Category: LNI Claim Appeal (Page 3 of 8)

Combine 2 LNI Claims to one workman's comp claim

I Have 2 Or 3 L&I Claims – Can I Combine Them Into One Claim?

Some work injury claimants have 2, 3 or more L&I claims. In fact, you’d be surprised how many people have more than 1 workman’s compensation claim. Sometimes, you can combine multiple L&I claims into one. In legal terms, when you combine multiple claims into one, we call it “claim consolidation”. When can you consolidate several L&I claims? It depends. You can only combine claims if you meet certain requirements. For one, you can combine claims if they are duplicate L&I claims. Alternatively, you can consolidate L&I claims if they involve a subsequent aggravation.

Duplicate L&I claim

What is a duplicate L&I claim? Say you already have a workman’s comp claim for a work injury or occupational disease. A duplicate claim is when you file a 2nd claim for the same injury or illness. The new claim has the same injury date. And, it contains the same diagnosis or body part.

Sometimes, duplicate claims happen when you file an L&I claim that should be a self-insured employer claim. For example, say your doctor’s office filed a state-funded L&I claim on your behalf. Then, when they discover that your claim needs to be a self-insured claim, they file a second application. The 2nd submission is for the exact same work injury. Another example is when different medical providers file duplicate paperwork. For instance, a worker goes to the ER for an acute injury. After that, the worker follows up with a regular provider the next day. The regular provider may submit an L&I claim. However, they might not realize the ER provider also filed a claim the day before.

Subsequent aggravation resulting in multiple L&I claims

Say that L&I accepts your worker’s compensation claim. Here, under this first claim, L&I accepts coverage responsibility for certain medical conditions. A subsequent aggravation is when you file a new claim for an aggravation of these conditions, when:

1) There is already an open and symptomatic claim;

2) The conditions accepted in the first open claim are susceptible to re-injury; and

3) There weren’t new incidents or additional exposure.

For example, a workplace injury claimant develops a muscle strain lifting heavy objects. The worker files a claim. Moreover, L&I allows the claim and the claim is open. Fast forward, the person is getting treatment. Later, the medical condition gets worse. Eventually, the doctor files a new L&I claim for the worsening condition. Hence, if this happens, the new claim is a duplicate of the original claim.

When should I not combine all my L&I claims?

If the new claim isn’t duplicative and isn’t a subsequent aggravation, then you shouldn’t consolidate claims. In fact, I get calls from work injury claimants telling me their doctor, employer, or self insured third party administrator combined their claims. Every time I hear this – it’s a red flag. Only L&I has the power to consolidate claims.

If anyone thinks that consolidating claims is appropriate, they must ask L&I to do it. The request will be handled by the claim manager. Or, by the adjudicator responsible for the original claim. It’s important for L&I to make a formal decision about consolidation. This way, it gives the parties protest or appeal rights when the consolidation isn’t correct.

Additional examples for consolidating multiple L&I claims

On occasion, work injury claimants simply want to consolidate claims to manage their claims more easily. I certainly understand why they feel this way. Having multiple open claims at the same time can be confusing and difficult. However, unless the claims are duplicative or subsequent aggravations, consolidation isn’t appropriate. It doesn’t matter how much easier it may seem to manage the claims. You simply shouldn’t do it.

To summarize, there are only two circumstances to combine multiple L&I claims. The 1st is when you have duplicate claims. Then, the 2nd is if you have a claim for subsequent aggravation. Most importantly, only L&I can consolidate claims. If anyone else does it, you better contact a worker’s compensation attorney. Finally, by law, convenience alone isn’t a sufficient reason to combine claims.

Do I Need an Attorney for a Board Appeal in My Workman’s Comp Claim?

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The Board of Industrial Insurance Appeals is a state agency in Washington State. Some people refer to it as the Board of Appeals, the Board, or BIIA. Interestingly, it behaves somewhat like a court. As such, it decides the outcome of L&I disputes.

Workman’s comp claim appeal and the board

The Board is separate and independent from the Department of Labor and Industries (L&I). After L&I makes a decision, either party can appeal the L&I decision to the Board. In practice, it means that not only work injury claimants and employers can file an appeal. In fact, physicians, retrospective rating groups, and others can also appeal L&I decisions.

When appealing, the party that files the workmen’s comp appeal has the burden of proof. In simple words, the filing party has to prove that L&I’s decision is wrong. In turn, the Board will hear the evidence in the appeal. After that, the Board will issue a written decision stating whether L&I’s decision was right.

Attorney for workman’s comp board appeal

Many people hire a workman’s comp attorney for Board appeals. It’s not mandatory to have an attorney. However, the rules and processes of a Board appeal can be overwhelming. Here, in this article, I’m going to try to provide an overview of the steps of a Board appeal. However, please note that this is a high level and non-exhaustive overview.

The steps of a Board appeal

Step 1 – Receipt of appeal

The first step happens when the Board receives an appeal. The Board assigns each new appeal its own “docket number”. Then, they use this number to identify the case throughout the Board appeal process. After that, the Board mails a notice to all parties in the appeal and to L&I. The purpose of the letter is to inform everyone of the appeal and its docket number.

