Workers Compensation - Washington

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

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Firefighter wins Melanoma workers’ compensation claim in Washington State Supreme Court: Weaver vs City of Everett

If you recall, back in May I posted about a workers’ compensation case being decided by the Washington State Supreme Court: Weaver vs City of Everett. On October 17, the Court issued its decision affirming the Court of Appeals. In short, the Court declined to apply the common law principles of res judicata and collateral estoppel to preclude Mr. Weaver from seeking permanent totally disability benefits when he had previously filed a claim seeking temporary total disability benefits that was rejected.


Supreme Court upholds the rights of injured workers in Washington State

Clearly, the Supreme Court is committed to upholding the intent and purpose behind of Industrial Insurance Act: To protect and provide benefits for injured workers. Often referred to as “boilerplate” language, in its decision the Court referenced case law I reference all the time. “[T]he guiding principle in construing provisions of the Industrial Insurance Act is that the Act is… to be liberally construed… with doubts resolved in favor of the worker.” Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). LET THAT SINK IN. In fact, the Court referenced it TWICE in the Weaver decision, at page 6 and again at page 13!


RCW 51.32.185(10(a)(3) states that for firefighters, certain conditions are presumed to be occupational diseases. Melanoma is one of those conditions. Mr. Weaver was a firefighter. Mr. Weaver has melanoma. Mr. Weaver’s melanoma is a death sentence. As near as I can tell, there is no dispute that his melanoma is a direct result of his fire fighting occupation. Therefore, the Court declined to apply collateral estoppel because doing so to preclude Mr. Weaver’s claim would serve an injustice and would be contrary to public policy.


Legal arguments, common law and implications

The Court also declined to apply res judicata because Mr. Weaver couldn’t have made a claim for permanent total disability in the prior litigation. The Court acknowledged the Department of Labor and Industries (L&I) and Employer’s argument that the “threshold question of whether he had an occupational disease” was decided for purposes of that claim. They argued that the prior claim rejection also precludes future claims flowing from the same ailment (melanoma). The Court stated that while it might be true in theory, the Industrial Insurance Act does not use the term “claim allowance”. The Court concluded that the subject matters of Weaver’s two claims are distinct. His “permanent disability claim did not exist and could not have been brought at the time of his temporary disability claim”. Since his prior claim and current claim do not share identical subject matter, the Court held that res judicata does not apply.


I’ve read this new decision multiple times since last week. Every time I read it I notice something new. It is a nuanced and complex decision. I suspect it is going to take some time for the workers’ compensation legal community to figure out it’s full impact. However, one thing is certain: It is a victory for Mr. Weaver and his family. The Washington State Supreme Court adopted language from the Appellate Court decision in ruling that Mr. Weaver’s claim would not be precluded by collateral estoppel or res judicata, because


“Applying either doctrine here would be an apples-to-oranges application of common law principles to statutory claims, which would result in a “distasteful fruit salad of injustice.”.

L&I approves new treatment for severe upper cervical and neck injuries

The Department of Labor and Industries (L&I) recently announced that it will cover Diaphragmatic Phrenic Nerve Stimulation for select injured workers who have partial or complete ventilatory failure or respiratory insufficiency.


What is ventilatory failure and when does it happen?

This failure often occurs as a result of upper cervical spinal cord injury, to the neck for example. Now, L&I is going to allow a treatment that involves implanting an FDA-approved diaphragmatic/phrenic nerve stimulator. It is an alternative to mechanical ventilation. Moreover, it reduces and sometime even eliminates the need for ventilatory support.


What back injury is covered in the new treatment under my L&I claim?

Five conditions must be met for the treatment to be covered in an L&I claim. Those conditions are:

(1) The injured worker must have ventilatory failure due to upper cervical (neck) spinal cord injury;

(2) The work injury victim cannot breathe spontaneously for 4 continuous hours or more without use of a mechanical ventilator;

(3) The injured claimant’s diaphragm can be stimulated either directly or through the phrenic nerves to generate sufficient movement to accommodate independent breathing without the support of a ventilator for at least 4 continuous hours a day;

(4) The worker who suffered the workplace injury has normal chest wall anatomy and normal lung function; and

(5) The injured worker has normal cognitive function and the motivation to undertake the rehabilitation and training program associated with the use of the device.


