Workers Compensation - Washington

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

Category: Uncategorized (page 1 of 7)

L&I claim for head injury and traumatic brain injuries (TBI) in Washington State

As an L&I attorney representing injured workers, I see all kinds of work injuries and specific problems that arise. That includes L&I claims for head injury and L&I claim issues for traumatic brain injuries (TBI). Workers compensation clients suffering from head injury or brain injury can be very difficult to work with. But often, they are also the ones that need my help the most.

 

What is a traumatic brain injury?

The CDC defines TBI as “a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury“. The CDC reports that everyone is at risk for TBI. However, children and the elderly are particularly vulnerable. TBI is considered a serious public health concern resulting in death and disability for thousands yearly. Not all bumps, blows, or jolts to the head result in a TBI. However, if a TBI does occur it can vary in severity from mild to severe.

 

Mild TBI cases, often referred to as a simple concussion, usually resolve fairly quickly. More severe cases may involve extended periods of unconsciousness or amnesia following the injury. According to the CDC, TBI symptoms may affect a person’s ability to think, ability to remember, and their physical well-being. Furthermore, it can also affect one’s emotions, mood and sleep. Some symptoms may appear quickly. Others may take days or even months to appear.

 

L&I claim for head injuries or brain injury

An L&I claim for TBI or head injury can be a very challenging case. In fact, as an L&I attorney, these cases are probably the most challenging ones I handle. This is due to a variety of things:

(1) The symptoms are largely subjective – There isn’t much objective medical evidence available to support the extent of the injury.

(2) Head injuries are often accompanied by physical injuries impacting other parts of the body. Those other injuries often take priority, and the head injury is overlooked.

(3) Significant efforts are being made to research and understand head injuries, especially related to professional athletes. However, in L&I claims and workers’ compensation setting there seem to be significant medical delays in TBI diagnosis and treatment.

(4) Fourth, it seems to me that there is an institutional resistance within the L&I claim administration system to accepting and authorizing necessary and proper treatment for TBI.

(5) Finally, due to the nature of the injury itself, clients who have suffered TBI are often difficult to work with.

 

Subjectivity in L&I claims for head or brain injury

In the L&I workers’ compensation system, if the work injury claimant makes statements or complaints to a medical provider, then those statements are considered subjective. On the other hand, objective findings of disability are those that a medical provider can see, feel or measure. It is widely acknowledged that mental health conditions such as depression and anxiety lack objectivity. Most other injuries in the L&I claim system require objective evidence to substantiate the extent of disability. Head injuries and TBI are complicated because it is a physical injury, but the extent can’t be seen, felt, or measured.

 

Usually, a TBI diagnosis is based on the worker’s description of how the injury occurred and their subjective symptom complaints. Common symptom complaints that I see all the time include difficulty thinking clearly, headaches, blurred vision, irritability, and sadness. Other symptoms include excessive sleeping, difficulty sleeping, noise sensitivity, concentration problems, problems remembering, lack of energy, nervousness, anxiety, and dizziness. Doctors simply cannot objectively verify these symptom complaints. Especially when the onset may be days or months following the injury.

 

Lack of Priority for L&I claims for TBI

TBI generally occurs from a blow to the head, or a jolt or a bump. Consequently, it is not uncommon for other physical injuries to occur in addition to the head injury. For example, someone may have fallen from a ladder breaking their arm and hitting their head. In most cases, the initial medical treatment is so focused on the arm injury that the head injury is ignored or overlooked. If the worker was working alone, they may not recall whether they lost consciousness. In fact, they may have significant difficulty recalling the details of the injury entirely.

 

According to the CDC, TBI symptoms are challenging to sort out. It is not uncommon for symptoms to be overlooked by the person injured, their family, friends, and even doctors. I have seen many severe TBI diagnosis made long after the original work injury. In my experience, this creates difficulty for getting the condition accepted under the claim.

 

L&I claim for head injury often result in medical delays

From my experience as an L&I attorney, it seems that many of the providers within the Department’s Medical Provider Network (MPN) overlook the importance of making an early and accurate TBI diagnosis. There seems to be a lack of urgency in making appropriate referrals for TBI diagnosis and treatment.

