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Kept-on-Salary: Employers Misuse the Program After a Work Injury in Washington State

The Department of Labor and Industries (L&I) has many initiatives and incentives. For employers, L&I designs incentive programs to help mitigate premium increases due to L&I claim costs. One program encourages employers to keep workers on salary after a work injury or workplace disease while they recover. Generally, when employees are unable to work after a workplace injury, we refer to them as “temporarily and totally disabled”. During that time, they are eligible for time-loss compensation benefits.

What is kept-on-salary in your L&I claim?

L&I pays time-loss compensation at a base rate of 60% of the work injury claimant’s wages at the time of injury. However, for self-insured employers, the employer insurance company makes these payments. Then, in some cases, the employer insurance premiums under L&I or their insurance provider might increase. L&I gives employers the option to keep employees on salary. Therefore, employers can continue to pay the employee after a work accident. Consequently, during that period the employer doesn’t pay time-loss, and their premiums don’t increase.

Keeping a person on salary after a work accident or work injury means that the employer continues to pay salary and benefits as before. Here, employers must make consistent payments on certain pay-dates and pay periods without interruption. There are several payments that don’t fall under kept-on-salary. For example, holiday pay, vacation pay, sick leave or bereavement pay do not count. Also, shared leave, severance pay, and paid time off do not constitute kept-on-salary. If an employer decides to reduce or stop benefits, they must report to L&I immediately. In fact, the employer must tells L&I that it’ll keep a work injury claimant on salary. When they do, L&I sends the employer a letter explaining all the relevant rules.

The kept-on-salary program in reality

Many people with a workers’ compensation claim that call my office tell me about their experience. Unfortunately, I frequently see employers misusing the kept-on-salary program. Whether the misuse is intentional or accidental, it often has serious negative consequences for people after a work injury. In detail, I mainly encounter four common kept-on-salary problems. The first issue is when employers tell the work injury victim that they must first use sick time and paid time off or vacation. Often, this happens early in the L&I claim process before workers even think to speak with a workers’ compensation attorney about their workers’ comp claim. The second misuse is when the employer reduces the work injury claimant’s payments to minimum wage. In some cases, they discontinue paying for certain benefits like healthcare. Sometimes, it’s because the person injured at work is not accruing work hours.

Next, the third common problem is when the employer changes their mind and stops payments. When this happens, I see employers make one payment on schedule and then fail to make next payments. Many times, they don’t give the work injury victim any notice in advance. Also, employers often don’t report this to L&I. Eventually, after getting nowhere with the employer, the work injury claimant may ask L&I to pay time-loss. However, there may be additional delays while L&I verifies that the employer is not keeping the worker on salary. This can result in significant delays in payment. On occasion, this cycle happens repeatedly throughout the workers’ compensation claim administration process. Finally, the fourth common misuse is failing to make payments on certain pay periods. When this happens, the person that suffered the injury at work is unable to predict when they’ll get payments. It’s incredibly stressful.

Personal opinion and notes

I don’t take issue with L&I creating incentive programs for employers. On the contrary. These incentive programs make a lot of sense and we need more of them. However, I certainly have a big problem when these programs are detriment to people with a work injury claim. Many individuals that suffer an injury at work have so much to worry about. For example, their recovery, financials, caring for their family, among many other concerns. They should not have to wonder whether they will receive their next payment while they can’t work.

If you have a workers’ compensation claim and you encounter challenges while you’re kept on salary, you should notify your L&I claim manager right away. You can also pick up the phone and consult with an L&I attorney. Be safe and be well. I wish all work injury claimants a speedy recovery and quick return to work.

Vocational Retraining in L&I Claim: The Difference Between Option 1 & Option 2

/ L&I attorney / 0 Comments

People with work injury in Washington State may be eligible for retraining under their L&I claim or workers’ compensation claim. The Department of Labor and Industries (L&I) provides more benefits than just medical coverage. In fact, the Industrial Insurance Act lists a variety of benefits including medical, wage replacement, vocational services, retraining, disability awards, and even disability pensions. At some point in the claim, you might have to choose L&I claim option 2 vs option 1. The purpose of this article is to explain your options and what they mean.

Vocation retraining eligibility under L&I claim

Not all work injury claimants are eligible to receive all the benefits under the Industrial Insurance Act. Realistically, benefit entitlement depends on the specific facts. They also depend on the circumstances of each L&I claim. Vocational retraining is possible when a person can never go back to work at their job of injury, or any other job for which they have relevant skills. Usually, deciding whether a person can work is based on objective medical evidence. Generally, the medical evidence includes things that medical providers can see, feel, or measure. However, in cases involving non-objective medical conditions such as mental health, those cases don’t require objective evidence.

