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L&I Workers’ Compensation Claim Appeal in BIIA and Superior Court

Workers’ compensation is a unique legal practice. A big part of what I do as a workers’ compensation attorney is help people who have been injured at work understand and navigate their L&I claim or workers’ compensation claim. It is highly administrative work that sometimes doesn’t feel terribly like legal work.

Judicial appeals in workers’ compensation claims

When we appeal administrative decisions to the Board of Industrial Insurance Appeals (BIIA) our representation becomes much more legal in nature. That’s because the BIIA is a quasi judicial entity that decides workers’ compensation disputes. Appeals to the BIIA frequently involve decisions that are unfavorable to our client. Consequently, we must identify the issues and present a legal case to meet the burden of proof, to show that the administrative decision is wrong. This typically requires presenting expert and lay witness testimony in addition to appropriate legal arguments. Then, based on the evidence we present, the BIIA issues a written decision.

Representing work injury victims at Superior Court

If any party disagrees with the BIIA they may appeal the decision to Superior Court. In Washington State, each county has a Superior Court that hears criminal and civil cases. For example, we commonly litigate cases in King County Superior Court, Pierce County Superior Court, Snohomish County Superior Court, Kitsap County Superior Court, and others.

In workers’ compensation appeals, the Superior Court decides whether the BIIA decision is correct. To do that, the law requires Superior Court to consider the same evidence, or record, that we present to BIIA. That means that parties cannot introduce new evidence at Superior Court. Workers’ compensation appeals to Superior Court can be done in a bench trial or a jury trial. A bench trial is when the judge reviews the BIIA record and decides if BIIA made the correct decision. A jury trial is when we read the BIIA record to a 6 or 12 person jury. After hearing the record and arguments from attorneys, the jury enters a verdict deciding whether the BIIA decision is correct. If an injured worker wins a Superior Court appeal, they may be get reimbursement for attorney fees and costs.

Pros and Cons for workers compensation attorneys

These kinds of appeals have pros and cons. On one hand, this appeal process limits the number of cases tried in Superior Court while preserving the right to have a case in front of a jury of peers. On the other hand, there is a significant downside. By the time the case is decided by Superior Court, it may be two or more years after the original administrative decision was made.

For attorneys representing injured workers, Superior Court appeals are a significant time investment. It means at least a week that I am in Court and away from the office. While not in the office, I’m unable to speak with other clients or manage my usual day to day activities. However, most attorneys representing people with work injury claims will agree that it is one of our best opportunities to ensure that injured workers are treated fairly.

L&I Claim for Cancer Treatment and Proton Beam Therapy

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The Department of Labor and Industries (L&I) recently made a coverage decision regarding proton beam therapy. Here, the decision is in an L&I claim for cancer and its treatment. An L&I claim for cancer falls under an occupational disease claim. These types of claims arise when work conditions cause a sickness or an illness. For treatment, proton beam therapy delivers high doses of radiation to tumors with limited scatter impact to the surrounding tissues. In fact, this procedure is ideal for treating deep tumors that are close to critical organs and body structures.

What cancer types does L&I cover under my claim?

Recently, L&I decided that proton beam therapy is a coveted treatment for injured workers presenting with certain primary cancers. Interestingly, these kinds of cancers include esophageal cancer and head or neck cancer. They also include skull-based cancer and hepatocellular carcinoma cancer. Moreover, they include brain cancer, spinal cancer, and ocular cancer. Also, other types of cancers are included when all other treatment options are contraindicated, after review by a multidisciplinary tumor board.

Proton beam therapy

Proton beam therapy is not new. In fact, proton beam therapy was under review in 2014 for L&I claims for cancer. After that, the State Health Technology Clinical Committee (HTCC) reviewed it again in May 2019. On re-review, the HTCC expanded the kinds of primary cancer proton beam therapy under this treatment. L&I has adopted the HTCC coverage determination for workers’ compensation claims.

L&I claim for cancer and treatment authorization

Generally, in workers’ compensation claims, proton beam therapy requires prior authorization. For State funded claims, you can complete a pre-authorization form to obtain the necessary authorization. To obtain pre-authorization in a self-insured workers compensation claim, you must go through the employer or their third party administrator.

More information about proton beam therapy in L&I claims and workers’ compensation claims is available on the L&I website.

Workers compensation LNI claim PPD rating

Permanent Partial Disability (PPD) rating in Workers’ Compensation and L&I claims

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What’s my L&I claim case worth? I get this question all the time. The answer is always the same: It depends. One way to determine the value of a work injury L&I claim case is based on the Permanent Partial Disability or PPD award. And, the same holds true for a workers’ compensation claim with private insurance companies and self-insured employers.

What is Permanent Partial Disability or PPD?

PPD is a monetary award that some injured workers receive when L&I closes their claim. In short, if the injured worker has: (a) Reached maximum medical improvement; (b) Continues to experience permanent residuals from the industrial injury or occupational disease; and (c) Is still capable of working, then a PPD award may be appropriate.

PPD award rating is based upon medical evidence. When the body part involved in the work injury is one that cannot be amputated, the PPD rating usually uses categories of impairment from the Washington Administrative Code or Washington Administrative Code (WAC). However, if the body part could potentially be amputated, the PPD is rated according to criteria from the American Medical Association (AMA) Guides to the Valuation of Impairment.

Who can provide PPD rating for my claim?

Within the medical provider network or MPN, some providers feel comfortable and are willing to provide PPD ratings. Yet, others do not. Consequently, from my perspective, it is always ideal when the attending provider (AP) that’s assigned to the claim is willing to rate the PPD. This is because that provider usually has the best sense of the injured worker’s permanent residuals from the work injury.

If an AP does not do PPD ratings, they will usually refer the injured worker to a provider that does. Alternatively, they can request an Independent Medical Examination (IME).

How much is my right arm worth?

On a personal note, before you continue reading, please know that I’m very uncomfortable placing a monetary value on parts of the body. The human body is sacred. Body parts are priceless. However, this is the world and the reality we live in.

Injured workers often want to know what the monetary value of the PPD will be. It is important to know that the value is a set number that varies based upon the date of injury. L&I publishes a “Permanent Partial Disability Award Schedule” that lists PPD values based on the date of injury. For example, the value of a 10% right arm PPD for a person injured on December 31, 2015 is $12,004.04. Here, it’s because 100% of the value of an arm for a 2015 date of injury is $120,040.41. However, without a medical opinion rating the PPD, it is virtually impossible to estimate the dollars-and-cents value for the award.

Workers Compensation - Washington