Workers Compensation - Washington

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

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Some workers’ compensation treatments do not require prior authorization for injured workers in Washington State

Sometimes workers’ compensation cases have diagnostic or therapeutic challenges. In those cases, attending providers are allowed to arrange most consultations with specialists without obtaining prior authorization.

 

Treatments that do not require authorization

It’s true! But, for some reason both injured workers and treatment providers rarely believe me. Don’t take my word for it. Here is what L&I says about it: http://www.lni.wa.gov/ClaimsIns/Providers/AuthRef/Specialists/default.asp. There are only two exceptions to this rule:

(1) mental health evaluations require prior authorization; and

(2) Independent Medical Examinations (IMEs) can only be arranged by the Department of Labor and Industries (L&I) or Third-Party Administrator.

That leaves the door open for many kinds of consultations to happen without prior authorization.

In fact, there are many treatments that do not require pre-authorization. Every year L&I publishes an updated fee scheduled and payment policy (MARFS) excel sheet. These sheets contain a column identifying whether an item requires pre-authorization. Did you know most items do not require pre-authorization? While surprising, it is a terrific benefit for injured workers!

 

More information and conclusions

L&I wants to keep claims moving forward. There’s no doubt about it. That means there is less red tape for making referrals and providing treatment than providers and injured workers often realize. If a claim is presenting challenges, so long as the referral is not for an IME or mental health evaluation, providers should feel empowered to arrange the referrals they feel are appropriate. If treatment providers are reluctant to schedule consultative appointments, injured workers should feel empowered to tell providers that pre-authorization is not required.

 

For more information, the L&I website contains lots of information regarding treatment authorizations and referrals.

L&I and the 2019 Washington State Governor’s Lifesaving Award

Do you know any workplace heroes? Now is the time to nominate them for the 2019 Governor’s Lifesaving Awards.

 

Recognizing lifesaving workers in Washington State

L&I and the Washington State Governor’s office are calling for nominations for the 2019 Governor’s Lifesaving Awards. The purpose of the award is to recognize heroic workers whose quick actions have made the difference between life and death. According to the L&I newsletter, there are workplace lifesavers in Washington State every year. The Governor’s award is a chance to recognize them for their heroic deeds.

 

The 2018 award recipients included six Washington State Department of Transportation (WSDOT) workers. Some of these workers saved two people and two dogs from a canoe that tipped over into the frigid waters of Hood Canal. The others are coworkers who rescued a fellow worker that was pinned by a remote-controlled demolition machine.

 

Nominating workplace heroes

Now through June 30, 2019, nominations are open for the 2019 award. To be eligible, the heroic act must have occurred during work hours between June 1, 2018 and May 31, 2019. All workers covered by the Washington State Industrial Insurance Act are eligible for nomination. In addition, the Governor’s office gives a humanitarian award to people who engaged in a heroic act, but despite best efforts, were unable to save the victim’s life.

 

According to the L&I Newsletter, the 2019 award recipients will be featured guests at the Governor’s Industrial Safety & Health Conference. The conference will take place on September 25, 2019 at the Tacoma Convention Center. To nominate someone for the award, you can complete the online nomination form at www.gishab.org. You can find out more information about this award by calling 1-888-451-2004 or emailing info@gishab.org.

Can I collect unemployment while my workers’ compensation claim is open?

I’m often asked if injured workers can collect unemployment benefits while their workers’ compensation claim is open. In general, the short answer is – usually no. Injured workers cannot collect unemployment benefits and time-loss compensation benefits at the same time. Unemployment benefits are for individuals who are willing and able to work but are unable to get a job. Time-loss compensation is for people who are unable to work because of work injuries or occupational diseases.

 

Examples when injured workers can collect unemployment benefits

There are some circumstances whereby injured workers can collect unemployment benefits. The best example I can think of is when an injured worker is declared as capable of working but haven’t obtained a job yet. Usually, once a vocational counselor determines that an injured worker can return to work, then time-loss compensation benefits are immediately terminated. However, finding that an injured worker can return to work doesn’t mean they have a job to return too. When this happens, unemployment benefits can be a saving grace. They can provide the injured worker with some income and access to job search resources through WorkSource.

