Workers’ Compensation Offset of Social Security Retirement Benefits – Can it be stopped?

THE HISTORY:  In Washington State the workers’ compensation system has been offsetting a claimant’s receipt of social security retirement benefits since 1986.  Social Security disability benefits have been offset since the 1970s, but it took a while longer to implement an offset to retirement benefits.  All injured workers who were not on Social Security Retirement in July 1986 have had their later entitlement to retirement benefits subject to the potential for offset.

Generally the offset is calculated based on either a worker’s average current earnings (ACE) or their time loss rate.  The average current earnings are calculated based on the highest calendar year earnings of the worker divided by 12 to find an average month.  The offset is then calculated by taking 80% of the ACE.  That figure represents the maximum beyond which the combination of SS retirement and worker’s compensation benefits cannot exceed.  Since a worker’s compensation cannot be reduced because of the offset, if that 80% figure is below the time loss rate, then the time loss rate will be used to calculate the “cap”.  In that latter case all of the retirement benefits are subtracted from the time loss benefit and the worker receives no increase due to the entitlement to retirement benefits.  Where the ACE is higher than the time loss rate, then the workers’ compensation benefits are reduced to the point where the retirement benefits plus the workers’ compensation benefits equal the ACE figure.  In that case the worker receives more money than on workers’ compensation alone, but still at a reduced rate due to the social security offset.  There are periodic cost of living adjustments provided, either yearly for those whose time loss rate is the basis for the offset or every three years if the ACE is the basis for the offset.  [Yes, it is complicated!]

The offset was challenged as being in violation of the Washington State constitution but that was rejected by the Washington Supreme Court in 1993.  A recent challenge to a similar law in Utah was successful as the Utah Supreme Court found it violated the Utah and U.S. Constitutions (exactly the opposite decision from Washington’s court some 16 years earlier).  It is unlikely the Washington Court would be willing to revisit that issue having already considered and ruled on the issue, despite the different outcome in Utah.

CAN THIS BE FIXED?  A bill has been introduced in the Washington Legislature (HB 1211) to repeal the retirement offset.  That bill has yet to gain any real traction despite being introduced again this year.  Representative Steve Kirby (D-Tacoma) is the only sponsor of the bill and remains committed to its passage, but without more support the bill is unlikely to move forward.  The Legislature is out of session for the year and meets in short session next year.  Although economic times are tough for the state, they are also tough for those workers’ on time loss or pension benefits and who are having their hard earned retirement benefits from social security offset against their compensation benefits.

WHAT CAN YOU DO?  All legislators respond to constituents’ needs and demands in one form or another.  One call might receive a polite reply, dozens calls from different constituents might raise an eyebrow (and polite replies), hundreds of calls might reflect a groundswell, thousands of calls might reflect a movement was underway.  If every injured worker called their representative and asked them to contact Representative Kirby to become a co-sponsor on the bill (or at a minimum to otherwise support the bill) and if every injured worker called their state senator and asked them to support the bill when it gets to the Senate the bill can ultimately have a change of passage.

IS THERE HOPE?  Even with a strong groundswell from the injured worker community the bill is not assured of passage.  While it has strong support on equitable grounds (SS retirement is based on a lifetime of work and is intended to replace wages during a worker’s retirement years) and has nothing to do with disability or the disability system (which offsets workers’ compensation and SS disability to make sure a worker has incentive to return to the work force and that life will not be too comfortable – financially – on disability) the bill will have a huge fiscal impact on the Department of Labor and Industries.  On all bills filed which affect the state budgetary process the agency involved files a “fiscal note” with the Legislature advising what the financial impact will be if the legislation is passed.  While workers’ compensation benefits are not funded out of general revenues – rather from employer and worker premiums – if there is a large fiscal impact it could include the need for some premium increases or consideration thereof.  This could spook the Legislature into rejecting the bill despite large popular support from constituents.

