60 days from the date you receive the order to file a protest or appeal. If you don’t file a protest within 60 days, then the order becomes final and binding. After that, you can no longer challenge the decision.


By law, L&I must send orders to work injury claimants at their last known address “as shown by the records of the department”. Hence, L&I considers the order delivery as “complete” when the mail arrives at the work injury claimant’s last known address. It’s important to note that workers can rebut this presumption. To do so, you must present evidence and show you didn’t receive the order. However, no one ever wants to be in this position. In my opinion, the best way to ensure you’re calculating deadlines properly is to simply write the date of receipt on every document. That’s how law firms do it. Every time a piece of mail comes in the door – we date-stamp it. Having a similar standard practice can help throughout your workman’s comp claim.


Terminal dates and claim reopening

Terminal dates are important when trying to reopen a claim. There are two important terminal dates. Both play a role during the claim reopening application. The first terminal date (called T1) is the latter of: (1) The date L&I closed the claim; or (2) The most recent date L&I denied a reopening application. The second terminal date is called T2. It is the most recent date when you filed an application to reopen the claim. Both T1 and T2 dates can change over time.


Let’s go over an example. A work injury claimant suffered an injury on the job on 1/1/2010. L&I allowed their claim on 1/5/2010. Later, L&I closed the claim on 12/31/2015. The worker applied to reopen the claim on 1/1/2016. In turn, L&I denied the reopening application on 2/1/2016. Here, the first terminate date is 12/31/2015. The second terminate date is 2/1/2016. Further, assume that the worker does not protest or appeal the denial. Instead, say the worker files a new application to reopen on 1/1/2017. Additionally, say that L&I denies the new reopening application on 2/1/2017. After that, the new T1 will be 2/1/2016 and T2 will be 2/1/2017.


Terminal dates are important in reopening applications. For L&I approval, you must show that claim-related conditions got worse between the terminal dates. Furthermore, you must show the need for further treatment or an increase in disability. So, it’s extremely important for both work injury claimants and their medical providers to understand the terminal dates.


L&I claim closing date

When L&I closes a claim, they send you a “Notice of Decision”. Sometimes, L&I sends a final “Payment Order” instead. Either way, the L&I claim closing date refers to the date that appears on that letter. This is one reason it’s very important to always read L&I orders completely and carefully.


When L&I decides it’s time to close your claim, they must issue their decision in writing. In it, L&I must clearly state that the claim is closed. Like any decision, to protest or appeal it, you must submit a written notice within 60 days. If L&I receives the protest in time, then L&I has to issue a new order. If L&I affirms its decision to close the claim, then the date on the new order becomes the claim closing date. Technically, a claim isn’t closed until 60 days after the written notice of closing arrives to the worker.


Sometimes, people don’t understand that L&I must communicate claim closure in writing. They mistakenly think that if a doctor tells them that treatment concludes, then the claim is closing. Other times, workers think that if a claim manager tells them the claim is closing, then it’s closed. In fact, I’ve talked to work injury claimants who believed their claims closed for years. Only to find out that their claims are still open. During this entire time, workers skipped medical treatment and benefits.


Appointment dates – Don’t forget your L&I appointment!

By far, the most important date(s) to remember in your L&I claim is your appointment date. Work injury claimants miss appointments way too frequently. Sure, unexpected issues and emergencies arise from time to time. However, it’s unacceptable to forget and ignore appointments repeatedly.


Whether it’s an appointment with your attending provider or IME appointments. Whether we’re talking about physical therapy, consultation appointments, or vocational meetings. It doesn’t matter. There is no justification to miss appointments. As such, it’s critical to know the date and attend your appointment on time. If you repeatedly miss appointments, it’s one surefire way to interrupt your L&I claim progress. Often, it will result in suspension of benefits. There is nothing more frustrating than finding out a work injury claim has gone down the toilet simply because the claimant failed to attend appointments.


I know a claim can be difficult. I’m well-aware it can be scary to manage all the appointments and administrative responsibilities. However, if your claim is important to you, know your appointment date and show up. Unless you have a very good reason for missing it.


