Longshore Basics – when is it Longshore?

For those with claims under the Federal Longshore and Harbors Workers Compensation Act, much of what has been written about Washington State L&I claims does not apply to you. I thought a series of posts specific to Longshore Claims would be helpful.

Let’s start at the beginning. When will you have a Longshore claim rather than a state L&I claim? Generally, and without getting bogged down in a discussion of legal concepts like situs and status – If you work on or near navigable waters, are engaged in maritime employment, including Longshore operations and ship building and repair, and you have a work related injury, you will be covered under the Longshore Act.

There are also several extensions of the Longshore Act which include employment which have absolutely nothing to do with maritime employment. The extensions which we see the most of in this part of the country are those for Defense Base Act claims and Nonappropriated Fund claims. Nonappropriated Fund claims include those who are employed as civilians of armed forces instrumentalities inside the U.S., such as the base exchanges, child care, and food services on base. These employees are not military, but they are employed by the military to provide services on base. Defense Base Act claims include employees who work for a company who is under contract with the U.S., where services are provided in another country. This includes civilians employed at oversees military bases, working on construction projects for the U.S. oversees, and those civilians who are assist the military in a variety of ways with operations overseas, but are not service members.

In most instances, your employer will know whether any work injury is covered under the Longshore Act or state workers compensation, and should assist you in completing the correct paperwork. Medical providers may not understand the difference. We see many instance of a state L&I claim being filed, only to be rejected because proper jurisdiction is under the Federal Longshore Act. Not a problem, the filing provides timely notice, and it’s a simple matter to refile as a Longshore claim. There are gray areas, some parts of a bridge being built may be exclusively land based and not covered under Longshore, while other parts of the construction are most definitely maritime; some ship repair may be done in a shop setting miles from the water; the Port has employees who have strictly administrative positions – if there are any doubts or questions – you should talk to an attorney to make sure your claim is timely filed in the right place, to avoid any unnecessary delay in your medical treatment or benefits.

 

Coming up –who chooses your medical provider; what wage replacement will you receive if you can’t work because of your injury; is vocational retraining available; how is permanent disability compensated.

Proposed Changes to Structured Settlements

There is a lot going on in the Legislature this year in Washington state, some of it of interest to those involved in our workers comp system. The Senate passed 3 proposals dealing with workers compensation that are not beneficial to injured workers. Those proposals now go to the House, where, thankfully, there are more voices supporting the injured workers in our state.

Two of the proposals deal with our relatively new structured settlements in the workers compensation arena. For the last year injured workers over the age of 55 with allowed claims have been permitted to seek a resolution of their claims through a structured settlement. There is strict review process for these agreements by the Board of Industrial Appeals to insure these agreements are in the best interest of the worker. Well, ‘insure’ is a strong word. The review tries to establish the worker knows what they are giving up, and asks that worker to articulate why they believe taking less than their claim is potentially worth is in their best interest. Over the last year slightly more than 2 dozen of these structured settlements were approved.

Needless to say, this is not the flood of settlements the business community had hoped for, nor has it resulted in the significant savings projected. Wait,  think about that. Structured settlements are supposed to save money for business.  How is that? Of course, if you pay an injured worker less than they would otherwise be entitled to receive, you save money. Do that enough times, you save a lot of money. So, the business community convinced our state Senate to relax the age restriction and review process in the hopes there will be more workers rushing to settle their claims. In support, they point to the number of States where there are few, if any, controls on settlements of workers compensation claims. Businesses in our state, they say, are at a competitive disadvantage because they cannot short change their injured employees. It is disturbing logic.

Fortunately, there are a couple of barriers to the Senate proposals. First, our State House of Representatives has long been a strong champion for workers in this state. Contact your Representative now, it just takes a short e-mail, to let them know you oppose any attempt to dilute the strong protections for injured workers in our current structured settlement process. You can find your Legislators here:

http://app.leg.wa.gov/DistrictFinder/

The other barrier? The workers in this state, themselves. There hasn’t been a flood of workers clamoring to enter into structured settlements because, for the most part, they aren’t in your best interest. Yes, there are specific  particular circumstances where it may be best for an injured worker to negotiate a structured settlement. Personally, I think they are, and should be, few and far between. Definitely, talk to a good workers comp attorney if you think you may be in that camp. But for most workers, a structured settlement is just a bad idea. Our workers compensation process is a safety net system, not an injury recovery system. It is not designed to reimburse you for what you’ve lost, like an auto accident claim. It is supposed to provided needed wage replacement, medical services and vocational assistance when you need them –  not some projected lump sum value of what you might need, if you guess right. Most injured workers will not be better off giving up that safety net in exchange for a structured settlement, any more than an unemployed worker would be better off accepting 6 months of unemployment benefits in a lump sum instead of preserving entitlement to 12 months of benefits should they need them. Sure, Employment Security would save money, businesses would save money, they might even be more competitive as a result. But would anyone think that’s  a good idea?