FINAL WORD:  The bill will go nowhere despite the good intentions of Rep. Steve Kirby unless support can be generated from other legislators.  The way to start that process is to spread the word among injured workers, friends of injured workers, unions, disabled support groups, retirement groups, etc.  If those groups can get behind this bill, and should a steady groundswell rise up, the Legislature cannot ignore it.  Like all long marches, they must begin with the first step.  Rep. Kirby can be reached at: kirby.steve@leg.wa.gov.  Let him know you care.  Let you own Representative know you care.  Step up and make some phone calls, send some emails, spread the word that the time has come to pass HB 1211 and repeal the social security retirement offset from Washington State workers’ compensation benefits.

Vocational Option 2

We are about a year and a half into the 5 year pilot Vocational Improvement Project (VIP) at the Department of Labor & Industries. The Vocational Subcommittee (which I am on) continues to meet regularly. This first year has been busy with issues surrounding how to implement the changes to the vocational system, and the Department has done a good job with an overwhelming number of changes, both anticipated and not anticipated.

 The VIP has a feature which was not present in our former vocational system, for shorthand we call it “Option 2”.  Because it is new, workers have a lot of questions. Let me explain what it is, and then try to walk through some of the considerations.

 If a worker is found eligible for vocational retraining (that is, further vocational assistance is both necessary and likely to assist the worker in returning to reasonable continuous gainful employment) he or she works with a vocational rehabilitation counselor (VRC) to develop a comprehensive retraining program. This program can cost up to $12,240.00 (as of 7/1/08) and take up to two years. The vocational plan is submitted to the Department for approval. Once approved the worker has 15 days to choose one of two ‘options’.  You will receive information about these options as you progress in the plan development process, so the 15 day window should not be a surprise. You can not elect an option until your retraining program has been developed an approved. In theory, this insures you have had an opportunity to fully explore the retraining possibilities open to you, and have an exact plan developed so you are aware of exactly what the consequences of the ‘option’ choice will be.

 Option 1 – the worker participates in the plan as outlined and approved. This is the easy one, you know exactly what you are committing to.

 Option 2 – the worker declines participation in the retraining program. Time loss benefits stop. The worker is entitled to the equivalent of an additional 6 months of benefits, at the same time loss rate. The claim is closed with the appropriate permanent partial disability award.  Any time within the next 5 years the worker may use the reserved vocational retraining costs (the $12,000 plus) to pay for training or classes at any accredited or approved school or program.

 Most of the questions I field about Option 2 are whether to take it or not. I will leave for another day the questions surrounding how, and for what, the reserved vocational funds are used.  I will admit to being surprised at the number of workers who have chosen Option 2, it’s running pretty steady at around 25%. When the Subcommittee discussed including a way to ‘opt out’ of vocational retraining in this new pilot, I had in mind those workers who were at or near retirement age, were already receiving Social Security either disability or retirement, had a work history in a single occupation and who were clearly not returning to the workforce.  This was my picture of who would choose Option 2. 

 Well, I was quite wrong. The stories behind who and why workers are choosing to opt-out of the vocational process have been interesting and varied.  One very young worker wanted to retrain in a occupation which just very slightly exceeded her physical limitations. Although she believed she could do the job, the Department would not approve the retraining plan. The alternative plan, which was approved, was not exactly what she wanted to do.  She choose Option 2, got a student loan to replace the lost stream of time loss, and immediately accessed the reserved training funds to enroll in her chosen program.  Who would have thought? Several workers have chosen option 2 because their time loss rate is not enough to pay the bills. They believed their families would be better off if they found a job immediately, rather than scraping by for two years in a retraining program. Several workers talk of taking their Option 2 payout and their PPD award and starting their own business. In the end, it will be interesting to see the results of the study which will track outcomes for workers in this new VIP, including those who have chosen Option 2.

