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

Category: Medical Treatment (Page 1 of 36)

L&I Delivers Bad News to Injured Workers and Some of the Best Medical Advocates in Workers’ Compensation

I recently posted an article about L&I’s Medical Aid Rules and Fee Schedules, which were recently published for 2023. In particular, the L&I Medical Aid Rules can be a great resource for helping work injury claimants understand treatment options. Furthermore, the L&I Fee Schedules can also have a significant impact on work injury claimants and stakeholders.


L&I cuts funding for Nurse Case Managers

 As a workers’ compensation attorney who regularly publishes on issues relating to workers’ compensation issues in Washington State, I feel I would be remiss if I did not publicly address and unambiguously condemn L&I’s new fee structure for Nurse Case Managers. I am well aware that L&I has a duty to responsibly manage the Accident Fund. However, cutting fees for Nurse Case Managers is not the way to do it.


Last year, Nurse Case Managers were entitled to bill $116.60/hour for their work in L&I claims. This is a very reasonable rate given their level of education and experience requirements. This year, the 2023 L&I Fee Scheduled caps their fees at a flat rate of $200 per month. While I don’t personally have statistics on this, I strongly suspect the $200 flat fee comes nowhere close to adequately compensating Nurse Case Managers for the work they do. I anticipate that these funding cuts will result in experienced Nurse Case Managers declining to provide services in L&I claims. In fact, I’m already starting to see it happen.


What are Nurse Case Managers?

Nurse Case Managers (NCMs) are registered nurses with one of the following case management certifications: Certification of Disability Management Specialists (CDMS), Commission for Case Manager Certification (CCMC or CMC), Certified Rehabilitation Registered Nurse (CRRN), Certified Occupational Health Nurse (COHN), and/or Certified Occupational Health Nurse-Specialist (COHN-S). In other words, NCMs are highly educated and skilled healthcare professionals. An NCM can be assigned to assist in an L&I claim in many situations. For example, when there has been a catastrophic work-related injury not otherwise being managed under the “Catastrophic Project”. Another example is an L&I claim where the work injury claimant lives or has moved out of Washington State and needs assistance locating a provider. Other examples include an L&I claim involving medically complex conditions, or when there are other barriers impacting successful claim resolution.


As an L&I attorney representing work injury claimants, I have partnered effectively with NCMs on countless occasions to achieve results that benefit not only work injury claimants, but also L&I and other stakeholders. This is particularly true in Out-of-State cases, complex or catastrophic medical cases, and cases with other issues creating a barrier to appropriate claim progress.


How are Nurse Claim Managers useful in Out-of-State claims?

NCMs are instrumental in assisting us to obtain Out-of-State treatment providers. Usually, before we request assistance from a NCM, my staff undertakes to assist our clients with this process. However, due to the meager L&I fees for service providers, we are finding it more and more challenging to find willing Out-of-State treatment providers. Furthermore, we often find that despite our best efforts, treatment providers are turned off when a law office contacts them to inquire about providing L&I treatment to a work injury claimant. They usually assume our involvement means the claim is messy or legally contentious. This is often not the case.


Once my office has exhausted our resources trying to get an Out-of-State provider, we ask for an NCM to be assigned. In approximately 4 out of 5 cases, having a NCM assigned results in our ability to track down a willing Out-of-State provider despite our prior failed efforts. When a willing Out-of-State provider cannot be found, we are left with only one option: L&I must bear the expense of having the injured worker regularly travel to Washington State for treatment. Yes, this means L&I is paying for flights or other transportation, hotels, and meals, on regular intervals for work injury claimants to travel to Washington State for treatment. Again, in approximately 4 out of 5 cases, NCM involvement has saved L&I and work injury claimants from the expense and stress of travel to Washington for treatment.


Complex or catastrophic claims

When I say complex or catastrophic claims, I am referring to injuries that result in significant, often irrecoverable, disability. The best example I can give is an injury that results in quadriplegia. Treatment and care for individuals paralyzed by their injuries is incredibly complex. There are so many moving parts from acute treatment to long term treatment. During acute treatment, many families are unsure whether their loved one is even going to survive. Most workers do not have attorneys in these early, but incredibly stressful hours and days. NCM’s can help guide these families to understand the system and make informed decisions.


Families of work injury claimants will bear the load

Once the acute treatment phase has passed, the real work begins. Paralyzed work injury claimants require a team of medical providers resulting in a complex schedule of appointments. Simply managing and getting to appointments is a full-time job. For this, usually a family member must take on the role of a full-time caregiver or a professional caregiver is needed. NCM’s are incredibly skilled in connecting families with the resources they need to determine if they can provide care themselves or need assistance from professionals. A number of other challenges must be addressed as well, including but not limited to: finding appropriate transportation for a paralyzed individual (imagine trying to get a paralyzed individual into a small family sedan), making appropriate home modifications or helping families relocate if needed (imagine trying to bring a paralyzed work injury claimant home to a second floor apartment with no elevator), and obtaining all of the necessary durable medical equipment needed such as wheel chairs, toilet seats, shower accessories, appropriate medical bedding to prevent bed sores, catheters, and the list goes on.