Defense Base Act claims for respiratory illness from exposures in Iraq and Afghanistan.

An increasing number of civilian workers who worked for defense contractors in Iraq and Afghanistan are reporting respiratory illness.  Reported in US Servicemen and women in 2011 in a presentation to the American Thoracic Society an increasing number of veterans were suffering from respiratory illness from a variety of sources including sand dust, smoke from burn pits, aerosolized metals and chemicals from IEDs, blast overpressure from shock waves to the lungs, indoor and outdoor allergens (pollens and molds).  Named “Iraq-Afghanistan War lung injury” (IAW-LI) these serious respiratory problems were reported at a rate seven times higher than in soldiers deployed elsewhere.  These respiratory conditions are not limited to soldiers but also to those civilian employees of defense contractors working in Iraq and Afghanistan.  While the subject of multidistrict litigation in a suit against KBR, representing both soldiers and civilians for Burn Pit exposures, those who suffer who were employed by civilian contractors have Defense Base Act claims, whether covered by the Burn Pit litigation or not.  These claims extent beyond the Burn Pit exposures and include Tuberculosis, sand dust exposures, exposures to aerosolized metals and chemicals, blast shock wave exposures, and indoor and outdoor allergens unique to or in excessive quantity in those environments.    Many of these conditions, while treatable, can cause serious and permanent injury and impairment and are compensable under the Defense Base Act, a federal law providing workers’ compensation protection to civilian employees of US Government contractors, not only in Iraq and Afghanistan, but throughout the world (outside of the US).  As the operations wind down in the Middle East it is expected that more and more claims from both veterans and civilians deployed there for respiratory disease will emerge.  For returning civilians, care should be taken to not only timely obtain appropriate and proper medical evaluation and care (be sure to provide the doctor the history of work in the Middle East and exposures to the toxins described above, where applicable) but to seek to protect one’s legal rights to medical and compensation benefits by timely pursuing a Defense Base Act claim.  There are specific timelines for notice and claim that must be followed to not jeopardize one’s rights.  Further information can be obtained by contacting the closest Office of Workers’ Compensation Programs (http://www.dol.gov/owcp/ ) or experienced legal counsel.

The Social Security Offset Nightmare – it only gets worse.

This post is Washington workers’ compensation specific and will not likely apply to anyone receiving social security benefits plus other sources of workers’ compensation benefits or other public disability benefits.  As applied in Washington State, the Department of Labor and Industries (“DLI”), or self-insured employer where applicable, is allowed to take the offset (see prior posts to describe how the offset is calculated) until the injured worker reaches the age of 62.  Because of quirk in the law, the Social Security Administration (“SSA”) gets to take the offset between the ages of 62-65.  Thereafter because SSA does not offset retirement benefits, the offset reverts back to the DLI or a self-insured employer.

The problem arises in how SSA calculates the average current earnings (“ACE”) for the 62-65 offset period.  When one is initially found eligible for social security disability benefits AND workers’ compensation benefits, the offset is calculated, typically using the ACE (there are other methods to calculate the maximum benefit, this post only applies to those whose maximum combined benefit is set by using 80% of the ACE) to set the maximum amount one can receive through a combination of both workers’ compensation and social security disability benefits (80% of the ACE).  Then over time, one is entitled to cost of living adjustments (some are entitled to yearly increases, some are entitled to triennial increases of workers’ compensation benefits – the difference being the subject of a different posting).  If one is disabled and entitled to both benefits at an early age, by the time one reaches 62 the increases to the combined benefits can be pretty significant.  The effect of the increases is to increase the ACE so the 80% figure is higher and higher over time allowing for higher and higher payments from the combined systems.

