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

Category: LNI Claim Appeal (Page 2 of 8)

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.


L&I Claim Protest: What Is It and Why It’s Important?

Many times, the Department of Labor and Industries (L&I) makes incorrect decisions. The same is true in self-insured claims. When this happens, it’s important to file a claim protest. If the L&I claim protest isn’t successful, we proceed to file an L&I claim appeal.


Claim protest versus claim appeal

Usually, L&I makes an initial decision. Then, to push back on the initial decision, we file an L&I claim protest. If L&I affirms its decision, we continue to file a claim appeal. A successful protest saves time, frustration, and costs. However, in my experience, the chances of winning an L&I claim protest are not good. Therefore, the purpose of this article is to review best-practices when filing an L&I claim protest.


Filing an L&I claim protest -in writing and on time

Under RCW 51.52.050, any party that disagrees with a decision can protest it. With every L&I decision, your rights to protest and appeal must be printed on the decision paper. And again, the same applies in self-insured employer claims.


A valid L&I claim protest must be in writing. Moreover, you have to file it on time. Workers have 60 days to file a claim protest from when you receive the decision. People often tell me they called their claims manager to disagree with the decision. However, a call to the claim manager is NOT a valid protest. You MUST file every protest with L&I. Even if the employer is self-insured. Sometimes, people accidentally send a written protest or appeal to the self-insured administrator (instead of L&I). Here, L&I considers the date the employer receives the filing as the date of receipt.


You must include supportive evidence in your L&I claim protest

Many L&I decisions involve medical determinations. For example, accepting or rejecting a medical condition. Other examples include causation of conditions and the need for further treatment. Finally, there’s also permanent partial disability ratings, and activity prescriptions.


If you’re protesting a medical decision, it’s important to have recent supportive medical records. Recent medical information is especially important if your attending medical provider disagrees with the decision. In fact, whenever this is the case, it’s important for L&I to review the recent medical opinion of the attending provider. Sometimes, it’s a different treating provider who feels that L&I’s decision is incorrect. Even if it isn’t the attending provider, you must provide this medical information to L&I. Unfortunately, without recent medical opinions showing that the decision is incorrect, you’re unlikely to prevail.


L&I protest for non-medical decisions

Many L&I decisions are for non-medical claim benefits. For instance, wage rate or offset dispute. As before, you’re more likely to win an L&I claim protest if you submit supportive evidence. Often, people are frustrated that the burden is on them. Workers have to track down relevant evidence and file it with the protest. I get it. I sympathize with this frustration. However, gathering and submitting supportive evidence is the best way to win an L&I protest.


To summarize, you must protest or appeal unfavorable L&I decisions. The most common convention is to protest an initial determination. While it can be difficult to win protests, you can increase your likelihood of success. Just follow 2 simple rules: (1) file your L&I claim protest in writing and on time; and (2) gather and submit evidence to support the protest.


« Older posts Newer posts »