Workers Compensation - Washington

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

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The L&I Claim SIMP Program for Chronic Pain Management

Are you familiar with the SIMP program? SIMP is an abbreviation for Structured Intensive Multidisciplinary Program. More simply, it’s a chronic pain management program. L&I regularly refers work injury claimants to SIMP during L&I claims. In fact, L&I recommends SIMP for chronic pain when workers don’t respond to conservative care.


What is the SIMP program in L&I claims?

SIMP can be helpful when chronic pain interferes with your ability to work. Furthermore, SIMP is useful when work injury claimants develop dependency on pain medication. However, the program is a somewhat complex and expensive way to treat chronic pain.


The SIMP program is “structured”. That’s because workers receive care in a consistent manner. The care is regular and steady. It has a schedule for modules of assessment. In addition, it includes education, treatment, and follow up evaluations. During the program, caregivers custom-tailor plans to address specific treatment needs for workers.


Key parts of the L&I claim SIMP program for chronic pain

SIMP is also “intensive” because it requires 6-8 hours of daily treatment. The routine continues 5 days a week for up to 4 weeks. The program is also “multidisciplinary”: A team of providers with different yet complementary expertise provide the care. Moreover, providers address pain management in multiple ways. That includes traditional medicine, psychology, physical therapy, and occupational therapy.


Sometimes, the program also includes vocational services and nursing services. Finally, the “program” portion focuses on outcomes. To get there, the program offers coordination and goal-oriented processes. In fact, caregivers regularly measure and document the workers’ progress. Consequently, failure to make progress can result in discharge from the program.


Phases in the SIMP pain management program

If L&I approves a SIMP program, then 3 essential phases follow. The first phase is evaluation. The second phase is treatment. Then, the third is the follow up. Usually, Evaluation is a lengthy process. Program providers conduct a history review and physical exams. They evaluate the likelihood that the work injury claimant will benefit from the program. Plus, they develop a treatment plan during the evaluation. Upon completion, SIMP caregivers submit a report with their findings and recommendations.


After L&I approves the program, the work injury claimant enters the treatment phase. Treatment comprises several important components, which include:

  • Exercises
  • Cognitive behavioral therapy
  • Coordination of services
  • Education and skill development
  • Pain and function tracking
  • Ongoing assessment of unrelated conditions
  • Doing real or simulated work or daily functional tasks
  • Establishing return to work goals
  • Developing a discharge care plan.

When the plan completes, providers provide workers with a discharge report.


Finally, the Follow Up can last up to 6 months after treatment concludes. The goal of the follow-up phase is to reinforce pain management gains. On top, the follow-up supports return to work goals. Additionally, it helps identify setbacks or issues that require intervention.


Takeaways and conclusions

Work injury claimants must give good faith efforts to comply with SIMP treatment plans. After all, in theory, SIMP is ideal for treating complex chronic pain in L&I claims. However, there are ongoing debates as to whether such programs deliver on their promise.


Personally, as an attorney representing injured workers that regularly participate in SIMP, I see too few results. From my perspective, optimal outcomes on paper don’t match reality. I would like to see more attention and legitimacy to how workers feel about their own progress and symptoms. That said, SIMP is one of the only L&I-approved treatments for pain. That’s because pain is subjective. For that, I am grateful even if I don’t always agree with SIMP outcomes.


Do I Need an Attorney for a Board Appeal in My Workman’s Comp Claim?

The Board of Industrial Insurance Appeals is a state agency in Washington State. Some people refer to it as the Board of Appeals, the Board, or BIIA. Interestingly, it behaves somewhat like a court. As such, it decides the outcome of L&I disputes.


Workman’s comp claim appeal and the board

The Board is separate and independent from the Department of Labor and Industries (L&I). After L&I makes a decision, either party can appeal the L&I decision to the Board. In practice, it means that not only work injury claimants and employers can file an appeal. In fact, physicians, retrospective rating groups, and others can also appeal L&I decisions.


When appealing, the party that files the workmen’s comp appeal has the burden of proof. In simple words, the filing party has to prove that L&I’s decision is wrong. In turn, the Board will hear the evidence in the appeal. After that, the Board will issue a written decision stating whether L&I’s decision was right.


Attorney for workman’s comp board appeal

Many people hire a workman’s comp attorney for Board appeals. It’s not mandatory to have an attorney. However, the rules and processes of a Board appeal can be overwhelming. Here, in this article, I’m going to try to provide an overview of the steps of a Board appeal. However, please note that this is a high level and non-exhaustive overview.


The steps of a Board appeal

Step 1 – Receipt of appeal

The first step happens when the Board receives an appeal. The Board assigns each new appeal its own “docket number”. Then, they use this number to identify the case throughout the Board appeal process. After that, the Board mails a notice to all parties in the appeal and to L&I. The purpose of the letter is to inform everyone of the appeal and its docket number.


