Category: LNI Claim Appeal (Page 7 of 8)

Workers Compensation Appeals and the Board of Industrial Insurance Appeals (BIIA)

Many people with a work injury claim or L&I claim reach out to me during their workers’ compensation appeal. The Board of Industrial Insurance Appeals (also known as BIIA or the Board) is the first establishment for a workers’ compensation claim appeal in Washington State.

About the Board of Industrial Insurance Appeals

The Board of Industrial Insurance Appeals is the state agency that hears workers compensation claim disputes. The Board is entirely separate from the Department of Labor and Industries (L&I). Said differently, the BIIA and L&I are not the same agency.

When L&I makes a written decision, any party can appeal the decision to the Board. For me, I’m often involved in disputes over decisions that relate to an industrial injury or occupational disease. However, the Board hears other kinds of disputes too. For example, these include safety citations under Washington Industrial Safety and Health Act (or WISHA). Another example is disputes over employer premium assessment and classification.

The BIIA is led by 3 full-time members. The Washington State governor appoints each member for 6 year overlapping terms. More explicitly, each member represents a different sector with vested interest in workers’ compensation matters. One member represents the public. Then, the second member represents the labor force. Finally, the third member is a business representative. Ultimately, the three members of the BIIA are responsible for making the final decision in every dispute. In addition, these members manage the agency as an organization.

Workers compensation appeals: Steps in the appeal process

When L&I makes a decision in writing, if either party disagrees with the decision, that party can appeal it to the BIIA. The disputing party must file the appeal within 60 days since they received the decision from L&I. The easiest and most efficient way to file an appeal is through the Board’s website.

Like any hearing agency or court, the Board has its own legal ground rules that govern workers compensation appeals. These practice and procedure rules apply to all parties (regardless of whether a party is represented by an attorney). When the Board receives an appeal, it assigns a docket number. Then, it notifies the parties and sends a copy of the appeal to L&I. Once L&I knows there has been an appeal, it has three options: (1) It can notify the BIIA that it is going to reconsider the decision; (2) L&I can change or reverse the decision; or (3) it can send its record to the BIIA so the appeal can proceed. For timing, L&I has 60 days to exercise one of these three steps.

L&I claim and workers compensation appeals: Jurisdiction

If L&I decides to change or reconsider a decision, then the BIIA returns the appeal to L&I for further action. However, if L&I does not, the Board decides if it has jurisdiction or the right to hear the appeal. If it doesn’t, then the Board issues an Order Denying Appeal. If it does, the Board issues an Order Granting Appeal. Furthermore, accompanying that order is a Jurisdictional History. This is as very useful document containing a timeline of the workers compensation claim decisions. This document establishes that the BIIA can indeed hear the appeal. Generally speaking, I ask to see this document every time a work injury claimant contacts me for an L&I claim appeal.

The BIIA mediation for L&I claim appeals

After an appeal is granted, the Board schedules a mediation. Usually, if all parties have an attorney, then meditation occurs over the telephone. When possible, if one (or both) parties do not have legal representation, then the mediation happens in person. Mediation at the Board is somewhat informal. During mediation, a Board Judge discusses the issues and helps the parties talk about possible resolution, without litigation.

The mediation process is confidential. If the parties reach resolution in mediation, it can save litigation expenses and any further delays. Otherwise, the case is sent on to the hearings phase. The hearing judge hosts a conference to establish litigation deadlines. These deadlines include hearing dates and witness confirmation dates. Moreover, they include discovery cutoff dates, motion hearing dates, and testimony completion dates. All these dates are put in a litigation order, which they send to the parties.

Burden of proof in workers’ compensation claim appeals

The appealing party has the burden of proving that the L&I claim decision under appeal is incorrect. Practically speaking, meeting the burden of proof requires a medical expert testimony for most issues work injury and work illness matters. Somewhat surprising, the parties don’t have to have an attorney in L&I claim appeals. However, once the appeal proceeds to hearing (and according to the Board):

“The appealing party should consider finding an attorney. An experienced attorney will represent L&I or the self-insured employer. An attorney can negotiate with the opposing parties, help obtain necessary witnesses, and make objections”.

My personal opinion

I agree with the BIIA’s position. Attorneys with significant litigation experience know how to play by the ground rules. On top, they understand the evidence to meet the burden of proof. Failing to present sufficient evidence in a Board appeal will result in an unfavorable decision. Even worse, it’s difficult if not impossible to fix insufficient evidence once the record closes at the Board.

The record becomes the certified record of the case for any further appeals to higher courts. Finally, from there on, there’s no opportunity to present new, more, or better evidence. More detailed information about L&I claim appeals can be found on the Board website at http://www.biia.wa.gov/AppealSteps.html.

L&I Protest and Appeal: What if I Disagree With a Decision in My L&I Claim?

/ L&I attorney / 0 Comments

In Washington State, the Department of Labor and Industries (L&I) if the claim administrator for a state-funded claim. For a self-insured employer claim, the administrator is typically a third-party administrator (TPA). In every workers’ compensation claim, the claim administrator makes many decisions. These decisions include whether to allow a claim, the claim accepted-conditions, treatment authorization, payments of benefits, and more. Some decisions are favorable to the person that suffered the work injury. But, some are not. Whenever a claim administrator makes an unfavorable decision that impacts work injury claimants’ right to benefits, the administrator must inform them about their protest or appeal rights. However, in reality, you can protest or appeal any written decision you disagree with.