Certainly, if the family elects to hire an attorney, we can help with some of these logistics. Yet, at the end of the day, we are legal professionals. We do not have the knowledge, skill or medical experience to help families with all of the medical logistics needed for a catastrophic injury. I know from personal experience that NCM’s spend countless hours in the early days of claims helping families get everything they need in place. There is no way $200 comes close to compensating NCM’s for the services they provide in this kind of setting.


The role of Nurse Case Managers in L&I claims with other barriers to progress

When I speak of other barriers to progress, I’m generally referring to medical complications that impact claim progress. For example, work injury claimants with underlying health conditions such as diabetes, COPD, pacemakers, thyroid disease, and more may need to coordinate care between specialists and L&I treatment providers before treatment progress can be made. For example, an injured worker with a pacemaker may need clearance from a cardiologist before surgery can be considered. Similarly, work injury clients taking medications for an underlying thyroid disease may now be facing adverse drug interactions for claim related treatments. The list goes on and on.


NCMs are particularly helpful in these situations because they can utilize their medical experience to ensure that appropriate coordinated care is occurring. Another example is when weight loss is needed for treatment progress. For example, medical best practices dictate that people must be under a certain BMI to be eligible for knee replacement surgery. If a work injury claimant needs to lose weight in order to have a particular treatment, then weight loss treatment is covered under the claim. However, only specific methods of weight loss are authorized. NCMs are an invaluable resource in helping work injury claimants find appropriate, authorized weight loss treatment programs, connecting with dieticians, and helping to monitor weight loss progress to ensure it remains on track. Similarly, NCMs are often instrumental in aiding in opioid addiction recovery under the medical treatment guidelines. Again, as attorneys, there are many things we can do to assist work injury claimants with all of these claim related issues. However, at the end of the day, since we are not medical professionals, there are things NCMs can accomplish with more efficiency and experiences than we can.


Cutting funding will have serious negative implications

In summary, claims involving catastrophic work-related injuries not otherwise being managed under the “Catastrophic Project”, work injury claimants that live or have moved out of state and need assistance locating a provider, medically complex condition(s), and or other barriers impacting successful claim resolution are difficult enough as they are. Historically, having access to experienced NCMs has made these challenging claims much more manageable for work injury claimants, their families, attorneys, and L&I alike.


The new fee schedule is going to gut the usefulness of the NCM program. I predict that any savings L&I may see by capping NCM fees at $200 per month will be eclipsed quickly by increased L&I claim costs. I understand the need to avoid excessive hours spent and overbilling, but the 75 hours of service per referral cap already accomplishes that. It is with an unnerving sense of dread for what this will mean for work injury claims that I must unequivocally say: I am incredibly disappointed in L&I. This new Fee Schedule is doing nothing to reduce to a minimum the suffering and economic harm suffered by work injury claimants and their families. In fact, I predict it will do just the opposite.


How L&I Makes Medical Treatment Decisions in Washington State

The Department of Labor and Industries (L&I) maintains a set of Medical Aid Rules and accompanying Fee Schedules. Many workers compensation professionals refer to these as “the MARFS”. Typically, the Department updates the L&I medical treatment rules annually in July. The medical aid rules and fee schedules are very important. Many work injury claimants can use them to get answers regarding medical treatment under their L&I claim. The guidelines can even provide answers for certain medical conditions relating to your workplace injury and your claim.


L&I medical aid rules and fee schedules

Under the Industrial Insurance Act (Title 51 of the Revised Code of Washington), L&I is responsible for supervising and providing prompt and efficient treatment to workers injured during their employment. Namely, this treatment must be “at the least cost consistent with promptness and efficiency”. Managing medical treatments for many work injury claimants is complex. Even for large government agencies. To help, L&I created a framework to define the scope and rules around medical treatment. The medical treatment framework, known as Medical Aid Rules and Fee Schedules, is under Chapter 296-20 of the Washington Administrative Code (WAC). L&I uses this framework for claim administration. The framework defines the medical services that L&I and self-insured employer companies can purchase. Additionally, the framework sets the fees they can spend for medical services. Furthermore, it dictates the decision-making process for medical treatment under an L&I claim.


How L&I makes medical treatment decisions

The medical aid rules in WAC 296-20 contain much more information beyond treatment codes and fee structures. In fact, the medical aid rules explain much of L&I’s decision making when it comes to treatment authorizations. For example, the medical aid rules describe the function and role of the chiropractic and medical advisory committees. These committees advise L&I regarding coverage, decisions, treatment guidelines, treatment authorization criteria and the like. The guidelines also contain information about many important topics, including:


In short, the medical treatment guidelines can help work injury claimant and providers alike. That is, they can help understand how L&I and self-insurers make treatment decisions. Even further, they outline the kinds of treatment that L&I and self-insured employers allow.


