Workers Compensation - Washington

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

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L&I Claim: New Treatment Guideline for Low Back Conditions

The Department of Labor and Industries (L&I) recently collaborated with the Industrial Insurance Medical Advisory Committee and the Lumbar Surgery Subcommittee. Together, they developed a new guideline for low back surgery. Consequently, medical providers that treat work injury claimants for low back conditions need to follow new rules starting October 3, 2021.


L&I claim back injury treatment authorization

Under the guideline, the following procedures will not be authorized under any circumstances:


However, if a work injury claimant meets certain criteria, the following procedures may be covered:


Avoiding treatment denial in your L&I claim

Many work injury victims are treated for back injury under their workers’ compensation claim in Washington State. Under your L&I claim, you can check whether your claim administrator should authorize certain treatments. In fact, you can check the guideline and associated criteria on the L&I website. You must make sure that you meet the relevant criteria. If not, Comagine will automatically recommend to deny your treatment.


Sometimes, there are circumstances when providers feel that treatment is appropriate. This is true even if you don’t satisfy the authorization criteria. If that’s your case, then you have several options. First, the recommending provider can have a peer-to-peer review with Comagine. After that, the review might result in treatment authorization. Alternatively, you can appeal treatment denial to the Board of Industrial Insurance Appeals (BIIA).


Appealing L&I claim treatment denial

The BIIA follows legal standards when it reviews treatment authorization appeals. Under the law, treatment should be authorized if it’s proper and necessary. The term “proper and necessary” includes services to diagnose and treat any condition caused by an injury or occupational disease. Furthermore, treatments can also be curative or rehabilitative. Here, curative refers to treatment that produces permanent changes. For example, to eliminate or lessen the clinical effects of a condition. On the other hand, rehabilitative means treatment that helps regain functional activity on a long-term basis.


When appealing treatment authorization, BIIA follows legal definitions to determine if treatment is necessary and proper. Therefore, L&I treatment guidelines have little relevance to the BIIA analysis. Still, it’s unlikely that the BIIA will find new or experimental treatments necessary and proper in the workers’ compensation setting.


Costs of L&I Claim Appeal in Washington State

The Department of Labor and Industries (L&I) administers your workers’ compensation claim in Washington State. They decide what benefits work injury claimants can get. During your L&I claim (or self-insured employer claim), the department issues many decisions. Eventually, whenever you receive one, you can appeal the L&I claim decision. Furthermore, any party that disagrees with L&I’s decision can appeal to the Board of Industrial Insurance Appeals (BIIA).


Cost of BIIA appeal and the burden of proof

The BIIA is its own state agency and it’s completely separate from L&I. The BIIA reviews L&I decisions and acts like a court to decide the case. In fact, the BIIA decides the case according to the law. Here, the appealing party carries the burden of proving that L&I’s decision is wrong. In most cases, meeting the burden of proof requires testimony from expert witnesses. Usually, expert witnesses charge fees for testifying in BIIA proceedings. We refer to these fees as “costs of appeal”. Many times, these costs are significant.


People with a work injury claim are often upset when they learn about the cost of appeals. This is understandable. After all, most people don’t have thousands of dollars to cover costs. As a result, people might look for alternatives. In some cases, the issue at hand is primarily medical. When that’s the case, clients regularly ask me: “Can’t we just submit the medical records instead?”. The short answer is almost always: “No”.


BIIA hearing procedure

In BIIA hearings, expert witnesses such as doctors must appear in person and testify. The BIIA will not allow notes, letters, reports or other documents into evidence if the other party objects to them. Practically, these kinds of documents are considered “hearsay”. Any reasonable attorney would object to them. Therefore, expert witnesses must testify when the issues under appeal involve benefits like:


My job as a workers’ compensation attorney

A big part of my job is helping work injury claimants decide for themselves whether the costs justify the benefits. However, in my experience, these decisions aren’t a simple cost-versus-benefit analysis. After suffering an injury at work, people have so much they have to consider. Deciding whether to proceed with an appeal is often one of the most difficult decisions they have to make.


