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

Category: LNI Claim Appeal (Page 1 of 8)

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.


L&I Claim Board Decision: A Story About Significant Board Decisions

The Board of Industrial Insurance Appeals hears and decides L&I claim appeals. Usually, the Board makes decisions in standard and routine cases. These decisions are typically straightforward. However, on occasion, a Board decision may require special legal analysis. In fact, certain Board decisions have unusual facts. Therefore, in such cases, the Board sometimes makes new or different interpretations of the law.


A common L&I Board decision – examples

The Board regularly hears workers’ compensation claim appeals. Every day, the Board handles appeals to decide if a work injury claimant has temporarily totally disability. Another common example is deciding whether workers are eligible for more proper treatment under their L&I claim. Additional examples include decisions relating to permanent partial disability (PPD), and total disability or pension.


Significant L&I claim Board decisions

Each year, the Board determines if any of its decisions are “significant”. Under WAC 263-12-195, significant decisions are ones with “analysis or decision of substantial importance to the board in carrying out its duties”. To select these decisions, the Board collects input from its staff. They also ask for input from the public.


Under RCW 51.52.160, the law mandates the Board to publish significant decisions. On top, they must make these decisions available to the public at reasonable cost. Consequently, the Board indexes and summarizes significant decisions on a designated page on its website.


Significant cases and decisions are very important. In fact, there are special legal rules for these Board decisions. For example, take the rule regarding citations. When writing legal arguments, you can only cite cases as “significant” if the Board specifically designated them as such.


My experience with significant L&I Board decisions and cases

In 2021, the Board designated one of my cases as significant. This case involved two things:

1) The application of well-established law to unique facts; and

2) A distinction in the interpretation of the law.

The case includes an important decision about segregated conditions in an L&I claim. But first, let’s set some context and provide background. When L&I makes a decision, it communicates the decision to all the parties. Then, if neither party appeals the decision, it becomes final and binding 60 days later. This means that no party may revisit or litigate the matter later.


In addition, L&I may decide that a specific medical condition does not relate to the L&I claim. With that, L&I issues an order segregating the condition. Hence the term “segregated condition”. However, a work injury claimant can disagree with this order. As before, the worker has 60 days to tell L&I to reverse the decision. But, before we proceed, I must make an important distinction: A medical condition can relate to an L&I claim in two ways:

a) If the industrial injury or occupational disease causes the condition; or

b) If the workplace injury or occupational illness permanently aggravates the condition.


Specific example of significant cases

My experience with L&I claim significant cases comes from my work with Katherine Bard. For context, here is the timeline of the case:

  • In 2013, the Department of Labor and Industries (L&I) issued an order segregating lumbar degenerative disc disease from the L&I claim.
  • The order became final and binding.
  • Bard’s L&I claim closed in 2014. The closing of the claim also became final and binding.
  • Next, Ms. Bard reopened her L&I claim in 2015 for worsening of conditions that relate to the claim.
  • In 2019, L&I issued a new order. In it, they reconsidered the 2013 order and decided to segregate lumbar degenerative disc disease.
  • Finally, L&I determined the 2013 order was correct, to the worker’s detriment.


The L&I order from 2019 was new. Hence, Ms. Bard exercised her right to protest or appeal the decision within 60 days. On appeal, L&I filed a motion for summary judgment. In its motion, L&I argued that Ms. Bard cannot appeal the 2019 decision. Their argument was that the segregation of lumbar degenerative disc disease was final and binding. Furthermore, L&I said it issued the order by “mistake”. Initially, the Board judge agreed with L&I’s argument. Therefore, the judge granted their motion for summary judgment. However, I petitioned the Board to review the judge’s decision. The Board agreed and issued a new Decision and Order (D&O). Eventually, the Board designated Ms. Bard’s case as significant.


My personal significant case and the L&I Board decision

In Ms. Bard’s L&I case, the Board clarified that she cannot argue her injury caused the lumbar degenerative disc disease. Yet, the law doesn’t prevent her from arguing her injury aggravated the disease. Here, we recall that aggravation of a condition happens when:

i. A non-symptomatic pre-existing condition lit up or is now active because of the work injury; or

ii. An industrial injury or work disease worsened a symptomatic pre-existing condition.

In other words, the Board decided an industrial injury can aggravate a condition any time throughout the life of the claim.


Takeaways from Ms. Bard’s significant case at the Board of Appeals

The Board ruled that Ms. Bard cannot argue that L&I’s 2013 decision was wrong. In fact, the Board went a step further. They stated her lumbar degenerative disc disease wasn’t claim related as of 2014, when her claim closed. That’s because the L&I claim closure became final and binding, and the issue wasn’t raised back in 2014. However, the Board allowed to present evidence to prove her work injury aggravated her lumbar degenerative disc disease between 2014 and 2019.


Summary & conclusions

Personally, I believe the Board properly designated this case as significant. It changed how L&I and L&I attorneys look at aggravation of conditions. It also altered our view on final and binding L&I segregation orders. Since then, I’ve had many conversations with workers’ compensation professionals regarding this matter. I explained my thought process. I also elaborated on the facts of the case and the Board’s analysis. Admittedly, I feel proud to have had the opportunity to be part of this case. Moreover, I’m glad it helped clarify important distinctions. The outcome of this case will surely help workers and workers’ compensation cases in the future.


