Workers Compensation - Washington

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

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Temporary Total Disability and Time-Loss Compensation in an Open Workers’ Compensation Claim

Did you know that you are entitled to receive temporary total disability benefits while your workers’ compensation claim is open? Not sure what that means? And how that’s related to time-loss compensation? This is a very convoluted topic. Below is a first post of several on this matter.

 

Yesterday I posted about potential benefits and issues that can arise during the open and active phase of a claim, beginning with treatment. In addition to treatment, there are several other benefits that may be available during the open and active phase…

 

Read the full article.

L&I penalizes self-insured employer King County Metro

Today we’re going to talk about L&I penalizing self-insured employers such as King County Metro. There is more to the Department of Labor and Industries (L&I) than administering workers’ compensation cases. It is a very big administration charged with many other tasks including workplace safety issues. After all, safe workplaces are a first step towards reducing the number of industrial injuries that occur.

 

In today’s local news we learned that L&I has fined King County Metro $20,100 for safety violations involving employees working around high voltage. This isn’t the first time that King County Metro has been cited for safety violations by L&I. Approximately 2 years ago KIRO 7 news investigated incidents of Metro employees getting shocked while working on busses. Two years after a KIRO 7 investigation into employees getting shocked while working on buses in 2016, Metro was fined $10,800 for not implementing training programs for high voltage work and failing to periodically review and evaluate improper energy control procedures. Metro has also been fined for issues associated with bathrooms for bus drivers and assaults of Metro employees while working.

 

King County Metro is a self-insured employer. That means for injured Metro employees, Metro (or their third-party administrator insurance) handles claim paperwork and pays for the claim. According to WAC 296-15-310 Every employer certified to self-insure is obligated to comply with the provisions of the Industrial Insurance Act and the rules and regulations of L&I, and to have the necessary administrative processes in place to manage its self-insurance program. Each self-insurer is ultimately responsible for the sure and certain delivery of Industrial Insurance Act benefits to its injured workers and is accountable for all aspects of its workers’ compensation program. For an employer to be certified to be self-insured, the employer must meet the requirements set forth in WAC 296-15-001.

 

If an injured worker whose claim is being administered by a self-insured employer believes that the self-insured employer has unreasonably delayed benefits, the worker can ask L&I to penalize the self-insured employer according to WAC 296-15-266. If the self-insured employer’s actions are even more egregious than mere delay of benefits, under RCW 51.14.090 the Department may withdraw the self-insured employer’s certification. WAC 296-15-255 sets forth the hearing process for corrective action or withdrawal of a self-insured employer’s certification.

L&I workers compensation claims and acupuncture

Did you know that the Department of Labor and Industries (L&I) has an acupuncture pilot project? Until very recently, acupuncture as a treatment was not covered on L&I claims. Recently L&I decided to launch a pilot program designed to collect information about the use of acupuncture to treat low back pain, including treatment provided by East Asian Medicine Practitioners (EAMPs). During the project L&I will pay qualified providers participating in the project to provide acupuncture treatment to injured workers with low back pain that is related to an accepted condition under their claim.

 

For treatment to be covered, it must focus on helping inured workers heal and return to work. Furthermore, the treatment must be ordered by the attending provider (AP) and documentation must show clinically meaningful improvement in pain and function with the acupuncture treatment. If these conditions are met, up to 10 acupuncture treatments over the lifetime of the claim may be authorized. As treatment progresses, participating providers are required to use the Oswestry Disability Index and 2-item Graded Chronic Pain Scale score to assess the improvement in pain and function and send reports to the Department continuing this data.

 

As an attorney representing Washington State injured workers, I am very excited that the Department is finally exploring acupuncture as a treatment option under L&I claims. For years, acupuncture has often been recommended to assist injured workers in overcoming painful conditions and dependence on pain medications like opioids. However, injured workers were often disappointed to learn the recommended treatment would not be covered by the Department. It was not uncommon for me to represent individuals so desperate for pain control they were willing to cover the cost of acupuncture treatment out of pocket. However, for struggling injured workers, paying out of pocket is often not possible. In my experience, many injured workers have had very positive results from acupuncture.

 

Are you an injured worker that has been able to take advantage of the L&I acupuncture pilot project? If so, I’d love to hear from you about your experience.