What is the process to get the new upper back injury treatment?

As is typical for procedures of this nature, requests for Diaphragmatic Phrenic Nerve Stimulation require prior authorization. Also, it is  important to document how the 5 conditions above are met. Proper tracking and documentation can help make the authorization process more efficient. Authorization for State Funded workers’ compensation claims must go through Comagine. Authorization for Self-Insured claims must go through the Self-Insured employer or their third-party administrator (TPA).

Workplace injury and L&I claims: It doesn’t matter who’s at fault

Many times, work injury clients that that I represent feel that their employer should be held at fault for their workplace injury, work accident, or occupational disease. More often than not, I hear an injured worker say: “It is my employer’s fault I was hurt on the job. They should have to pay.”. However, employers also have frustrations when it comes to who is at fault for an injury. In a recent mediation conference, an employer representative argued that a particular claim shouldn’t be allowed. This is because it was the worker’s fault they got injured. The bottom line is that the whole subject of who’s at fault comes up in workers’ compensation claims and L&I cases a lot more than it should.


The Industrial Insurance Act and letter of the law

Realistically, the Industrial Insurance Act is a no-fault statute. According to RCW 51.04.010, workers’ compensation is designed to provide “sure and certain relief for workers, injured in their work, and their families and dependents […] regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation”. That’s it.

In fact, the Washington Administrative Code (WAC) describes workers’ compensation as “no-fault” insurance. It eliminates blame to either party for workplace injuries or illnesses. It doesn’t matter who’s fault it was. Consequently, injured workers are entitled to wage and medical benefits, while employers receive immunity from lawsuits, as a result of workplace injury or work related illness suffered by their workers or employees.


Applying the letter of the law: Jury instructions

As a result, when we go to trial, we have a pattern jury instruction that we read to jury members, as follows:

“The Industrial Insurance Act applies regardless of fault or negligence. Therefore, in resolving the issues before you, you are not to consider fault or negligence, if any, of the employer or the worker.”.

Our law makers enacted the Industrial Insurance Act to protect injured workers. Period. No matter who is responsible for the circumstances that led to the injury. Keep that in mind. Let us focus on remembering why our laws were written in the first place. Let’s help injured workers get back on their feet. Let’s help them get back to work if their can, or back to living their life to the full extent possible.

L&I report: Countertop stone fabricators should file an occupational disease claim for dust exposure

Manufactured stone countertops are popular. However, The Department of Labor and Industries (L&I) in Washington State warns that engineered stone fabricators are at risk for developing a severe lung illness called silicosis. Silicosis is an incurable lung disease caused by silica dust exposure. Exposure to this dust may also cause chronic obstructive pulmonary disease (COPD), kidney disease, lung cancer, and increased risk of developing tuberculosis (TB) or other lung infections.


How did fabricators develop the condition?

The CDC has documented 18 cases of workers developing silicosis in Washington State and 4 other states between 2017 and 2019. The workers had an exposure to silica dust from cutting and grinding engineered stone countertops. Interestingly, the countertops in question are mostly quartz countertops. Two of those cases were fatal.


One case in Washington State was a worker in his 30s. His diagnosis was silicosis, back in 2018. He had been exposed to silica dust for about six years working as a stone countertop fabricator. L&I says he is facing serious health issues and may need a lung transplant.


What are the symptoms of Silicosis?

Usually the symptoms of silicosis appear 15-20 years after exposure. Symptoms can appear earlier in instances of very high exposure to silica dust. Exposure occurs whenever silica dust gets in the air from sawing, grinding, polishing, shaping or installing natural or engineered stone. It also occurs from sweeping dry and dusty floors. Cleaning dusty clothing or equipment covered in silica dust also creates exposure.


As part of its Safety & Health Assessment & Research Program (SHARP), L&I is alerting at risk employees and employers of the dangers of silica dust. L&I warns that engineered stone can contain high amounts of silica. Exposure to that dust makes countertop fabrication a highly hazardous profession.


When should I file an L&I claim?

