Workers Compensation - Washington

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

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Filing a new L&I Claim or Workers’ Compensation Claim in Washington State

People sometimes contact my office shortly after they suffer an injury at work. Other times, I get calls from people that started to develop a work illness or occupational disease. Often, these people are scared. They don’t know what to do. I can certainly understand why they want to call and talk to a work injury attorney. However, there’s very little I can do until they file an L&I claim. In fact, the most important thing for anyone injured on the job is to get medical attention right away.

 

How to file an L&I claim after a work injury

The Department of Labor and Industries (L&I) maintains the L&I website. The website contains lots of information (and forms) about filing a workers’ compensation claim. However, almost always, the first steps to file a work injury claim should be: (i) Report the work injury or work disease to your employer; and (ii) Get the medical attention and medical treatment you need.

 

The doctor will determine whether the injury or disease relates to your work. If they think it does, they will help you file a workers’ comp claim. The doctor’s office should already have the necessary paperwork, which is called Report of Accident. Furthermore, the doctor decides when the work injury claimant can return to work, and recommends follow up treatment. If for some reason the doctor doesn’t file the claim, L&I makes filing easy with their new Report of Accident online tool.

 

What happens after you file an L&I claim

When filing the L&I claim (either online or at the doctor’s office), L&I will need some information from the work injury victim. This information includes:
1. The place where the work injury happened (or where you developed the occupational disease);
2. Contact information for any witnesses;
3. Employer information;
4. Wage information;
5. Names and birth dates of your dependents; and
6. Medical provider information where you first received treatment.

 

Once L&I gets the claim paperwork, it decides whether to allow the claim. Then, if L&I allows the claim and provides appropriate benefits, the work injury victim may not need legal help. Early benefits may include treatment authorizations and wage replacement benefits. The benefits depend on your inability to work due to claim-related conditions. After that, if you receive any unfavorable decisions, you must protest or appeal them within 60 days. Otherwise, they become final and binding.

 

When to call a workers’ compensation attorney

Therefore, if L&I denies your workers’ compensation claim, it’s a good idea to speak with a workers’ compensation attorney right away. A good L&I attorney can help you determine your rights and options. From there, you can proceed to protest the L&I decision, and continue to follow the L&I claim process.

 

Workers Compensation Appeals and the Board of Industrial Insurance Appeals (BIIA)

Many people with a work injury claim or L&I claim reach out to me during their workers’ compensation appeal. The Board of Industrial Insurance Appeals (also known as BIIA or the Board) is the first establishment for a workers’ compensation claim appeal in Washington State.

 

About the Board of Industrial Insurance Appeals

The Board of Industrial Insurance Appeals is the state agency that hears workers compensation claim disputes. The Board is entirely separate from the Department of Labor and Industries (L&I). Said differently, the BIIA and L&I are not the same agency.

 

When L&I makes a written decision, any party can appeal the decision to the Board. For me, I’m often involved in disputes over decisions that relate to an industrial injury or occupational disease. However, the Board hears other kinds of disputes too. For example, these include safety citations under Washington Industrial Safety and Health Act (or WISHA). Another example is disputes over employer premium assessment and classification.

 

The BIIA is led by 3 full-time members. The Washington State governor appoints each member for 6 year overlapping terms. More explicitly, each member represents a different sector with vested interest in workers’ compensation matters. One member represents the public. Then, the second member represents the labor force. Finally, the third member is a business representative. Ultimately, the three members of the BIIA are responsible for making the final decision in every dispute. In addition, these members manage the agency as an organization.

 

Workers compensation appeals: Steps in the appeal process

When L&I makes a decision in writing, if either party disagrees with the decision, that party can appeal it to the BIIA. The disputing party must file the appeal within 60 days since they received the decision from L&I. The easiest and most efficient way to file an appeal is through the Board’s website.

 

Like any hearing agency or court, the Board has its own legal ground rules that govern workers compensation appeals. These practice and procedure rules apply to all parties (regardless of whether a party is represented by an attorney). When the Board receives an appeal, it assigns a docket number. Then, it notifies the parties and sends a copy of the appeal to L&I. Once L&I knows there has been an appeal, it has three options: (1) It can notify the BIIA that it is going to reconsider the decision; (2) L&I can change or reverse the decision; or (3) it can send its record to the BIIA so the appeal can proceed. For timing, L&I has 60 days to exercise one of these three steps.

 

L&I claim and workers compensation appeals: Jurisdiction

If L&I decides to change or reconsider a decision, then the BIIA returns the appeal to L&I for further action. However, if L&I does not, the Board decides if it has jurisdiction or the right to hear the appeal. If it doesn’t, then the Board issues an Order Denying Appeal. If it does, the Board issues an Order Granting Appeal. Furthermore, accompanying that order is a Jurisdictional History. This is as very useful document containing a timeline of the workers compensation claim decisions. This document establishes that the BIIA can indeed hear the appeal. Generally speaking, I ask to see this document every time a work injury claimant contacts me for an L&I claim appeal.