Vocational Dispute Resolution (VRDO) – Disputing vocational decisions in L&I workers’ compensation claims

Vocational services in L&I claims

Continuing with vocational services articles for L&I workers’ compensation claims, yesterday I posted general information and thoughts about the Plan Development phase in vocational services. Today, I’d like to focus on disputing vocation decisions and Vocations Dispute Resolution (VDRO).

 

While vocational retraining can be a tremendous benefit under the right circumstances, I don’t believe enough emphasis is placed on a holistic analysis of the injured worker’s ultimate ability to become employed… Continue to read the full article.

 

Vocational counseling in workers’​ compensation and L&I claims: A deeper dive

Yesterday I posted a simplistic summary of vocational benefits, which is my typical way of trying to simplify and explain the general process. However, when vocational services are provided in actual workers’ compensation L&I claims, it becomes a much more dynamic than can be captured in a simple summary. Over the next few posts, I’m going provide a deeper explanation of the various phases within the vocational process. Today, I’m going to focus on “Early Intervention”.

 

Early intervention services are outlined in WAC 296-19A-050, which states that these services are intended to help injured workers return to work or continue to work for the employer of injury or the current employer. Early intervention services may include:

1) Discussing early return to work options with the employer, worker, and attending physician;

2) Identifying return to work goals and barriers that may interfere with or prevent the injured worker from returning to or continuing to work;

3) Assisting employers with offers of employment;

4) Planning and working with the referral source on necessary job modifications and pre job accommodations;

5) Performing job analyses; and

6) Assessing the injured worker’s need for preferred worker status and educating about that benefit.

 

In a publication titled “Getting Back to Work: It’s Your Job and Your Future”, L&I states that getting back to work is a “team effort” requiring the injured worker, attending provider, employer and the Department of Labor and Industries to all work together on returning to work. However, as an injured workers’ representative, I believe this is one of the biggest failures in the early intervention process. Rarely, if ever, do I see these entities working together towards a common return to work goal. More commonly I see the members of this “team” each working separately on the issue most pertinent to them at the time.

 

This can be problematic for early intervention success since fees to vocational counselors for early intervention services are limited to 20 hours of professional costs, are allowed only once per claim, and extensions cannot exceed 12 weeks for graduated return to work and 4-6 weeks for work hardening. If possible, during that time the vocational counselor will typically explore the following return to work options:

a) Graduated return-to-work by increasing the number of hours until the worker is back up to the work pattern at the time of injury;

b) Transitional return-to-work in a temporary job where the injured worker is expected to be able to go back to the job of injury during early intervention;

c) Light-duty work in a job with less physical demands than job of injury; and

d) Temporary work in a job that isn’t ongoing.

 

However, because the team approach frequently does not occur, injured workers are often surprised to receive an unexpected job offer when they are focused on other aspects of their workers’ compensation claim. This often creates stress and anxiety because injured workers feel isolated and alone as they struggle to figure out how to meet the demands of a job while simultaneously attending necessary medical appointments and meeting other claim related requirements. This is one place where injured workers’ representatives can make a big difference.

 

Not only do we provide support for injured workers who feel alone in the process, skilled representatives know how to address the issues that arise in early intervention and can help to effectuate the team approach (assuming an early intervention return to work conversation is appropriate given the facts and circumstances of the claim).

Wrapping up a very busy January in our workers’ compensation law firm

I am very busy these days. While the past few weeks have handed me no shortage of professional challenges, and while I’ve certainly had my moments of frustration, I’m not complaining. A lot has changed since I came on board at Casey & Casey P.S. and founded Reck Law, PLLC. Changes are going to continue as we improve and grow in our exemplary representation of injured workers throughout the Peninsula and across the State. I’m going to continue being busy for a long time to come.

 

I’ve received compliments lately on my work ethic and accomplishments since taking the helm at Casey & Casey. While I appreciate the compliments and the sentiments behind them, sometimes I feel like people think this is nothing more than a gamble. It is very early, and time will only tell how my business will grow and evolve, but my decision to take the lead at Casey & Casey, P.S. and to launch Reck Law, PLLC was no gamble. It was a calculated and deliberate decision I made because I was ready to take the next step in my career, because I believe in my representation of injured workers, and because this is exactly what I want to do.