 

The takeaway

In summary, it is important for injured workers to know they cannot simultaneously collect unemployment and time-loss compensation benefits. However, under certain circumstances, it is fine to collect unemployment benefits. For example, when searching for a job or for options to return to work after an industrial injury or occupational disease. Additionally, WorkSource can provide many useful resources. These resources include help writing a resume, searching for available positions and work opportunities, and others.

Injured workers fear workers’ compensation claim misrepresentation charges

Last week L&I announced that a food service employee will be required to repay more than $11,000 in disability payments. The employee was caught working at a nursing home and hotel while collecting time-loss workers’ compensation benefits. Time-loss benefits are only payable when an injured worker is incapable of working. L&I provides these benefits while the injured worker is recovering from an industrial injury or occupational disease.

 

Workers’ compensation willful misrepresentation and fraud

Under RCW 51.32.240, it is “willful misrepresentation” for an injured worker to obtain workers’ compensation benefits they are not entitled too. Willful misrepresentation includes intentional, conscious, or deliberate false statements. It also includes misrepresentations, omissions, and concealment of facts. The key is that these actions are with the intent of obtaining or increasing workers’ compensation benefits. Injured workers failing to disclose work-type activities that results in income, repeatedly, may face willful misrepresentation.

 

If L&I determines that willful misrepresentation occurred, it can charge the injured worker 50% penalty in addition to recouping over-payments. On top, if L&I thinks it is warranted, it will seek criminal fraud charges. However, it is important to note that criminal charges are for fraud. And recall that fraud has a different legal definition than willful misrepresentation.

 

Misunderstanding and confusion among injured workers

Many injured workers that I represent do not understand the meaning of willful misrepresentation and fraud. The lack of understanding causes anxiety regarding simple activities and daily living. Some injured workers fear that activities such as grocery shopping or volunteering could be willful misrepresentation or fraud. To ease anxieties, I often remind injured workers that being totally disabled doesn’t mean being physically or mentally helpless. In other words, injured workers should certainly engage in appropriate activities.

 

L&I has an active fraud division to investigate alleged willful misrepresentation. According to L&I: “workers’ comp fraud is not a victim-less crime. Cheaters take resources away from legitimately injured workers and raise costs for employers and employees who pay into the […] system”. Most importantly, injured workers who collect appropriate benefits and are not engaging in intentionally deceptive behavior have nothing to worry about.

Non-cooperative injured workers are at risk of claim closure and loss of benefits

When you have an open and active L&I claim, it is imperative that you remain claim compliant. Injured workers who become non-compliant or non-cooperative, are likely to have their benefits suspended.

 

Non-cooperative injured worker behavior according to L&I

Behavior that L&I considers to be non-cooperative includes:

1) Failing to attend or not cooperating with medical examinations or vocational evaluations. These appointments are requested by the Department of Labor and Industries or self-insured employer;
2) Failing to attend scheduled appointments or evaluations with attending providers or vocational counselors;
3) Engaging in unsanitary or harmful actions that could jeopardize or inhibit recovery;
4) Refusing to accept medical or surgical treatment that is considered reasonably essential for recovery;
5) Refusing to transfer care to an attending provider within the Medical Provider Network; or
6) Failing to follow the accountability agreement in a vocational retraining plan.

 

If the Department or Self-Insured Employer believes that an injured worker is engaging in non-cooperative behavior, they will typically attempt to correct the issue. They normally do so by contacting the injured worker (or their attorney) to discuss the behavior and potential consequences. Additionally, they will send an informal letter recapping the discussion. If the non-cooperative behavior continues, a formal non-cooperation letter is sent to the injured worker (or their representative). The letter will outline the behavior believed to be non-cooperative. The letter will also request an explanation form the injured worker for the behavior. This letter must contain notice that benefits may be suspended under RCW 51.32.110. Under WAC 296-14-410, the injured worker has just 30 days to submit a response explaining the reasons for the behavior.

 

Claim closure and suspension of benefits

In some cases, injured workers fail to respond within 30 days. Alternatively, even if they respond, L&I may not believe the injured worker’s explanation. In either case, L&I may issue an order suspending the injured workers right to further benefits until cooperation resumes. If non-cooperation occurs during vocational retraining, the retraining plan must be salvageable despite the lack of cooperation. For retraining plans that lack additional time or funding, non-cooperation can result in plan failure. Plan failure due to the worker’s own actions usually results in swift claim closure.