L&I Claim News: Physical Therapy and Occupational Therapy Guideline

The Department of Labor and Industries (L&I) has been working on a new Work Rehabilitation Guideline. The overarching purpose of the guideline is to address physical therapy and occupational therapy in L&I claims.


L&I claim work rehabilitation and utilization review

L&I collaborated with professionals from multiple relevant disciplines to develop the guideline. In fact, they worked with physical therapists, occupational therapists, and vocational counselors. In addition, they collaborated with representatives of the Office of the Medical Director at L&I. The 58-pages guideline draft is currently available on the L&I website.

The goal for the new guideline is to instruct providers and shape the policy for work rehabilitation. Importantly, it’s also intended to improve the L&I claim utilization review process. Personally, I think this new guideline extends L&I’s approach towards more uniform practices across all L&I claim medical providers. Furthermore, it seems to focus on early intervention and return to work (RTW).


Work rehabilitation in a workers’ compensation claim

If you have an L&I claim or workers’ compensation claim in Washington State, you might be eligible for work rehabilitation. In general, for eligibility, a work injury claimant must meet the following criteria:

1) The L&I claim attending provider must opine that the work injury claimant is ready to participate in the program.

2) The injured worker must have had at least 2 months of recovery since the injury.

3) The person with the work injury must demonstrate good likelihood of succeeding in the program. Claim managers consider multiple factors when assessing the worker’s likelihood of success. Overall, these factors include vocational issues, behavioral health needs, and support network.

4) The claim administrator must clearly identify a return-to-work goal. Also, the goal has to include an applicable job analysis. Alternatively, it can include a description of job demands.

5) The program intensity has to match the work injury claimant’s individual needs. It must also consider the job demands and the availability of modifications-to-the-job within the labor market.


The new guideline and the Industrial Insurance Act in Washington State

From my perspective, this new guideline seems to offer some good improvements. For example, I’m happy to see that L&I is focusing on the specific needs of each injured worker and their return-to-work goal. Previously, similar programs seem to follow a “one-size-fits-all” approach. Now, I genuinely believe that work injury claimants will perform much better because the program addresses their individual needs.

However, I’m concerned that this guideline falls short of meeting the intent and purpose of the Industrial Insurance Act. Specifically when it comes to this part:

“to protect injured workers, to provide them with sure and certain relief for their injuries, and to reduce to a minimum their suffering and economic harm.”

With this in mind, I feel strong disheartening when I read the definition of “work disability” in the draft guideline:

“Work Disability is a concept describing the overall societal context of why workers may have continued disability. This model includes the personal aspects (like physical injury and coping strategies of the worker) and places them within a framework of the larger healthcare, legislative and workplace systems; all of which have impact on the benefits, incentives and decision-making for RTW options. Ultimately, these factors influence the worker to make a decision on when, or if, they RTW. Addressing these factors is part of a worker’s recovery and when particular barriers to recovery are identified, efforts can be made to address and work toward satisfactory solutions. This requires proper messaging from all providers about the nature of work disability and methods to foster patient engagement.”


Concerns and opinion

First, this definition isn’t consistent with the legal definition of total disability. Beyond that, it demonstrates one of the biggest challenges work injury claimants face during L&I claims. Explicitly, having their pain complaints taken seriously. Sure, pain is a subjective complaint. Workers’ compensation laws require at least one objective finding to support the extent of a work injury claimant’s physical disability. However, treatment providers are not required to rely solely on objective findings.

Guidelines like this should do a better job in helping treatment providers understand how to appropriately acknowledge and validate work injury claimant pain complaints. Being in pain doesn’t mean that a person doesn’t want to get back to work. It also doesn’t mean they think of themselves as disabled. Moreover, in my experience, if you treat people after an injury at work as if their pain is driven by disability conviction, return to work avoidance, or secondary gain – that’s the best way to destroy the provider-patient relationship. Consequently, there’s a very good chance that their treatment will fail.


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