Step 2 – L&I response to the appeal

When L&I receives an appeal, they must decide what to do. Generally, L&I has 3 options. The 1st option is to send the workman’s comp claim record to the Board and allow the appeal to proceed. In contract, L&I can take option #2. Here, L&I can change or reverse its decision. Finally, there’s option #3, which is to tell the Board that L&I wishes to reconsider the decision. Either way, L&I must choose an option within 60 days. If L&I reconsiders its decision, then the Board sends the claim back to L&I for further action.

Step 3 – Granting the Board appeal

After receiving an appeal, the Board has 60 days to grant or dismiss it. For that, the Board examines if the filing of the appeal was timely. They also check if the appeal is legally appropriate. In legalese, we say that the Board must figure out if it has jurisdiction to hear the appeal.

Next, if L&I doesn’t reconsider and the Board determines it has jurisdiction, then the Board issues an order granting the appeal. This step can be very confusing for non-lawyers. Granting the appeal means that the Board can legally hear and decide the case. Nothing more. It doesn’t mean that you won the appeal.

Step 4 – Mediation

Usually, the first step after granting an appeal is the mediation conference. What is it? It’s an informal meeting between the parties with a mediation judge. Before the mediation conference, the Board sends a notice to everyone. In it, the notice states the date, time, and location of the meeting. Before COVID, the Board held these conferences (mostly) in person. Since COVID, they are mostly over telephone. Sometimes, over zoom. Many times, the Board will allow multiple mediation conferences. In fact, that’s pretty common. By doing so, the Board gives the parties more time to resolve disputes without litigation.

Interestingly, the Board reported that work injury claimants participate more in conferences since telephone meetings became available. Obviously, that’s because of ease and convenience. Personally, I think it’s also because phone conferences are less intimidating. Yet, the Board is actively working to determine if and how they can return to in-person mediation.

Step 5 – L&I claim appeal hearing

If mediation isn’t fruitful, then the case goes to a hearing. Normally, the Board sends notice that the matter is advancing to a hearing. Then, the first step after is a scheduling conference. There, at the conference, the Board hearing judge sets a litigation schedule. The schedule includes dates and milestones. For example, deadlines to complete discovery or confirm witnesses. On top, dates to file briefing, and other steps.

Step 6 – Cost and fees

Do you know how much a workman’s comp claim appeal costs? With appeals, each party is responsible for its own costs and fees. Even if you win. That’s right. No one pays your costs or attorney fees. There’s no reimbursement or refund. Furthermore, each party is responsible for scheduling costs and their own witness fees. Therefore, costs can become significant. It’s definitely something to watch out for.

Step 7 – The Board appeal hearing process

The Board hearing is similar to a trial in a regular court. In fact, Legal Rules of Evidence and Superior Court Civil Rules apply. These rules say what you can and can’t do. In addition, they say how parties must interact with each other and with the Board. In hearings, parties can represent themselves before the Board. The BIIA also allows lay representatives if they don’t charge a fee or ask for compensation. More details are available in WAC 263-12-020(3)(a)(iii). All parties must become familiar with evidence and procedure rules. Even if they are not lawyers.

During hearings, the parties or their representatives must present evidence. The parties do so through witness testimony in a question-and-answer format. If a party doesn’t have legal representation, the Board hearing judge helps question witnesses. However, the judge cannot act as an attorney for either side. They must stay neutral.

Most importantly, the appealing party must present evidence to meet the burden of proof. In other words, they have to show enough evidence to prove that L&I’s decision is incorrect. Records like medical chart notes and letters are not sufficient. The Board judge won’t consider them if the other party objects. In fact, attorneys must object to medical notes and letters on the basis of the Rules of Evidence.

Step 8 – Proposed decision and order

Eventually, the parties finish presenting evidence. After that, the Board judge reviews the evidence and writes a Proposed Decision and Order (PD&O). The PD&O contains an analysis of the facts and relevant law. Furthermore, it includes the judge’s findings of fact and conclusions of law.

Step 9 – Petition for review

Sometimes, a party disagrees with the Proposed Decision and Order. In such cases, the party can file a Petition for Review (PFR). Then, when the Board gets a PFR, they either grant or deny it. This decision is entirely up to the Board. In turn, if the Board denies the petition, then the PD&O becomes its final decision. In contrast, if the Board grants the petition, the opposing party can file a response. Finally, the Board issues a Decision & Order (D&O). It include the facts, relevant law, and findings. The Decision and Order is the final determination of the Board.

Step 10 – L&I claim appeal to Superior Court

Any party that disagrees with the Board’s final decision can appeal to Superior Court. As always, there’s a timeline to follow. To help, the Board’s final decision comes with an information sheet. It includes the timelines and requirements to appeal to Superior Court.

Summary and conclusions

Many workers with an L&I claim in Washington State want to know if they need an attorney for a Board appeal. For that, the law is very clear. A workman’s comp attorney is not required. However, L&I almost always has legal representation from the Office of the Attorney General. Moreover, when dealing with a self-insured employer, they usually have highly experienced attorneys on their side. Additionally, it’s common to see attorneys with vast experience representing retrospective ratings groups. Hence, it can be difficult for individuals to get up to speed and represent themselves.

