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Does L&I Pay for Pain and Suffering?

There’s no question that a work accident, injury, or occupational disease impacts the life of workers. Understandably, many work injury claimants want to know how they will get compensation for pain and suffering. Especially payments for pain and suffering under their L&I claim. Can workers get L&I compensation for pain and suffering? The short answer is No.

L&I doesn’t pay for pain and suffering

In Washington State, the Department of Labor and Industries (L&I) doesn’t pay work injury claimants for pain and suffering. Why? It has to do with 2 main reasons. The 1st reason is how L&I calculates damages. For the 2nd, we need to understand how the modern workers’ compensation system developed and how it works.

Pain and suffering is a type of “damage”. Think about it this way. When you have a work injury – you hurt a body part. Moreover, you might have PTSD or trauma from your work accident. Moreover, you’re very likely to experience pain and suffering. These are examples of damages. All these damages can be a result of a workplace injury.

Filing a lawsuit – Special versus general damages

Generally, when one person or entity causes injuries to another, the injured person can sue for damages. We call the person (or entity) that caused the injury the “Defendant”. The person suffering from the injury is the “Plaintiff”. Together, we refer to the Plaintiff and Defendant as the “Parties” to the lawsuit.

If the Plaintiff successfully proves the Defendant is responsible for the injury, then the Plaintiff may receive compensation for damages. In law, we refer to “damages” as a remedy. The idea is that “damages” remedy harm by compensating the Plaintiff. More specifically, “damages” can be special or general. Special damages are things that have a set money value. For example, automobile repairs or the cost of medical treatment. However, some damages don’t have exact monetary amount. We call them general damages. Monetary compensation for things like pain and suffering is a type of general damage.

How to sue for pain and suffering damages

How much is your pain and suffering worth? Sadly, there’s no precise way to say. Often, we ask the jury to “award” damages by deciding how much they feel the Plaintiff’s pain and suffering are worth. For that, juries must be able to assign a dollar amount to pain and suffering. Then, jurors listen to the facts of the case to determine fault.

In trial, the Plaintiff presents fact and evidence to show that the Defendant is “at fault”. The Plaintiff has to show how much harm they suffered because of the Defendant’s negligence. At the same time, the Defendant can present evidence showing they were not to blame. Moreover, they can raise certain defenses and show that the Plaintiff was responsible for their own harm.

Sometimes, the Defendant successfully shows the Plaintiff was at fault for their own harm. In such cases, the Plaintiff may receive little or no damages. But, if the jury agrees that the Defendant was responsible for the Plaintiff’s harm, they can award damages. Usually, attorneys representing the Plaintiff and Defendant argue to the jury with differing numbers. They try to show what they think the damages award needs to be.

Can I sue L&I for pain and suffering?

This legal process doesn’t apply in workers compensation claims in Washington State. Under workers comp, there is no Plaintiff and Defendant. There may be disputes that arise over what L&I benefits apply in different work injury claims. However, we usually refer to the parties as the Petitioner and the Respondent. The reason is that our modern worker’s compensation system originated with something called the “grand bargain”.

In the grand bargain, workers gave up the right to sue employers for a work injury or industrial disease. In exchange, workers receive no-fault coverage. Before the grand bargain, workers used to sue employers for causing a work injury or sickness. Just like when a Plaintiff files a lawsuit against a Defendant. But then, employers can avoid paying for a work injury. They do it by raising a defense and showing the worker was responsible for their own workplace accident.

Workers cannot sue employers for work injury damages

This kind of system leads to a lot of disputes, litigation, and delays. The idea behind the grand bargain was to streamline and simplify the process. That way, work injury claimants receive “sure and certain” relief when they suffer an injury on the job. Furthermore, workers no longer need to worry about employers accusing them of causing their own injury at work. Similarly, employers no longer have to worry about workers filing lawsuits for damages.

On that basis, the Washington State Industrial Insurance Act applies regardless of fault or negligence. When deciding on L&I benefits, there is no consideration of fault or negligence. Neither by the employer or by the worker. It doesn’t matter why the work accident happened. The cause of the work injury is not important. If a worker has an allowed L&I claim, they will receive the appropriate workers compensation benefits.

Workers’ compensation benefits are important for recovery

L&I benefits help work injury claimants recover from their injuries. When applicable, they also help workers to return to work. On top, in theory, they help workers and families pay bills and get by until workers are back on their feet. More specifically, L&I benefits include things like:

Wage replacement benefits. For instance, time loss compensation or loss of earning These benefits help cover expenses while recovering from an industrial injury or disease. The law and L&I designed these benefits for people unable to work. They are also very useful for workers experiencing a reduction in wage earning capacity.

Medical treatment. The goal of medical treatment benefits is to diagnose, rehabilitate or cure a any condition caused or aggravated by a work injury.

Discretionary vocational services. If the Director of L&I determines that vocational services are appropriate, they will award them. Such benefits include vocational retraining. They can significantly assist a work injury claimant in returning to work.

