Category: Medical Providers (Page 16 of 18)

L&I Discontinues Use of Its Own PPD Worksheet in Favor of WAC Rules

Back in January, I wrote an article outlining a frustrating experience I had cross-examining a witness regarding a low back Permanent Partial Disability (PPD) rating. The witness was an Independent Medical Examiner (IME) that examined my client at the request of the Department of Labor and Industries (L&I). In his report, the doctor concluded that the PPD rating for my client’s low back condition was a Category 2. He based his opinion on the use of a worksheet that L&I developed and circulated to doctors for determining PPD ratings.

PPD Worksheet Rating

The problem was when I confronted the doctor with the language of the Washington Administrative Code (WAC). The WAC outlines the Categories of Low Back Impairment. After that, his opinion regarding the appropriate PPD rating changed. This wasn’t an uncommon occurrence with the use of the PPD worksheet, and as I explained in January:

“Some people argue that the worksheet yields more favorable ratings and some argue it yields less favorable ratings. But most experienced attorneys agree that it is inconsistent with the WAC.”

During the cross-examination, I attempted to ask questions designed to get the witness to think about the various categories outlined in the language of the WAC. Our exchange became increasingly argumentative and counterproductive. My takeaway from that experience was that I better use my energy to try and effectuate change with respect to the use of the misleading PPD rating worksheet. Fighting with a particular witness about the worksheet itself does not help the bigger picture problem.

Big win for Washington State injured workers

I’m pleased to report that last week L&I announced that effective June 1, 2019, it will no longer accept its own worksheets as a valid basis for supporting cervical and lumbar PPD ratings. Specifically, there are two worksheets that will no longer be valid. One is the “Doctor’s Worksheet for Rating Cervical and Cervico-Dorsal Impairment”. The other is called “Doctor’s Worksheet for Rating Dorso-Lumbar and Lumbo-Sacral Impairment”. According to L&I, if a rating report utilizes the discontinued worksheets, the provider must be asked for an addendum referencing the language from the appropriate WAC, and not the worksheet.

My hope is that this change will help ensure that PPD ratings for cervical and lumber conditions will be more consistent with WAC language. Hopefully, this will minimize disagreements like the one I descried back in January, which is an issue that I encounter frequently.

Reopening L&I Claim or Self-Insured Employer Claim

/ L&I attorney / 14 Comments

You may have heard that L&I claims can be reopened after they close. This is true, but there are a few important things to remember regarding claim reopening.

Reopening an L&I claim

First, you can reopen a claim any time following claim closure for additional medical treatment. However, for an injured worker to receive additional monetary benefits such as time-loss compensation, loss of earning power benefits, increased permanent partial disability or permanent and total disability, the claim must be reopened within 7 years of the original claim closure. After 7 years, if you reopen a claim, then L&I will only provide medical treatment. The only exception is when the Director of L&I exercises discretion to grant additional benefits.

Second, the reopening of a claim is not guaranteed. If an injured worker or provider believes that a claim should be reopened for whatever reason, a reopening application must be filed documenting the basis for reopening. L&I will carefully evaluate the evidence to determine whether reopening is appropriate. If L&I feels that it is not appropriate, reopening of the claim will be denied. Like any decision, the decision to deny reopening can be protested or appealed for physical conditions.

Conditions to reopen a workers’ compensation claim

For the reopening of a claim to be granted there must be an objective worsening of a claim related condition between the time the claim last closed and the time the application to reopen is filed. In workers’ compensation, we refer to these dates as the terminal dates. The first terminal date is the date of the most recent claim closure. The second terminal date is the date the application to reopen is filed. Findings of disability that can be seen, felt, or measured by an examining physician are called objective findings.

Therefore, whether there has been an objective worsening of claim related conditions between the relevant terminal dates often involves a comparison of the objective medical findings at or around each of the two dates. However, if L&I denies an application to reopen, a medical opinion regarding the objective worsening will be required to prove that the decision to deny reopening was incorrect.

Conclusions and recommendations

If you want to reopen your L&I claim, you should have your current findings and compare them to the objective findings from the time of most recent claim closure. It is also important that your medical provider clearly explains in what ways there has been an objective worsening. Non-physical conditions such as mental health conditions do not require objective worsening for reopening to be granted. These kinds of conditions inherently cannot be seen, felt or measured. However, for reopening to be granted, a medical opinion concerning worsening of the non-physical condition between terminal dates will still be necessary.

Filing a Complaint Against Independent Medical Examination Doctors

/ L&I attorney / 2 Comments

Did you know that you can file a complaint against an IME doctor if the doctor does not perform his or her professional duties? And that L&I takes these complaints very seriously? This applies for both L&I claims and self-insured employer claims.

The role of the IME doctor

One of the most common complaints I receive as an attorney for injured workers has to do with Independent Medical Examinations (IMEs) . L&I and self-insured employers can compel injured workers to attend IMEs, and failure to attend an IME when requested can result in suspension of benefits. However, IMEs are designed to establish clinical observations and conclusions about an injured workers’ condition. L&I expects IMEs to be high quality, and to help protect the rights of workers and employers in Washington state by enabling accurate and even-handed industrial insurance benefit payment.

According to the Department of Labor and Industries (L&I), IMEs should provide unbiased, accurate and comprehensive information, and should be carried out with dignity and respect for the worker. Therefore, whenever I hear a report that an injured worker has had an un-dignified experience during an IME, I recommend filing a written complaint with L&I so that the undignified behavior is documented and investigated. The complaint form can be found here: https://lni.wa.gov/dA/983dd6678d/F262-289-000.pdf.

Complaints against IME doctors

Because I am a member of WSAJ (The Washington State Association for Justice), today I received a summary of a recent Labor and Business committee meeting in which IME complaints were discussed. I was very interested to learn that when data from 2018 was studied, it was discovered that 21,431 independent medical examinations occurred
on state funded claims in 2018. Those exams were performed by 448 approved IME examiners. Out of over twenty-thousand examinations preformed, 419 complaints were logged, mostly regarding orthopedic, neurologic and psychiatric examiners. However, even more interestingly, of the 419 complaints logged, 48% of the complaints came from case managers and occupational nurse consultations, while only 38% of the complaints came from injured workers. This statistical data suggests that L&I is genuinely interested in having IMEs conducted in an appropriate manner and actively takes steps internally to document inappropriate IMEs.

Were you mistreated? File a complaint against IME doctor

In addition to documenting IME complaints, L&I has an occupational nurse consultant whose job is to review IME reports, to investigate complaints, and to conduct random reviews. The occupational nurse consultant will also review
the companies that perform IMEs through site visits to learn about on-boarding and examiner training. Moreover, the consultant will review confidentiality and chain of custody for sensitive medical information, provide quality oversight, review scheduling, and address the requirement for 14 day turn around for IME reports and addendums.

However, to a certain extent, L&I’s ability to ensure quality in IMEs is only as good as the information it receives. L&I has dedicated resources to implement quality assurance in the IME process. Therefore, it is important for injured workers to document any IME behavior that deviates from L&Is goals of having dignified, respectful, unbiased, accurate and comprehensive IMEs, by filing a written complaint so that L&I can investigate. In addition to completing L&I’s IME comment form, complaints can also be submitted via email to imecomplaints@lni.wa.gov. However, it should be noted that the IME complaint will likely be shared with IME examiner so that
they are given an opportunity to respond to the complaint.