 The lesson I have learned is there is no one answer or test which will help a worker decide whether to choose Option 2 or participate in their retraining program. Every situation is different, in ways I had not anticipated.  However, there are some basic considerations which will be common to all workers. First, I ask my clients if they have a way to pay the bills when the 6 months of Option 2 payments and the PPD award are paid out. If not, then participating in retraining will keep the flow of time loss coming for the duration of the program, will provide return to work skills, and will buy some time to decide ‘what’s next’.  To those clients who say they will just go look for work, we have a frank conversation about the state of the economy and the unemployment rate in the state of Washington. If you do not have a job absolutely positively lined up, taking a pass on retraining might not be the best choice.

 You should consider your age, and whether you want to, and are able to, retire.  If you honestly have no desire or need to work, and are financially secure, then participating in a retraining program might not suit you.  On the other hand, if a you are relatively young, with years of work life remaining, this may be a golden opportunity to receive additional occupational training or education opening an entirely new chapter in your career. Choosing Option 2 and passing up this opportunity might be a mistake.

 One of the hurdles for workers at this stage of their claims is actually picturing themselves back in the work force, in any capacity. This is not a swift moving system. By the time a worker is found eligible for vocational assistance in the form of retraining they are years into their claim. Their lives have been a revolving door of physicians, surgery, therapy, testing, medical evaluations and endless appointments. Being disconnected from the workforce for such an extended period of time makes imagining a return very overwhelming. For those workers struggling with this reality, I urge you to pass up Option 2 and give your retraining program your best effort.  Just like education and training after High School can bridge the divide into the real world, this opportunity for retraining during your adulthood can bridge the gap between injury and returning to enjoyable employment.  Maybe you will get to the conclusion of your program and decide to retire. But maybe, and I believe more likely, you will get to the end of your program enthused, re-energized and optimistic about your future, with a new skill set as an added bonus.

When should you be receiving Time Loss?

When should you be receiving Time Loss?

The obvious answer is, ‘When you can not work because of your injury’.  But as with most things in the workers compensation world, it is not always as easy as the obvious answer.  Several hurdles must be maneuvered before you are entitled to time loss payments.

 First, there must be medical certification that you are unable to work because of  your work related injury.  At the beginning of your claim this should come from your attending medical provider. Unfortunately, this is one of those areas where it does not matter if you think you can do your  regular work – it matters what a medical provider thinks. So, get yourself to a  Doctor as soon as you can.  The certification will address your ability to return to work at your job of injury. There is no magic time loss form for your doctor to complete. Although the claims manager may send your medical provider an Activity Prescription Form, this specific form is not required to collect time loss. The same information can be found in the providers chart notes or any other form used by the Doctor’s office.  You will not receive time loss for the day of injury, or the 3 days following the injury, unless you remain off  work for 14 days. 

You will also be required to sign a Worker Verification Form to certify you have not worked, and to let the Department know if you have applied for any public assistance. (note – self-insured claims may not use this particular form)  The Department may send you this form, or you can complete it on-line in the Claim and Account Center. You can mail it, fax it, or drop it off at a service location.  If you have an attorney, your attorney will make sure you get one to complete when necessary.

 Time loss can be paid even before the Department issues an order formally allowing your claim. If there is medical certification and worker verification, provisional time loss benefits should be paid pending the Department’s review of the claim and allowance or rejection of the claim.  Of course, if the claim is ultimately rejected, these provisional benefits will need to be repaid. (in limited circumstance, the Director may waive repayment if recovery would be against equity or good conscience.)

 As the claim progresses, your medical provider may be asked by your employer to release you to light duty or modified work of some type.  (see previous posts on light duty work) The Employer should provide a specific job description which allows your medical provider to assess whether you can perform the work described. If your physician releases you to this work, you will not be entitled to time loss benefits. However, if this temporary light duty work pays less than your regular work, you may be entitled to Loss of Earning Power benefits to make up some of the wage loss. If this light duty work interferes with your recovery and your physician again certifies you are not able to work, your time loss should resume. Likewise, if the employer no longer has light duty work available, time loss should be paid.

