Back or spinal injuries and illnesses are probably the most common conditions I see as an L&I attorney representing workers. There are many L&I claim occurrences for back injury. I thought it’ll be helpful to share some basic information about the topic. However, I am not a doctor and nothing in this post is a medical advice. Simply put, my goal is to help work injury claimants understand some of the terms and issues that may arise.

 

Back injury in workers’ compensation claims

The spine has roughly three regions:
(1) The cervical or neck region, which includes the cervical vertebra C1-C7;
(2) Thoracic or mid-back region where the T1-T12 vertebra are located;
(3) The lumbar area (L1-L5) and sacral back area (S1 through S5), which we also call the low back region.
In my experience, the most common region where work injuries and illnesses occur is the low back. The second most common is the neck. Mid-back injuries and illnesses do occur, but they are much less frequent.

There are two types of L&I claims when it comes to a back injury. One is an Industrial Injury Claim and the other is Occupational Disease Claim. An industrial injury is a sudden and tangible event. Often, back injuries at work involve lifting. Or, a combination or lifting and twisting with the sudden onset of pain or other symptoms. In contrast, occupational diseases are illnesses that develop as a result of the “distinctive conditions of employment”. Usually, they develop over time and it can be difficult to determine if work activities are a contributing cause.

 

Back injury treatment under an L&I claim

People who injure their backs at work usually receive conservative treatment in the beginning. This means resting while taking over-the-counter medication to control pain and inflammation. Normally, that’s all that is needed to recover from a basic sprain or strain, or soft-tissue type of injury. In these cases, symptoms can improve within days or weeks after the injury. If symptoms don’t improve, there may be a need for additional treatment. That includes diagnostic imaging such as X-ray, cat scan (CT), or MRI. In some cases, physical therapy and massage therapy can help as well.

 

 

More severe injuries involving acute spinal fractures, injuries to spinal discs, and injuries impacting nerves require more invasive treatment. Our office represents many injured workers with significant back injury or illness diagnoses. Among others, we regularly see conditions such as spondylosis, spondylolisthesis, radiculopathy, and nerve impingement. We sometimes also encounter instability, disc bulge, disc herniation, stenosis, degenerative disc disease, and even thoracic outlet syndrome. The most common treatments for many of these severe cases are back injection and surgery.

 

Proving causation in L&I claim for back injury

From a legal standpoint, our experience shows that the more severe the back injury, the more challenging causation becomes. In fact, proving causation can be very difficult. That’s because all of us experience “degenerative” changes in our back and spine as we age. Some people call it arthritis and others call it degenerative changes. Furthermore, not all people experience the same symptoms from spine injuries, arthritis, or degeneration.

To complicate things even further, there is also a pretty lengthy medical study of spine disease with the title “Twin Spine Study”. The study concludes that genetics is the most significant factor impacting back or spine health. Because of this, more severe aspects of back injuries or illnesses in workers’ compensation are often attributed to genetics or aging and not the injury or work exposure.

 

Conclusion

So, what’s the takeaway? Many people are working a physical job that impacts the back or the spine. If you are one, then take a few extra steps of caution. Try to minimize the likelihood of back injury. Wear protective gear when you can and if applicable. See a chiropractor on a regular basis to help with spine movement. Exercise your core and back muscles regularly to help ease the impact on your spine. And, if you are hurt on the job, go see a doctor immediately. Have them file an L&I claim for back injury. But most importantly – be safe out there!

If you recall, back in May I posted about an ongoing workers’ compensation case at the Washington State Supreme Court. Namely, Weaver vs City of Everett. The case is about a firefighter that has Melanoma. On October 17, the Court issued its decision affirming the Court of Appeals. In short, the Court declined to apply the common law principles of res judicata and collateral estoppel to preclude Mr. Weaver from seeking permanent totally disability benefits when he previously filed a claim seeking temporary total disability benefits. However, L&I rejected that previous claim.

 

Supreme Court upholds the rights of injured workers in Washington State

Clearly, the Supreme Court has the commitment to uphold the intent and purpose behind of Industrial Insurance Act. That is, to protect and provide benefits for injured workers. Often referred to as “boilerplate” language, in its decision the Court referenced case law I reference all the time. “[T]he guiding principle in construing provisions of the Industrial Insurance Act is that the Act is… to be liberally construed… with doubts resolved in favor of the worker.” Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). LET THAT SINK IN. In fact, the Court referenced it TWICE in the Weaver decision, at page 6 and again at page 13!

 

RCW 51.32.185(10(a)(3) states that for firefighters, there is a presumption that certain conditions are occupational diseases. Melanoma is one of those firefighter conditions. Mr. Weaver was a firefighter. He has melanoma. Mr. Weaver’s melanoma is a death sentence. As near as I can tell, there’s no dispute that his melanoma is a result of his fire fighting occupation. Therefore, the Court declined to apply collateral estoppel. Doing so to preclude Mr. Weaver’s claim would serve an injustice and would be contrary to public policy.

 

Firefighter’s melanoma – Legal arguments, common law and implications

The Court also declined to apply res judicata. That’s because Mr. Weaver couldn’t have made a claim for permanent total disability in the prior litigation. In essence, the Court acknowledged the Department of Labor and Industries (L&I) and Employer’s argument that the “threshold question of whether he had an occupational disease” was part of the decision for purposes of that claim. They argued that the prior claim rejection also precludes future claims flowing from the same ailment (melanoma).

 

Also, the Court made another interesting statement. While it might be true in theory, the Industrial Insurance Act does not use the term “claim allowance”. The Court concluded that the subject matters of Weaver’s two claims are distinct. His “permanent disability claim did not exist and could not have been brought at the time of his temporary disability claim”. Hence, his prior claim and current claim do not share the identical subject matter. Consequently, the Court held that res judicata does not apply.

 

Firefighter and melanoma – The court’s decision

I’ve read this new decision multiple times since last week. Every time I read it I notice something new. Interestingly, it is a nuanced and complex decision. On top, I suspect it is going to take some time for the workers’ compensation legal community to figure out it’s full impact. However, one thing is certain: It is a victory for Mr. Weaver and his family. The Washington State Supreme Court adopted language from the Appellate Court decision in ruling that Mr. Weaver’s claim would not be precluded by collateral estoppel or res judicata, because

 

“Applying either doctrine here would be an apples-to-oranges application of common law principles to statutory claims, which would result in a “distasteful fruit salad of injustice.”.