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

Category: Time-Loss (Page 1 of 6)

L&I Claim Overpayment: They Overpaid Me and Want Money Back, Now What?

The Department of Labor and Industries (L&I) sometimes sends overpayment notices to work injury claimants. Receiving one of these letters can be very stressful. The purpose of the notice is to tell you that you’ve been overpaid. And yes, they want their money back.

 

The reality for injured workers

When work injury claimants are unable to work, their income is automatically slashed by 40%. Clearly, this creates significant financial strain and stress. After all, the cost of living is always on the rise. Consequently, many workers have no choice. They live from check to check. In reality, many workers use wage replacement benefits in their entirety to pay for housing, food, and family care. Very often, injured workers must dip into their savings to make ends meet.

 

L&I claim overpayment

It feels like L&I is so stingy with paying benefits that overpayments can’t possibly happen. However, overpayments are very common. Most times, when overpayments occur, it’s not the fault of work injury claimants.

 

Overpayments can occur for many reasons. For example, because of clerical errors or identity mix-ups. They can also happen due to wrong data or adjudicator errors. One case is when L&I computes the wage rate incorrectly. Another is when L&I pays benefits even after the injured worker is released to work. Furthermore, there are instances where L&I reverses claim closure and must recoup a previous PPD award. That said, I’ve seen many cases where L&I tries to collect an incorrect overpayment. Therefore, it’s always important to double check everything. You must take steps and check if the L&I repayment demand is correct.

 

Repaying L&I overpayments and the law

Under RCW 51.32.240, L&I has the right to make a claim for repayment or recoupment of an overpayment. However, they only have one year form making of the overpayment to ask for money back. If L&I doesn’t make the claim within one year, then they waive their right to  recoup funds.

 

The one-year limitation doesn’t apply if there are issues of willful misrepresentation. More explicitly, willful misrepresentation is when a person obtains payments or other benefits under the Industrial Insurance Act after knowingly giving a false statement or misrepresentation. It also includes cases where people omit or conceal facts intentionally to receive benefits they shouldn’t get. Willful misrepresentation does happen. Yet, in my experience, L&I sometimes incorrectly accuses workers of willful misrepresentation. This is very common in cases of innocent mistakes.

 

L&I overpayment after willful misrepresentation

If an overpayment occurs due to willful misrepresentation, then L&I has three years. Here, the timer starts ticking when L&I discovers the willful misrepresentation. Then, they can also demand repayment plus 50% penalty. However, there are examples when L&I doesn’t claim the repayment within 3 years. In such cases, L&I automatically waives the right for repayments.

 

L&I claim repayment – summary

To conclude, overpayments in L&I claims are more common than you think. L&I has one year to make a claim to recoup overpayments. Although, if there’s been willful misrepresentation, then L&I has three years to make the overpayment claim.

 

Regardless, L&I sometimes makes mistakes when it comes to assessing overpayments. These mistakes happen because of miscalculations or timing issues. They can also occur when L&I incorrectly blames workers of willful misrepresentation. If you feel that L&I is incorrect, it’s always a good idea to consult with an experienced attorney right away.

Can I retire when I have an open L&I claim in Washington State?

Figuring out when to retire is always a big decision. Even if you don’t have an open workers’ compensation claim. However, retiring with an open L&I claim is even more complex. In fact, if you voluntarily retire while you have an open L&I claim, it can have serious impact on your L&I benefits.

 

Voluntary retirement during an L&I claim

The term Voluntary Retirement has a special meaning in workers’ compensation claims. Under WAC 296-14-100, you are “voluntarily retired” if:

  • You are not getting salary or wages from gainful employment; and
  • After your retirement, you don’t show any real attempts to go back to work.

Voluntary retirement can have negative effects on your L&I claim benefits. Specifically, under RCW 51.32.090(10), if L&I “determines that the worker is voluntarily retired and is no longer attached to the workforce”, then they won’t pay temporary total disability benefits. Moreover, under RCW 51.32.060(6), the same rule applies to permanent total disability benefits. That means, if a person voluntarily retires, they won’t receive L&I pension benefits.

 

Can I retire because of a work injury?

There are important nuances to the rules above. For one, a work injury claimant isn’t “voluntarily retired” when a proximate cause for their retirement is a workplace injury or occupational disease. What does it mean? If at least one reason for your retirement is directly because of your work injury, then your retirement isn’t “voluntary”.

Some people have severe disabilities because of their industrial injury or workplace illness. They can never return to work. These people may be eligible for an L&I pension. A pension is essentially a lifetime annuity. People that receive pension benefits under their L&I claim can also collect retirement money. Therefore, it’s usually better to make retirement decisions after L&I decides if you have permanent total disability.

 

Documenting your retirement reasons

However, delaying retirement isn’t always possible. Also, sometimes, it’s not practical. There are many reasons why people retire before L&I decides on permanent total disability. Unfortunately, in my experience, L&I usually assumes the retirement was “voluntary”. That is, if it happens while the claim is open and active. Yet, this assumption is often wrong. Many times, it’s not easy to decide if the retirement fits the legal definition of “voluntary retirement”. This is especially true when the retirement facts and circumstances are not well-documented.