Over Seven Claim: My L&I Claim Closed More Than 7 Years Ago – Can I Reopen It?

You can always reopen an L&I claim for medical treatment. Even if you have an old claim. It doesn’t matter how old the claim is. However, if your claim closed over 7 years ago, it will impact your L&I claim benefits. While L&I covers medical treatment, you might not receive other benefits under the claim.


What is an over-seven claim?

The term “Over-Seven Claim” is commonly used by workman’s compensation professionals. That way, we all know what we’re talking about when we use that phrase. The term refers to an L&I claim or self-insured employer claim that closed over seven years ago (or ten years for eye claims).


To reopen an over-seven claim, the requirements for reopening are the same as all claims. This is true for old claims as well. However, once reopening is complete, there is special treatment for over-seven claims. Here, in this article, we’ll first discuss the reopening process and then talk about L&I benefits and limitations.


How to reopen an old over seven claim

To start, you must first file an Application to Reopen Claim. If you look at it, the form requires information from both the work injury claimant and their medical provider. In turn, after L&I receives your reopening application, L&I has sole authority to decide what to do next. This is true for both a state-funded L&I claim and self-insured employer claim. In other words, the Department of Labor and Industries (L&I) determines if there’s merit to reopen your claim.


A work injury claimant can submit a request for reopening without supportive medical documentation. However, without medical evidence, L&I won’t be able to determine whether reopening is appropriate. Therefore, it’s typically best for the injured worker and their doctor to work together on the claim reopening application. Collaboration with your medical provider is very important.


Medical criteria to reopen an old claim in Washington State

The following explanation applies when reopening any claim. Not only an old workers’ compensation claim.  To meet the criteria for reopening, you must show an aggravation or objective worsening of your conditions. Remember, these conditions must relate to the work injury. Furthermore, you must show that the aggravation or worsening happened since the latter of: (1) The last date the claim closed; or (2) The most recent date L&I issued an order stating the claim will remain closed.


For aggravation, you must show the following:

  1. A causal connection between the accepted condition at the time of claim closure and the current condition;
  2. A medical opinion stating that the condition is worse than before; and
  3. Objective medical findings to support the medical opinion.

Sometimes, the requirement to provide objective medical evidence doesn’t apply. For example, in case of mental health conditions.


Showing aggravation and worsening of conditions

L&I can give your medical provider a copy of the closing medical records. If you need it – ask for it. These records can help your doctor assess if your condition is getting worse. Also, L&I can authorize additional diagnostic testing if it helps in deciding on reopening. Finally, L&I also has the right to compel the work injury claimant to attend an Independent Medical Examination (IME). The purpose of the IME exam is to determine if reopening is appropriate.


L&I benefits after reopening an over-seven claim

You can apply to reopen an old over seven claim any time, to receive medical benefits. After filing the reopening application, several situations may arise. First, if the claim doesn’t meet the criteria for reopening, L&I will issue a decision denying the reopening. Second, if the claim can be reopened and time-loss is not an issue, L&I will issue an over seven reopening order and notice for medical benefits. The notice informs the work injury claimant that their claim is reopening only for medical treatment.


Of course, medical benefits are just one kind of benefit that L&I provides to workers after they get hurt on the job. Typically, workers’ compensation professionals refer to other benefits as “disability benefits”. The most common disability benefits include time-loss compensation (TLC), loss of earning power benefits (LEP), permanent partial disability awards (PPD), and pensions (TPD). Simply put, work injury claimants with an old over-seven claim don’t receive disability benefits. Even after L&I reopens their claim. With one exception.


Requesting disability benefits for an old over-seven claim

The director of L&I has discretion to grant disability benefits in an over-seven claim. A worker with an old claim can ask for disability benefits any time during the reopening process. Or, they can ask for disability benefits after L&I reopens the claim. If you’re requesting disability benefits in an over-seven claim, the claims manager or claim adjudicator must prepare a briefing paper. Later, they will hand the briefing paper to the L&I director for consideration.


