Workers Compensation - Washington

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

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Workers Compensation Claim for Corona COVID-19 Virus: Wearing Masks and Personal Protective Equipment at Work

With the COVID-19 pandemic, there are many discussions and questions around how to stay safe at work. Clearly, we all want to prevent work injury, work illnesses and occupational diseases. Some debates are about the pros and cons of wearing a mask and other Personal Protective Equipment (PPE) at work. Many people want to understand the requirements concerning the use of a mask at work.  There are several opinions on this subject, so I decided to do some research to better. My goal is to understand the use of face masks in the workplace environment.  Luckily, there are helpful resources available.


OSHA guidelines – Masks vs respirators

The Occupational Safety Health Administration (OSHA) published guidelines and obligations regarding respirator and face coverings at work.  OSHA’s standard is contained in 29 C.F.R. 1910.134.  Unfortunately, this Federal Regulation is long, detailed, and not terribly easy to follow.  Furthermore, it was originally enacted in 2006 and was last updated in 2011.  It contains information about types of face masks, respirators, and the requirements for their use.  However, when they wrote the standard, they didn’t specifically address the complications of a pandemic involving a novel respiratory virus.


Many discussions throughout the COVID19 pandemic focus on N95 masks in particular.  OSHA also classifies these masks as respirators, not masks. Moreover, OSHA considers devices more substantial than a N95 mask such as half-face or full-face pieces with filters, as respirators.  Under OSHA regulations, the use of any of these kinds of respirators in the work environment triggers some requirements.  However, more simple masks such as paper or cloth masks (including dental or non-N95 surgical masks) are not respirators. Therefore, these simple masks don’t trigger any requirements under the standard 1910.134.


Identifying workplace exposure to COVID-19 virus

Every workplace uses protective masks differently. The main common factors are the type of work environment and potential exposure to the COVID-19 virus. With that in mind, OSHA classifies workplaces into four categories: Lower, medium, high, and very high exposure risk. Lower exposure risk jobs are those that don’t require contact with people that might have the COVID 19 virus. This category also includes jobs that don’t require frequent and close contact with the public. In contrast, medium exposure risk jobs require frequent or close contact with people. These people may be infected but they are not COVID19 patients.  Examples of medium risk exposure jobs include schools, high population density work environments, and some high-volume retail settings.


High exposure risk jobs are those with high likelihood of exposure to sources of COVID-19.  Examples for jobs in this risk-category include healthcare delivery and support staff, medical transport, and mortuary work.  Finally, very high exposure risk jobs are those with a high potential for exposure to known or suspected COVID19 sources. These require specific medical, postmortem, and laboratory procedures.  Examples of very high-risk exposure include healthcare workers treating COVID 19 patients. Other examples are healthcare or lab personnel that collect or handle specimens for treating potential and actual COVID-19 patients. And last, morgue workers performing autopsies on individuals that had (or might have had) COVID-19 at their time of death.


How to use personal protective equipment (PPE) to prevent work injury or occupational disease

I reviewed the OSHA guidance on preparing workplaces for COVID-19. According to that publication, additional personal protective equipment (PPE) is not recommended by OSHA for workers in lower exposure risk jobs.  PPE may include things such as gloves, goggles, face shields, face masks, and respiratory protection when appropriate.  If a worker would typically wear PPE for their job, they should continue using the PPE in this time. Here, OSHA does not recommend using other PPE gear.


For medium exposure risk jobs, OSHA recommends using PPE ensembles such as masks, gloves, gowns, or face shields. Similarly, workers in high or very high exposure risk jobs will need to wear PPE.  For these jobs, OSHA suggests wearing gloves, gowns, and face shields or goggles. Depending on the job, the tasks and the exposure, the worker should wear a face mask or a respirator.  However, any employers requiring PPE must provide the equipment to their employees. Furthermore, employees and employer must also follow all relevant state and federal requirements as they pertain to the equipment. Finally, employers must also provide training for appropriate use and disposal of PPE.


Personal thoughts and final remarks

As time evolves, I suspect we will develop a better understanding of this virus.  From there, we will be able to determine the effectiveness of face masks and respirators in reducing transmission of COVID-19.  However, as we all begin to embark on the process of “reopening”, we need to be mindful of our surroundings.  It’s always a good idea for workers to identify their risk exposure classification. That way, they can identify the protective equipment they might need to wear at work to prevent work illnesses and diseases. Employers must also begin the difficult task of how to safely reopen workplaces.  To that end, the OSHA Guidance on Preparing Workplaces for COVID 19  has a lot of great information for employers.

L&I Claim Settlement and Workers’ Compensation Claim Settlement

One of the most common questions I get from people with an L&I claim or a workers’ compensation claim is: “How do I settle my claim?”. To answer their question, I usually have to explain how L&I claims work in Washington State.  That way, I may have a better understanding of what the person really means by “settlement”.  In most cases, the work injury claimant is just looking for a fast track end their L&I claim. In other words, they are just hoping for a monetary payout in exchange to the claim. Unfortunately, it doesn’t always work this way.


Workers’ compensation claim settlement – How do I settle my L&I claim?