Permanent partial disability awards. L&I can provide a PPD award It happens when L&I doctors determine the work injury claimant has permanent residuals. The permanent condition must be because of their industrial injury or work-related disease.

L&I pension benefits. Sometimes, workers are unable to return to work because of their work injury. In fact, a worker can have severe disability because of their injury at work. Therefore, the L&I pension benefit is available for workers that are permanently incapable of returning to work.

There are no L&I benefits for pain and suffering

Different L&I benefits apply in different L&I claim cases. What benefits apply in your case? It depends on the facts of your workplace injury. However, it’s not a function of fault or negligence. Therefore, in our modern workers compensation system, work injury claimants do not receive general damages. Including general damages for pain and suffering. In Washington State, workers cannot get damages for pain and suffering from their employer or from L&I. Even if they have a severe work injury. Additionally, it doesn’t matter how complex and frustrating their L&I claim may become.

L&I attorney can help

I get many calls from angry work injury claimants. Many of them want the system to hold their employers accountable. They want to go after employers for creating an unsafe work environment. Some complain about employers failing to properly train workers. On top, they bring up a multitude of other bad employer behaviors. I also get many calls from workers that want to hold L&I accountable. They want to sue L&I for claim delays, stress, and frustration.

Personally, I can certainly understand the anger. Yet, the reality is that there is no punishment for this kind of “bad behavior”. The best remedy is advocacy. It’s important to take steps to ensure your L&I claim is moving forward appropriately. On occasion, this is something that work injury claimants can easily do on their own. However, this kind of advocacy is also something an L&I attorney experienced in workers compensation can assist with.

What happens to my healthcare information when I have a workers’ compensation claim?

/ L&I attorney / 1 Comment

It’s pretty common for people with workplace injury and an ongoing workers’ compensation claim to ask me about privacy rights. Especially when it comes to health information. There are so many L&I records in your claim file. Privacy of sensitive healthcare data such as medical history and treatment is important.

L&I health records under L&I claim or self-insured claim

I usually tell people that while there are some rare exceptions, once you have a workers’ compensation claim or an L&I claim, you often become an open book. The Department of Labor and Industries (L&I) and self insurers need to administer your claim. To do so, they must access your healthcare records. Naturally, people wonder whether HIPPA protections apply in the workers’ compensation setting.

L&I recently issued a reminder that HIPPA allows providers to “disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation” 45 CFR 164.512(l). Practically speaking, this means that when L&I or a self-insurer requests medical records under RCW 51.36.060, the provider must release all protected health info relevant to the workers’ compensation claim. Under RCW 51.28.070, L&I or the self-insured employer must keep information in the workers’ claim files confidential.

L&I attorney versus workers’ compensation claim administrator

Ironically, workers’ compensation exemption under HIPPA applies to the release of records to L&I and self insurers, not to attorneys like me. Sometimes I need to obtain records. For this reason, I ask my clients to sign a HIPPA compliant release allowing me to access records and communicate with treatment providers.

After taking over the law firm of Casey and Casey, we discovered that many of the medical releases on file were outdated. They were not HIPPA compliant. Over the past several months my staff has been working hard to obtain updated releases for all clients. Thank you to my hard working staff and amazing clients for helping us make this process easy and efficient.

The L&I Claim Process: Overview of Common Medical Steps

/ L&I attorney / 0 Comments

Every L&I claim is different. The conditions and circumstances of each workers’ compensation claim are unique. However, many L&I claim cases follow a similar process.

A common process and pattern in L&I claims

Most L&I claims that come across my desk follow the same pattern. More explicitly, the pattern consists of the following steps:

1. A doctors diagnoses the injury as sprain or strain

2. The attending provider prescribes physical therapy

3. Doctors perform clinical exams

4. Medical providers proceed with diagnosis studies

5. L&I subscribes the worker to a pain management program

6. Doctors identify more complex diagnosis

7. L&I sends the worker to an independent medical exam (IME)

8. L&I closes the claim because of pre-existing conditions.

Too many claims follow this L&I claim process, blindly. Many workers fall in a gray area. They do not receive what they deserve under the law. The purpose of this article is to explain the L&I claim process and the steps above. Hopefully, workers can figure out where they stand in the process and decide what to do next.

Work injury happens

A worker suffers an injury on the job. Usually, the injury isn’t visible. However, there’s no question that the worker is in pain. Sometimes, the worker goes to the emergency room (ER) or urgent care right away. Other times, they wait several days. Most commonly, workers hope that the problem will go away on its own.

Sprain or strain diagnosis

The first step in the L&I claim process is when the worker first sees a doctor for the work injury. Usually, the doctor diagnoses the worker with a sprain or strain. A sprain or a strain is a soft tissue injury. It includes muscle injury and injury of the tendons. The treatment for sprain or strain diagnosis typically includes:

Rest
Modification of daily activities
Over the counter anti-inflammatory medication for pain

Sometimes, a doctor orders an x-ray of the affected body part. An x-ray can help determine the diagnosis. On top, it can rule out a fracture. If there’s no fracture, then doctors expect sprains and strains to resolve quickly. Typically, with minimal treatment.

