Workers Compensation - Washington

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

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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.

Work injuries in the hospitality industry

Background

Nearly one million people are employed as maids and housekeepers at hotels, motor hotels, resort hotels and motels, according to the National Institute for Occupational Safety and Health (NIOSH) and the Bureau of Labor Statistics (BLS). Approximately 89% of housekeepers are female and self-identify with an ethnic minority group. About 44% are Hispanic or Latina and 22% are another minority.

 

As part of their daily work routines, these individuals make beds, restock linens, dust, vacuum and perform a multitude of other cleaning activities in guest rooms and throughout the facility. Very high proportions (77-91%) of housekeepers self-report experiencing pain in areas including the low back, upper back, and shoulders, which they attribute to work activities. In fact, in 2010, housekeepers had the highest reporting rate of all workers for overall injuries resulting in significant annual claims costs.

 

Medical conditions

According to the National Occupational Research Agenda (NORA) workplace hazards for maids and housekeepers may include: musculoskeletal disorders from bending, pushing carts and making beds; traumatic injuries from slips, trips and falls; respiratory illnesses from cleaning products that contain substances such as irritants and bleaches; skin reactions from detergents and latex; and infectious diseases from agents such as biological wasted and bloodborne pathogens found on broken glass and uncapped needles.

 

On its Hotel-Motel Industry Safety & Health – Custodial Housekeeping and Janitorial Cleaning page, the Washington State Department of Labor and Industries (L&I) recognizes similar hazard exposures including: awkward postures and lifting, chemicals, slops and trips, and sprains and strains. L&I also has several informational videos regarding the known dangers and hazards in the housekeeping industry. This includes a training video that addresses a number of topics such as safety and cleaning procedures, back injury prevention and chemical safety.

 

Summary

Workers in this injury laden industry are often minorities (as noted above) and are often paid minimum wages. It is also a difficult job to modify to light duty and many of the workers in this profession don’t possess education or skills for other less strenuous work. Therefore, when disabling injuries occur, these workers often face devastating circumstances due to their inability to work. Likely due to the industry wide costs associated with administering these claims, workers in this industry (especially those working for larger chains) also tend to face aggressive claim management from third party administrators. As a result, it is not uncommon for workers in this industry to seek legal guidance and representation, even when they realistically cannot afford the associated attorneys’ fees.

Board of Industrial Insurance Appeal – Process and Procedure

I am often asked about the Board of Industrial Insurance Appeals (Board or BIIA) and its role in workers’ compensation claims and cases. The Board of Industrial Insurance appeals is a Washington State agency… Continue to the full article.

End of year thoughts and 2019

The year 2018 has been a year of tremendous growth and professional opportunity for me. I am grateful for my new beginnings at Casey & Casey, PS | Reck Law, PLLC. While there has been no shortage of bumps and unexpected turns along the way, I am fortunate that Mr. Casey decided to take a chance on me by agreeing to let me take over his practice.

 

I am grateful to have a competent and dedicated staff that has stuck with me and is embracing many of the changes I’ve been implementing. Most of all I am so lucky to have wonderful clients who have placed their trust in me, congratulated me on my new venture, and who give me the ability to continue doing the work I love. Here’s to a wonderful 2019! Happy New Year!

The First Wealth is Health for Injured Workers

Tonight on my way home from work I passed by a local chiropractic office and noticed their signboard reads:

“The First Wealth is Health”

While the sign didn’t acknowledge the author, if I’m not mistaken it was written by Ralph Waldo Emerson and is a phrase that has been widely discussed and debated since it was first penned.

 

Based upon my day to day experiences as an attorney representing injured workers in their workers’ compensation claims, I’m struck by how accurate the statement really is. I believe that our health is something we often take for granted, forgetting just how precious of a resource it is. Every single day I’m reminded of the profound loss people experience when their health fails them.

 

It isn’t uncommon within workers’ compensation for injured workers to be put in the position of accepting a monetary figure designed to compensate them for the loss of their health. More frequently than not, they are disappointed and frustrated with the monetary benefits they receive. I believe that’s because it’s nearly impossible to put a realistic monetary value on heath, because our health really is our first wealth.