 

For example, I have seen cases where a blow to the head has been reported as the primary injury and wasn’t referred for MRI for more than a year. I’ve also seen work injury victims discharged from medical care and released to return to work without restriction, based on resolution of their other physical injuries, despite having numerous ongoing symptoms consistent with TBI. Unsurprisingly, the lack of attentive medical care leaves work injury claimants, who are already struggling with the symptoms of their TBI, feeling scared, hopeless, and angry.

 

Institutional Resistance within the Department of Labor and Industries (L&I)

From my perspective, L&I claim administrators tend to view the conditions causally related to an injury very narrowly. Generally, the administrator accepts the initial diagnosis on the accident report. It can be very difficult to add another condition to the claim later.

 

In some head injury and TBI cases, the initial diagnosis may include “concussion”. However, it is not uncommon for the head injury not to be reported at all on the initial paperwork. If the person suffering a work injury develops symptoms, or if the TBI diagnoses appears sometime later, then adding the condition to the L&I claim is often met with administrative resistance.

 

L&I attorney dealing with TBI work injury clients

As I’ve already noted, there are many symptoms for TBI. Side effects such as difficulty thinking clearly, irritability, sadness, and concentration problems, can be very challenging. Other issues such as problems remembering, nervousness, and anxiety, don’t make things easier. Add these kinds of symptoms to the normal stress of a workplace injury including financial instability and recovery uncertainty – clients who have suffered a TBI are often challenging to represent.

 

In my experience, they have good days and bad days. They aren’t always good at recalling past conversations, keeping appointments, or following through with requests. But I am always reminded that these are the people that need me the most. And I never discount this fact. On the positive side, our office has vast experience representing injured workers who have suffered a TBI. Because we understand the symptoms and their impact on our clients, we always do our best to help those clients understand the current status, difficulties, and needs of their claim.

 

L&I attorney and TBI workers compensation claims – additional resources

Remember, just because TBI claims are difficult does not mean they are impossible. The good news is that TBI is a condition that’s undergoing significant research by the medical community, professional athletic organizations, and the CDC. Every year it seems that new developments are made, to better understand the diagnosis and treatment. In fact, the CDC has several resources available related to TBI. One of those resources is the “Acute Concussion Evaluation” or ACE forms available for medical providers. The CDC also has a program called “HEADS UP” designed to help parents, sports and school coaches, as well as health care providers minimize and respond to the risk of TBI.

 

If you suspect that you, a friend, or family member sustained a TBI in a workplace injury, I would encourage you to review the helpful Brain Injury Basics information on the CDC website. If a TBI is complicating your workers’ compensation claim, don’t delay in consulting with an experienced L&I attorney who can help you understand your rights and determine if you need representation. You must ensure you receive appropriate benefits in such a challenging claim and difficult times.

The new L&I website and L&I claim portal

The Department of Labor and Industries (L&I) has revamped its website and the new site is now available publicly. You can have a look at https://www.lni.wa.gov/. According to L&I, the goal is for the new site to be more accessible with simplified and mobile friendly navigation, as well as larger and more readable fonts. Other goals include easier access to sign in to secure online services, and a clean and streamlined look.

 

The new L&I website: Updates and changes

While the website address has not changed, they have restructured some internal pages. Because of that, the L&I news release indicates users may have to update bookmarks and favorites. For Spanish-speaking work injury claimants, L&I says that its Spanish website is still up and running. As of the time of this writing, the links to the Spanish L&I claim site are broken and are not working, as are other sections of the site. However, the English site still contains help links for people with limited English language abilities.

 

If you follow my posts, you know I use the L&I website all the time. In my opinion, it is filled with useful information, news bulletins, and important links. For this reason I’ve been both eager and apprehensive for this website upgrade. Today I spent some time exploring the new site. I’m not surprised to discover that it is going to take me a while to get good at using the new site. On the old site, I regularly used the search feature to find specific forms, data, or to research aspects of claim administration. I am a little concerned that the search feature on the new site isn’t as efficient as the old site. I’m also concerned that many of the old information and links are no longer available on the new L&I website.