Early detection and diagnosis of conditions caused by silica dust exposure can make a big difference. L&I recommends that countertop workers talk with their doctor if they are regularly exposed to dust or if they experience breathing problems. Workers should know that developing silicosis from exposure to silica dust at work is probably an occupational disease condition. Workers must file an occupational disease workers’ compensation claim within two years of being notified by a medical provider that they have an occupational disease. More information about preventing silica dust exposure can be found on the L&I website.

Workers’ compensation and L&I claim benefits versus costs in Washington State

In Washington State, workers’ compensation is about providing benefits to workers and their dependents. Specifically, the benefits are for disabilities and deaths caused by a workplace injury and work-related disease. The Department of Labor and Industries (L&I) has a duty to administer your workers’ compensation claim. They decide what benefits to provide depending on the work injury and make decisions and issue orders for your L&I claim.


Benefits after a workplace injury under the Washington State workers’ compensation system

Some of the key financial benefits in a workers’ compensation claim are payments to a person injured at work (such as time loss compensation or temporary total disability), and coverage of medical expenses and treatment. For state claims, employers and workers make regular premium payments to L&I. Consequently, L&I makes the compensation payments to the injured work after a work accident. However, if the employer is a certified self-insured employer (i.e., the employer uses a private insurance for their workers’ compensation claims), then the employer or the insurance company makes these payments directly.


Personally, it seems to me that workers’ compensation rates and premiums often dictate how people feel about claims. L&I makes it loud and clear that the way to keep rates down is by reducing claim costs. From my viewpoint, employers and insurance companies keep their rates low by reducing medical expenses and keeping time off work to minimum (or eliminating the time off completely).


Workers’ compensation rates

Today, L&I sent out a press release boasting with a proposal to boast 0.8% reduction in workers’ compensation premiums for employers. The proposal applies to state funded claim. It does not apply to self-insured employer claims. This is the third year in a row where L&I is reducing employer insurance premium rates.


In 2018, L&I dropped the average employer premium rate by 2.5%. For 2019, L&I lowered the premium rates by another 5%. Interestingly, that was the largest rate decline in more than 10 years. Moreover, today’s press release states that employees will “see a very small increase in the amount they pay” due to increases in the average wage.


How to appeal the proposed workers’ compensation insurance rate changes

The 0.8% workers’ compensation claim rate reduction and the increase for employee premium rates is currently just a proposal. Clearly, public hearings will follow. That means we will all have an opportunity to comment on the rates proposed for 2020 at three public hearings:
(1) Tukwila, Oct. 29, 10 a.m., Dept. of Labor & Industries Tukwila Office
(2) Spokane Valley, Oct. 30, 9 a.m., Spokane CenterPlace
(2) Tumwater, Nov. 1, 10 a.m., Tumwater Labor & Industries Office


Another option for commenting is by writing to Jo Anne Attwood, administrative regulations analyst. Her address is P.O. Box 41448, Olympia, WA 98504-4148. You can also email Joanne at Comments are due no later than 5:00 pm on November 5, 2019. Thereafter, final rates will be adopted by early December and go into effect January 1, 2020.


Summary and personal notes

Whether we are employers or employees, none of us really want to pay higher rates. However, I think it is important to know that we are benefiting from reduced rates because injured workers are being denied workers’ compensation benefits. I can’t help but ask: What is a greater value, lower insurance rates or healthy workers who receive a full and fair opportunity to benefit from the Industrial Insurance Act? Finally, you can read the full press release on the L&I website.

L&I workers’ compensation claim appeal in BIIA and Superior Court

Workers’ compensation is a unique legal practice. A big part of what I do as a workers’ compensation attorney is help people who have been injured at work understand and navigate their L&I claim or workers’ compensation claim. It is highly administrative work that sometimes doesn’t feel terribly like legal work.


Judicial appeals in workers’ compensation claims

When we appeal administrative decisions to the Board of Industrial Insurance Appeals (BIIA) our representation becomes much more legal in nature. That’s because the BIIA is a quasi judicial entity that decides workers’ compensation disputes. Appeals to the BIIA frequently involve decisions that are unfavorable to our client. Consequently, we must identify the issues and present a legal case to meet the burden of proof, to show that the administrative decision is wrong. This typically requires presenting expert and lay witness testimony in addition to appropriate legal arguments. Then, based on the evidence we present, the BIIA issues a written decision.