 

The penalties for non-cooperation are very severe. Therefore, I always advise injured workers to remain cooperative and communicative throughout their claims. If benefits are suspended and the injured worker lacks good cause for the behavior deemed non-cooperative, it is difficult (if not impossible) to secure benefits while non-cooperation continues. However, in my experience, the analysis of whether good cause exists for non-cooperative behavior is very subjective. I do not always agree with the Department’s position regarding what constitutes good cause and what does not.

L&I discontinues use of its own PPD worksheet in favor of WAC rules

Back in January, I wrote an article outlining a frustrating experience I had cross-examining a witness regarding a low back Permanent Partial Disability (PPD) rating. The witness was an Independent Medical Examiner (IME)  that examined my client at the request of the Department of Labor and Industries (L&I). In his report, the doctor concluded that the PPD rating for my client’s low back condition was a Category 2. He based his opinion on the use of a worksheet that L&I developed and circulated to doctors for determining PPD ratings.

 

PPD Worksheet Rating

The problem was when I confronted the doctor with the language of the Washington Administrative Code (WAC). The WAC outlines the Categories of Low Back Impairment. After that, his opinion regarding the appropriate PPD rating changed. This wasn’t an uncommon occurrence with the use of the PPD worksheet, and as I explained in January:

“Some people argue that the worksheet yields more favorable ratings and some argue it yields less favorable ratings. But most experienced attorneys agree that it is inconsistent with the WAC.”

During the cross-examination, I attempted to ask questions designed to get the witness to think about the various categories outlined in the language of the WAC. Our exchange became increasingly argumentative and counterproductive. My takeaway from that experience was that I better use my energy to try and effectuate change with respect to the use of the misleading PPD rating worksheet. Fighting with a particular witness about the worksheet itself does not help the bigger picture problem.

 

Big win for Washington State injured workers

I’m pleased to report that last week L&I announced that effective June 1, 2019, it will no longer accept its own worksheets as a valid basis for supporting cervical and lumbar PPD ratings. Specifically, there are two worksheets that will no longer be valid. One is the “Doctor’s Worksheet for Rating Cervical and Cervico-Dorsal Impairment”. The other is called “Doctor’s Worksheet for Rating Dorso-Lumbar and Lumbo-Sacral Impairment”. According to L&I, if a rating report utilizes the discontinued worksheets, the provider must be asked for an addendum referencing the language from the appropriate WAC, and not the worksheet.

My hope is that this change will help ensure that PPD ratings for cervical and lumber conditions will be more consistent with WAC language. Hopefully, this will minimize disagreements like the one I descried back in January, which is an issue that I encounter frequently.

L&I approves acupuncture to treat injured workers in Washington State

There’s good news for injured workers in Washington State that seek alternative treatment options for industrial injuries or occupational diseases! I previously wrote an article about the L&I pilot program enabling acupuncture treatment for injured workers . It turns out that the pilot program is near completion. Consequently, L&I adopted rules for the authorization of acupuncture to treat symptoms associated with low back pain.

 

Workers’ Compensation Claims and Acupuncture

Throughout the acupuncture pilot, L&I used information and data collected during the pilot project to draft WAC 296-23-238. Effective June 1st 2019, under WAC 296-23-238, L&I and self-insurers may pay for acupuncture to treat low back pain in workers’ compensation claims. Under this rule, the low back condition generating the pain must be an accepted condition in the claim. However, this week L&I reported that:

other conditions may be considered at a later date based on L&I’s review of available scientific and clinical evidence.

 

It is important to note that the pilot program will continue through May 31st 2019. Prior to June 1st 2019, only participants in the pilot program can use acupuncture to treat injured workers for work injuries. Beginning June 1st 2019, other non-pilot L&I providers that have a license to provide acupuncture treatment may begin using acupuncture to treat injured workers. Any providers who are new to treating injured workers will need to apply for an L&I provider number. Once an L&I provider number is obtained, L&I can release payments for acupuncture providers that treat injured workers.

