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

Category: Medical Providers (Page 1 of 18)

What happens to my healthcare information when I have a workers’ compensation claim?

It’s pretty common for people with workplace injury and an ongoing workers’ compensation claim to ask me about privacy rights. Especially when it comes to health information. There are so many L&I records in your claim file. Privacy of sensitive healthcare data such as medical history and treatment is important.


L&I health records under L&I claim or self-insured claim

I usually tell people that while there are some rare exceptions, once you have a workers’ compensation claim or an L&I claim, you often become an open book. The Department of Labor and Industries (L&I) and self insurers need to administer your claim. To do so, they must access your healthcare records. Naturally, people wonder whether HIPPA protections apply in the workers’ compensation setting.


L&I recently issued a reminder that HIPPA allows providers to “disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation” 45 CFR 164.512(l). Practically speaking, this means that when L&I or a self-insurer requests medical records under RCW 51.36.060, the provider must release all protected health info relevant to the workers’ compensation claim. Under RCW 51.28.070, L&I or the self-insured employer must keep information in the workers’ claim files confidential.


L&I attorney versus workers’ compensation claim administrator

Ironically, workers’ compensation exemption under HIPPA applies to the release of records to L&I and self insurers, not to attorneys like me. Sometimes I need to obtain records. For this reason, I ask my clients to sign a HIPPA compliant release allowing me to access records and communicate with treatment providers.


After taking over the law firm of Casey and Casey, we discovered that many of the medical releases on file were outdated. They were not HIPPA compliant. Over the past several months my staff has been working hard to obtain updated releases for all clients. Thank you to my hard working staff and amazing clients for helping us make this process easy and efficient.

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.


What Happens If I Suffer a Work Injury While Working a Light-Duty Job?

If a worker has an L&I claim, then their employer might offer them light duty work. However, a light-duty job offer must be valid. Work injury claimants who refuse valid light duty work can no longer receive wage replacement benefits. These benefits include time loss compensation and loss of earning power benefits.


What is a valid light duty job offer?

There are many types of light-duty jobs. Yet, under the workers’ compensation claim system in Washington State, there are special considerations. More specifically, a light duty job offer is valid if it meets 5 criteria:

(1) The job must be with the employer of injury.

(2) The employer must send the job description (sometimes called job analysis) to the attending provider and the injured worker.

(3) The attending provider must approve the job.

(4) The employer has to provide a written job offer to the work injury claimant. The offer needs to include a reasonable start date.

(5) The employer must reinstate health care benefits at the same level as of the time of injury. One exception is when there’s a superseding agreement in place.


Workers’ concerns regarding light duty jobs

Some work injury claimants are nervous about doing light duty work. Personally, I regularly encounter 2 common concerns. First, there’s a fear of needing to perform work beyond the worker’s limitations. These limitations are set by the attending provider. Then, there’s a second concern – suffering another workplace injury while working light duty.


The first concern is easy to address. Employers cannot ask workers to do something that’s not in the job description. Remember, the attending provider approved the job description based on the worker’s limitations. Therefore, when this happens, the light duty job is no longer valid.


Suffering a work injury while working a light duty job

The second concern is not so simple. Unfortunately, in real life, work accidents do happen during light duty work. And then, when they do, they cause additional frustration and stress.


It’s important for workers to understand how to handle work injuries while working a light duty job. Here, there are different options and scenarios. One scenario pertains to temporary light duty jobs. The other applies to permanent light duty work. If you suffer a work injury while working a temporary or transitional light duty job, then you have coverage under your original L&I claim. However, for permanent jobs, you need to file a new workman’s comp claim.


Which conditions and benefits belong to what work injury?

Either way, the new work injury will likely complicate your claim. That’s because it’ll interrupt medical appointments and chart notes in the original claim. It also depends on the body area and the nature of the second injury. Many times, it can be hard to keep conditions and symptoms separate from the original injury.


In addition, it can be difficult to determine benefits. Do benefits apply under the original L&I claim? Or under the second work injury claim? Or both? Administratively, it can be very messy. Therefore, it’s important for workers and medical providers to be precise. In statements, in medical reports, and in all other documents.


Light-duty work injury can impact benefits

Another important point is the impact on financial benefits. Interestingly, your wage rate under the original claim and the new claim may not be the same. In the first case, the new work injury is under the original L&I claim. Here, the wage rate from the original claim applies. If the worker is receiving loss of earning power payments when the light duty injury occurs, then L&I will factor those benefits to wage rate calculations. Moreover, if the light duty injury means the worker can no longer work, then L&I will pay time loss compensation. Of course, as always, the worker must certify time loss with the attending provider.


The second case is when the light duty injury prompts a new claim. Here, L&I uses the wages of the light duty job to calculate benefits for the new claim. This holds true even when the light duty job pays less than the original job. When this happens, it’s incredibly frustrating for work injury claimants.


Some takeaways

To summarize, fear of re-injury at work isn’t a valid reason for declining a valid light duty job offer. Injuries that happen while working light are no fun! There are several ways to handle those injuries. They depend on whether the light duty work is temporary or permanent.


As always, the very best thing for workers and employers is to take all possible precautions. Do what you can to eliminate workplace injuries. However, if a light duty work injury occurs, then L&I is going to cover it. The coverage might be under the original claim or under a new workman’s comp claim.


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