 

Searching for L&I forms and links

For example, as a test I searched for both WSF (which is the term for Work Status Form) and WVF (for Work Verification Form). It is a very common form that our injured worker clients fill and file all the time with L&I to keep their time-loss benefits going for their L&I claim. Unfortunately, for both “content” and “forms & publications”, the new site did not return any results. When I searched for Work Status Form, it returned over 800 results. The form wasn’t one of the top results. Finally, I put my search term “Work Status Form” in quotes. Alas, that returned 3 results, one of which was the form.

 

Therefore, for the record, this is the new link for the Work Status Form. Another important form, the Activity Prescription Form (or APF) can be found in this APF link. This simple exercise suggests that it is going to take time before anyone will be able to effectively navigate the new website. I have to say that they did succeed to make the site look clean with streamlined content. Also, it did work well on mobile.

 

L&I claim and Account Center

For the L&I Claim and Account Center portal, where anyone can view the status of an L&I claim, there hasn’t seem to be any changes for right now. However, the link for Claims and Accounts Center has changed and it is now https://secure.lni.wa.gov/home/.

 

L&I is accepting questions, comments and concerns about the new site. Here, feedback can be submitted to WebFeedback@Lni.wa.gov. I think that injured workers and people with L&I claims should spend some time to go over the site and provide feedback. As it stands right now, while new and exciting, the fact remains that older links are not working and a lot of great information that was there before is no longer available.

L&I claims for back injury and spinal injury or disease

Back or spinal injuries and illnesses are one of the most common conditions I see as an attorney representing people injured at work. I thought it might be helpful to share some basic information about the topic of back injury or spinal injury in the workers’ compensation setting. However, I am not a doctor and nothing in this post is intended to be medical advice. Simply put, the goal of this write-up is to help injured workers understand some of the terms and issues that may arise.

 

Back injury in workers’ compensation claims

The spine has roughly three regions:
(1) The cervical or neck region, which includes the cervical vertebra C1-C7;
(2) Thoracic or mid-back region where the T1-T12 vertebra are located;
(3) The lumbar area (L1-L5) and sacral back area (S1 through S5), which is also called the low back region.
In my experience, the most common region where work injuries and illnesses occur is the low back. The second most common is the neck. Mid-back injuries and illnesses do occur, but they are much less frequent.

There are two types of claims when it comes to a back injury in a workers’ compensation claim: Industrial injury claim and occupational disease claim. An industrial injury is a sudden and tangible event. Often, back injuries at work involve lifting or a combination or lifting and twisting with the sudden onset of pain or other symptoms. In contrast, occupational diseases are illnesses that develop as a result of the “distinctive conditions of employment”. Usually, they develop over time and it can be difficult to determine if work activities are a contributing cause.

 

Back injury treatment under an L&I claim

People who injure their backs at work are usually treated conservatively in the beginning. This means resting while taking over-the-counter medication to control pain and inflammation. Normally, that’s all that is needed to recover from a basic sprain or strain, or soft-tissue type of injury. In these cases, symptoms can improve within days or weeks after the injury. If symptoms don’t improve, additional treatment may be needed including but not limited to diagnostic imaging such as X-ray, cat scan (CT), or MRI. In some cases, physical therapy and massage therapy can help as well.

More severe injuries involving acute spinal fractures, injuries to spinal discs, and injuries impacting nerves require more invasive treatment. Our office represents many injured workers with significant back injury or illness diagnoses. Among others, we regularly see conditions such as spondylosis, spondylolisthesis, radiculopathy, nerve impingement, instability, disc bulge, disc herniation, stenosis, degenerative disc disease, and even thoracic outlet syndrome. The most common treatments for many of these severe cases are back injection and surgery.

 

Proving causation for back injuries in workers’ comp claims

From a legal standpoint, our experience shows that the more severe the back injury, the more challenging causation becomes. In fact, proving causation can be very difficult because all of us experience “degenerative” changes in our back and spine as we age. Some people call it arthritis and others call it degenerative changes. Furthermore, not all people experience the same symptoms from spine injuries, arthritis, or degeneration.