Some people choose to retire while their claim is open. If the retirement has nothing to do with your work injury or disease, be ready to lose your time-loss benefits. Furthermore, you will not receive an L&I pension. But, if your decision to retire is based (at least in part) on the work injury or workplace illness, then you must document all claim-related reasons.

 

In summary…

If you retire with an open L&I claim, you’ll probably be giving up some benefits. You should seriously think about whether to retire while your workers’ comp claim is open. Make sure you understand the rules and consequences. I tried to explain some of the considerations in this article. However, retiring during an L&I claim is not a simple matter. Hence, I always recommend speaking with an experienced workers’ compensation attorney before making any retirement decisions.

 

Closing L&I Claim: Do I Need an Attorney?

I get calls from work injury claimants often. The #1 reason they call is because their L&I claim is closing. Also, the same goes for self-insured employer claims in Washington State. L&I claim closure can be very stressful. To help, I put together this checklist below. You can use it to check for any red flags. If there are some, I strongly recommend you consult with a workers’ compensation attorney.

 

L&I claim cannot close before maximum medical improvement

Your L&I claim cannot close before you reach maximum medical improvement. Again, the same applies to self-insured employers. Maximum medical improvement is sometimes calls medical fixity. You achieve it when there’s nothing more that doctors can do for you. Unfortunately, it doesn’t mean you’re healed. In short, it means that doctors don’t think you’ll get better with more medical treatment. Yet, many times, it’s unclear if you’re at maximum medical improvement. After all, it’s a doctor’s opinion. Therefore, it’s possible your claim is closing while your medical provider thinks you need more treatment. If that’s so, then it’s a red flag. You definitely want to contact an attorney.

 

Future employment issues

L&I must address future employment concerns before a claim can close. For example, if you have total disability. That’s one example where L&I can’t just close the claim. At very least, they have to pay for your disability. Total disability means you have physical or mental impairment. It impacts your ability to find or maintain a job. Any type of job within your skills. Not only the job at the time of your work injury. However, total disability doesn’t mean you’re helpless.

 

L&I has to evaluate and decide if you’re employable. For that, they consider your age, education, skills, and training. They also consider your experience and any previous limitations. Furthermore, they take into account limitations from your work injury. One way for L&I to resolve total disability is with L&I pension. Therefore, you should think if you have total disability. If you do, and if your claim is closing without pension, then call an attorney.

 

Permanent partial disability

We refer to permanent partial disability as PPD. Some work injuries or occupational diseases cause permanent conditions. For example, a loss of body function can be permanent. L&I has methods to assess your level of PPD. On top, there are several evaluation techniques. For assessments, a PPD rating medical expert must examine you. Many times, an IME performs the PPD rating. Other times, the attending provider can perform the PPD rating. After the rating, L&I decides the amount of your PPD award. One red flag is when you have permanent limitations without PPD rating. Or, when your rating seems low considering your symptoms. Another red flag is when you don’t receive a PPD award. Finally, it’s possible that some doctors disagree with your PPD rating. All these cases are red flags. It’s important you talk to an attorney.

 

 

Unresolved problems in your L&I claim

Some L&I claims start to close when there are ongoing issues. That’s a red flag. For example, closing a claim while there are time-loss compensation payment problems. On top, closing a claim with outstanding medical bills. And so on. You know your claim. You can tell if there are any lingering issues. If there are, then it’s critical to resolve them before the claim closes.

 

L&I claim closing when it should

There are plenty of cases with no red flags. Very often, L&I claim closure is appropriate. However, improper claim closure is also common. When you L&I claim closes, then L&I sends you a letter. If your claim closed and you didn’t receive a letter, then you must speak with an attorney. Usually, the closing letter contains a payment order or notice of decision. After that, the decision becomes final in 60 days. This means you have 60 days to protest or appeal. Personally, I always think it’s a good idea to talk to an L&I attorney if your claim is closing. You can always receive free information and tips that can help.

 

L&I claim reopening

Say your L&I claim closes inappropriately. Now, you can appeal and fight claim closure. If successful, L&I will keep the claim open and work to resolve the remaining issues. However, say your claim closes after they fix all remaining problems. In this case, you can still reopen your L&I claim in the future under certain circumstances.

 

Reopen L&I claim after it closes

These are certain requirements for reopening a claim. They are:

1) There must be an aggravation. This means that a condition in your claim got worse. More explicitly, for physical conditions, there must be objective medical findings. A doctor has to determine that your work injury condition deteriorated. In addition, you must show some medical tests to support the doctor’s opinion.

2) The aggravation requires more medical treatment or justifies higher disability rating.

3) The aggravation occurs between two specific dates. The first date is when the claim closed. It can also be the last date when L&I denied an application for reopening. Then, the second one is the most recent reopening application date.

 

Reopening due to new medical conditions

Sometimes, L&I can reopen a claim when a doctor finds new conditions. The conditions must relate to the workplace injury or work illness. This is true even if the condition wasn’t known prior to claim closure.

 

The 7 year L&I claim reopening rule

Many work injury claimants reopen a claim within 7 years of claim closure. If that’s the case, all L&I claim benefits may be available after reopening. This includes medical treatment, time loss compensation, and loss of earning power. On top, it includes increase in PPD, and even L&I pension benefits. But, if you reopen a claim after 7 years, you can only get more treatment. Unless the director of L&I grants you other benefit under their discretion.

 

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