 

Tonight, as I reflect on what has been a very full day, I am grateful for everything I was able to accomplish. I started my morning by having a great strategic conversation with an incredible client. I met an injured worker who is not my client, but who is finishing up a retraining plan under his claim and about to start a new career as a paralegal after sustaining a career ending industrial injury. I participated in a vocational meeting that provided my client with hope for a fulfilling future after years of struggling following a catastrophic injury. I participated in several conferences, and finally made some forward movement in a case that has been standing still. I participated in a conference with an injured worker, her attending physician and the medical director to try and develop a treatment plan for a complex condition. Finally, I took testimony from an attending physician as part of an ongoing Board hearing. In other words, I enjoyed an incredibly busy day doing the work I am passionate about doing.

 

As the first month of 2019 comes to an end, I want to thank my wonderful clients and everyone who has encouraged and supported me at Casey & Casey, P.S. | Reck Law, PLLC. You are the best family, friends, staff, colleagues, and clients I could ask for. There is a lot of work to do and I’m ready to do it.

Finding an attending physician for your L&I workers’ compensation claim

Injured workers are required to designate an attending provider or attending physician (AP) on their L&I claim or workers’ compensation claim. In very simple terms the AP is the medical provider that manages treatment, reports progress to L&I, and assesses the injured workers’ medical ability to return to work in regular intervals as the claim progresses. It is the injured worker who gets to choose their AP, but the AP must be within L&I’s medical provider network (MPN) and the chosen provider must be willing to see the injured worker.

 

I’m often asked by injured workers what kind of AP they should select. People are often concerned with finding a provider that will be “good” for their case and often believe that in order for the provider to be “good” they must be a MD. While the opinions of medical doctors can sometimes carry greater weight than other types of providers, I don’t always agree that an MD is the best AP. I usually tell injured workers to select an AP they are comfortable with. It is important for injured workers to have good communication with their providers, to feel comfortable with the medical advice they are given and with asking questions. It is also important for injured workers to have attentive AP’s that pay attention to the facts and details of the claim, provide appropriate and well-reasoned treatment recommendations and referrals, and who are willing to respond to inquiries from the Department.

 

There are many kinds of medical providers that can be APs including, but not limited to, medical doctors (MD), osteopathic doctors (DO), chiropractors (DC/DCM), naturopaths (ND), physicians’ assistants (PA-C), and advanced registered nurse practitioners (ARNP). Many injured workers are surprised to learn that their “family doctor” or “primary care physician” may be within the medical provider network and able to take on the role of AP. Therefore, it is best to take your time and do your research when selecting an attending physician. Injured workers can change the AP designation by filling out a Transfer of Care card, and can search for MPN providers through the Department’s Find a Doc website.

L&I and workers compensation claims for loss of hearing injuries

I’ve been working on a hearing loss claim and thought it would be a good idea to share some basic information about occupational hearing loss L&I claims in Washington State. Hearing loss claims are governed by RCW 51.28.055. Unless hearing loss occurs as a direct result of a sudden, traumatic event (which would be more appropriately classified as an industrial injury), occupational hearing loss claims are typically allowed as occupational disease claims. This kind of hearing loss is usually called sensorineural hearing loss.

 

However, these claims have some particular rules related to the timing of filing a claim that can significantly impact the long term value of the claim. In short, claims for occupational disease hearing loss must be filed within two years of being informed in writing by a physician or ARNP that an occupational disease claim exists and that a claim may be filed. As a practical matter, it is very rare for a physician or ANRP to put this kind of information in writing without taking the additional step of filing a claim. Therefore, it is very rare to see claims be denied solely because an application was not filed within an appropriate timeframe.

 

It is very important to know that just because an occupational hearing loss claim is allowable does not necessarily mean it is compensable. For an individual for a hearing loss claim to receive compensation under the claim (most frequently a Permanent Partial Disability or PPD award) the claim must be filed within two years of when the worker was last exposed to occupational noise in employment. In order words, if an individual stops working in an environment with occupational noise exposure in 2010 and does not file a claim until 2020, the claim may be allowed for medical aid benefits (typically hearing aids and lifetime repairs or replacements) but not other monetary benefits such as a PPD.

