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.

2010 in review

The stats helper monkeys at WordPress.com mulled over how this blog did in 2010, and here’s a high level summary of its overall blog health:

The Blog-Health-o-Meter™ reads Wow.

Crunchy numbers

A helper monkey made this abstract painting, inspired by your stats.

A Boeing 747-400 passenger jet can hold 416 passengers. This blog was viewed about 12,000 times in 2010. That’s about 29 full 747s.

In 2010, there were 6 new posts, growing the total archive of this blog to 38 posts.

The busiest day of the year was November 2nd with 131 views. The most popular post that day was NO ON INITIATIVE 1082.

Where did they come from?

The top referring sites in 2010 were workerscompensationinsurance.com, search.aol.com, welchcondon.com, capricaepisode.com, and search.conduit.com.

Some visitors came searching, mostly for injured at work can i sue, can i sue my employer, rene lapolla, light duty job description, and initiative 1082 washington state.

Attractions in 2010

These are the posts and pages that got the most views in 2010.

1

NO ON INITIATIVE 1082 October 2010

2

Workers’ Compensation Offset of Social Security Retirement Benefits – Can it be stopped? June 2009
27 comments

3

Independent Medical Exams or IME’s January 2009
24 comments

4

How and When to Reopen your Claim November 2008
14 comments

5

Can I sue my employer? January 2008

NO ON INITIATIVE 1082

As a general rule, I keep political views off this blog. I am making an exception for Initiative 1082, because it will have such a devastating impact on those we represent.

Washington workers’ compensation is there when you and your family need it. If you are injured on the job, workers’ compensation pays your doctor bills and provides some income until you can work again.  Our current system is highly rated by independent assessments because it is non-profit and required by law to operate with minimal costs.

The insurance industry wrote and is backing 1082 because they want to turn our State’s workers compensation insurance over to private industry. They wrote the initiative to set up a system where they can wrongly delay and deny legitimate claims, making a profit on the backs of injured workers.

The initiative is filled with fine print that hurts working families and according to its sponsors will cost small businesses $315 million. And, according to the State’s Office of Financial Management, 1082 will cost taxpayers $250 million.

Our Insurance Commissioner Mike Kreidler warns that the initiative would gut consumer protections and eliminate necessary oversight.

You have already received your Washington Ballot in the mail. Our office urges you to VOTE NO on 1082.

More on Third Party Claims

I liked Dave’s last post about third-party claims. It’s not a topic we’ve talked about very much, but it can be an important avenue of recovery for someone severely hurt at work. So, what types of situations will result in a claim against a third-party?

We see a lot of third party claims involving injuries on construction sites. Just think of all the activity on your everyday construction project. The General Contractor has the overall duty to provide a safe work environment for all workers on the site. The General contracts with a number of specialty subcontractors.   It’s not unusually to have  subcontractors in charge of site preparation, framing, electrical, plumbing, mechanical work, roofing, cement and even landscaping. Each of these subcontractors hires their own employees, and must make sure those workers are performing their work safely, and just as importantly, not endangering any of the other workers on the site. So, if the framer leaves a hole in a floor uncovered and an employee of the electrician falls through it and is injured, there is a potential third-party claim against the framing subcontractor and maybe the General Contractor as well. A roofer who doesn’t tie off properly and falls off a roof injuring himself does not have a claim against his own employer, other than his workers compensation claim. But, the landscaper who is hit by the roofer’s falling ladder may very well have a third party claim against the roofing subcontractor. Any work injury which occurs at work site with multiple employers or subcontractors should be carefully evaluated for potential third party claims.

 If a product or piece of equipment being used by a worker, but not owned by the workers employer, fails or is defective there may be a third-party claim against the product manufacture or owner. For example, a metal ladder with a faulty weld or a rented back hoe with no functioning back up warning signal. If either of these defects proximately causes a work injury the product manufactory or owner may be held responsible.

 If the worker is driving as part of regular work duties and is involved in a motor vehicle accident, there may be a third party claim against the negligent driver. If a worker is assaulted by a customer, there may be a third party claim. A worker who is injured on physical premises not owned or maintained by his employer, may have a third party claim. For instance, the delivery driver who slips on ice on the loading dock while making a delivery, may have a claim against the company responsible for the property. Any number of situations can give rise to a potential third party claim. As a general rule of thumb, if a work injury involves some entity other than your immediate employer, some product or equipment that your employer does not own or control, you should explore your options. As Dave mentioned, third party claims involve proof of negligence, which worker’s compensation claims do not require, and they can take a long time to resolve. But they can also be an effective tool in making sure your recover for all your damages, not just the limited statutory benefits provide in our workers compensation laws.

