Page 28 of 68

L&I Claim and Independent Medical Exam (IME) Providers from Out of State

Recently, I’ve been very busy wrapping up litigation in several cases. The litigation was before the Board of Industrial Insurance Appeals (known as BIIA or Board in short). The appeals in question were filed by work injury clients, which I represent. In general, an L&I claim appeal is filed after we receive an L&I claim decision that we disagree with.

L&I claim appeal: Testimony and cross examination

During litigation, I present evidence supporting the appeals on behalf of my clients. The evidence is primarily testimony from medical and vocational expert witnesses. Generally speaking, we present expert testimony by deposition. Therefore, it can take months before all the testimony is complete. In this case, it took us over 3 months.

The Department of Labor and Industries (L&I) and self-insured employers have their own expert witnesses. As these workers’ compensation claim appeal cases were winding down, I’ve been busy with cross examination. Cross-exam is my chance to ask them questions. Interestingly, most of the medical witnesses in recent cases were L&I claim IME providers.

L&I claim IME doctors from outside Washington State

Let’s focus on the 3 most recent depositions of L&I claim IME providers. Surprisingly, I found out that all 3 are not from Washington State. In fact, none of them ever treated patients in Washington State. The only reason they have a license to practice medicine here is to do IME exams for a workers’ compensation claim.

They testified that they fly here for a week, once every four or five weeks. When they come, they spend four to six days performing IME examinations for work injury claims. These providers do anywhere from 2 to 10 IME exams each day. On average, they run 6 examinations per day. Furthermore, L&I and self-insured employers usually ask for their opinion and testimony to support their position. They rarely (if ever) testify to support work injury victims.

L&I workgroup to evaluate IME procedures

In March 2020, new legislation prompted L&I to create a workgroup and evaluate the IME process. For one, the workgroup was supposed to figure out how to retain more in-state physicians for IME exams. On top, they tried to develop strategies to reduce the number of IME tests in L&I claims. Moreover, they were going to consider the work injury claimant’s rights as they relate to an IME. The workgroup mandate expired December 31, 2020.

Frankly, I don’t know the results of the workgroup efforts. However, I’m glad the legislature acknowledged the need to address these issues. Like me, every workers’ compensation attorney knows that IME exams are necessary in a workman’s comp claim. Yet, as an L&I attorney representing people after a work injury, I often question the “independent” nature of the exam. In fact, some practitioners refuse to call them “independent”.

My personal take

I find it hard to accept that IME exams are independent. I mean, we rarely see IME tests that are favorable to work injury claimants. Also, the costs of these medical examinations are disconcerting. For example, I recently reviewed an IME bill for more than $2000 for one time evaluation and record review. No wonder doctors from other states get their license in Washington State and fly out to do these exams.

I hope the L&I workgroup made some good progress regarding IME procedures. I’m also hopeful that we’ll see improvements for more fairness towards work injury claim clients. Personally, I’d like to see L&I reduce the excessive costs associated with these kinds of examinations. Finally, I wish L&I succeeds in recruiting more Washington State doctors and other providers to help with L&I claim matters.

l-and-i claim objective medical findings

Workers’ Compensation Claim: The Importance of Objective Medical Findings

/ L&I attorney / 1 Comment

Objective medical findings are very important in every L&I claim and workers’ compensation claim. The Department of Labor and Industries (L&I) distinguishes between objective and subjective findings. For example, when a work injury claimant describes their symptoms, that falls under subjective findings. However, medical exam results where a treatment provider can see, feel, or measure, are objective.

L&I claim time-loss certification

L&I requires objective findings before they can provide certain benefits. This fact applies to both work injury and industrial disease. One example is time loss compensation benefits. You must certify time-loss before L&I can remit payments. To certify time-loss, a treating provider must complete an activity prescription form (APF). Then, the provider should attach chart notes to document their findings. In fact, the APF contains a mandatory section asking providers to list “measurable objective findings”. Here, examples include things like positive x-rays, swelling, muscle atrophy, and range of motion.

Objective medical findings in an L&I claim

I frequently investigate L&I claims for work injury victims that are not getting time loss payments. Very often, I discover it’s because they didn’t identify objective medical findings. Sometimes, it’s an oversight that anyone can correct easily. Other times, it’s because there are no objective findings.

In reality, some provides have their own definition for “objective”. In more troubling cases, L&I denies x-Ray or MRI exams that would objectify the worker’s complaints. Either way, I think it’s extremely important to identify objective medical findings and communicate them to L&I clearly. In fact, I routinely help my clients ensure that providers submit objective findings to L&I.