To complicate things even further, there is also a pretty lengthy medical study of spine disease called the “Twin Spine Study”. The study concludes that genetics is the most significant factor impacting back or spine health. Because of this, more severe aspects of back injuries or illnesses in workers’ compensation are often attributed to genetics or aging and not the injury or work exposure.

 

Conclusion

So, what’s the takeaway? If you are working a physical job that impacts your back or spine, then take a few extra steps of caution to try and minimize the likelihood of back injury. Wear protective gear when you can and if applicable. See a chiropractor on a regular basis to help with spine movement. Exercise your core and back muscles regularly to help ease the impact on your spine. And, if you are hurt on the job, go see a doctor immediately and have them file an L&I claim for back injury. But most importantly – be safe out there!

Firefighter wins Melanoma workers’ compensation claim in Washington State Supreme Court: Weaver vs City of Everett

If you recall, back in May I posted about a workers’ compensation case being decided by the Washington State Supreme Court: Weaver vs City of Everett. On October 17, the Court issued its decision affirming the Court of Appeals. In short, the Court declined to apply the common law principles of res judicata and collateral estoppel to preclude Mr. Weaver from seeking permanent totally disability benefits when he had previously filed a claim seeking temporary total disability benefits that was rejected.

 

Supreme Court upholds the rights of injured workers in Washington State

Clearly, the Supreme Court is committed to upholding the intent and purpose behind of Industrial Insurance Act: To protect and provide benefits for injured workers. Often referred to as “boilerplate” language, in its decision the Court referenced case law I reference all the time. “[T]he guiding principle in construing provisions of the Industrial Insurance Act is that the Act is… to be liberally construed… with doubts resolved in favor of the worker.” Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). LET THAT SINK IN. In fact, the Court referenced it TWICE in the Weaver decision, at page 6 and again at page 13!

 

RCW 51.32.185(10(a)(3) states that for firefighters, certain conditions are presumed to be occupational diseases. Melanoma is one of those conditions. Mr. Weaver was a firefighter. Mr. Weaver has melanoma. Mr. Weaver’s melanoma is a death sentence. As near as I can tell, there is no dispute that his melanoma is a direct result of his fire fighting occupation. Therefore, the Court declined to apply collateral estoppel because doing so to preclude Mr. Weaver’s claim would serve an injustice and would be contrary to public policy.

 

Legal arguments, common law and implications

The Court also declined to apply res judicata because Mr. Weaver couldn’t have made a claim for permanent total disability in the prior litigation. The Court acknowledged the Department of Labor and Industries (L&I) and Employer’s argument that the “threshold question of whether he had an occupational disease” was decided for purposes of that claim. They argued that the prior claim rejection also precludes future claims flowing from the same ailment (melanoma). The Court stated that while it might be true in theory, the Industrial Insurance Act does not use the term “claim allowance”. The Court concluded that the subject matters of Weaver’s two claims are distinct. His “permanent disability claim did not exist and could not have been brought at the time of his temporary disability claim”. Since his prior claim and current claim do not share identical subject matter, the Court held that res judicata does not apply.

 

I’ve read this new decision multiple times since last week. Every time I read it I notice something new. It is a nuanced and complex decision. I suspect it is going to take some time for the workers’ compensation legal community to figure out it’s full impact. However, one thing is certain: It is a victory for Mr. Weaver and his family. The Washington State Supreme Court adopted language from the Appellate Court decision in ruling that Mr. Weaver’s claim would not be precluded by collateral estoppel or res judicata, because

 

“Applying either doctrine here would be an apples-to-oranges application of common law principles to statutory claims, which would result in a “distasteful fruit salad of injustice.”.

L&I approves new treatment for severe upper cervical and neck injuries

The Department of Labor and Industries (L&I) recently announced that it will cover Diaphragmatic Phrenic Nerve Stimulation for select injured workers who have partial or complete ventilatory failure or respiratory insufficiency.

 

What is ventilatory failure and when does it happen?

This failure often occurs as a result of upper cervical spinal cord injury, to the neck for example. Now, L&I is going to allow a treatment that involves implanting an FDA-approved diaphragmatic/phrenic nerve stimulator. It is an alternative to mechanical ventilation. Moreover, it reduces and sometime even eliminates the need for ventilatory support.