Injured at work due to third party negligence?  (Do you have a third party claim?)

On many occasions a work related injury may have the additional potential to be a “third party claim”. Most workers compensation systems allow for a third party claim against one not in the employ of the injured worker’s employer who causes injury as a result of negligence or even an intentional act. An injured worker generally does not have to make a choice between receiving workers’ compensation benefits and pursuing a third-party claim but rather is allowed to pursue both remedies.  In such situations the workers compensation insurance carrier is given a lien against the third party recovery.

In most occasions the third-party claim will take much longer to resolve than the workers compensation claim. This allows the injured worker to receive ongoing workers’ compensation benefits including temporary total disability payments (“time loss”), temporary partial disability payments (loss of earning power), permanent partial disability payments, permanent total disability payments, medical aid benefits, vocational assistance where appropriate, together with other workers compensation benefits that might be available while the third-party claim is pursued. This minimizes the suffering compared to a normal negligence claim where the injured party must self finance their own lost time, medical expenses etc. until the tort claim is resolved.

The amount that a successful third-party claimant must reimburse to the workers’ compensation carrier varies based on the workers compensation system.  Under the Washington State Industrial Insurance Act there is a precise formula to determine the reimbursement to either the Department of Labor and Industries or the self-insured employer. The formula is such that the injured worker is guaranteed to receive some of the money from the third-party recovery before for reimbursement to the Department or the self-insured employer for the lien.  Under the current state of the law recoveries for general damages or by a spouse for loss of consortium are not subject to the lien under the theory that the workers compensation act does not compensate an injured worker for either element of damages. This issue is before the State Supreme Court at this time for review and this will be updated as necessary when the Court reaches a decision.

Under the Longshore and Harbor Workers’ Compensation Act, and related laws, the lien of the insurance carrier or self-insured employer is repaid 100%, after the payment of attorney’s fees and costs, before the injured worker receives any monies from the third-party recovery.  At this point in time the insurance carriers’ lien extends to the full recovery including general damages.

Under either the Washington State system or the Longshore act a third-party recovery that will be a deficiency settlement (recovering less than the amount paid, or payable, as worker’s compensation benefits) must receive prior approval. Failure to follow the statutory requirements for such approval can jeopardize further benefits under the workers’ compensation system.

Although there are potential pitfalls, in most cases is a great advantage to the injured worker to be able to pursue a third-party claim. Workers compensation systems pay temporary total disability or time lost benefits based on a percentage of wages with a statutory maximum that can be recovered.  Third-party claims allow for a full recovery including wages, loss of fringe benefits, including health care benefits, pension contributions etc., bonuses, and other forms of compensation.  Third-party claims also include awards for general damages (pain and suffering, loss of the ability to enjoy life, etc.) which are not payable under workers’ compensation programs. Third-party claimants can recover for future loss of earnings or earning capacity which might not be collectible under workers compensation system depending on the nature of the injury or specifics of the worker’s compensation program.

Generally speaking, comparative negligence of the injured worker is not a bar to pursuing a third-party claim but rather would only serve to reduce the award based on the percentage of negligence attributable to the injured worker. Under Washington State law negligence of the injured worker’s employer or a coworker would also not reduce the recovery as the employer’s contribution is through the workers’ compensation system.

In conclusion, an injured worker or one who suffers an occupational disease who feels his or her condition was caused in whole or in part due to the negligence or other wrongful actions of someone other than his or her employer or co-worker should contact an attorney experienced in handling their party claims to discuss the potential of bringing an independent action against the third party.

Recorded Statement?

I have heard recently some injured workers are being told by their Employer’s TPA (third-party Administrators) that they have to give a recorded statement about their injury. If the worker refuses, they are told their claim will be denied or rejected.

 While it is true that an injured worker must cooperate in providing information about their injury it is NOT true that they must consent to a RECORDED statement.  An unrecorded conversation is fine, so is a written explanation. There is no requirement that the worker consent to a recorded statement in order to have their claim properly adjudicated.

 I am not exactly sure where this insistence for a recorded statement originates. It does not seem to be a problem with the Claims Managers at the Department. It seems to be with the TPAs for the self-insured employers, and even more so with the TPAs for the Retro Employers. These latter are shadow managing a claim which is technically managed by the Department. These Retro TPAs can be very aggressive. The less paid in benefits, the larger the Employers’ Retro refund (in very broad brush strokes). Some of these TPAs are out of state, although that is really no excuse for misrepresenting the law. This is most likely symptomatic of broader involvement in claims management with out corresponding oversight and required training. You’ll see more on these themes in the coming days.

 The message? Know your rights. If you’re not sure – ask.