This is all well and good, but then along comes the age 62 reverse of the offset by the SSA.  Instead of using the higher ACE calculated by utilizing increases in wages over time to avoid the benefits being eroded by inflation (i.e. that higher figure being used by the DLI), SSA goes all the way back to the original ACE to calculate the offset.  This can result in a DECREASE in the combined payments by 100s of dollars per month.  In those cases where there is a delay in Social Security implementing the offset (as is not unusual given the volume of cases they must address) there is not uncommonly a substantial overpayment assessed by SA by retroactively applying the offset.  IF both SSA and DLI used the same ACE, then when DLI retroactively reversed its offset in response to SSA retroactively applying its offset the underpayment from DLI would match the overpayment from SSA and it would be a wash – the underpayment received from DLI could be sent to SSA to pay the overpayment.   However, because DLI is using a higher ACE, there is a much smaller underpayment from DLI than the overpayment from SSA and many disabled workers are left owing SSA thousands of dollars with no source of monies to pay it.  It is possible to request waiver and where the overpayment is not the disabled worker’s fault (as is always the case in this circumstance) and where repayment would be a substantial hardship on the disabled worker.  However SSA will look at all the disabled workers’ income and assets and where there are assets or where the spouse has a good job, waiver may be denied.

Whether any overpayment is waived or not, that does not solve the problem that is created by using the old ACE which ignores inflation and increased cost of living since the disabled worker was first entitled to both disability income and workers’ compensation benefits.  Again, the result is a reduction of combined payments which can run into 100s of dollars per month (each case is slightly different based on the individual disabled worker’s income history is and the amount of the social security and DLI benefits).

Unfortunately, the use of the original ACE, rather than an updated ACE, appears to be consistent with federal law.  There is no provision in federal law to ever use an updated ACE unless the ACE is adjusted by SSA over time by application of the triennial adjustment process.  There is no provision, where social security benefits have been paid at the full rate (as is the case where the workers’ compensation payer is taking the offset) to apply an adjusted ACE during the 62-65 reverse offset process.

Is there a solution?

On a case by case basis it might be advantageous for a disabled worker to switch to early retirement at age 62 (SSA does not offset retirement benefits).   That may or not be advantageous to a disable worker.  Each case is individual based on earnings history the size of the family benefit (i.e. the number of others claiming on the account, etc.).

The only real solution, in addition to seeking waiver for any overpayment created by retroactive application of the offset, is to seek to change the law.  That is problematic.   In seeking Congressional support to modify the law we would be faced with the fact of the huge federal deficits (fixing this would cost social security money) plus this anomaly only appears to apply to Washington State disabled workers.  There is a chance that some of the other states that are allowed to take the offset may face similar situations, but we are unusual in that we are allowed to take the offset only up to ager 62 and then lose it until age 65.

Injured workers need to be aware of this issue, plan and prepare for the switch of the offset at age 62 (knowing if there is a delay in SSA applying the offset that it most likely be done retroactively with assessment of an overpayment) and to try to plan of potential reduction of the total combined benefit when the worker has been disabled for, and on both benefit systems, for an extended period.  Further reading can be found at:  https://secure.ssa.gov/poms.nsf/lnx/0452120265.

IME’s

I seem to be getting a lot of questions about IME’s lately – so here’s a bit more on the topic.

If you have specific complaints about the way in which a medical exam ordered by the Department was conducted, put them in writing.  An IME Comments Form (F245‑053‑000) is available online, or you may call 1‑888‑784‑8059 to request a comment form. You can specify your preferred language. The Department has made efforts to improve the quality of physicians who are approved to perform IME’s, and does take comments and complaints seriously.

That said, these exams are a thorn in everyone’s side. However, they are with us to stay. There are a couple of things you can do.

Make sure you provide an accurate and complete history at your first medical visit following your injury. Often IME’s are ordered because the claims manager does not have a clear picture of how or where the accident occurred and is not sure whether to allow or reject the claim. I can’t tell you how many times I talk to a worker who saw a physician for their injury, but didn’t ‘mention’ it was work related. They didn’t think they were hurt that bad, wanted to keep their job, didn’t want to report it to L&I . . . whatever the reason, we’re working on cleaning up the discrepancy – and the CM orders an IME to try and get a clear picture of what happened.

Encourage your treating medical provider to provide detailed chart notes and comprehensive treatment plans to the claims manager. Often IME’s are ordered because the claims manager is not getting information from the Doctor. Make sure the AP is responding to all requests for information as timely as possible and is keeping the CM informed.

You must be proactive in your treatment. Often IME’s are ordered because treatment seems to be stalled with no discernible improvement over multiple follow up visits. If all the CM sees is the same chart note with a different date, no change in findings or treatment recommendations and instructions to follow up in 6 weeks, an IME is going to be ordered. This is especially true if you are not working. Your condition should be improving, treatment or diagnostic studies should be ordered and obtained smoothly. There should be progress.