Representing work injury victims at Superior Court

If any party disagrees with the BIIA they may appeal the decision to Superior Court. In Washington State, each county has a Superior Court that hears criminal and civil cases. For example, we commonly litigate cases in King County Superior Court, Pierce County Superior Court, Snohomish County Superior Court, Kitsap County Superior Court, and others.


In workers’ compensation appeals, the Superior Court decides whether the BIIA decision is correct. To do that, the law requires Superior Court to consider the same evidence, or record, that we present to BIIA. That means that parties cannot introduce new evidence at Superior Court. Workers’ compensation appeals to Superior Court can be done in a bench trial or a jury trial. A bench trial is when the judge reviews the BIIA record and decides if BIIA made the correct decision. A jury trial is when we read the BIIA record to a 6 or 12 person jury. After hearing the record and arguments from attorneys, the jury enters a verdict deciding whether the BIIA decision is correct. If an injured worker wins a Superior Court appeal, they may be get reimbursement for attorney fees and costs.


Pros and Cons for workers compensation attorneys

These kinds of appeals have pros and cons. On one hand, this appeal process limits the number of cases tried in Superior Court while preserving the right to have a case in front of a jury of peers. On the other hand, there is a significant downside. By the time the case is decided by Superior Court, it may be two or more years after the original administrative decision was made.


For attorneys representing injured workers, Superior Court appeals are a significant time investment. It means at least a week that I am in Court and away from the office. While not in the office, I’m unable to speak with other clients or manage my usual day to day activities. However, most attorneys representing people with work injury claims will agree that it is one of our best opportunities to ensure that injured workers are treated fairly.

L&I claim for cancer treatment and proton beam therapy

The Department of Labor and Industries (L&I) recently made a coverage decision regarding proton beam therapy. Proton beam therapy delivers high doses of radiation to tumors with limited scatter impact to the surrounding tissues. This makes it ideal for treating deep tumors that are close to critical organs and body structures.


What cancer types are covered under my L&I claim?

L&I decided that proton beam therapy is a coveted treatment for injured workers presenting with certain primary cancers. These kinds of cancer include: esophageal cancer, head/neck cancer, skull-based cancer, hepatocellular carcinoma cancer, brain cancer, spinal cancer, and ocular cancer. Also, other types of cancers are included when all other treatment options are contraindicated, after review by a multidisciplinary tumor board.


Proton beam therapy was under review in 2014. Thereafter, it was reviewed again in May 2019 by the State Health Technology Clinical Committee (HTCC). On re-review, the HTCC expanded the kinds of primary cancer proton beam therapy can be used to treat. L&I has adopted the HTCC coverage determination for workers’ compensation claims.


Cancer treatment authorization in L&I claims

Generally, in workers’ compensation claims, proton beam therapy requires prior authorization. For State funded claims, a pre-authorization form can be completed to obtain the necessary authorization. To obtain pre-authorization in a self-insured workers compensation claim, you must go through the employer or their third party administrator.


More information about proton beam therapy in L&I claims and workers’ compensation claims can be found on the L&I website.

Permanent Partial Disability (PPD) rating in Workers’ Compensation and L&I claims

What’s my L&I claim case worth? I get this question all the time. The answer is always the same: It depends. One way to determine the value of a work injury L&I claim case is based on the Permanent Partial Disability or PPD award. And, the same holds true for a workers’ compensation claim with private insurance companies and self-insured employers.


What is Permanent Partial Disability or PPD?

PPD is a monetary award that some injured workers receive when L&I closes their claim. In short, if the injured worker has: (a) Reached maximum medical improvement; (b) Continues to experience permanent residuals from the industrial injury or occupational disease; and (c) Is still capable of working, then a PPD award may be appropriate.


PPD award rating is based upon medical evidence. When the body part involved in the work injury is one that cannot be amputated, the PPD rating usually uses categories of impairment from the Washington Administrative Code or Washington Administrative Code (WAC). However, if the body part could potentially be amputated, the PPD is rated according to criteria from the American Medical Association (AMA) Guides to the Valuation of Impairment.


Who can provide PPD rating for my claim?

Within the medical provider network or MPN, some providers feel comfortable and are willing to provide PPD ratings. Yet, others do not. Consequently, from my perspective, it is always ideal when the attending provider (AP) that’s assigned to the claim is willing to rate the PPD. This is because that provider usually has the best sense of the injured worker’s permanent residuals from the work injury.