 

What back injury is covered in the new treatment under my L&I claim?

Five conditions must be met for the treatment to be covered in an L&I claim. Those conditions are:

(1) The injured worker must have ventilatory failure due to upper cervical (neck) spinal cord injury;

(2) The work injury victim cannot breathe spontaneously for 4 continuous hours or more without use of a mechanical ventilator;

(3) The injured claimant’s diaphragm can be stimulated either directly or through the phrenic nerves to generate sufficient movement to accommodate independent breathing without the support of a ventilator for at least 4 continuous hours a day;

(4) The worker who suffered the workplace injury has normal chest wall anatomy and normal lung function; and

(5) The injured worker has normal cognitive function and the motivation to undertake the rehabilitation and training program associated with the use of the device.

 

What is the process to get the new upper back injury treatment?

As is typical for procedures of this nature, requests for Diaphragmatic Phrenic Nerve Stimulation require prior authorization. Also, it is  important to document how the 5 conditions above are met. Proper tracking and documentation can help make the authorization process more efficient. Authorization for State Funded workers’ compensation claims must go through Comagine. Authorization for Self-Insured claims must go through the Self-Insured employer or their third-party administrator (TPA).

Workplace injury and L&I claims: It doesn’t matter who’s at fault

Many times, work injury clients that that I represent feel that their employer should be held at fault for their workplace injury, work accident, or occupational disease. More often than not, I hear an injured worker say: “It is my employer’s fault I was hurt on the job. They should have to pay.”. However, employers also have frustrations when it comes to who is at fault for an injury. In a recent mediation conference, an employer representative argued that a particular claim shouldn’t be allowed. This is because it was the worker’s fault they got injured. The bottom line is that the whole subject of who’s at fault comes up in workers’ compensation claims and L&I cases a lot more than it should.

 

The Industrial Insurance Act and letter of the law

Realistically, the Industrial Insurance Act is a no-fault statute. According to RCW 51.04.010, workers’ compensation is designed to provide “sure and certain relief for workers, injured in their work, and their families and dependents […] regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation”. That’s it.

In fact, the Washington Administrative Code (WAC) describes workers’ compensation as “no-fault” insurance. It eliminates blame to either party for workplace injuries or illnesses. It doesn’t matter who’s fault it was. Consequently, injured workers are entitled to wage and medical benefits, while employers receive immunity from lawsuits, as a result of workplace injury or work related illness suffered by their workers or employees.

 

Applying the letter of the law: Jury instructions

As a result, when we go to trial, we have a pattern jury instruction that we read to jury members, as follows:

“The Industrial Insurance Act applies regardless of fault or negligence. Therefore, in resolving the issues before you, you are not to consider fault or negligence, if any, of the employer or the worker.”.

Our law makers enacted the Industrial Insurance Act to protect injured workers. Period. No matter who is responsible for the circumstances that led to the injury. Keep that in mind. Let us focus on remembering why our laws were written in the first place. Let’s help injured workers get back on their feet. Let’s help them get back to work if their can, or back to living their life to the full extent possible.

L&I report: Countertop stone fabricators should file an occupational disease claim for dust exposure

Manufactured stone countertops are popular. However, The Department of Labor and Industries (L&I) in Washington State warns that engineered stone fabricators are at risk for developing a severe lung illness called silicosis. Silicosis is an incurable lung disease caused by silica dust exposure. Exposure to this dust may also cause chronic obstructive pulmonary disease (COPD), kidney disease, lung cancer, and increased risk of developing tuberculosis (TB) or other lung infections.

 

How did fabricators develop the condition?

The CDC has documented 18 cases of workers developing silicosis in Washington State and 4 other states between 2017 and 2019. The workers had an exposure to silica dust from cutting and grinding engineered stone countertops. Interestingly, the countertops in question are mostly quartz countertops. Two of those cases were fatal.

 

One case in Washington State was a worker in his 30s. His diagnosis was silicosis, back in 2018. He had been exposed to silica dust for about six years working as a stone countertop fabricator. L&I says he is facing serious health issues and may need a lung transplant.