Vocational retraining plan in L&I claims

When a person cannot return to their job, or doesn’t have the skill to perform other work, they may be eligible for vocational retraining. L&I assigns vocational counselors to determine if retraining is appropriate. If it is, the vocational counselor prepares and submits a retraining plan for approval. There must be a concrete job goal for the plan. Moreover, the job must be available in the work injury claimant’s labor market. Finally, the retraining can take as long as two years. As of July 1, 2021, the maximum allowed cost for retraining under a workers’ compensation claim increased to $19,414.34.

Option 1 vs option 2 in vocational retraining

Once L&I approves your retraining, you can choose between Option 1 and Option 2. Choosing an option is a very serious decision. With Option 1, it means you agree to fully participate in the retraining that L&I approved. This includes registering for and attending classes as well as maintaining satisfactory grades. Here, you will have to complete all class requirements and maintain contact with the vocational counselor.

In contrast, Option 2 is essentially opting out of retraining. When you choose option 2 you get a “vocational award” equivalent to 9 months of time loss compensation. After that, L&I pays the benefit payments in installments, the claim is closed, and you receive permanent partial disability (PPD) award as appropriate. You may also access retraining funds to use at any accredited facility you choose. However, you can only use the money for classes, education, or retraining.

L&I claim option 2: Conclusion and final notes

The decision to go with Option 2 and opt out of retraining has serious implications. In my opinion, people with a workers’ compensation claim should not select Option 2 after a work injury because they feel they have no choices. There’s always some other choice. If you feel that Option 2 is your only choice, then you should consult with a workers’ compensation attorney before you make a decision.

Construction work injury workers comp claim

Trench Construction Work Injury

/ L&I attorney / 2 Comments

Construction workers face many potential dangers in their work environment. For example, heavy lifting, awkward postures, and repetitive work activities. These are just a few examples of construction work injury. Additional examples include reaching heights, working in small spaces, hazardous materials, power tools, machinery, and weather conditions. Moreover, flying debris, slips and trips and falls are just a few conditions that contribute to construction work hazards.

Trench construction workplace accident

All these activities can cause serious work injury for construction workers. However, statistics show that trench construction accidents are particularly dangerous. In fact, the Department of Labor and Industries (L&I) in Washington State and the Occupational Health and Safety Administration (OSHA) conducted research studies on this subject. Sadly, they show that two construction workers die every month in trench collapses work accidents.

Trenches are very dangerous because a single cubic yard of soil can weigh as much as a car. Therefore, L&I refers to unprotected trenches as an “early grave”. Consequently, there are many state and national safety initiatives, rules, and regulations, which intend to improve trench construction safety. In turn, the goal is to reduce workplace accidents and workplace injury occurrences associated with trenches.

Excavation work injury in the construction industry

Excavation refers to any person-made cut, cavity, trench, or depression in the earth surface. Here, there are numerous jobsite and environmental factors that impact trench safety. Some of these factors include the trench depth, soil composition, water, vibration, and weight. Other considerations are machinery, falling objects, electrical wires in or around the trench, and falls.

Trenching and preventing work accidents and injuries

L&I developed several safety requirements to reduce the frequency of trench digging work injury. First, whenever a trench is four or more feet deep, the construction crew must protect it by sloping, benching, shoring, and shielding. Sloping and benching refers to removing soil to eliminate the chance of caving in. Shoring is when construction workers use supports to brace the walls of the trench. Shielding, such as a trench box, protects workers inside the trench. As OSHA says: Slope it. Shore it. Shield It.

Furthermore, in addition to trench protection, L&I requires a designated “competent person” on the jobsite to oversee trench creation. This person should possess the knowledge and skills to evaluate changing jobsite conditions periodically. Also, this person must take action to prevent trench collapse work accidents. For example, workers might use heavy equipment to dig the trench. Then, as they remove earth material from the soil, a spoils pile begins to grow. Thereafter, if the spoils pile and equipment are too close to the vertical walls of the trench, they create a surcharge load that increases the likelihood of trench wall collapse. Finally, vibrating equipment, adverse weather conditions, ground water, and soil-type can also increase the likelihood of a collapse.

Additional trench construction work safety considerations

Trench workers must also be able to easily enter and exit the trench. Usually, construction workers accomplish this using ladders that extend at least three feet above a landing. Also, other options are stairways or ramps. However, they must be designed by a registered professional engineer. Bottom line – L&I requires suitable way in or out of the trench every 25 feet.

Finally, workers should avoid trenches that have standing or accumulating water. On top, workers should never work under a load while in a trench. Remember, June is trench safety month across the country. For more resources on trench safety, hazards, and solutions, visit the OSHA website on Trenching and Excavation.

Workers Compensation - Washington