What are the medical fee schedules?

The L&I fee schedules explain how much money L&I can spend on every medical service. It explicitly dictates the amount of money that L&I pays for each specific medical procedure. The fee schedules are typically used by medical providers and medical administrators. As before, the L&I fee schedules take effect annually each July. The most recent fee schedules for July is available on the L&I website. The website also provides the fee schedules for previous years.


Additionally, L&I has several tools to assist in understanding the fee schedules. Moreover, there are resources on how to appropriately submit bills for services. For example, L&I publishes a “Professional Services Fee Schedule”, which is a spreadsheet of the complete fee schedule (with a few exceptions). Also, L&I provides a “Code Lookup Tool”. These tools are available on the L&I Website. Finally, L&I publishes a guide called Payment Policies for Healthcare Services. L&I provides these for injured workers and crime victims. This payment policy manual is full of detailed information.


What are the L&I medical treatment guidelines?

L&I also has a number of Treatment Guidelines that more explicitly define the kinds of treatment that may be authorized for specific diagnoses and conditions.  Specifically, these treatment guidelines cover:


The treatment guidelines may cover your conditions and diagnosis. Therefore, you should carefully read and understand the treatment guidelines that apply to you. Most importantly, the guidelines provide a clear picture of what treatments L&I will and will not allow. Also, they contain information about treatment options. For example, they outline the order that patients must follow to carry out certain treatments. Finally, these guidelines provide references to medical studies and literature.


How to appeal L&I medical decisions

It’s very unlikely that a claims manager for L&I or a self-insured employer will allow treatment inconsistent with the treatment guidelines. However, it’s important to note that, in most cases, the medical treatment guidelines are not legally binding. For example, say that L&I denies your specific treatment recommendation because it’s not in the treatment guidelines. Still, work injury claimants can successfully appeal the decision. In turn, the appeal would go to the Board of Industrial Insurance Appeals (Board). There, the Board will make an independent determination.


How does the Board of Appeals make a treatment decision? The Board of Appeals decides based on whether the proposed treatment is “necessary and proper”. By law, work injury claimants must receive proper and necessary health care services. Specifically, the law entitles the worker to a diagnosis and treatment of conditions. Of course, these conditions must be causally related to the workplace injury or occupational disease.


Important terms in the L&I medical treatment guidelines

In general, proper and necessary services may be either curative or rehabilitative. The term “Curative” means treatment to produce permanent changes. These changes hope to eliminate or lessen the clinical effects of the condition. Then, “Rehabilitative” treatment aims for workers to regain functional activity on a long-term basis.


Most importantly, the law entitles work injury claimants to proper and necessary health care. That is, until they reach and maintain maximum medical improvement (MMI). A worker is at maximum medical improvement when doctors don’t expect their condition to improve.


Work injury claimants should review the medical guidelines

Under the Industrial Insurance Act, L&I must carefully manage medical treatment decisions. On top, L&I must carefully manage fees for medical services. Too often, L&I and self-insured treatment decisions seem slow, arbitrary, and unfair. This is one reason why I recommend that work injury claimants review and understand the medical guidelines. It’ll help you cut through the mystery. Also, reviewing treatment guidelines can help you advocate for yourself in medical appointments.


The guidelines contain many useful facts. For instance, workers can get a better sense of how many physical therapy sessions L&I or the self-insurer will authorize. Furthermore, workers can identify which upcoming treatments or appointments require L&I pre-authorization. While these are only a few examples, I urge workers to take full advantage of all the information available in the guidelines.


Over Seven Claim: My L&I Claim Closed More Than 7 Years Ago – Can I Reopen It?

You can always reopen an L&I claim for medical treatment. Even if you have an old claim. It doesn’t matter how old the claim is. However, if your claim closed over 7 years ago, it will impact your L&I claim benefits. While L&I covers medical treatment, you might not receive other benefits under the claim.


What is an over-seven claim?

The term “Over-Seven Claim” is commonly used by workman’s compensation professionals. That way, we all know what we’re talking about when we use that phrase. The term refers to an L&I claim or self-insured employer claim that closed over seven years ago (or ten years for eye claims).


To reopen an over-seven claim, the requirements for reopening are the same as all claims. This is true for old claims as well. However, once reopening is complete, there is special treatment for over-seven claims. Here, in this article, we’ll first discuss the reopening process and then talk about L&I benefits and limitations.