Protest a decision in an L&I claim

It is common to file a protest for an L&I claim the first time a claim administrator makes an unfavorable decision. Here, for the protest to be valid, you must submit it to L&I within 60 days. At minimum, an L&I claim protest must be in writing and state what you disagree with. If L&I gets a protest, then they must issue another decision. In most cases, L&I will base its decision on preponderance of the evidence. Simply put, it means that after considering all the evidence, the decision should be what is more probably true than not.

If strong evidence supports the decision is wrong, then L&I may change or reverse the decision. Otherwise, L&I will issue a new decision affirming that the previous decision is correct. If you have a work injury claim and you disagree with the new decision, you may appeal to the Board of Industrial Insurance Appeals (BIIA).

Appealing a decision in my L&I claim

Like protests, you must file an appeal within 60 days. The BIIA website has instructions and an online form making filing an appeal very easy. In fact, the BIIA is a separate agency in Washington State. It employs Industrial Appeals Judges (IAJ) to help mediate and hear evidence to resolve disputes. In time, the burden of proof is on the appealing party as it must present evidence to show the decision is wrong. Therefore, it means the appealing party must present their evidence first.

To meet the burden of proof, the evidence must show the decision is more probably incorrect than correct. On top, the appealing party presents the evidence through witness testimony. Very frequently, people with a work injury claim ask me if they can submit medical or other records instead of testimony. Unfortunately, the appeal process does not permit it in most cases (if not all). The law and procedure require us to present the evidence through testimony. Consequently, it allow each party to ask the witness questions.

I disagree with L&I decision – do I need an attorney?

After a work injury, people with a workers’ compensation claim are not required to have an attorney to protest or appeal a decision. The term for those who don’t have an attorney is pro se, meaning they represent themselves. Practically speaking, protests are less challenging. Protests happen at the L&I level and it’s not uncommon to not involve a workers’ compensation attorney. However, appeals are more difficult. With BIIA, L&I always employs an attorney from the office of the Assistant Attorney General. Self-insured and other employers also usually have an attorney.

Before BIIA, civil rule of procedure or the Washington State Administrative Code governs most procedures and rules. Attorneys know how to follow these rules. They can be confusing or difficult for a pro se individual. Moreover, attorneys with relevant experience also know how to evaluate the evidence and present testimony. Therefore, it’s usually a good idea to have an L&I attorney for an appeal.

Important conclusions

One of the biggest mistakes I see is waiting too long to hire a workman’s comp attorney. Appeals to the BIIA follow strict timelines. Hence, the longer you wait to hire a workers’ comp attorney, the less time the attorney has to prepare. Furthermore, attorney calendars may already be booked, and they may be too busy to take your case.

In summary, work injury claimants can protest or appeal any written decision L&I makes in their claim. Remember, there is a 60-day time limitation for filing a protest or appeal. To change the decision, you will need evidence to show that the decision is wrong. Finally, if you have an L&I claim or a workers’ compensation claim and you are considering filing an appeal, then you should speak with an experienced L&I attorney sooner than later.

L&I Claim Notices: Notice of Decision, Payment Order

/ L&I attorney / 10 Comments

Workers’ compensation claims can be overwhelming. Recently, I’ve consulted with several injured workers who have been completely overwhelmed with their claims. As a result, they started avoiding claim related documents. Among those, are L&I notice of decision letters. You must not ignore those.

Dealing with L&I claim orders and communications

Some work injury claimants I talk to no longer open their mail because it was causing them too much anxiety. I call this the “ostrich approach”. Just like an ostrich, burying its head in the sand, injured workers with a work injury claim who avoid claim-related communication don’t see the danger that is coming. They may miss critical deadlines, which in turn, can cause permanent harm to their workers compensation claim.

The Department of Labor and Industries (L&I) has the obligation to administer work injury claims. Similarly, claimants have the right to challenge L&I decisions that they believe are a mistake. However, work injury claimants only have 60 days to challenge and protest an L&I decision. If you do not file a request for reconsideration within 60 days, then you essentially waive your right to challenge L&I.

Remember, L&I makes mistakes. There’s no question about it. But, like it or not, it’s your job to be on top of things. In other words, if you don’t appeal an L&I decision, their mistake becomes final and binding under the law, no matter how wrong it may be.

L&I notice of decision

When L&I makes a decision concerning an issue in an L&I claim, they must notify the injured worker. In fact, they have to send something called a written order. Usually, these decisions are titled “NOTICE OF DECISION”. Here is what one that comes from L&I looks like:

L&I payment order

Sometimes L&I makes unfavorable decisions in what they title “PAYMENT ORDERS”. You would think something called a payment order would be a favorable decision issuing a payment. It isn’t uncommon for L&I to make a decision denying time-loss compensation or closing a claim in a decision called “PAYMENT ORDER”. Here is an example:

Can I protest a notice of decision or payment order?

Whether a decision is a NOTICE OF DECISION, PAYMENT ORDER, or has some other label, it’s’ easy to tell if you have the right to protest. For that, you can refer to the bottom of the decision letter and read it carefully. For example, it will look something like this:

In some cases, work injury claimants protest a decision. Then, after some time goes by, L&I affirms its previous determination. When this is the case, the notice of appeal rights looks as follows:

Monitor your L&I claim

If you have a work injury claim or L&I claim, the most important thing you can do is to pay attention to notices. You can protect yourself and protect your workers compensation claim by protesting or challenging L&I’s mistakes on time. There is nothing more heartbreaking for me than being contacted by an injured worker who disagrees with an L&I decision after they waited too long to dispute a decision.

Don’t be overwhelmed by your claim. If your claim and the associated correspondence is causing you too much anxiety, contact an experienced attorney who can help alleviate your anxiety. Your attorney will receive all the communications directly. They will oversee your claim and ensure that the Department’s mistakes are challenged on time.