 

The BIIA mediation for L&I claim appeals

After an appeal is granted, the Board schedules a mediation. Usually, if all parties have an attorney, then meditation occurs over the telephone. When possible, if one (or both) parties do not have legal representation, then the mediation happens in person. Mediation at the Board is somewhat informal. During mediation, a Board Judge discusses the issues and helps the parties talk about possible resolution, without litigation.

 

The mediation process is confidential. If the parties reach resolution in mediation, it can save litigation expenses and any further delays. Otherwise, the case is sent on to the hearings phase. The hearing judge hosts a conference to establish litigation deadlines. These deadlines include hearing dates and witness confirmation dates. Moreover, they include discovery cutoff dates, motion hearing dates, and testimony completion dates. All these dates are put in a litigation order, which they send to the parties.

 

Burden of proof in workers’ compensation claim appeals

The appealing party has the burden of proving that the L&I claim decision under appeal is incorrect. Practically speaking, meeting the burden of proof requires a medical expert testimony for most issues work injury and work illness matters. Somewhat surprising, the parties don’t have to have an attorney in L&I claim appeals. However, once the appeal proceeds to hearing (and according to the Board):

“The appealing party should consider finding an attorney. An experienced attorney will represent L&I or the self-insured employer. An attorney can negotiate with the opposing parties, help obtain necessary witnesses, and make objections”.

 

My personal opinion

I agree with the BIIA’s position. Attorneys with significant litigation experience know how to play by the ground rules. On top, they understand the evidence to meet the burden of proof. Failing to present sufficient evidence in a Board appeal will result in an unfavorable decision. Even worse, it’s difficult if not impossible to fix insufficient evidence once the record closes at the Board.

 

The record becomes the certified record of the case for any further appeals to higher courts. Finally, from there on, there’s no opportunity to present new, more, or better evidence. More detailed information about L&I claim appeals can be found on the Board website at http://www.biia.wa.gov/AppealSteps.html.

L&I Claim and Work Injury Premiums: Amazon’s 15% Workers’ Compensation Rate Increase

The Department of Labor and Industries (L&I) decided to increase Amazon’s fulfillment warehouse work injury insurance premiums by 15%. Consequently, and according to reports, Amazon is disputing L&I’s basis for the rate hike. Personally, this is nothing new. As always, premium rates are a contentious issue. The reason is simple – higher premiums increase the cost of doing business in Washington State.

 

Workers’ compensation claim in Washington State

In Washington State, the workers’ compensation claim system is governed by the Industrial Insurance Act (RCW 51). This act outlines the benefits for workers and their dependents in the event of work injury or occupational disease resulting in disability or death. Generally, L&I collects insurance premiums from employers and employees statewide into several funds. In turn, L&I pays benefits to work injury claimants from those funds. In the case of self-insured employers, either the employer or their workers’ compensation insurance company pays benefits to the injured worker.

 

Work injury insurance

To charge fair premiums, L&I uses a multi-factor system to calculate employer contribution. The goal is for premiums to reflect workers’ risk of injury in their work environment. To accomplish this goal, they calculate workers’ compensation insurance rates on the basis of three factors: (1) Risk classification; (2) Base rates; and (3) Experience.

 

Risk classifications captures the level of hazard or risk exposure for workers in the workplace. There are over 300 categories in this classification. Naturally, employers with more hazardous work environment pay higher L&I premiums. For example, premiums for indoor office work are significantly lower in comparison to premiums for the logging industry.

 

L&I calculations

Calculating base insurance rates also involves several factors. Every year, L&I uses five years of L&I claim cost data to calculate the rates for each risk classification. Here, for each business, L&I multiplies the experience factor by the sum of the Accident Fund, Medical Aid Fund, and Stay at Work base rates. That value is added to the base rate for the Supplemental Pension Fund. Every business that uses the L&I work injury insurance program must pay into all four funds. Base rates for the first three funds vary according to risk classification. Furthermore, businesses receive an annual rate notice from L&I summarizing coverage for the upcoming year every December.

 

Finally, L&I applies an experience factor adjustment to base rates.  The experience factor adjusts the base rate by comparing a business’ actual experience with all businesses in the same risk classification. Then, if a business’ actual losses are less than expected, L&I applies an adjustment to reduce premiums for that employer. Similarly, if actual losses are greater than expected loss, then the experience factor will be greater. When this happens, the business is expected to have higher costs than the benchmark for its risk class.

 

Summary

Since it’s December, L&I’s annual notices just went out. Therefore, it isn’t a coincidence that the Amazon story is in the news right now. Contrary to what the reports may imply, this increase was not to single out and treat Amazon differently from any other employer. In assessing Amazon’s fulfillment warehouse work environment, L&I simply found that the risk classification warrants an adjustment. This kind of adjustment occurs any time L&I finds that current risk classification or experience ratings are inconsistent with the costs and instances of injury in the workplace, for any business.

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