Step 2 – L&I response to the appeal

When L&I receives an appeal, they must decide what to do. Generally, L&I has 3 options. The 1st option is to send the workman’s comp claim record to the Board and allow the appeal to proceed. In contract, L&I can take option #2. Here, L&I can change or reverse its decision. Finally, there’s option #3, which is to tell the Board that L&I wishes to reconsider the decision. Either way, L&I must choose an option within 60 days. If L&I reconsiders its decision, then the Board sends the claim back to L&I for further action.


Step 3 – Granting the Board appeal

After receiving an appeal, the Board has 60 days to grant or dismiss it. For that, the Board examines if the filing of the appeal was timely. They also check if the appeal is legally appropriate. In legalese, we say that the Board must figure out if it has jurisdiction to hear the appeal.


Next, if L&I doesn’t reconsider and the Board determines it has jurisdiction, then the Board issues an order granting the appeal. This step can be very confusing for non-lawyers. Granting the appeal means that the Board can legally hear and decide the case. Nothing more. It doesn’t mean that you won the appeal.


Step 4 – Mediation

Usually, the first step after granting an appeal is the mediation conference. What is it? It’s an informal meeting between the parties with a mediation judge. Before the mediation conference, the Board sends a notice to everyone. In it, the notice states the date, time, and location of the meeting. Before COVID, the Board held these conferences (mostly) in person. Since COVID, they are mostly over telephone. Sometimes, over zoom. Many times, the Board will allow multiple mediation conferences. In fact, that’s pretty common. By doing so, the Board gives the parties more time to resolve disputes without litigation.


Interestingly, the Board reported that work injury claimants participate more in conferences since telephone meetings became available. Obviously, that’s because of ease and convenience. Personally, I think it’s also because phone conferences are less intimidating. Yet, the Board is actively working to determine if and how they can return to in-person mediation.


Step 5 – L&I claim appeal hearing

If mediation isn’t fruitful, then the case goes to a hearing. Normally, the Board sends notice that the matter is advancing to a hearing. Then, the first step after is a scheduling conference. There, at the conference, the Board hearing judge sets a litigation schedule. The schedule includes dates and milestones. For example, deadlines to complete discovery or confirm witnesses. On top, dates to file briefing, and other steps.


Step 6 – Cost and fees

Do you know how much a workman’s comp claim appeal costs? With appeals, each party is responsible for its own costs and fees. Even if you win. That’s right. No one pays your costs or attorney fees. There’s no reimbursement or refund. Furthermore, each party is responsible for scheduling costs and their own witness fees. Therefore, costs can become significant. It’s definitely something to watch out for.


Step 7 – The Board appeal hearing process

The Board hearing is similar to a trial in a regular court. In fact, Legal Rules of Evidence and Superior Court Civil Rules apply. These rules say what you can and can’t do. In addition, they say how parties must interact with each other and with the Board. In hearings, parties can represent themselves before the Board. The BIIA also allows lay representatives if they don’t charge a fee or ask for compensation. More details are available in WAC 263-12-020(3)(a)(iii). All parties must become familiar with evidence and procedure rules. Even if they are not lawyers.


During hearings, the parties or their representatives must present evidence. The parties do so through witness testimony in a question-and-answer format. If a party doesn’t have legal representation, the Board hearing judge helps question witnesses. However, the judge cannot act as an attorney for either side. They must stay neutral.


Most importantly, the appealing party must present evidence to meet the burden of proof. In other words, they have to show enough evidence to prove that L&I’s decision is incorrect. Records like medical chart notes and letters are not sufficient. The Board judge won’t consider them if the other party objects. In fact, attorneys must object to medical notes and letters on the basis of the Rules of Evidence.


Step 8 – Proposed decision and order

Eventually, the parties finish presenting evidence. After that, the Board judge reviews the evidence and writes a Proposed Decision and Order (PD&O). The PD&O contains an analysis of the facts and relevant law. Furthermore, it includes the judge’s findings of fact and conclusions of law.


Step 9 – Petition for review

Sometimes, a party disagrees with the Proposed Decision and Order. In such cases, the party can file a Petition for Review (PFR). Then, when the Board gets a PFR, they either grant or deny it. This decision is entirely up to the Board. In turn, if the Board denies the petition, then the PD&O becomes its final decision. In contrast, if the Board grants the petition, the opposing party can file a response. Finally, the Board issues a Decision & Order (D&O). It include the facts, relevant law, and findings. The Decision and Order is the final determination of the Board.