If an AP does not do PPD ratings, they will usually refer the injured worker to a provider that does. Alternatively, they can request an Independent Medical Examination (IME).


How much is my right arm worth?

On a personal note, before you continue reading, please know that I’m very uncomfortable placing a monetary value on parts of the body. The human body is sacred. Body parts are priceless. However, this is the world and the reality we live in.


Injured workers often want to know what the monetary value of the PPD will be. It is important to know that the value is a set number that varies based upon the date of injury. L&I publishes a “Permanent Partial Disability Award Schedule”  that lists PPD values based on the date of injury. For example, the value of a 10% right arm PPD for a person injured on December 31, 2015 is $12,004.04. Here, it’s because 100% of the value of an arm for a 2015 date of injury is $120,040.41. However, without a medical opinion rating the PPD, it is virtually impossible to estimate the dollars-and-cents value for the award.

Solving problems and overcoming roadblocks in your workers’ compensation or L&I claim

If you don’t succeed the first time, then you should try and try again. I think this should be the motto for injured workers dealing with their L&I claim as they navigate their workers compensation claim process and issues.


The Industrial Insurance Act (RCW 51) was created to provide “sure and certain” relief for people injured at work. However, this doesn’t mean that workers’ compensation claims go smoothly or without roadblocks. Far from it. In fact, much of what I do is figuring out the best way to navigate obstacles that arise in L&I claims and self-insured employer claims.


L&I and workers’ compensation claims are full of tough obstacles

Whether it is getting treatment authorized, a condition accepted, or finding resolution to a conflict that has arisen, problem solving is my job. I’ll be the first to admit that sometimes problem solving feels more like trial and error. This isn’t because I don’t know what I am doing. It is because over the years I’ve learned that there’s almost always more than one way to solve a workers’ compensation problem. The key is finding the most successful approach, which is usually based on the unique facts and circumstances of the case at hand.


One L&I case in particular

Explicitly, since October, I’ve been trying to solve a series of issues in one particular case. I’ve had difficult conversations with my own client. I’ve had even more difficult conversations with the Claim Manager at the Department of Labor and Industries (L&I). Moreover, I had some loud and rough calls with assistant attorney generals and their paralegals representing L&I.


While I was able to get my client on board with some aspects of my plan, other pieces remained an unresolved challenge. On no less than six separate occasions since October, my proposals were formally rejected. Each time, I went back to the drawing board to try and develop a plan that would succeed. I clearly am not allowed to disclose specific details about this case. However, I’m pleased to report that today I managed to successfully resolve all the remaining issues. Interestingly, the solution wasn’t much different than what I had proposed about ten months ago. Yet, this time around, I just needed to take the right approach, at the right time.


Personal notes

Today’s perseverance to try and try again really paid off. I secured time loss compensation  benefits to an injured worker that desperately needed them. To satisfy their mounting debt, to make some urgent payments, and to get a brief temporary break. Equally important, we now have some much-needed breathing room. We are already preparing to tackle the next roadblock that we’re anticipating in this complicated L&I claim.

Work injury and workers’ compensation claims for minor workers under 18 years old

Not all workers are over 18 years old. Unfortunately, it is not uncommon for teenage workers to suffer from a workplace injury. Especially when school is out over the summer. Therefore, it is important to know that in Washington State, workers’ compensation claim and work injury coverage applies to all injured workers. No matter what age.


Work injury legal reference for teens and minors

Under RCW 51.04.070, people injured at work who are minors are considered sui juris. This is a fancy Latin legal term that means having the full legal capacity to act on your own behalf. So what does it mean? It means that if you had a work injury and you are under the age of 18, are entitled to your own workers’ compensation or L&I claim for benefits.


Important notes

However, there are some nuance. For example, if an injured worker is under 18 years of age and receives disability payments. Here, those payments are paid to the parent, guardian or legal custodian of the minor injured worker. If the parent, guardian or legal custodian gives written permission, L&I can make payments directly to the minor injured worker. Aside from this one caveat regarding disability payments, workers’ compensation claims for injured workers under the age of 18 are treated the same as all other claims.

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