 If you leave your employment, and take another job with another employer, you may still be entitled to time loss if your physician subsequently indicates your injury interferes with your ability to work at either your job of injury or your new job. I had a worker call the other day who had changed employers several months after her injury. About a year later she had surgery for her work related injury. The claim was open and the surgery was approved treatment. She wanted to know if she should have received time loss while she was recovering from surgery and unable to work at her new job. Absolutely, yes! It does not matter that she was working for a different employer, she should have received time loss, and we will be following up on her claim to make sure she does.

 If you move out of state you are still entitled to time loss benefits. There is no rule or law which requires that you reside in Washington to continue receiving benefits under your claim. We have clients in a lot of different states, and several foreign countries. While medical treatment may be a challenge, there is nothing about a move, in and of itself, which limits the payment of time loss benefits.

 If your injury is serious and permanently prevents a return to work at your job of injury a vocational assessment will be conducted. You should receive time loss during this process. If the vocational assessment concludes you are employable, your time loss benefits will stop.

 This is really only a very basic outline of when time loss should be paid. As a general rule, if you have an open claim, are not working because of your injury and are not receiving time loss benefits, you should talk to an attorney about your specific circumstances. There may be some arguments to be made that benefits should be paid. It is always worth taking a look, and may result in the payment of significant back due benefits.

Will the $250 federal stimulus payment to SSA and SSI recipients be subject to workers’ compensation offset?

A question has come up whether workers’ compensation programs will offset, as permitted by federal and state law for those who receive both workers’ compensation benefits and social security benefits, the one time $250 federal stimulus payment due to SSA and SSI recipients in late May 2009. At least in Washington State it appears that the federal stimulus monies will NOT be offset by the Department of Labor and Industries, the agency which administers both the state fund and self insurance programs. While it appears likely a workers’ compensation program COULD offset the $250 just like any other benefits received from Social Security, the Department of Labor and Industries, upon inquiry, has advised that it will NOT be offsetting the one time payment. It is quite likely that the costs of entering a separate order in each individual claim modifying the offset based on a one time payment was felt to exceed any benefit enjoyed from the one time $250 windfall, but for whatever reason, it appears that the stimulus monies are safe for now…

Injured in Iraq or Afghanistan? Welcome to Defense Base Act claims.

Many civilian workers injured while working in Iraq and Afghanistan are returning home with uncertainty as how to pursue their claims for workers’ compensation benefits.  While not including all civilian, non government, workers in those geographic regions, the bulk of injured workers returning from Iraq or Afghanistan will have claims under the federal Defense Base Act (“DBA”).  While a separate federal law, the DBA incorporates the procedures applicable to Longshore and Harbor Workers’ Compensation Act for processing and resolution of claims. 

 

The DBA provides coverage for those injured while working for a contractor engaged in “public work” overseas which generally includes fixed improvements in conjunction with the national defense or operations under service contracts in connection with national defense, war activities, harbor improvements, dams, roadways, housing and ancillary work in connection therewith.  To be “public work” covered under the DBA the claim must arise from a contract with the United States to perform public work overseas.  Also included are service contracts in conjunction with the performance of such overseas public work.    

 

Accordingly many of the civilian workers employed in Iraq and Afghanistan under contracts to aid the war effort or contracts for “public work” involving construction, alteration, removal or repair of the United States or its allies are covered by the DBA.  There is coverage in conjunction with activities arising out of the scope and course of the performance of the work (e.g. a truck driver carrying war supplies is injured in a collision with another truck) as well as the extended coverage available in the “zone of special danger” for injuries/deaths not necessarily arising out the scope and course of the work.    

 

Under the “zone of special danger” doctrine, coverage is extended to those whose injury did not occur in the normal space and time boundaries of work, but to those who are injured or killed while within an area where the obligations of the employment create a zone of special danger out of which the injury arose.  Included in the “zone of special danger” cases are injuries/deaths in employer sponsored recreational areas, or even further removed injuries/deaths such as an employee injured or killed while on a weekend outing (the employee had to work “under the exacting and dangerous conditions” of the area and thus was covered).  Also covered in the “zone of special danger” was a worker who suffered a heart attack while off duty in his barracks in Greenland. 

