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L&I Protest and Appeal: What if I Disagree With a Decision in My L&I Claim?

In Washington State, the Department of Labor and Industries (L&I) if the claim administrator for a state-funded claim. For a self-insured employer claim, the administrator is typically a third-party administrator (TPA). In every workers’ compensation claim, the claim administrator makes many decisions. These decisions include whether to allow a claim, the claim accepted-conditions, treatment authorization, payments of benefits, and more. Some decisions are favorable to the person that suffered the work injury. But, some are not. Whenever a claim administrator makes an unfavorable decision that impacts work injury claimants’ right to benefits, the administrator must inform them about their protest or appeal rights. However, in reality, you can protest or appeal any written decision you disagree with.

Protest a decision in an L&I claim

It is common to file a protest for an L&I claim the first time a claim administrator makes an unfavorable decision. Here, for the protest to be valid, you must submit it to L&I within 60 days. At minimum, an L&I claim protest must be in writing and state what you disagree with. If L&I gets a protest, then they must issue another decision. In most cases, L&I will base its decision on preponderance of the evidence. Simply put, it means that after considering all the evidence, the decision should be what is more probably true than not.

If strong evidence supports the decision is wrong, then L&I may change or reverse the decision. Otherwise, L&I will issue a new decision affirming that the previous decision is correct. If you have a work injury claim and you disagree with the new decision, you may appeal to the Board of Industrial Insurance Appeals (BIIA).

Appealing a decision in my L&I claim

Like protests, you must file an appeal within 60 days. The BIIA website has instructions and an online form making filing an appeal very easy. In fact, the BIIA is a separate agency in Washington State. It employs Industrial Appeals Judges (IAJ) to help mediate and hear evidence to resolve disputes. In time, the burden of proof is on the appealing party as it must present evidence to show the decision is wrong. Therefore, it means the appealing party must present their evidence first.

To meet the burden of proof, the evidence must show the decision is more probably incorrect than correct. On top, the appealing party presents the evidence through witness testimony. Very frequently, people with a work injury claim ask me if they can submit medical or other records instead of testimony. Unfortunately, the appeal process does not permit it in most cases (if not all). The law and procedure require us to present the evidence through testimony. Consequently, it allow each party to ask the witness questions.

I disagree with L&I decision – do I need an attorney?

After a work injury, people with a workers’ compensation claim are not required to have an attorney to protest or appeal a decision. The term for those who don’t have an attorney is pro se, meaning they represent themselves. Practically speaking, protests are less challenging. Protests happen at the L&I level and it’s not uncommon to not involve a workers’ compensation attorney. However, appeals are more difficult. With BIIA, L&I always employs an attorney from the office of the Assistant Attorney General. Self-insured and other employers also usually have an attorney.

Before BIIA, civil rule of procedure or the Washington State Administrative Code governs most procedures and rules. Attorneys know how to follow these rules. They can be confusing or difficult for a pro se individual. Moreover, attorneys with relevant experience also know how to evaluate the evidence and present testimony. Therefore, it’s usually a good idea to have an L&I attorney for an appeal.

Important conclusions

One of the biggest mistakes I see is waiting too long to hire a workman’s comp attorney. Appeals to the BIIA follow strict timelines. Hence, the longer you wait to hire a workers’ comp attorney, the less time the attorney has to prepare. Furthermore, attorney calendars may already be booked, and they may be too busy to take your case.

In summary, work injury claimants can protest or appeal any written decision L&I makes in their claim. Remember, there is a 60-day time limitation for filing a protest or appeal. To change the decision, you will need evidence to show that the decision is wrong. Finally, if you have an L&I claim or a workers’ compensation claim and you are considering filing an appeal, then you should speak with an experienced L&I attorney sooner than later.

L&I Claim Payment Coverage: New Billing Code Helps Providers with Online Communication

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The attending provider (AP) has an important role in your workers’ compensation claim. In many cases, people with a work injury claim have trouble finding a doctor for an L&I claim. That’s because many medical providers are simply not willing to get involved with L&I claims. In fact, from my personal experience, medical providers don’t feel they get fair payment for the time they spend responding to administrative inquiries. Sometimes, this is true. However, many providers don’t realize they can bill for time spent on responding to L&I, to claim managers, to administrators and others. The Department of Labor and Industries (L&I) has several billing codes for administrative work. For reference, providers can find the appropriate L&I billing code for admin work in the L&I billing and payment policy manual.