When your medical condition stabilizes and its time to get a permanent impairment rating and close the claim, ask your AP to do the exam and the rating. The Department encourages treating physicians to provide PPD ratings for their patients. If your AP provides a rating, you are less likely to see an IME ordered. If your physician can’t or won’t provide an impairment rating, ask them to refer you to someone else to get the rating. They can refer you to a colleague or someone on the Department’s Approved list – in either case you may avoid having to attend an IME.

These steps may help avoid an IME in the first place. When an exam is scheduled, be prepared, be honest, do not exaggerate. (This topic should be an entire post!)

What to bring to that first appointment

I try to speak with a potential new client on the phone before that first appointment is scheduled. Sometimes I’m able to answer a quick question, and the worker does not really need an attorney, yet.  But when an appointment is necessary, I am often asked, “What should I bring with me?”.

Injured workers come with a variety of organizational styles, and I’ve seen them all.  Some workers have carefully saved every letter and medical report, and logged every phone call. Some workers have stacks of envelopes with the papers still in them (sometimes unopened!) Some workers keep nothing. Some workers have spouses who keep track of and organize everything related to their claims.

So here’s the truth. The first thing I am going to do after filing my Notice of Appearance is get a complete copy of the claim file. If I’m working on a State L&I claim, I’ll request a copy of the document imaged microfiche, but I usually have access to the complete
file through the Claim and Account Center within a few days. If the claim is Longshore or DBA I will request  a complete file from the insurance carrier and I also routinely get a copy of the Department of Labor file.

Once I receive the file, I’m going to review it – start to finish. This file is going to have all the medical records, correspondence, payment records, IME reports and vocational records. I’m going to have a really thorough understanding of what has happened to date, and what present problem needs resolving. I’ll know what information I am missing, and I can easily request it.

Which is all by the way of saying, you do not have to track down all your medical records to bring to me. You do  not have to scour your home for every scrap of paper related to your claim. It is all in the file, and I’m going to get it and read it. I tell potential clients to bring with them whatever prompted their call to my office.  It might be a letter from the claims manager,  a notice of controversion or Department Order. It might be a vocational report, or  medical report. You received something which caused concern or which you did not understand. Bring at least that with you to your first appointment.

That is enough to let me know what type of claim you have, who I need to contact to file a notice of appearance and request the file, and what immediate problem or dispute is at issue. I’ll be able to ask enough questions when we meet to get the ball rolling. Hiring an attorney is supposed to provide some relief from the stress. So, let’s start by making that first appointment as easy as possible!

Settlement Agreements

I am at a bit of a loss to explain the new provision in our workers compensation law which allows for lump sum settlements. (HB 2123)    It is a poorly written provision, passed with no public hearings, for purely political reasons. There are so many unanswered questions and issues and processes which will need to be developed, that I cannot begin to explain to you how these new settlements will be negotiated, approved, or paid. So, definitely topics for another day as we know more answers.

For now, what we do know is the effective date for this legislation is January 2012. So, no settlement agreements before that date. The new statute requires the worker be 55 years old before a settlement can be considered. (this age requirement drops to 50 over time) The settlement amount must be paid with a periodic payment schedule, rather than a single lump sum. (details of what this may require or allow are unclear) Settlement agreements will have to be approved by the Board of Industrial Insurance Appeals. (details are also unclear, other than the Judges may not give legal advice) Once approved, the settlement agreement will resolve all aspects of the claim, except future medical care. (although, whether this is anything more than a hollow promise of future treatment remains to be see)

I can also tell you to be cautious. I will not suggest that under no circumstance should an injured worker consider such a settlement agreement. Now that these agreements are allowed, we will see more benefits being denied and disputed. Given the absence of the sure and speedy safety net which injured workers were promised, there may be situations where such a settlement arrangement may be the best course of action. That said, the Department and Employers have more experience with workers compensation and are under no financial hardship or duress. You won’t necessarily know what you are entitled to, what to ask for, or what’s fair under the circumstances. An unrepresented worker will be at a disadvantage – you will not be bargaining from equal positions. If you are not already represented by an experienced workers comp attorney, consider hiring one. Feel free to take that with a grain of salt if you think it’s self-serving. But, I didn’t write the law, in fact I opposed it. I can protect my clients. Who will protect those who don’t have an attorney? These settlements are risky for unrepresented workers and any cost savings to the system comes from workers getting less than they would otherwise be entitled to receive. So, be cautious. Be informed. Get good advice.

