Category: LNI News (Page 10 of 22)

Workers Comp Claim and Return to Work Programs: The Vocational Recovery Project

The Vocational Recovery Project is an ongoing workers’ compensation initiative by the Department of Labor and Industries (L&I). According to L&I, the goal of this initiative is to “engage all parties in preventing work disability by improving return-to-work outcomes”. Personally, I think there are a few problems with the goals of this initiative. For example, one problem is that different parties have very different perspectives. Specifically, what does it mean to improve outcomes? And, what happens when L&I makes vocational decisions under an L&I claim or workers’ compensation claim that are not practical?

Return to work after a work injury

L&I started the Vocational Recovery Project several years ago. Unfortunately, since then, I haven’t seen much improvement in setting work injury claimants up for success when returning to work. For me, it seems that L&I and most vocational services companies think that improving outcomes means making more determinations. These determinations dictate that people with work injury are capable of working. In other words, they put the emphasis on making the determination. Yet, they ignore important considerations, such as ensuring that the work injury claimant can succeed in returning to work.

If you think about it, when someone determines that a person can work, it doesn’t necessarily equate to improving the outcome for the worker. Practically speaking, to improve the outcome, there must be a plan for success. The plan has to show how and why the worker will successfully fulfill their job duties over time. Realistically, absent such a plan, a work injury claimant cannot return to work in a sustainable way.

Every workers’ compensation claim and work injury victim is different

I wrote many articles about vocational services. Some articles talk about vocational retraining, vocational counseling, plan development, ability to work assessment, and other topics. On more than one occasion, I’ve been criticized and called out for what others assume is my “bias”. Many assume that the only outcome acceptable for my clients is for them to be on pension. In other words, for my clients to be totally disabled and incapable of working. Not only is the assumption incorrect, it is downright insulting.

The optimal outcome in each case depends on its specific facts and circumstances. In short, it depends on the person that suffered the work accident, their medical limitations, and other individual-specific factors. Vocational services, especially vocational retraining plans, are often critical to ensuring an optimal outcome for work injury claimants. Unfortunately, I worry that this aspect of improving return-to-work outcomes isn’t getting attention under the Vocational Recovery Project. Evidently, this is the list of project advisors. Do you see any representation for work injury claimants? There doesn’t appear to be a voice for those who suffer a work injury.

Workers comp claims and return to work plans

If you ask me, improving outcomes in a workers’ compensation claim or L&I claim requires more than determinations. It requires empathy and understanding of unique challenges that individuals face after a work injury. Furthermore, it requires listening, collaborating, and keeping an open mind.

If you empower work injury claimants and give them hope, then they will take control over their life. We must be creative when we address and navigate their challenging life circumstances. Why can’t we treat work injury victims as intelligent adults and give them a say in their future? Unfortunately, most workers’ comp claim return-to-work determination outcomes are less than favorable for these individuals.

Final notes and thoughts

There seems to be a popular misconception. Contrary to what you might think, most work injury claimants don’t want to be totally disabled. Instead, from my observations, most want a realistic solution for how to lead productive lives after a life-changing work injury or occupational disease. For most, it means giving them the opportunity to make the fullest recovery possible.

Clearly, some people will never recover from their work injuries or occupational illness. Ultimately, their goal is to be able to successfully return to a stable and meaningful professional and personal life. If you want to improve return-to-work outcomes, you must pay closer consideration to the injured worker.

Retrospective Rating Groups and Legal Conflicts in L&I Workers’ Compensation Claims

/ L&I attorney / 2 Comments

Lately I encounter more and more conflict in L&I claims. What I mean by conflict, in the context of this article, is disagreement over work injuries that results in litigation. I attribute the increase in L&I claim conflicts to the Retrospective Ratings program. They are sometimes also called retro groups or retro-rating groups.

What is Retrospective Rating program?

According to The Department of Labor and Industries (L&I) the Retrospective Rating program is a safety incentive for employers to reduce the amount of workplace injuries. Additionally, employers can earn a partial refund of their workers’ compensation premiums. Refunds are available whenever claim costs are lower than expected. L&I calculates employer premiums either 10 months after the coverage period ends, or retrospectively for that 12-month period.

L&I created this program to promote workplace safety and lower work injury and accidents. However, it is entirely inconsistent with what workers’ compensation is all about. Workers’ compensation, by definition and by law, is there to provide relief for people with a work injury, without questions of fault or negligence. Instead, the Retrospective Rating program only weakens the most basic principles of workers’ compensation. Furthermore, it created a new set of conflicts in workers’ compensation claims.

Retrospective employers and retro groups

Under Retrospective Ratings, employers and employer groups hire legal representatives to prevent work injury claims just to keep work injury claim costs low. I recently see an increase in client calls from people with work injury dealing with employers that are forcing them into litigation. In turn, work injury claimants must hire a workers’ compensation attorney and legal representation and mount expensive legal battles just to get their workers’ compensation claim allowed. There is nothing here that increases work safety or reduces work injury occurrences.