 

Workers’ comp claim conditions for treatment

On top, there are several other important facts to remember regarding acupuncture treatment. For example, L&I allows up to a maximum of 10 acupuncture treatments over the course of the lifetime of a claim to treat low back pain associated with a casually related condition. In order for L&I to cover the treatment, the claim file must include documentation for the referral from the attending provider. On top, the treatment provided must be only for covered conditions, and the claim must be allowed and open. Furthermore, the treatment provider must submit validated functional instruments to track and document the treatment progress for the initial, middle and final treatment sessions. Validated functional instruments include the “2-item Graded Chronic Pain Scale” and the “Oswestry Disability Index”.

 

Acupuncture treatment isn’t for everyone. There are a variety of valid reasons injured workers may decline to consider acupuncture as a treatment option. When it comes to invasive procedures like the use of needles, injured workers always have the right to decide if they are willing to undergo the proposed treatment. However, for individuals who might like to explore alternative treatment options, especially for chronic pain, it is nice that L&I decided to extend coverage for this kind of treatment. More information can be found on the L&I website.

L&I claims and free interpretation services for injured workers

What language do you speak? Español? русский? Tiếng Việt? Qué idioma hablas? на каком языке ты говоришь? Bạn nói tiếng gì? Did you know that L&I pays for interpreters during medical or vocational services to injured workers and crime victims who have open and allowed claims?

 

How to get an interpreter for my L&I claim?

Medical practices receiving Federal funding are legally required to provide interpretation services to patients who need it. Consequently, when medical or vocational providers feel an injured worker needs interpretation services, they can reach out to the Department of Labor and Industries (L&I). In turn, L&I will arrange interpretation services and will also cover those costs. L&I does not decide whether an injured worker needs an interpreter. Instead, L&I leaves that determination to medical and vocational providers. If a medical or vocational provider determines that interpretation services are warranted, L&I will provide those services without pre-authorization.

 

If injured workers feel they may experience language barriers or that they can facilitate claim-related communications better with the help of an interpreter, then I strongly encourage injured workers to ask their medical and vocational providers for help with interpretation. In my experience, it is not uncommon for injured workers with difficulties communicating in English to ask a friend or family member to assist. Yet, it is important to note that L&I does not require the medical provider or vocational providers to use the interpreter that arrives with the injured worker.

 

Video and phone interpretation for workers’ compensation claims

The L&I website contains helpful information to assist providers in understanding how to arrange video, over-the-phone, or face-to-face interpretation services. Video interpretation is a relatively new service from L&I and their current vendor offers video interpreting for most commonly used languages. Phone interpretation is a versatile service with interpreters in over 200 languages available within minutes via a toll-free number. Each toll free number may be different based on the type of claim. Finally, for face-to-face interpretation, L&I provides an Interpreter Lookup Service on their website. All face-to-face interpreters are expected to adhere to a professional code of conduct. The code governs what they may and may not do, and requires them to maintain strict confidentiality, impartiality, accuracy, completeness, and competency.

 

Recommendations and conclusions

To ensure appropriate case and optimal resolution of the L&I claim or self-insured workers’ compensation claim, it is important that injured workers are able to communicate effectively with treatment and vocational providers. The interpretation services offered by L&I are versatile, useful, and important for ensuring that claims are progressing appropriately. They also help injured workers understand recommendations and requirements for remaining in compliance with medical treatment and forward progress of the claim.

Workers’ compensation claims and structured settlement

Have you ever heard the term “structured settlement” as it relates to workers’ compensation claims or L&I claims? Ever wondered if it might make sense for your case?

 

The Stages of an L&I claim or Self-Insured Employer Workers’ Compensation Claim

I often describe claims as having three phases:

(1) The open and active phase. This is when a claim is open and the injured worker is actively receiving treatment. Here, the goal of the treatment is to cure their condition or improve the overall level of disability;

(2) The employability determination phase. In this stage there is an assessment of the injured worker’s ability to return to work given their permanent limitations;

(3) Claim closure. I usually tell people that all claims must close (with a few very rare exceptions). However, the main question is how they close.