The main challenge is to match the level of the attorneys on the other side. Consequently, the Board urges parties with no legal representation to at least speak with an attorney. They usually recommend it early in the appeal process. However, as the Board appeal progresses, the more challenging it becomes to find an attorney that’s willing to step in. That’s when representation becomes more difficult. It’s because there’s a lot of work to do, to get up to speed, in a very short time window.

L&I Claim Denied for Occupational Disease – Why? What can I do?

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Last week, we talked about cases where L&I rejected a work injury claim. Here, we’ll discuss examples and reasons when your L&I claim denied for occupational disease. Remember, an occupational disease is when you develop a medical condition due to your work settings. In contrast, a work injury is when a sudden accident happens at work.

Occupational disease L&I claim

Occupational disease is sometimes called industrial illness. In Washington State, the law that governs this topic is RCW 51.08.140. By law, “occupational disease” means a disease or infection arising naturally (or approximately) out of employment conditions. That’s a complex definition. In simple words, it refers to cases where unique work conditions cause an illness or infection. Usually, these diseases develop over time due to your workplace environment.

The law in Washington State favors work injury claimants. Simply put, it’s more likely that L&I will approve or allow your workers’ compensation claim than not. To allow an occupational disease claim, there must be objective medical evidence. On top, the medical facts must show that your distinctive employment conditions are the reason for the disease.

Why is my L&I claim denied?

You must file your L&I claim on time. Don’t delay or file late. For timing, the rules for an occupational disease claim are different than for a workplace injury. Here, the time limit is 2 years. More explicitly, it’s 2 years from when a medical provider informs you (in writing) that you have an occupational disease.

Generally, filing and timing is almost never an issue. However, the top 1 most common reason for L&I to deny a claim is lack of causation. In other words, it’s when you don’t show how your work conditions caused the disease. Furthermore, if we dig deeper, then there are 2 main issues with showing causation. The first is lack of distinctive conditions at your job. Then, the second is when there are other conditions in your life that are more likely to cause the disease.

L&I claim denied – a deeper dive

Let’s talk about the first issue. Remember, your work environment must have unique conditions that can cause the illness. To meet this requirement, you have to show how your employment, more probably than not, gave rise to your sickness. Your work conditions have to be truly unique. They can’t overlap with conditions you encounter in everyday life. Or in other general jobs. To approve your claim, L&I must be able to connect the dots between your work and the illness. And, unless the connection is obvious, you have to help them.

For example, say you catch the flu at work. There’s no chance that L&I will approve your claim. Why? Because you’re equally likely to catch the flu outside of work. Even if you work in a hospital treating flu patients daily (with one exception for Covid – please refer to other articles on my blog to learn about Covid workers’ comp claims).

Identifying the reason and source of your industrial disease

The second issue with claim denial is causation. Even if you show unique work conditions. Still, you must also show how the conditions are responsible for the illness. One challenge I see often is that there are many different causes for diseases. For instance, Carpal Tunnel Syndrome (CTS) is an occupational disease with many legal contentions. Many times, your employer will contest your claim for Carpal Tunnel Syndrome.

Medical literature supports that certain work activities are risk factors for Carpal Tunnel Syndrome. For example, repetitive forceful pinching and grasping. However, there are other known potential contributing factors. They include age, gender, body weight and pregnancy. Frankly, blaming causation on other risk factors (especially aging) is the most common reason to deny a workers’ compensation claim.

Workers’ comp claim denial due to causation

L&I can deny your claim for more complex reasons. Sometimes, in certain work environments, the medical community is still trying to understand the sources of certain sicknesses. For example, we now know that working in nuclear power plants caused workers to develop cancer. However, workers weren’t aware of these risks when they worked there. Furthermore, the cancer diagnosis came years later. The Hanford nuclear site in Washington State is a good example. Occupational disease claims stemming from working at Hanford remain highly contested.

Another more complex reason is showing exposure. Particularly, this problem arises when workers get exposure to certain toxins at work. In such cases, workers don’t need to show that a specific toxic agent caused the disease. It’s probably already known in the medical literature. Yet, they still must prove their exposure at work. As before, workers must show how the exposure to the toxins (in contrast to other factors) caused the disease. This can be extremely difficult to prove without identifying specific toxins. Moreover, identifying toxins in the workplace requires significant expertise. It can be a very expensive process.

Final notes

Occupational disease claims are complex. They have many moving parts. Plus, there are many reasons why L&I denies industrial illness claims. However, no matter what, if you believe you have an occupational disease, go see a medical provider. Then, file a claim at the provider’s office. After that, if L&I rejects your claim, you only have 60 days to protest or appeal the decision. Use these 60 days to figure out why L&I denied the claim. Assemble evidence to show why they should allow the L&I claim. Advocate for L&I to change their decision. As always, if things get too confusing, contact a workers’ compensation attorney for help.