 

What are the symptoms of Silicosis?

Usually the symptoms of silicosis appear 15-20 years after exposure. Symptoms can appear earlier in instances of very high exposure to silica dust. Exposure occurs whenever silica dust gets in the air from sawing, grinding, polishing, shaping or installing natural or engineered stone. It also occurs from sweeping dry and dusty floors. Cleaning dusty clothing or equipment covered in silica dust also creates exposure.

 

As part of its Safety & Health Assessment & Research Program (SHARP), L&I is alerting at risk employees and employers of the dangers of silica dust. L&I warns that engineered stone can contain high amounts of silica. Exposure to that dust makes countertop fabrication a highly hazardous profession.

 

When should I file an L&I claim?

Early detection and diagnosis of conditions caused by silica dust exposure can make a big difference. L&I recommends that countertop workers talk with their doctor if they are regularly exposed to dust or if they experience breathing problems. Workers should know that developing silicosis from exposure to silica dust at work is probably an occupational disease condition. Workers must file an occupational disease workers’ compensation claim within two years of being notified by a medical provider that they have an occupational disease. More information about preventing silica dust exposure can be found on the L&I website.

Workers’ compensation and L&I claim benefits versus costs in Washington State

In Washington State, workers’ compensation is about providing benefits to workers and their dependents. Specifically, the benefits are for disabilities and deaths caused by a workplace injury and work-related disease. The Department of Labor and Industries (L&I) has a duty to administer your workers’ compensation claim. They decide what benefits to provide depending on the work injury and make decisions and issue orders for your L&I claim.

 

Benefits after a workplace injury under the Washington State workers’ compensation system

Some of the key financial benefits in a workers’ compensation claim are payments to a person injured at work (such as time loss compensation or temporary total disability), and coverage of medical expenses and treatment. For state claims, employers and workers make regular premium payments to L&I. Consequently, L&I makes the compensation payments to the injured work after a work accident. However, if the employer is a certified self-insured employer (i.e., the employer uses a private insurance for their workers’ compensation claims), then the employer or the insurance company makes these payments directly.

 

Personally, it seems to me that workers’ compensation rates and premiums often dictate how people feel about claims. L&I makes it loud and clear that the way to keep rates down is by reducing claim costs. From my viewpoint, employers and insurance companies keep their rates low by reducing medical expenses and keeping time off work to minimum (or eliminating the time off completely).

 

Workers’ compensation rates

Today, L&I sent out a press release boasting with a proposal to boast 0.8% reduction in workers’ compensation premiums for employers. The proposal applies to state funded claim. It does not apply to self-insured employer claims. This is the third year in a row where L&I is reducing employer insurance premium rates.

 

In 2018, L&I dropped the average employer premium rate by 2.5%. For 2019, L&I lowered the premium rates by another 5%. Interestingly, that was the largest rate decline in more than 10 years. Moreover, today’s press release states that employees will “see a very small increase in the amount they pay” due to increases in the average wage.

 

How to appeal the proposed workers’ compensation insurance rate changes

The 0.8% workers’ compensation claim rate reduction and the increase for employee premium rates is currently just a proposal. Clearly, public hearings will follow. That means we will all have an opportunity to comment on the rates proposed for 2020 at three public hearings:
(1) Tukwila, Oct. 29, 10 a.m., Dept. of Labor & Industries Tukwila Office
(2) Spokane Valley, Oct. 30, 9 a.m., Spokane CenterPlace
(2) Tumwater, Nov. 1, 10 a.m., Tumwater Labor & Industries Office

 

Another option for commenting is by writing to Jo Anne Attwood, administrative regulations analyst. Her address is P.O. Box 41448, Olympia, WA 98504-4148. You can also email Joanne at joanne.attwood@lni.wa.gov. Comments are due no later than 5:00 pm on November 5, 2019. Thereafter, final rates will be adopted by early December and go into effect January 1, 2020.

 

Summary and personal notes

Whether we are employers or employees, none of us really want to pay higher rates. However, I think it is important to know that we are benefiting from reduced rates because injured workers are being denied workers’ compensation benefits. I can’t help but ask: What is a greater value, lower insurance rates or healthy workers who receive a full and fair opportunity to benefit from the Industrial Insurance Act? Finally, you can read the full press release on the L&I website.

