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

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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.

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.

How to Prepare for an IME exam: 6 Steps You Must Follow

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Work injury claimants call my office all the time asking for advice about IME exams. Many of them heard bad things about IME tests. They don’t know what to expect. Others ask how to prepare for the IME and what to do. The best advice I can give is to plan and be ready. To help, below are 6 steps that every work injury claimant must follow.

How L&I claims work

After an injury at work, you open a claim with L&I or your self-insured employer. From there, you get medical or mental treatment as appropriate. The Department of Labor and Industries (L&I) should cover your medical care. They also pay wage replacement benefits such as time-loss compensation. The attending provider is your go-to person for treatment under the claim. Your attending provider oversees your condition and refers you out as necessary.

One of the main turning points in every workers’ compensation claim is the IME. In fact, IME exams can cause L&I to stop paying benefits. It can also result in denying medical coverage. But first, let’s try to understand why L&I needs IME exams.

Why must I go to an IME?

L&I makes many decisions during your claim. It’s part of the claim administration process. For example, L&I decides to allow some conditions under the claim. They can also reject certain conditions. Similarly, your employer can push back and request to deny conditions. Furthermore, the employer can protest some monetary benefits.

Your claim manager or claim administrator is not a medical expert. They just follow process. Hence, whenever L&I needs input about your medical or mental condition, they can request an IME. According to L&I, the IME provides “objective medical-legal examination to establish medical findings, opinions, and conclusions”. After the exam, L&I receives the IME report. After that, they can make decisions in your claim to move it forward.

IME exams can be intimidating

Not surprisingly, work injury claimants are often nervous when they have an upcoming IME. Sometimes, I even get calls asking if a workers compensation attorney can get people out of having to go. The short answer is No. That’s unless there are special considerations or circumstances. Moreover, if you fail to attend an IME, then L&I can flag you as non-cooperative. In turn, L&I can penalize you for non-cooperative behavior. They can even suspend your benefits.

Prepare for IME exam

Here are 6 steps that every worker must follow before and after an IME exam.

#1 – Take an observer

You can bring an observer with you to the exam, except for mental health exams. For example, a family member or a friend can be an observer. The observer cannot disrupt the IME provider. However, the observer can watch the exam and take notes. The observer can also serve as a witness in case you need one later.

#2 – Go over the general timeline of your claim before the exam

IME doctors often comment about whether the worker is a “good historian”. In my experience, IME doctors that state that the injured worker is a “poor historian” are less favorable. You don’t need to know every little detail. You just need to explain what happened in your claim and when.

#3 – Practice describing your symptoms

It’s going to make it easier for everyone if you can communicate with the IME clearly. It’s important for you to accurately describe your symptoms without being overly dramatic. Practice telling the IME about your symptoms. In fact, you can practice with friends and family before the IME exam.

#4 – Listen to your body and give accurate feedback

The IME doctor will perform tests and maneuvers that require your response. It’s very important to listen to your body. This way, you can give honest and accurate feedback. If a test or maneuver doesn’t, it’s alright to say it does not hurt. Similarly, if a test or maneuver produces symptoms, it’s important to describe them accurately.

#5 – Pay attention

Pay attention to the circumstances of your examination and take notes. Write down things like what time the examination begins and when it ends. Take notes of whether the examiners review medical records. Also write down how many examiners are present. Track and record if they use measurement devices or medical tools.

#6 – Plan to review the IME report with your attending provider

In most cases, L&I sends the IME report to your attending provider. However, attending providers don’t always receive it. If they didn’t – you must make sure they get the report. Your attending provider must review the IME report. It’s very important to see how your provider reacts to the report. Therefore, you must schedule an appointment with your attending provider a few weeks after the IME. This appointment will give you a chance to discuss the report. It’ll also give your attending provider an opportunity to respond to L&I.

My Self-Insured Employer Has a TPA – What Does That Mean?

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The Industrial Insurance Act governs every workers’ compensation claim in Washington State. This act provides benefits to workers and their dependents for disabilities or death after a work injury or occupational disease. Therefore, every L&I claim or self-insured employer claim must follow this law.

Self-insured employers

The Department of Labor and Industries (L&I) is a Washington State agency. The agency is responsible for administering all L&I claims under the act. With every work injury claim, L&I must decide which claim benefits are appropriate. Benefits include medical treatment, monetary compensation, vocational services, and more.

For payments, there are two sources of funding. The first is the Accident Fund. L&I manages this fund directly. The money in the fund comes from workers’ compensation insurance premium that Washington State collects from employers and employees. Then, there’s also private insurance for self-insured companies. If you work for a self-insured employer, then benefit payments come from your employer and their insurance company. Not sure if your employer is self-insured? You can find all self-insured employers on the L&I website.

What is a self-insured claim?

L&I qualifies and certifies employers to become self-insured. Employers wanting to be self-insured must apply with L&I. In fact, the qualification requirements are significant. Therefore, it doesn’t make sense for all employers in Washington State to become self-insured. Overall, self-insured employers have long term obligations. They must pay benefits for the lifetime of their workers’ claims. Moreover, this obligation remains the employer’s responsibility even after they surrender their self-insurance certification.

What is a third-party administrator or TPA?

Self-insured employers may elect to manage their own workmen’s compensation claims. Alternatively, they can have a third-party administrator (TPA) manage their claims. Most self-insured employers utilize TPA companies to manage workers’ comp claims. Every TPA in Washington State must carry a license from L&I. For that, to receive the license, a TPA must follow the requirements below:

1) Have a current Washington State business license

2) Demonstrate they meet the WAC 296-15-350 requirements for handling claims

3) Comply with reporting requirements under the Industrial Insurance Act

4) Complete and submit an application to L&I

5) Provide a list of employers with whom the TPA is contracted

6) Submit a list of certified claim administrators working for the TPA

7) Provide a list of claim administrators in the process of obtaining their WAC 296-15-360 certification.

TPA licensing and reporting requirements

Once licensed, every TPA must still submit an annual renewal application. Furthermore, they must update all information concerning employers they serve, as well as claims administrators that they employ. Any person making claim decisions must be a certified claims administrator. This is described in WAC 296-15-350. Moreover, to obtain certification you must participation in a 72 hour series of courses.

These courses cover:

i. Claim validity

ii. Medical management

iii. Compensation management, and

iv. Work disability prevention.

The course includes basic, intermediate, and advanced learning in each subject area. Once certified, claim managers must participate in continuing education, in three-year reporting cycles.

Work injury while working for a self-insured employer

Self-insured employers have many obligations to the state. However, despite these obligations, the TPA requirements, and claim manager qualifications, self-insured claims are often complicated. They are also very frustrating for the injured worker. For example, unlike L&I claims, the details and history for self-insured claims are not available online. Therefore, it can be very difficult to keep up with developments in the claim.

Self-insured employers and their TPA frequently hire or consult with attorneys. They do so regularly during the claim administration process. Hence, claims can progress very slowly and take a long time. Work injury claimants are often left in the dark about the progress of their claim. Many don’t really know what is happening in their claim. If that’s your case, then it’s probably a good idea to talk to a workers’ compensation attorney.

Workers Compensation - Washington