Port Orchard Chamber of Commerce gathering

Yesterday I had the pleasure of attending my first Port Orchard Chamber of Commerce meeting. It was such a treat! We had an absolutely delicious home-made lunch by local community contributors. On top, I had the good fortune of meeting a number of other local business owners and learning about their businesses and upcoming events. At the luncheon, we engaged in fun (and festive) games and icebreakers, and everyone was so welcoming and interested in learning about my business.

I grew up in a small town. I almost forgot how good it feels to again be in a small town, surrounded by close, warm and welcoming people. Port Orchard is an amazing community. I strongly recommend everyone to come and have a taste of this community, even for a short visit. I am looking forward to future Chamber of Commerce luncheons and events and to supporting my fellow Port Orchard business owners.

L&I threatening to close injured workers’ claims

If you follow my updates on Workers’ Compensation issues in Washington State, you know that over the past two months I’ve written several posts outlining some of the difficulties injured workers face when trying to obtain new attending physicians within the Medical Provider Network (MPN). To recap, I find it incredibly problematic that injured workers, especially those with older or more complex claims, have extreme difficulty finding MPN providers willing to become attending physicians.

 

This week my feelings regarding this issue have progressed from frustration to outrage. The reason for my outrage has to do with RCW 51.32.110 and WAC 296-14-410. Under these laws, injured workers who are deemed to be non-cooperative may have their claims suspended and benefits stopped. Non-cooperation is when an injured worker and/or their representative obstructs or delays the progress of the claim. RCW 51.32.110(2) specifically identifies behavior that is considered non-cooperative: (a) refusing to submit or obstructing medical examination, (b) persisting in unsanitary or injurious practices which tend to imperil or retard recovery, or (c) refusing to submit to medical or surgical treatment reasonably essential recovery or refusing or obstructing evaluation or examination for the purpose of vocational rehabilitation or not cooperating in reasonable vocational rehabilitation efforts.

 

Nowhere in the statue does it indicate an injured worker should be considered non-cooperative, have their claim suspended, and their benefits stopped because they cannot find a willing attending physician. Yet, in two separate cases involving injured workers I represent, this week the Department of Labor and Industries (L&I) has sent letters threatening to find the injured workers non-cooperative because they cannot find willing attending physicians.

 

This kind of punitive behavior on behalf of L&I is a travesty and an injustice to injured workers. The Department of Labor and Industries should be ashamed this kind of claims management practice exists. I will certainly be addressing the inappropriateness of this practice under the Industrial Insurance Act.

Poor service from USPS results in major issues for Workers’​ Compensation clients

In workers’ compensation when injured workers hire an attorney, all claim related correspondence comes through the law office. This includes checks for time-loss compensation benefits, regardless of whether any fees are deducted from those checks. Until recently our office received all correspondence at our physical address in Port Orchard. The result was inconsistent delivery times. Some days mail would arrive by 10 am and others not until after 4 pm. More often than not, it was the later. Late mail delivery impacts our productivity because it gives us less time to review and respond to incoming correspondence. It also forces clients to wait, sometimes for hours, for mail containing their checks to arrive.

 

Our solution was to rent a post office box where our mail would be deposited by 11 am. With reliability and consistency of mail delivery, we would increase our productivity and provide better service to clients. We thought. After a tedious process of getting Department of Labor and Industries (L&I) to acknowledge our address change, our hopes of reliable mail service were dashed. We opened an empty post office box that we expected to be full. After waiting in long holiday lines at the post office, we learned that the post office couldn’t locate the PO Box they assigned us. They returned our mail as undeliverable back to L&I. They assured us the situation would be rectified. But it was not.

 

We had to go back to the post office to speak with the post master general. We were getting call after call from L&I informing us that our mail was being returned as undeliverable. Imagine my frustration and disbelief when the postmaster himself could not find the PO Box they had assigned us. Because it was mislabeled on the inside.

 

I feel terrible for my clients that are awaiting checks in this holiday season. I wish my attempts to provide them with better services hadn’t turned out so poorly. More than anything, I hope for a very full PO Box this week.

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