COLA’s

The Legislature passed House Bill 2123, which has a number of provisions which will effect workers compensation in our State. I hope to discuss all of them eventually. But, most immediately, if you are receiving time loss or permanent total disability/pension benefits there will not be a cost-of-living adjustment this July. This is a one-time pass on COLA’s designed to save money.

If you have thoughts on any of the items contained in this Legislation, please forward them directly to our Governor – the prime architect of this year’s workers compensation ‘reform’.

Christine.Gregoire@GOV.WA.Gov

Workers headed to Japan and Workers’ Compensation Coverage Issues

In the aftermath of the devastating earthquake and tsunami (and the resulting nuclear catastrophe) in Japan it is anticipated that many workers will be going to Japan to help in the humanitarian aid, clean-up and rebuilding likely to occur in the next several years.  To the extent that these workers are employed by U.S. contractors under contract with any federal agency they may well have workers’ compensation coverage under the Defense Base Act (DBA).

Coverage under the DBA extends to: (1) Workers working on any contracts with any U.S. government agency, including construction and service contracts and contracts approved and funded by the U.S. under the Foreign Assistance Act, if the contract is performed outside of the United States; (2) All workers engaged in such employment, regardless of nationality, including U.S. citizens and residents, host country nationals (local hires), and third country nationals (individuals hired from another country to work in the host country); and to include (3) All workers employed by all levels of contract, including sub-contracts and subordinate contracts, are also covered under the Act.

There are provisions for a U.S. Department of Labor (DOL) waiver of coverage but even if granted the waiver is typically conditioned such that it does not exempt from DBA coverage citizens of the U.S., legal residents of the U.S., or employees hired in the U.S.  Waivers are strictly enforced and if the conditions under which the waiver was granted (e.g. that local workers’ compensation programs would cover workers injured on the job) do not hold true, DBA coverage is extended to those formerly “waived” workers.  At this time the DOL has granted waivers for the Department of the Defense and the State Department for work performed in Japan.  No other federal agencies at this time have been granted waivers for work performed in Japan and thus all non Defense and State Department agency (i.e. any other federal agency) contractors must provide DBA coverage for its workers in Japan.

What does this coverage cover and dies it include radiation exposure related disease from work done in Japan?  All injuries or occupational diseases which arise out of or result from employment exposures are covered.  That would include conditions such as radiation illness that may not manifest itself for many years following exposure.  To qualify for coverage a worker needs to show work for a covered employer working under federal contract outside the U.S., that the worker was injured or contracted a disease during that employment and that the employment conditions were such that they could have caused the injury or disease.  That is sufficient to bring into play a presumption that the conditions of work did cause the injury or disease (a possibly rebuttable presumption, but that is the subject of another blog).

All DBA claims arising out of Japan should be filed in the Office of Workers’ Compensation Programs (OWCP), part of the U.S. DOL) in Honolulu, Hawaii, but after they are filed there initially they may be transferred to the OWCP office nearest the worker’s residence (e.g. Seattle).

For more information see: http://www.dol.gov/owcp/dlhwc/dbacoverageinJapan.htm.

Medical Provider Network

You may hear about a new Medical Provider Network, or MPN, being created by the Department of Labor & Industries. Legislation was recently signed by the Governor giving the Department the authority to create a network of medical providers to provide treatment to injured workers. This was a Legislative proposal which Business and Labor groups worked on together and ultimately both supported.

There are a lot of details to be ironed out, and the new Network will be rolled out slowly to limit unanticipated problems and preserve access to care. The most important thing for injured workers to know is they still have the choice to determine who will provide treatment for their industrial injury.

Workers’ choice of treating medical provider has been a cornerstone of our system, and nothing in the creation of a new MPN will alter that free choice. Currently, the worker may receive treatment from any provider who has an L&I provider number for billing purposes. In the new MPN the worker may choose to treat with any provider in the network.

The Network itself will be very broad, and will include virtually every medical provider who currently has a Provider number for billing purposes. The Network allows the Department to review the credentials of medical providers. Providers will be accepted into the Network if they are already credentialed by another health care system, for instance Blue Cross, Uniform Medical, or Group Health. There will be incentives for Providers who meet some additional standards in Occupational Medicine best practices,  encouraging quality care for injured workers.

One of the basic tenets of our workers compensation system is better medical care improves return to work and overall outcomes for injured workers. The Network will provide the Department with additional tools to meet this goal, while preserving access to care, choice of provider and improving medical treatment.