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Work Injury and Negligence in Workers’ Compensation and L&I Claims

The definition of negligence in Washington State is when someone doesn’t exercise ordinary care. What does that mean? In short, it means doing something that a reasonably careful person wouldn’t do. But, it can also mean the failure to do some act that a careful person would do under similar circumstances.

Negligence in personal injury

Workers’ compensation covers cases involving a work injury. The term personal injury is much broader. It also covers injury cases outside the workplace. Outside the workers’ comp ecosystem, a negligent person can be responsible for damages. For example, when a negligent driver injures another person and their property.

Here, the injured party can take the at-fault driver to court. There, they can hold the driver responsible for damages. More specifically, damages can be the actual costs of vehicle damages. On top, damages include all medical bills. However, damages can also be for things like the pain and suffering.

Negligence in a work injury

In Washington State, the Industrial Insurance Act governs workman’s comp claims. Under the law, negligence in workplace injuries is not an issue. In fact, when injuries happen at work, the law applies no matter who’s at fault. Moreover, the same goes for negligence. It doesn’t matter if the work injury happened because of the worker’s negligence. Similarly, the same rule applies if the employer or other workers were negligent. The only exception is when there’s a negligent 3^rd party.

Therefore, when the Department of Labor and Industries (L&I) calculates the benefits under an L&I claim, then negligence isn’t a factor. The work injury claimant is covered by workers’ compensation and that’s it.

Injury and negligence – fact versus fiction

There are plenty of TV shows and movies about lawsuit and negligence. Hence, people are familiar with suing someone for damages. That’s one reason why many people who call my office after a work injury. Many focus the conversation on negligence. Between us – I’ve heard some truly terrible stories about employers and coworkers. If it wasn’t for workers’ compensation, I’m sure many would fall under negligence.

Here are some common examples:

Employers not providing workers with proper safety equipment.
Seriously hurt workers told to go back to work.
After a serious injury, telling the worker to drive themselves to the hospital.
Providing employees with old, faulty or broken tools.
Coworkers engaging in horseplay at work causing injury to others, and
Employers not taking safety hazard complaints seriously.

Frustration mounts

Understandably, this can be frustrating to work injury claimants. Workers are upset that there are no damages for negligence. Often, L&I will investigate safety violations and claim suppression. In some cases, L&I issues a fine. However, work injury claimants don’t receive additional compensation or damages for negligence. In fact, when I tell this to people that call me, many hang up in anger.

What’s the takeaway?

Negligence isn’t an issue in workers’ compensation. Therefore, it’s best to not waste your time and energy. Don’t argue about who’s at fault. There are still valuable claim benefits available for you. Most importantly, focus on getting better. Furthermore, make sure you get your benefits. They include:

Focus on what matters. Get well. Go back to work if you can. And as always, please be safe out there!

Self-Insured IME Exams: L&I Implements New Rules in Washington State

/ L&I attorney / 0 Comments

The Department of Labor and Industries (L&I) implemented new rules for self-insured independent medical examinations. In short, we call this exam a self-insured IME exam. These rules passed the legislative section during 2019-2020. I’m happy to share that the new rules officially kicked in on April 23, 2022.

Self-insured IME exams – The rules

There are several changes under the new regulations. The most significant updates are summarized below. The first change relates to IME scheduling and notices. Previously, self-insured claim administrators provided injured workers a 14 days notice before an IME. However, under the new rule, the new time window is 28 days.

The second major change has to do with the notice form. Moving forward, self-insurers must include a standard form to notify workers’ compensation claimants of an upcoming IME. The form is available on the L&I website (although I wasn’t able to find it). More importantly, the form mandates insurers to provide critical information to workers. For one, it has to include the reason for the IME request.