L&I Attorney Fees: Costs and Benefits for Injured Workers

If you’re a work injury claimant, you may need to hire a workers compensation attorney. In Washington State, we sometimes use the term L&I attorney instead. If you’re concerned about L&I attorney fees – you’re not alone. The cost of hiring an L&I attorney can be stressful for workers. In fact, some people wait too long to reach out to a workers compensation attorney. Most workers worry about the cost. I wish I could say that attorney fees aren’t a concern. Unfortunately, that isn’t true. The law allows workman’s comp attorneys to receive reasonable attorney fees for their services. However, the law also sets the limits for what they can charge.


Managing your L&I attorney fees and cost

In Washington State, the Industrial Insurance Act has rules regarding fees. And, these rules make it easier for workers to manage their L&I attorney fees. Specifically, these rules include:

1) Mandatory contingent fees

2) Fixed fee percentages for structured settlements (CRSSA)

3) L&I attorney fee and cost reimbursements for Superior Court appeals.

Below, let’s go over the 3 rules and how they affect your L&I claim benefits.


Contingent fee as one form of L&I attorney fees

Outside the workers’ compensation setting, most attorneys charge a retainer. The retainer is an upfront fee. Clients pay the retainer before receiving legal services. After that, clients typically pay an hourly rate. In contrast, a workers compensation attorney doesn’t charge a retainer. Similarly, an L&I attorney fee isn’t hourly. In fact, under RCW 51.52.120, the law allows a workers compensation attorney to charge a reasonable “contingent fee”. This fee is up to 30% of the monetary benefits that an L&I attorney gets for his or her client. So, a workers compensation attorney doesn’t collect fees unless the worker receives payments from L&I. Namely, these L&I monetary benefit payments include:

a) Time-loss compensation benefits

b) Loss of earning power benefits

c) Permanent partial disability (L&I PPD) awards

d) Permanent total disability or L&I pension benefits.


Again, the 30% contingent fee comes out of these benefits. That is, after the L&I attorney helped their client secure them. Obviously, sharing a percentage of these benefits can cause significant stress. However, contingent fees are best in a worker compensation claim. Why? Because they ensure that the worker and the L&I attorney both have “skin in the game”. The L&I attorney doesn’t receive payments until the worker also receives them. Most importantly, contingent L&I attorney fees ensure that workers have early access to legal representation.


L&I claim resolution settlement agreements & fixed fee

Claim Resolution Settlement Agreement (CRSA) is a new way of resolving L&I claims. It’s the “new version” of CRSSA. Here, instead of continuing with the L&I claim, the worker and L&I decide on a monetary settlement. In short, the worker gives up the claim. In exchange, L&I pays the worker to walk away. So, let’s say an L&I attorney secures a CRSA. Then, under RCW 51.52.120(3), the L&I attorney fee for securing the CRSA is 15%.


Superior court appeals

Workers can appeal L&I decisions. Appeals take place at the Board of Industrial Insurance Appeals (i.e., the Board). First, let’s go over the steps of the Board appeal process. If the matter goes to a full hearing, the Board judge will issue a Proposed Decision & Order. Then, any party that disagrees with the decision can file a Petition for Review. Next, the Board will either deny or grant the petition. Finally, the Board will issue a Decision and Order.


Either party can disagree with any of these Board rulings. Therefore, either party can file an appeal to Superior Court for a Bench trial or Jury trial. In a Superior Court appeal, the law presumes the Board’s decision is correct. Hence, the appealing party has the burden of proof. Now, let’s discuss how this affects your L&I attorney fees.


L&I attorneys fee and cost reimbursement in successful Superior Court appeal

If successful, under RCW 51.52.130, the Superior Court may award L&I attorney fees and costs. To clarify, this means L&I or the self-insured employer will reimburse the worker for their workers compensation attorney fees. Put another way, the law will award attorney fees if Superior Court does 2 things. First, if Superior Court reverses or modifies the Board decision. And second, when Superior Court grants more relief to a work injury claimant.


Furthermore, trial witnesses cost money. Especially when it comes to medical testimony. The Court may waive these witness fees upon a successful outcome. Therefore, winning a Superior Court appeal can have many benefits. And that’s on top of securing your L&I benefits. However, remember, reimbursements only apply in successful Superior Court appeals. In contrast, fee and cost waivers aren’t available when working with L&I or the Board. It’s only available when an L&I attorney litigates your claim in Superior Court.


Takeaways and final remarks

In summary, work injury claimants may need to hire an L&I attorney, resulting in fees. Contingent attorney fees will be a percentage of the monetary L&I benefits. For percentages, L&I attorney fee will always be 30% or less. In CRSA, the law limits the fee percentage to 15%. Typically, L&I and self-insured employers aren’t responsible for paying your L&I attorney fees. However, a worker may make a successful appeal to Superior Court. There, the Superior Court may order L&I or the self-insured employer to pay attorney fees and costs.


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