Workers Compensation - Washington

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

Page 2 of 57

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

The Department of Labor and Industries (L&I) implemented new rules for self-insured independent medical examinations. 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.

 

Rules for self-insured medical exams

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?

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.

 

The first attending provider

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 own 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.

 

Request to 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.

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

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.

 

Voluntary 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.

 

« Older posts Newer posts »