 

Workers’ Compensation Claim Closure

Typically, claims close in one of three ways:

(a) Simple claim closure. In this case, the injured worker completely recovers and returns to work at the job of injury;

(b) Permanent partial disability (PPD) claim closure. This is when an injured worker fails to make a complete recovery but is capable of working; and

(c) Total permanent disability claim closure. This happens when an injured worker is permanently incapable of returning to work.

The description above covers most common cases phases of L&I claims and workers’ compensation cases. However, in general, there is another option for claim resolution through a structured settlement or CRSSA. The Department of Labor and Industries (L&I) describes structured settlement as an alternative to monthly time-loss benefits. Under this outcome, the injured worker and L&I agree to a sum of money that is received as a series of payments over a relatively short period of time. It’s important to note that medical benefits may continue for industrially related conditions.

 

Conditions and Requirements

Certain additional conditions apply for structured settlement. If you are an injured worker over 50 years old, and you have an accepted claim that is at least 180 days old, then you may qualify. Under the right circumstances, a structured settlement can be a very satisfying way of resolving a claim more expeditiously. From my experience, structured settlements make sense for injured workers who have become frustrated or tired of the claim process. They are also suitable for injured workers who have alternative sources of income, and have concrete plans for their financial future.

 

In my opinion, however, injured workers should never enter into a structured settlement because they are frustrated or desperate to resolve a claim. Injured workers should never feel like a structured settlement is their only option. It is only one of many options available under the Industrial Insurance Act and it may involve giving up other benefits. I strongly urge injured workers to consult with an experienced workers’ compensation attorney before agreeing to a structured settlement. In addition, you must remember that before it becomes final, the Board of Industrial Insurance Appeals (BIIA or Board) must review and approve the terms of the structured settlement.

 

Additional Resources

If you are looking for additional information, you can check out the following L&I flow chart. This chart can help injured workers better understand the various steps and process. Also, keep in mind that following Board approval, there is a 30-day revocation period in which any party may revoke consent to the settlement for any reason. L&I will continue to administer the claim and provide benefits during the time the Board reviews the structured settlement. Claim administration and benefits also continue with the 30-day revocation period.

Reopening L&I claim or self-insured employer claim in Washington State

Reopening an L&I claim

You may have heard that L&I claims can be reopened after they close. This is true, but there are a few important things to remember regarding claim reopening. First, a claim can be reopened any time following claim closure for additional medical treatment. However, for an injured worker to receive additional monetary benefits such as time-loss compensation, loss of earning power benefits, increased permanent partial disability or permanent and total disability, the claim must be reopened within 7 years of the original claim closure. After 7 years, only medical treatment will be provided if the claim is reopened. The only exception is when the Director of L&I exercises discretion to grant additional benefits.

 

Second, the reopening of a claim is not guaranteed. If an injured worker or provider believes that a claim should be reopened for whatever reason, a reopening application must be filed documenting the basis for reopening. L&I will carefully evaluate the evidence to determine whether reopening is appropriate. If L&I feels that it is not appropriate, reopening of the claim will be denied. Like any decision, the decision to deny reopening can be protested or appealed for physical conditions.

 

Conditions to reopen a workers’ compensation claim

For the reopening of a claim to be granted there must be an objective worsening of a claim related condition between the time the claim last closed and the time the application to reopen is filed. In workers’ compensation, we refer to these dates as the terminal dates. The first terminal date is the date of the most recent claim closure. The second terminal date is the date the application to reopen is filed. Findings of disability that can be seen, felt, or measured by an examining physician are called objective findings.

 

Therefore, whether there has been an objective worsening of claim related conditions between the relevant terminal dates often involves a comparison of the objective medical findings at or around each of the two dates. However, if L&I denies an application to reopen, a medical opinion regarding the objective worsening will be required to prove that the decision to deny reopening was incorrect.

 

Conclusions and recommendations

If you want to reopen your L&I claim, you should have your current findings and compare them to the objective findings from the time of most recent claim closure. It is also important that your medical provider clearly explains in what ways there has been an objective worsening. Non-physical conditions such as mental health conditions do not require objective worsening for reopening to be granted. These kinds of conditions inherently cannot be seen, felt or measured. However, for reopening to be granted, a medical opinion concerning worsening of the non-physical condition between terminal dates will still be necessary.

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