 

While handled similar to Longshore and Harbor Workers’ Compensation Act cases, there are differences in some details that make finding an experienced attorney important.  There can be slight differences in the calculation of the Average Weekly Wage, there are procedural differences (while the claims must occur outside the continental U.S. they must be initiated in very specific district offices of the Office of Workers Compensation Programs; they are adjudicated in that District office until the employee returns home in which case the case can be transferred to the District appropriate to the worker’s residence) and under certain circumstances the appeal procedures differ from Longshore and Harbor Workers Compensation Act cases. 

 

In my own practice, I have handled cases under the DBA to include, for example, a truck driver who suffered a herniated disc in his back when his tanker truck slipped into a two foot deep “rut” while delivering jet fuel to support the war effort in Iraq (a case where the injury occurred in the “scope and course of employment” much like any workers’ compensation claim) and a physician’s assistant employed to provide medical support to the activities of rebuilding the science research station at the South Pole who slipped on ice and fractured his leg on the way to the bathroom (“injured in the zone of special danger”). 

 

As such, whether injured in Iraq, Afghanistan, the South Pole, Saudi Arabia, Greenland, South Sea islands, or anywhere else work is being performed under a contract of the United States to complete public work for the U.S. or its allies and/or under a service contract for such operations, the Defense Base Act is likely the applicable Act to provide workers’ compensation coverage.  Care must be taken to assure your rights are protected as many employers will attempt to cover these types of claims under state workers’ compensation acts (where benefits are reduced) or otherwise to avoid financial responsibility.  Even if one is receiving benefits under a state workers’ compensation benefits for such an injury which occurred outside the continental U.S., consultation with an attorney experienced in the Defense Base Act is advisable to assure that one’s claim is being processed under the correct workers’ compensation act to maximize benefits received. 

 

War Hazards Compensation Act:  For those who are injured or killed by hostile actions under a declared war or “hostile action” there is coverage under the War Hazards Compensation Act (“WHCA”).  This covers all civilian workers injured or killed due to “hostile actions” even if they would have otherwise been covered by the DBA or other workers’ compensation acts if injured or killed due to injuries which occur in the scope or course of their employment (not arising out of hostile actions or which occur in the “special zone of danger” not arising out of hostile actions).  All WHCA claims are handled through the Washington, D.C. district of the OWCP, under the procedures applicable to the Longshore and Harbor Workers’ Compensation Act.  

Independent Medical Exams or IME’s

Perhaps it comes from reading hundreds of them. While medical exams arranged  by the Department of Labor & Industries or a self-insured employer may be called “independent”, they seem to be anything but “independent”. I generally refer to them as panel exams or defense medical exams. Whenever a dispute, question, concern or confusion arises in a claim, a medical exam is scheduled. The reports are often boilerplate, the same physicians show up time and time again. They seem to stall medical treatment rather than facilitate it.  

 

Be that as it may, if you are scheduled for such an exam, you need to go. Failure to attend will likely result in some negative action being taken on your claim. The Department or the self-insured employer has the right to have you evaluated by a physician or physicians of their choosing. These exams can be scheduled for any reason, and pretty much as often as they want. That said, I do have some suggestions.

 

If the date or time of the exam is inconvenient, it is ok to reschedule. Just call the phone number on the notice and reset the exam for a better time.  Despite what a frustrated claim manager may tell you, you are allowed to go on vacation, make plans, and have appointments unrelated to your claim. You are not at the beck and call of your claim manager 24/7. While your personal activities can not completely prevent your cooperation with reasonable claim management requests, they may make you temporarily unavailable, necessitating an exam be rescheduled.