 

In summary, if you are a worker and you believe that your work has contributed to your hearing loss it is best not to delay in seeking out a medical examination to assess your hearing loss and to file a claim for occupational disease hearing loss to ensure that you will be afforded both medical and compensation benefits under the Industrial Insurance Act.

Work injury among farm workers resulted in over 1400 L&I claims in 2018

According to data collected by the Department of Labor and Industries for state funded claims, professions with high occurrences of work injuries and occupational diseases include: Auto mechanics, carpenters, combined food preparation workers, construction craft laborers, restaurant cooks, dental assistants, electricians, farm workers and laborers, and linemen.

 

Having represented injured workers for so long, I was not surprised by this data. However, what did surprise me is that the single highest instance of work injury or disease was for farm workers and involved floors, walkways, and ground surfaces with over 1400 claims filed in 2018 and total incurred claim costs of over eight million dollars. The reason this surprised me is because it does not seem like farm workers make up a large percentage of the workers I represent considering how common injuries are in that field. As a result, I decided to look a little deeper at farm worker injuries and safety.

 

According to the CDC, agriculture ranks among the most hazardous industries, with a very high risk of both fatal and non-fatal injuries. Tractor overturns were the leading cause of farm worker deaths in 2016. Nationally over 243 farm workers suffer a serious lost-work-time injury at work every day and according to OSHA injury hazards also include heat exposures, falls, musculoskeletal injuries, hazardous equipment, grain bins, unsanitary conditions, pesticides and many others outlined in a detailed agricultural operations table.

 

Locally, the Washington Growers League was awarded a little over $98,000 grant to produce a safety video in multiple languages addressing farm work safety in areas such as hazardous chemical communication, safe lifting, field sanitation, food safety sanitation standards, and heat related illnesses. In fact the Washington Growers League website appears to be full of farm worker safety information, but you have to be a member to access most of the information.

 

That being said, the website does offer a link to order one free copy of the Job Safety Basis for Agricultural Workers DVD and a 2016 YouTube safety video. With such a high prevalence of work related injuries, it is reassuring to see that efforts are being made to increase safety for farm workers.

Fighting with a non-cooperative witness in my L&I case deposition

As part of a deposition for an L&I claim today, I engaged in a pretty harsh word fight with an expert witness. Admittedly, I was unhappy with the opinions given by the witness because I believe those opinions to be willfully ignorant of some important established facts in the case. In truth, this is not an unfamiliar circumstance. There are many times I find myself cross examining a witness with whom I don’t agree. After all, if we didn’t have disagreement, there would be no dispute in the first place. Usually I accept the fact that we have a difference of opinion; I ask the questions that I believe help illustrate the flaws in the opinion and I move on.

 

Today, for some reason I couldn’t keep my mouth shut and after the deposition I continued to press the witness regarding the basis of the opinions given. The conversation got heated and it is probably safe to say there is no love lost between the witness and me. Because of my personality, a part of me feels uncomfortable and embarrassed that I had such a heated exchange with the witness because I believe have a duty to maintain a certain level of professionalism and these kinds of heated exchanges fall below what I feel is professional. Another part of me is proud of myself.

 

One of the problems I see in workers’ compensation is that so many of us representing injured workers are busy fending off the latest unfavorable determination made in a claim, that we don’t spend as much time as we should advocating for positive changes within the system. The issue I was sparring with this witness on involved a Permanent Partial Disability (PPD) rating for the low back in which individuals are assessed with a Category rating based upon a specific administrative code (WAC). However, the Department of Labor and Industries (L&I) has developed a worksheet that is provided to doctors for them to use to arrive at a rating under that WAC. Some people argue that the worksheet yields more favorable ratings, and some argue it yields less favorable rations, but most experienced attorneys agree that it is inconsistent with the WAC. In my exchange, I was trying to get the witness to really think about the words in the WAC and provide me with a rational explanation for the opinion given considering the objective medical evidence and the established facts of the case. It was clear from our exchange that the witness was struggling with reconciling an opinion based on the worksheet with an opinion wasted on the language of the WAC.

 

Having had the reminder of the day to give this issue careful consideration, I’ve reached the conclusion that instead of engaging in a heated conversation with a singular witness, my energy would be better spent trying to effectuate change with respect to the use of this misleading PPD rating worksheet.

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