Step 10 – L&I claim appeal to Superior Court

Any party that disagrees with the Board’s final decision can appeal to Superior Court. As always, there’s a timeline to follow. To help, the Board’s final decision comes with an information sheet. It includes the timelines and requirements  to appeal to Superior Court.


Summary and conclusions

Many workers with an L&I claim in Washington State want to know if they need an attorney for a Board appeal. For that, the law is very clear. A workman’s comp attorney is not required. However, L&I almost always has legal representation from the Office of the Attorney General. Moreover, when dealing with a self-insured employer, they usually have highly experienced attorneys on their side. Additionally, it’s common to see attorneys with vast experience representing retrospective ratings groups. Hence, it can be difficult for individuals to get up to speed and represent themselves.


The main challenge is to match the level of the attorneys on the other side. Consequently, the Board urges parties with no legal representation to at least speak with an attorney. They usually recommend it early in the appeal process. However, as the Board appeal progresses, the more challenging it becomes to find an attorney that’s willing to step in. That’s when representation becomes more difficult. It’s because there’s a lot of work to do, to get up to speed, in a very short time window.


What Happens If I Suffer a Work Injury While Working a Light-Duty Job?

If a worker has an L&I claim, then their employer might offer them light duty work. However, a light-duty job offer must be valid. Work injury claimants who refuse valid light duty work can no longer receive wage replacement benefits. These benefits include time loss compensation and loss of earning power benefits.


What is a valid light duty job offer?

There are many types of light-duty jobs. Yet, under the workers’ compensation claim system in Washington State, there are special considerations. More specifically, a light duty job offer is valid if it meets 5 criteria:

(1) The job must be with the employer of injury.

(2) The employer must send the job description (sometimes called job analysis) to the attending provider and the injured worker.

(3) The attending provider must approve the job.

(4) The employer has to provide a written job offer to the work injury claimant. The offer needs to include a reasonable start date.

(5) The employer must reinstate health care benefits at the same level as of the time of injury. One exception is when there’s a superseding agreement in place.


Workers’ concerns regarding light duty jobs

Some work injury claimants are nervous about doing light duty work. Personally, I regularly encounter 2 common concerns. First, there’s a fear of needing to perform work beyond the worker’s limitations. These limitations are set by the attending provider. Then, there’s a second concern – suffering another workplace injury while working light duty.


The first concern is easy to address. Employers cannot ask workers to do something that’s not in the job description. Remember, the attending provider approved the job description based on the worker’s limitations. Therefore, when this happens, the light duty job is no longer valid.


Suffering a work injury while working a light duty job

The second concern is not so simple. Unfortunately, in real life, work accidents do happen during light duty work. And then, when they do, they cause additional frustration and stress.


It’s important for workers to understand how to handle work injuries while working a light duty job. Here, there are different options and scenarios. One scenario pertains to temporary light duty jobs. The other applies to permanent light duty work. If you suffer a work injury while working a temporary or transitional light duty job, then you have coverage under your original L&I claim. However, for permanent jobs, you need to file a new workman’s comp claim.


Which conditions and benefits belong to what work injury?

Either way, the new work injury will likely complicate your claim. That’s because it’ll interrupt medical appointments and chart notes in the original claim. It also depends on the body area and the nature of the second injury. Many times, it can be hard to keep conditions and symptoms separate from the original injury.


In addition, it can be difficult to determine benefits. Do benefits apply under the original L&I claim? Or under the second work injury claim? Or both? Administratively, it can be very messy. Therefore, it’s important for workers and medical providers to be precise. In statements, in medical reports, and in all other documents.


Light-duty work injury can impact benefits

Another important point is the impact on financial benefits. Interestingly, your wage rate under the original claim and the new claim may not be the same. In the first case, the new work injury is under the original L&I claim. Here, the wage rate from the original claim applies. If the worker is receiving loss of earning power payments when the light duty injury occurs, then L&I will factor those benefits to wage rate calculations. Moreover, if the light duty injury means the worker can no longer work, then L&I will pay time loss compensation. Of course, as always, the worker must certify time loss with the attending provider.


The second case is when the light duty injury prompts a new claim. Here, L&I uses the wages of the light duty job to calculate benefits for the new claim. This holds true even when the light duty job pays less than the original job. When this happens, it’s incredibly frustrating for work injury claimants.


Some takeaways

To summarize, fear of re-injury at work isn’t a valid reason for declining a valid light duty job offer. Injuries that happen while working light are no fun! There are several ways to handle those injuries. They depend on whether the light duty work is temporary or permanent.


As always, the very best thing for workers and employers is to take all possible precautions. Do what you can to eliminate workplace injuries. However, if a light duty work injury occurs, then L&I is going to cover it. The coverage might be under the original claim or under a new workman’s comp claim.


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