Reliance on objective findings

Personally, I find that many work injury claimants struggle to understand the concept of objective medical findings. Many believe that since they are in pain, then it’s enough for them to describe the pain. Unfortunately, pain is a subjective complaint. Therefore, it’s absolutely critical for treatment providers to identify underlying objective medical findings that explain the source of the pain. Furthermore, under the law, if there are objective findings, then medical providers may also consider subjective complaints when deciding things like whether a person can go back to work.

L&I Workers’ Compensation Claim: Reality vs Expectations for Work Injury Victims

/ L&I attorney / 0 Comments

One challenging aspect of my job is to help work injury claimants set realistic expectations regarding their L&I claim. Very often, people have unrealistic presumptions after a work injury, for several reasons. One key reason is misinformation concerning how a workers’ compensation claim works. L&I claim reality can be very different than the worker’s expectations.

Misinformation and common mistakes

For me, it’s not easy to be the person delivering the reality check. However, it’s a critical part of my work. Moreover, it’s very important for anyone with a work injury claim to understand the true status of their L&I claim.

For example, many individuals think there’s a quick resolution to their workers’ compensation claim. Furthermore, almost everyone believes there will be a big payday. And, in the process, people tend to ignore the costs associated with the burden of proof. In fact, these are the most common unrealistic assumptions I encounter almost daily.

Quick resolution in L&I claim and self-insured employer claim

Very often, workers’ compensation claim disputes don’t have a quick resolution. That’s because there’s a process and procedure for everything. Every workers’ compensation attorney like me pursues legal remedies to their full extent to resolve disputes. However, these legal remedies involve assembling evidence.

Gathering evidence requires input from experts (such as medical doctors), filing protests, and filing appeals to the Board of Industrial Insurance Appeals (i.e., the Board). Moreover, it entails presenting evidence on appeal, and appealing to higher courts like Superior Court. Each of these legal remedies takes time. Furthermore, in most cases, we don’t have much control over the timeline. On top, if a dispute involves previously denied benefits, or terminated benefits, then it can be particularly frustrating.

L&I claim payments: A big payday is coming

Many work injury claimants believe their claim will result in a big settlement. While this indeed happens in some cases, I frequently find that people have inflated expectations. Frequently, false expectations arise after clients find incorrect information online. Other times, people hear stories about someone who cashed in big on their workers’ compensation claim.

In reality, workers’ compensation claim benefits in Washington State are set by the statute. Therefore, it’s relatively straightforward to estimate the value of an L&I claim on the basis of available benefits. As with everything, there may be exceptions relating to medical treatment and L&I calculations.

Unfortunately, the value of benefits is often surprising to people with a work injury claim. I always use the Permanent Partial Disability (PPD) award table as a very concrete example. For reference, an injury occurring in 2020, with total 100% bodily impairment, is only worth $214,222.98. This should tell you something about the relative value of benefits under an L&I claim or self-insured employer workers’ compensation claim.

L&I claim, burden of proof and costs

When the Department of Labor and Industries (L&I) makes a decision you disagree with, you may appeal the decision to the Board. However, the work injury claimant has the burden of proving that the decision is wrong. Here, for each type of benefit, there’s a specific burden of proof. With few exceptions, that burden requires presenting expert medical and vocational testimony.

Expert testimony is expensive. It can cost several thousand dollars for this kind of testimony. Moreover, the cost is the responsibility of the work injury claimant. Personally, with Board appeals, it can be tough for me to tell clients that we cannot simply submit records and reports to meet the burden of proof. Furthermore, the expert opinions must be stated on a more probable than not basis. It’s for this reason that every Board appeal almost always involves a discussion around costs versus potential benefits.

These are not easy conversations to have. They can be very upsetting to people after a work accident. Nonetheless, successful Board appeals are one of the most powerful tools that every L&I attorney has. Board appeals help ensure that each work injury victim receives the benefits he or she deserves under the law.

Personal experiences

Many years ago, as a young attorney, I found it incredibly difficult to discuss expectations with my clients. I didn’t want to upset or disappointed them. Over time, the years of experience taught me that having realistic expectations is the best way to avoid disappointment.

Presently, I’m now a lot more comfortable having straight forward conversations with my clients, to set realistic expectations. I think it’s critically important for work injury claimants and their workers’ compensation attorney to be on the same page. I wholeheartedly believe that all parties must align on claim outcome expectations and what it takes to achieve them.

Workers Compensation - Washington