Disputing independent medical exams in self-insured claims

The third rule change focuses on IME disputes. Here, workplace injury claimants can dispute upcoming IME exams. Moreover, the worker’s attending provider can also dispute an IME. Either way, it’s important to file the IME dispute at least 15 calendar days before the exam. The dispute must specify the reasons why the IME is inappropriate. In turn, L&I may postpone the IME. Moreover, there’s a very interesting case when an IME exam is under dispute yet the claimant attends it. If L&I determines the IME was in violation of RCW 51.36.070, then the IME report can’t be part of claim administration.

No more infinite IME exams

The fourth area of change is around the number of IME exams. From here on, there’s a limit on the number of independent medical exams that self-insurers can request. The actual number depends on the underlying issues and the reason for the IME. For example, IME doctors can perform only one exam when contending a new medical issue. The purpose of the one-time IME is to resolve the new medical issue before issuing a final order.

The fifth and final change I wanted to cover is for case-progress IME criteria. This happens when self-insured claim managers request an IME for accepted conditions. More explicitly, L&I considers IME exams for accepted conditions as case-progress exams. Self-insurers can only request these exams when:

1) The worker is not receiving necessary and proper treatment; or

2) Treatment stalled without any real improvement to physical or mental conditions.

So – what’s next?

The new rules are fresh out of the over. They are so new that it isn’t clear how they’ll impact the claim administration process. However, I applaud L&I for adopting the new rules. Clearly, they help protect work injury claimants. The changes eliminate excessive and inappropriate IME requests. These unnecessary IME exams tend to impede and inhibit productive claim progress.

Changing an Attending Provider During an Open L&I Claim: What are the Rules?

/ L&I attorney / 2 Comments

I recently ran into issues with designating an attending provider. So, I decided to write this article to help shed some light on the topic. In L&I claims and self-insured employer claims in Washington State, the opinions of attending providers receive special consideration. Therefore, selecting the attending provider is an important decision. Can you choose your attending provider? Think you can change your attending provider? Let’s dive in and find out.

Attending provider – The first Step

After a work injury, to open a claim, a medical provider completes and files an initial Report of Accident (ROA) form. Many times, the provider that completes the form automatically becomes the initial attending provider. However, this designation can change.

First, it’s always important to remember that work injury claimants get to choose their attending provider. Sometimes, after a workplace injury, employers direct the injured worker to specific facilities. Usually, these are easily accessible urgent care type facilities. For example, Concentra, or occupational medicine divisions like Franciscan Occupational Medicine. Others include Kaiser Occupational Medicine and The Everett Clinic Occupational Medicine.

Choose your attending provider

People are often surprised to learn they don’t have to see these specific clinics. You can choose any attending provider you wish. The only requirement is – they must be part of the L&I medical provider network (MPN). More importantly, you can even transfer your attending provider during the claim! Below is some important information you need to know if you want to change providers.

Under RCW 51.36.010(2)(a) work injury claimants covered by the industrial insurance act receive proper and necessary medical and surgical services at the hands of a physician or licensed advanced registered nurse practitioner of the worker’s own choice. With one limitation: The location of the provider must be convenient for the injured worker.

Change attending provider

Under WAC 296-20-065, workers can freely choose a treating provider. More explicitly, it says that “no reasonable request for transfer to a network provider will be denied”. However, there are certain exceptions. If L&I denies your request, they must notify you. The Department of Labor and Industries (L&I) must also provide a reason for denial.

Some valid reasons for denying a request to change a provider include:

(1) When there are other providers that can give the necessary treatment. Here, their location must be more convenient to the work injury claimant.

(2) In cases where the new attending provider fails to cooperate with L&I rules.

(3) Whenever L&I pays ongoing time loss but there’s no reasonable progress towards returning to work.

(4) When you need special treatment which is outside the license or practice of the provider.

(5) If the claim administrator says the change is appropriate but the worker refuses or delays compliance.

(6) When the qualifications of the provider aren’t suitable to treat each of several accepted conditions.

Bottom line

If you want to transfer to a new attending provider, L&I might deny your request. When they do, please determine whether one of the exceptions above apply. Then, if none applies, you can elevate your request up the chain of command within L&I. As always, you can also contact a workers’ compensation attorney to discuss your options.

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