By law, RCW 51.32.160(1)(a) grants the Director the authority to readjust the worker’s rate of compensation on their own motion. Once the Director exercises discretion to approve or deny benefits, L&I will issue an order and notice. The order will notify the work injury claimant of the Director’s decision.


How likely am I to receive benefits for an old claim?

On occasion, the Director will exercise discretion to grant additional disability benefits in over-seven claims. However, this is an exception. It isn’t a rule and it’s not very common. In fact, Washington State Courts said that the meaning of the words “may adjust the rate of compensation” in RCW 51.32.160(1)(a) empowers the Director to modify the value of a worker’s disability benefits. Hence, the Director has the “discretionary authority” to determine the worker’s eligibility for disability benefits.


As always, any party can protest or appeal L&I decisions. This also includes the Director’s decision to grant or deny disability benefits. However, we must remember that for an over-seven claim, the decision to grant or deny disability benefits is discretionary. Consequently, Washington State Courts determined that the standard of review on appeal is “Abuse of Discretion”. In other words, the appealing party must show that the L&I Director abused his discretion in making the decision. For that, they have to convince the Board of Appeals or a higher court that no reasonable person would have made the same decision. Therefore, most lawyers would agree that abuse of discretion is difficult (if not impossible) to prove.


Summary and conclusions

In summary, you can reopen a workers’ compensation claim as long as certain criteria are met. The criteria for reopening are the same for all claims. It doesn’t matter if a claim closed long ago. The age of the claim is also not important.


If your L&I claim closed less than seven years ago, you can reopen it for both medical treatment and disability benefits. However, if you claim closed over seven years ago or more (ten years for eye claims), you can only reopen it for medical benefits. In over-seven claims, the Director of L&I can exercise discretion to grant or deny disability benefits. But, if the Director denies disability befits in an old over-seven claim, it’s very difficult to successfully appeal and reverse the decision.


The L&I Claim Process: Overview of Common Medical Steps

Every L&I claim is different. The conditions and circumstances of each workers’ compensation claim are unique. However, many L&I claim cases follow a similar process.


A common process and pattern in L&I claims

Most L&I claims that come across my desk follow the same pattern. More explicitly, the pattern consists of the following steps:

1. A doctors diagnoses the injury as sprain or strain

2. The attending provider prescribes physical therapy

3. Doctors perform clinical exams

4. Medical providers proceed with diagnosis studies

5. L&I subscribes the worker to a pain management program

6. Doctors identify more complex diagnosis

7. L&I sends the worker to an independent medical exam (IME)

8. L&I closes the claim because of pre-existing conditions.

Too many claims follow this L&I claim process, blindly. Many workers fall in a gray area. They do not receive what they deserve under the law. The purpose of this article is to explain the L&I claim process and the steps above. Hopefully, workers can figure out where they stand in the process and decide what to do next.


Work injury happens

A worker suffers an injury on the job. Usually, the injury isn’t visible. However, there’s no question that the worker is in pain. Sometimes, the worker goes to the emergency room (ER) or urgent care right away. Other times, they wait several days. Most commonly, workers hope that the problem will go away on its own.


Sprain or strain diagnosis

The first step in the L&I claim process is when the worker first sees a doctor for the work injury. Usually, the doctor diagnoses the worker with a sprain or strain. A sprain or a strain is a soft tissue injury. It includes muscle injury and injury of the tendons. The treatment for sprain or strain diagnosis typically includes:


Sometimes, a doctor orders an x-ray of the affected body part. An x-ray can help determine the diagnosis. On top, it can rule out a fracture. If there’s no fracture, then doctors expect sprains and strains to resolve quickly. Typically, with minimal treatment.


Physical therapy

On occasion, the worker continues to complain about pain. In actuality, there’s no real medical improvement. Then, doctors typically prescribe physical therapy. Some attending providers also call for more diagnostics, such as an MRI. Yet, in my experience, L&I denies MRI exams early in the workers’ compensation claim process. Normally, L&I wants workers to at least attempt physical therapy.


However, many times pain complaints continue. Moreover, physical therapy doesn’t always improve the worker’s pain. That’s when things can start getting messy in your L&I claim process.