Physical therapy

On occasion, the worker continues to complain about pain. In actuality, there’s no real medical improvement. Then, doctors typically prescribe physical therapy. Some attending providers also call for more diagnostics, such as an MRI. Yet, in my experience, L&I denies MRI exams early in the workers’ compensation claim process. Normally, L&I wants workers to at least attempt physical therapy.

However, many times pain complaints continue. Moreover, physical therapy doesn’t always improve the worker’s pain. That’s when things can start getting messy in your L&I claim process.

What happens in my L&I claim if physical therapy doesn’t help

Say that rest, activity modification, pain medication and physical therapy are not helpful. Next, doctors usually look for signs of more serious problems. Here, doctors may perform certain clinical exam and tests. It all depends on the body part and suspected condition. L&I considers these exam results to be objective medical evidence. For example, say the work injury claimant has persistent low back pain. Then, doctors may perform a straight leg raise exam. This exam checks for potential radiculopathy or nerve impingement.

Additionally, there are other tests that we call “provocative tests”. They help doctors determine more complex workplace injuries. Examples of such complex injuries include:

a) Elbow, wrist, or shoulder impingement

b) Knee and shoulder tear

c) Other spinal disc herniation or displacement

If provocative tests suggest a medical problem, then doctors order more diagnostic studies. Frequently, they include imaging studies. For example, MRI tests and CT scans. Also, doctors often order nerve conduction studies like EMG.

Pain management program (SIMP) and work conditioning

In an L&I claim, the Department of Labor and Industries (L&I) considers pain complaints as subjective. In contrast, diagnostic results are objective. However, objective diagnostics may not explain subjective symptoms and complaints. In such instances, L&I can refer the work injury claimant to an L&I pain management program like SIMP. Or, to a work conditioning or work hardening program. Typically, this is the final treatment attempt before claim closure.

A serious diagnosis & causation

Alternatively, a diagnostic study may objectively find more serious problems. If that’s the case, then causation is going to be the next issue in your L&I claim. There are several serious conditions that doctors often detect through MRI, CT scan or EMG. The list of serious problems we see in L&I claims at our office includes:

1) Disc herniation

2) Spondylosis

3) Spondylolisthesis

4) Facet arthropathy

5) Spinal cord impingement

6) Disc degeneration

7) Bone spurs

8) Meniscus tears

9) Rotator cuff tears

10) Shoulder joint arthritis

11) Knee joint osteoarthritis

12) Loss of cartilage

13) Cubital tunnel syndrome

14) Carpal tunnel syndrome

15) Lateral epicondylitis, and

16) Brachial plexus impingement

to name a few.

From L&I’s standpoint, these diagnoses are challenging. That’s because their cause is rarely a single trauma or injury. Therefore, when a provider identifies the diagnosis, L&I immediately starts questioning causation. At times, L&I asks the attending provider for an opinion about causation. But, very often, L&I calls for an independent medical exam (IME) instead.

Independent medical exam

Most IME doctors find that these kinds of diagnoses do not relate to your L&I claim. There are exceptions, but they are rare. The opinions of IME doctors usually read something like this:

“Diagnosis is pre-existing and unrelated to the industrial injury for which this claim was filed.”

The reason is that most of these conditions have other causes. They include:

a) Natural aging

b) Genetics

c) Gender

d) Weight

e) Diabetes

f) Alcohol use

g) Use of tobacco.

In short, it’s easy for IME doctors to blame the cause on reasons that do not relate to the L&I claim. Unfortunately, in my opinion, IME doctors err and attribute causes to pre-existing conditions too often.

Pre-existing conditions and IME reports

Personally, I take issue with these IME opinions. They completely ignore the laws on pre-existing conditions. Legally, there can be more than one cause for a medical condition. An industrial injury may aggravate or worsen a pre-existing condition. It doesn’t matter whether the pre-existing condition was symptomatic before the work injury. If the work injury causes worsening, then the condition is causally related under the L&I claim. Yet, IME doctors rarely include this in their analysis. They just indicate that a condition is pre-existing. Thus, according to IME doctors, it’s unrelated to the L&I claim.

Segregation order

Eventually, L&I receives the IME report. In turn, L&I will likely issue an order stating it isn’t responsible for the condition. We call this a “segregation order”. Meaning, L&I has segregated the condition from the workers comp claim.

If you receive a segregation order, it’s a good idea to consult with an L&I attorney. Disagreements over causation are one of the most common issues in L&I claims. You have to appeal this decision to the Board of Industrial Insurance Appeals for resolution. Most likely, you’ll want an attorney by your side for the appeal.

Workers Compensation - Washington