How to reopen an old over seven claim

To start, you must first file an Application to Reopen Claim. If you look at it, the form requires information from both the work injury claimant and their medical provider. In turn, after L&I receives your reopening application, L&I has sole authority to decide what to do next. This is true for both a state-funded L&I claim and self-insured employer claim. In other words, the Department of Labor and Industries (L&I) determines if there’s merit to reopen your claim.


A work injury claimant can submit a request for reopening without supportive medical documentation. However, without medical evidence, L&I won’t be able to determine whether reopening is appropriate. Therefore, it’s typically best for the injured worker and their doctor to work together on the claim reopening application. Collaboration with your medical provider is very important.


Medical criteria to reopen an old claim in Washington State

The following explanation applies when reopening any claim. Not only an old workers’ compensation claim.  To meet the criteria for reopening, you must show an aggravation or objective worsening of your conditions. Remember, these conditions must relate to the work injury. Furthermore, you must show that the aggravation or worsening happened since the latter of: (1) The last date the claim closed; or (2) The most recent date L&I issued an order stating the claim will remain closed.


For aggravation, you must show the following:

  1. A causal connection between the accepted condition at the time of claim closure and the current condition;
  2. A medical opinion stating that the condition is worse than before; and
  3. Objective medical findings to support the medical opinion.

Sometimes, the requirement to provide objective medical evidence doesn’t apply. For example, in case of mental health conditions.


Showing aggravation and worsening of conditions

L&I can give your medical provider a copy of the closing medical records. If you need it – ask for it. These records can help your doctor assess if your condition is getting worse. Also, L&I can authorize additional diagnostic testing if it helps in deciding on reopening. Finally, L&I also has the right to compel the work injury claimant to attend an Independent Medical Examination (IME). The purpose of the IME exam is to determine if reopening is appropriate.


L&I benefits after reopening an over-seven claim

You can apply to reopen an old over seven claim any time, to receive medical benefits. After filing the reopening application, several situations may arise. First, if the claim doesn’t meet the criteria for reopening, L&I will issue a decision denying the reopening. Second, if the claim can be reopened and time-loss is not an issue, L&I will issue an over seven reopening order and notice for medical benefits. The notice informs the work injury claimant that their claim is reopening only for medical treatment.


Of course, medical benefits are just one kind of benefit that L&I provides to workers after they get hurt on the job. Typically, workers’ compensation professionals refer to other benefits as “disability benefits”. The most common disability benefits include time-loss compensation (TLC), loss of earning power benefits (LEP), permanent partial disability awards (PPD), and pensions (TPD). Simply put, work injury claimants with an old over-seven claim don’t receive disability benefits. Even after L&I reopens their claim. With one exception.


Requesting disability benefits for an old over-seven claim

The director of L&I has discretion to grant disability benefits in an over-seven claim. A worker with an old claim can ask for disability benefits any time during the reopening process. Or, they can ask for disability benefits after L&I reopens the claim. If you’re requesting disability benefits in an over-seven claim, the claims manager or claim adjudicator must prepare a briefing paper. Later, they will hand the briefing paper to the L&I director for consideration.


By law, RCW 51.32.160(1)(a) grants the Director the authority to readjust the worker’s rate of compensation on their own motion. Once the Director exercises discretion to approve or deny benefits, L&I will issue an order and notice. The order will notify the work injury claimant of the Director’s decision.


How likely am I to receive benefits for an old claim?

On occasion, the Director will exercise discretion to grant additional disability benefits in over-seven claims. However, this is an exception. It isn’t a rule and it’s not very common. In fact, Washington State Courts said that the meaning of the words “may adjust the rate of compensation” in RCW 51.32.160(1)(a) empowers the Director to modify the value of a worker’s disability benefits. Hence, the Director has the “discretionary authority” to determine the worker’s eligibility for disability benefits.


As always, any party can protest or appeal L&I decisions. This also includes the Director’s decision to grant or deny disability benefits. However, we must remember that for an over-seven claim, the decision to grant or deny disability benefits is discretionary. Consequently, Washington State Courts determined that the standard of review on appeal is “Abuse of Discretion”. In other words, the appealing party must show that the L&I Director abused his discretion in making the decision. For that, they have to convince the Board of Appeals or a higher court that no reasonable person would have made the same decision. Therefore, most lawyers would agree that abuse of discretion is difficult (if not impossible) to prove.


Summary and conclusions

In summary, you can reopen a workers’ compensation claim as long as certain criteria are met. The criteria for reopening are the same for all claims. It doesn’t matter if a claim closed long ago. The age of the claim is also not important.


If your L&I claim closed less than seven years ago, you can reopen it for both medical treatment and disability benefits. However, if you claim closed over seven years ago or more (ten years for eye claims), you can only reopen it for medical benefits. In over-seven claims, the Director of L&I can exercise discretion to grant or deny disability benefits. But, if the Director denies disability befits in an old over-seven claim, it’s very difficult to successfully appeal and reverse the decision.


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