What happens in my L&I claim if physical therapy doesn’t help

Say that rest, activity modification, pain medication and physical therapy are not helpful. Next, doctors usually look for signs of more serious problems. Here, doctors may perform certain clinical exam and tests. It all depends on the body part and suspected condition. L&I considers these exam results to be objective medical evidence. For example, say the work injury claimant has persistent low back pain. Then, doctors may perform a straight leg raise exam. This exam checks for potential radiculopathy or nerve impingement.


Additionally, there are other tests that we call “provocative tests”. They help doctors determine more complex workplace injuries. Examples of such complex injuries include:

a) Elbow, wrist, or shoulder impingement

b) Knee and shoulder tear

c) Other spinal disc herniation or displacement

If provocative tests suggest a medical problem, then doctors order more diagnostic studies. Frequently, they include imaging studies. For example, MRI tests and CT scans. Also, doctors often order nerve conduction studies like EMG.


Pain management program (SIMP) and work conditioning

In an L&I claim, the Department of Labor and Industries (L&I) considers pain complaints as subjective. In contrast, diagnostic results are objective. However, objective diagnostics may not explain subjective symptoms and complaints. In such instances, L&I can refer the work injury claimant to an L&I pain management program like SIMP. Or, to a work conditioning or work hardening program. Typically, this is the final treatment attempt before claim closure.


A serious diagnosis & causation

Alternatively, a diagnostic study may objectively find more serious problems. If that’s the case, then causation is going to be the next issue in your L&I claim. There are several serious conditions that doctors often detect through MRI, CT scan or EMG. The list of serious problems we see in L&I claims at our office includes:

1) Disc herniation

2) Spondylosis

3) Spondylolisthesis

4) Facet arthropathy

5) Spinal cord impingement

6) Disc degeneration

7) Bone spurs

8) Meniscus tears

9) Rotator cuff tears

10) Shoulder joint arthritis

11) Knee joint osteoarthritis

12) Loss of cartilage

13) Cubital tunnel syndrome

14) Carpal tunnel syndrome

15) Lateral epicondylitis, and

16) Brachial plexus impingement

to name a few.


From L&I’s standpoint, these diagnoses are challenging. That’s because their cause is rarely a single trauma or injury. Therefore, when a provider identifies the diagnosis, L&I immediately starts questioning causation. At times, L&I asks the attending provider for an opinion about causation. But, very often, L&I calls for an independent medical exam (IME) instead.


Independent medical exam

Most IME doctors find that these kinds of diagnoses do not relate to your L&I claim. There are exceptions, but they are rare. The opinions of IME doctors usually read something like this:

“Diagnosis is pre-existing and unrelated to the industrial injury for which this claim was filed.”


The reason is that most of these conditions have other causes. They include:

a) Natural aging

b) Genetics

c) Gender

d) Weight

e) Diabetes

f) Alcohol use

g) Use of tobacco.


In short, it’s easy for IME doctors to blame the cause on reasons that do not relate to the L&I claim. Unfortunately, in my opinion, IME doctors err and attribute causes to pre-existing conditions too often.


Pre-existing conditions and IME reports

Personally, I take issue with these IME opinions. They completely ignore the laws on pre-existing conditions. Legally, there can be more than one cause for a medical condition. An industrial injury may aggravate or worsen a pre-existing condition. It doesn’t matter whether the pre-existing condition was symptomatic before the work injury. If the work injury causes worsening, then the condition is causally related under the L&I claim. Yet, IME doctors rarely include this in their analysis. They just indicate that a condition is pre-existing. Thus, according to IME doctors, it’s unrelated to the L&I claim.


Segregation order

Eventually, L&I receives the IME report. In turn, L&I will likely issue an order stating it isn’t responsible for the condition. We call this a “segregation order”. Meaning, L&I has segregated the condition from the workers comp claim.


If you receive a segregation order, it’s a good idea to consult with an L&I attorney. Disagreements over causation are one of the most common issues in L&I claims. You have to appeal this decision to the Board of Industrial Insurance Appeals for resolution. Most likely, you’ll want an attorney by your side for the appeal.


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