There are two types of work injury claims in Washington State. First, there are L&I claims – the Department of Labor and Industries (L&I) administers these claims. Second, we have self-insured employer claims, where a Third-Party Administrator or TPA handles the claim. Monetary payouts are not available for your L&I claim but it might be an option for a self-insured claim. If you want to receive a monetary payment for your self-insured employer claim, you must understand the consequences.


In practice, if you agree to a monetary payout, it means that you are giving up your work injury claim in exchange for some money. By giving up, I mean that you are agreeing to allow the insurance company to reject your workers’ compensation claim or close your claim. This is a quick way to resolve claims. It is sometimes referred to as “sidebar agreement”. It’s important to note that only a very small portion of workers’ compensation claims reach resolution this way. And with that in mind, work injury claimants should first speak to a workers’ compensation attorney before making this decision.


Structured settlements for a workers’ compensation claim

Another type of settlement is called structured settlement or CRSSA. Generally, it resolves all future benefits under your workers’ compensation claim. If you have a work injury claim and you are 50 years old (or older), then you can consider this L&I claim settlement option. In addition, to qualify, your claim must be approximately 6 months old. Under CRSSA, you typically agree to close your L&I claim or workers’ compensation claim. In exchange, the claim administrator will pay you a certain sum of money and you will receive partial payments over time. Most importantly, under this option, you may still be eligible to receive additional treatment if the medical condition that relates to your L&I claim gets worse.


In my experience, self-Insured employers are often open to CRSSA claim settlement because it’s a way for them to resolve a claim. On the other hand, L&I claims will consider CRSSA once the work injury claimant reached maximum medical improvement. However, in my recent experiences with L&I, their CRSSA offers rarely make sense. Especially when you take into consideration the benefits that people with a workplace injury claim are giving up.  For this reason, I strongly advise work injury claimants to speak to an L&I attorney before they agree to a CRSSA.


Permanent Partial Disability or PPD

Generally speaking, when clients ask about claim settlement, they are really asking about Permanent Partial Disability or PPD awards. L&I usually gives a PPD award at claim closure. Only an attending provider or an IME provider can perform a rating exam to determine the PPD impairment. These definition of PPD ratings include a certain percentage and a category. Furthermore, the value of the PPD rating is based on the date of injury.


In some cases, PPD awards can be very straightforward and do not require the involvement of a workers’ compensation attorney. For example, when you reach maximum medical improvement and return to work. However, L&I can also choose to close your claim without paying you a PPD award, even if you are unable to go back to work. In that case, it’s extremely important to speak with an experienced attorney to learn your rights and options.


Final Thoughts and Conclusions

To summarize, there is a lot more to workers’ compensation claim settlement than what most people think. I know that work injury claims can be tough, long, and cause people a lot of stress. However, taking the easy way out isn’t always worth it in the end. It could mean that you’re giving up benefits that you’ll require at a later time under the Industrial Insurance Act. Therefore, I always recommend that folks consult with a workers’ compensation attorney before “settling” their claim.

Time-Loss Compensation: Minimum and Maximum Amounts Under an L&I Workers’ Compensation Claim

Previously, I posted articles about temporary total disability and how to calculate time-loss compensation wages. In short, we consider people with work injury that are unable to work as temporarily and totally disabled. Work injury claimants that fall under this criterion should receive time-loss compensation benefits based on their wages at the time of their workplace injury. Wages can be salary or hourly rate and include things like bonuses, housing and meals. They should also include healthcare, commissions and tips. L&I, or a third-party administrator in case of self-insured employer claims, pays time-loss compensation every 14 days. However, to receive time-loss compensation benefits, you must certify that you are unable to work. Furthermore, the reason for which you are unable to work must be related to your L&I claim.


Time-Loss Percentages

The amount of money that you will get under your time-loss compensation benefits depends on several factors. If you are single with no dependents, then you should receive 60% of your wages as time-loss compensation payments. If you were married at the time of your work injury, you should get an additional 5%. Moreover, people with dependents can receive an extra 2% per dependent child up to a maximum of 10%.  In summary, work injury claimants can expect to receive anywhere from 60% to 75% of their wages prior to their work accident.


Minimum and Maximum Time-Loss Compensation Amounts

It’s important to know that the Department of Labor and Industries (L&I) established minimum and maximum time-loss compensation payments. The minimum time-loss rate for a workplace injury that occurred on or after July 2, 2008 is 15% of the Washington State’s Average monthly wage.  For example, for dates of injury (or occupational disease manifestation) between July 1, 2018 and June 30, 2019, 15% of the average monthly wage is $773.59.


Similarly, L&I time-loss compensation maximum rates depend on the date of injury or manifestation.  Currently, the maximum rate is set at 120% of Washington State’s average wage.  As an example, if you were hurt at work between July 2019 and now, then 120% equates to $6,530.10 per month or $217.67 per day.


Washington State and L&I

People frequently ask me: “What is the value of my workers’ compensation claim”?.  The answer is always the same.  For Washington State work injury claimants, the value of your workers’ compensation claim depends on several factors. And, it is unique to your claim.


I know it can be hard for work injury claimants to make ends meet. Many are receiving 40% less of what they were getting before the injury. Considering that many have families that they need to support, this can be even more difficult. However, we are lucky to live in Washington State where injured workers have rights. And it’s that L&I is taking marital status and depends into consideration when they calculate time-loss compensation benefits.


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