L&I workers’ compensation claim appeal in BIIA and Superior Court

Workers’ compensation is a unique legal practice. A big part of what I do as a workers’ compensation attorney is help people who have been injured at work understand and navigate their L&I claim or workers’ compensation claim. It is highly administrative work that sometimes doesn’t feel terribly like legal work.

 

Judicial appeals in workers’ compensation claims

When we appeal administrative decisions to the Board of Industrial Insurance Appeals (BIIA) our representation becomes much more legal in nature. That’s because the BIIA is a quasi judicial entity that decides workers’ compensation disputes. Appeals to the BIIA frequently involve decisions that are unfavorable to our client. Consequently, we must identify the issues and present a legal case to meet the burden of proof, to show that the administrative decision is wrong. This typically requires presenting expert and lay witness testimony in addition to appropriate legal arguments. Then, based on the evidence we present, the BIIA issues a written decision.

 

Representing work injury victims at Superior Court

If any party disagrees with the BIIA they may appeal the decision to Superior Court. In Washington State, each county has a Superior Court that hears criminal and civil cases. For example, we commonly litigate cases in King County Superior Court, Pierce County Superior Court, Snohomish County Superior Court, Kitsap County Superior Court, and others.

 

In workers’ compensation appeals, the Superior Court decides whether the BIIA decision is correct. To do that, the law requires Superior Court to consider the same evidence, or record, that we present to BIIA. That means that parties cannot introduce new evidence at Superior Court. Workers’ compensation appeals to Superior Court can be done in a bench trial or a jury trial. A bench trial is when the judge reviews the BIIA record and decides if BIIA made the correct decision. A jury trial is when we read the BIIA record to a 6 or 12 person jury. After hearing the record and arguments from attorneys, the jury enters a verdict deciding whether the BIIA decision is correct. If an injured worker wins a Superior Court appeal, they may be get reimbursement for attorney fees and costs.

 

Pros and Cons for workers compensation attorneys

These kinds of appeals have pros and cons. On one hand, this appeal process limits the number of cases tried in Superior Court while preserving the right to have a case in front of a jury of peers. On the other hand, there is a significant downside. By the time the case is decided by Superior Court, it may be two or more years after the original administrative decision was made.

 

For attorneys representing injured workers, Superior Court appeals are a significant time investment. It means at least a week that I am in Court and away from the office. While not in the office, I’m unable to speak with other clients or manage my usual day to day activities. However, most attorneys representing people with work injury claims will agree that it is one of our best opportunities to ensure that injured workers are treated fairly.

L&I claim for cancer treatment and proton beam therapy

The Department of Labor and Industries (L&I) recently made a coverage decision regarding proton beam therapy. Proton beam therapy delivers high doses of radiation to tumors with limited scatter impact to the surrounding tissues. This makes it ideal for treating deep tumors that are close to critical organs and body structures.

 

What cancer types are covered under my L&I claim?

L&I decided that proton beam therapy is a coveted treatment for injured workers presenting with certain primary cancers. These kinds of cancer include: esophageal cancer, head/neck cancer, skull-based cancer, hepatocellular carcinoma cancer, brain cancer, spinal cancer, and ocular cancer. Also, other types of cancers are included when all other treatment options are contraindicated, after review by a multidisciplinary tumor board.

 

Proton beam therapy was under review in 2014. Thereafter, it was reviewed again in May 2019 by the State Health Technology Clinical Committee (HTCC). On re-review, the HTCC expanded the kinds of primary cancer proton beam therapy can be used to treat. L&I has adopted the HTCC coverage determination for workers’ compensation claims.

 

Cancer treatment authorization in L&I claims

Generally, in workers’ compensation claims, proton beam therapy requires prior authorization. For State funded claims, a pre-authorization form can be completed to obtain the necessary authorization. To obtain pre-authorization in a self-insured workers compensation claim, you must go through the employer or their third party administrator.

 

More information about proton beam therapy in L&I claims and workers’ compensation claims can be found on the L&I website.

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