New billing code for workers’ compensation claim providers

Recently, L&I announced an important new billing code that providers can use for online communications with patients and beyond. L&I created the new billing code largely due to COVID. During COVID, many in-person appointments converted to remote or online sessions. Specifically, the new billing code is 9918M. Many treating providers can use this billing code; it’s not limited to the attending provider. More explicitly, attending providers, consultants, psychologists, physical and occupational therapists, and nurse case managers may all use this code. Moreover, they can use this code once per claim per day.

What does the new code cover in my workers’ comp claim?

L&I claim providers can use the billing code to charge for the following work:

1) Non in-person follow-ups to prior in-person appointments.

2) Non-urgent consultations for L&I claim accepted conditions (assuming the provider would otherwise charge for an equivalent in-person appointment).

3) Reporting and interpreting diagnostic tests that require discussion, medication, or treatment adjustments.

4) Detailed discussions regarding care or treatment plans and medical rationale.

5) Discussions regarding employability.

6) Detailed discussions concerning non-compliance to L&I claim managers, and

7) Discussions with work injury claimants, employers, vocational counselors, and claims managers relating to return to work

How is this L&I billing code different?

Unlike before, this code allows providers to bill for communications with non-patient claim parties including vocational counselors. Consequently, it’s important to note that the prior codes 99444 and 98969 are no longer active. There’s no question that L&I claims can be time consuming for providers. Especially when it comes to administrative tasks. However, like this new code for online communications, there are many ways providers can bill for the time they spend on workers’ compensation claims.

L&I Claim and IME Exams During COVID

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Workers’ comp claim administrators can ask people with a work injury claim to attend an Independent Medical Examination (IME). The IME exam is a standard procedure and an integral part of your L&I claim. This fact remains true during COVID. The Department of Labor and Industries (L&I), self-insured employers and their third-party administrators continue to request IME tests during COVID. If a work injury claimant refuses to attend without good cause, they may receive a penalty. Here, penalties might include a missed-appointment fee or even suspension of benefits under the workers’ compensation claim.

Concerns for people with a workers’ comp claim

Many people with a workmans comp claim raised concerns about this issue. In fact, here’s a short list of question I heard people ask about their IME exam during COVID-19:

1. If I am “at risk” when it comes to COVID, or if one of my household members is “at-risk”, must I attend the test in person?

2. Say that I live in a county with low Corona-virus infection rate. Do I have to travel to another county with higher infection rate for my medical exam?

3. What if I have an L&I claim but I live outside of Washington State? Must I travel to Washington State and attend the IME in-person?

4. Are there telemedicine IME exams as an alternative?

5. I have an IME exam for my workers’ comp claim. Can I bring an observer with me to the test?

Overall, claim administrators have been reasonably accommodating (so far) during COVID. If a work injury victim has a valid reason for not attending an IME, then you can usually reschedule without penalty.

Valid reasons to reschedule an IME exam under your L&I claim

In my experience, L&I claim managers accept several reasons for rescheduling medical exams. For example, if you are at an age that’s higher risk for COVID complications. Also, if you have health conditions that can put you, or people that live with you, “at-risk” for Corona-virus complications. Moreover, another good reason is feeling unsafe leaving home or traveling to areas with higher infection rates. Finally, when applicable, feeling uncomfortable with interstate travel to attend an IME.

Virtual IME exam

Telemedicine is another alternative. L&I indeed permits online virtual IME tests through telemedicine. However, as of the date of writing this article, L&I didn’t offer online IME exams to any of my clients. Therefore, I can’t say how successful such tests might be.

Additionally, it’s important to note that some medical panels refuse to allow workplace injury victims to bring an observer. This isn’t right because work injury claimants have the right for an observer, regardless of COVID. In fact, L&I recently reminded the IME panels that work injury claimants have this right. Consequently, some providers now require people to call in advance if they plan to bring an observer.

Final remarks and notes

In summary, IME tests are occurring during COVID. Often, workplace injury claimants with a good reason can request to reset the exam without penalty. On top, L&I authorized telemedicine IME providers as an alternative to attending in-person. Most importantly, if you have an L&I claim, know that you have the right to bring another person to observe the exam. You may need to let the IME panel know in advance, however that is your right!

If the panel doesn’t permit you to bring an observer, you should report the incident to L&I right away. If this happens, it’s probably a good idea to consult with a workers’ compensation attorney as well.

Workers Compensation - Washington