Employers taking advantage of retrospective groups

One retrospective group advertises that they secured over $600 million in premium refunds for its 1000 employers. Another group has a picture of a work injury claimant on the beach as their cover photo. Others advertise that they assist employers in reducing the number of L&I claim incidents and costs. While some groups appropriately focus on helping employers achieve safe work environments, others could not care less about this objective.

While employers are enjoying things like ~$600 million in premium refunds, victims of a work injury are suffering. These days, L&I will reject a claim because the retrospective ratings employer or group convinces them to do so. It can cost work injury claimants $2500-$5000 just for expert medical testimony to prove the decision is wrong. Most people that suffer an injury on the job cannot afford this, and the Department rejects their L&I claim. They are often left on their own to try and obtain treatment and recover from their occupational disease or industrial injury.

Retro groups – summary

The Retrospective Rating program missed its mark. Rather than incentivizing employers to have safer workplaces, it encourages them to engage in sanctions and L&I claim suppression. From my perspective, with programs like the Retrospective Raring program, L&I is failing in its duty to provide sure and certain relief to work injury victims.

LNI workers compensation claim Kept on Salary

L&I Workers Compensation Claim and the Kept-on-Salary Benefit

/ L&I attorney / 35 Comments

People that can’t work because of their industrial work injury or occupational disease in Washington State can receive time-loss compensation benefits. Single people with no dependents sometime struggle because the time-loss compensation rate is 60% of what they were making at the time of the work injury. However, keep in mind that you don’t pay taxes on time-loss compensation benefits under a workers’ compensation claim. In other words, when calculating your taxable income, L&I claim payments aren’t taxable. The purpose of this article to explain similar benefits such as kept-on-salary.

L&I claim and time-loss compensation benefits

Time-loss compensation benefits are vital for work injury claimants. At the same time, many employers are very frustrated by this benefit. They are frustrated because L&I rates go up when their employees receive time-loss checks. Businesses often argue that it’s unfair. In response, L&I created several incentive programs to help employers keep their rates down.

I don’t have a problem with the Department of Labor and Industries (L&I) working to keep employer L&I rates down. However, I am incredibly critical of L&I’s application of their incentive programs. From my standpoint, I strongly believe that L&I gives employer-incentives way too easily without appropriate oversight or enforcement. As a result, workplace injury victims are being punished while employers are rewarded for unfair use of incentives.

The L&I Kept-on-Salary incentive program for employers

One incentive that works well for employers (and not so well for people with a workers’ compensation claim, especially with self-insured employer) is called Kept-on-Salary (KOS). Like its name, the idea is that a person that suffers work injury continues to receive regular paychecks, even when they can’t work. If you search online, you can find several articles about KOS that help employers reduce their L&I rates and save money. However, there isn’t any information on the L&I website for the Kept-on-Salary program.

Despite having no information for work injury claimants, the Kept-on-Salary plan is available. In fact, it’s governed by RCW 51.32.090 and RCW 49.46.210. Under these rules and regulations, if a work injury claimant is under the Kept-on-Salary program, then they are not getting time-loss compensation payments.

How does Kept on Salary work in L&I claims in Washington State?

In short, if a work injury claimant is on kept on salary, it means that the employer continues to pay the worker. However, the employer must meet several conditions:

The injured worker shall receive a total of all wages (i.e., form all employers and jobs) as of the date of their work injury. This includes absolutely all payments that the work injury claimant was getting before. Even after-hours or jobs outside the scope of his or her work hours with the employer of injury.
The wages must include the benefits that the worker had prior to the work injury. Specifically, payments include healthcare benefits, housing (when applicable), fuel expenses and reimbursement, and so on. On top, it must include tips, shift-change or overtime pay, bonuses, and all other expense and benefits.
The employer can deduct certain amounts to comply with state or federal law. However, the employer cannot make any other deductions.
The employer must pay wages on a regular schedule at least once a month.

Employers misusing the Kept-on-Salary incentive

Employers can’t mandate workers to use benefits they earned over time such as vacation, sick leave or paid time off, to keep from paying time-loss compensation. Therefore, if an employer is making you take time off or vacation and doesn’t pay for that time, then you’re not under the Kept-on-Salary plan. This is one aspect of the program that employers can abuse. After all, L&I relies on employers to report if the L&I claim worker is on KOS.

Practically speaking, the problem is the shocking lack of remedy for people with a workers’ compensation claim. Employers can easily abuse this benefit because there are no real penalties or oversight. More explicitly, L&I does not seem to actively check the facts or the reliability and consistency of employer reports.

The reality of the Kept-on-Salary program

In my experience, employers are often not adhering to KOS requirements. I cannot tell you how many times I’ve had to collect evidence to prove the employer is not meeting the requirements. The process tends to be long, drawn out, and incredibly stressful for people trying to move their L&I claim.

In conclusion, incentives to help employers to reduce L&I rates make some sense. However, L&I needs to do a much better job to ensure that those incentives do not have a punitive impact on people that suffer a work injury.