 

If you have an emergency and need to cancel the exam at the last minute, call. It happens. Hopefully, not to the same worker over and over again, but it does happen. It could be the weather, or car trouble, or a sick child. Whatever the reason, call the facility and your claim manager as soon as possible. Unless you have a pattern of last minute missed appointments, it will not be grounds for suspending benefits. Although, you may be asked to write a short statement about the reason for the last minute cancellation for your file. The exam will be rescheduled.

 

If your injury makes driving difficult, you can ask that transportation be provided. Usually, the Department or self-insured will arrange a taxi pick-up. If you are traveling from out of  Washington State, travel will definitely be provided, as well as hotel accommodations if necessary. If you do drive, keep track of your mileage and submit a travel reimbursement. You can get a form here.

http://www.lni.wa.gov/FormPub/Detail.asp?DocID=1631

  

Take someone with you. If you have an attorney, they can not go with you. But, you can certainly take a friend or family member. Not only will this give you some piece of mind, it will be an extra set of eyes and ears.  Your companion may sit through all parts of a physical exam. They will not be permitted to sit through a psychiatric or psychological evaluation.

 

Report any misconduct or inappropriate action by the physician who examines you or any other person associated with the facility where you have the exam. The Department will take action if they receive a number of valid complaints involving a particular provider or facility. If you have a concern about your exam, put it in writing right away and send it to your claims manager. It is perhaps human nature to view complaints made only after the report is received as a bit less credible. Complaints can be sent to:

IME Quality Assurance
Provider Review & Education Unit
Labor & Industries
PO Box 44322
Olympia, WA 98504-4322
360-902-6818

Do not rest up before your exam. I tell my clients to go about their normal activities before an exam, so the provider can see them in their normal state. Keep in mind it is important to be honest with the examiner. Not every test will cause symptoms, and you should be straight up about what does and does not effect your condition.

 

You are entitled to a copy of the exam report, although, the examiner will not send a copy to you. If you have an attorney they will get a copy of the exam and send it to you and your medical provider and request any necessary response. If you do not have an attorney, send a request for a copy of the exam in writing to your claim manager. While there is no law which says the request has to be in writing, I find it harder to ignore or forget about if it is in writing. When you get a copy of the report, take it to your attending medical provider. While the claims manger should send the report to your doctor, it does not always happen. Ask your physician to review and forward any comments directly to your claims manager.

 

You may find a second medical exam is scheduled shortly after  a report is received from the first exam. This is an unfortunate outcome of claim mangers looking for a “preponderance” of medical opinion. Many claim managers seem to feel this means the number of opinions on a particular issue, completely ignoring the quality or credibility of those opinions.  There is not much you can do about it.  If you have an attorney they will make the appropriate arguments, and work with your physician to obtain helpful information to forward to the claim manager.  However, to avoid being found uncooperative and having your claim or benefits suspended, you will need to attend the follow up exams.

 

The Department is currently drafting new Rules defining who can conduct these “Independent Medical Exams” and what those exams should look like. There is some hope these new Rules will serve to improve the quality of the exams themselves and make them more objective and fair.  I suppose we’ll see. In the meantime, these exams are a necessary part of your journey through the workers compensation system. Understanding them, and following a few common sense suggestions will  improve the experience.

How and When to Reopen your Claim

A L&I claim may be reopened within 7 years from the date the first closing order becomes final, for full benefits. That means, time loss, medical benefits, vocational services, disability awards, all benefits that are available under the law. If it has been more than 7 years since the claim was first closed, the claim may be reopened for medical benefits only. The Director of the Department has discretion to provide full benefits in certain circumstances in these ‘over 7’ reopenings.

 

Keep in mind, the time limit is 7 years from first claim closure, not the date of injury, not the date you returned to work, not the date the final installment of  any PPD was paid.  If a closing order was protested or appealed, and ultimately set aside, that is NOT the first claim closure. You are looking for the first final claim closing order. That is the start of the 7 year clock.

 

In a nutshell, a claim will be reopened only where there is medical evidence, based on objective medical findings, that the industrially related condition has worsened, or become aggravated, since the claim was closed.  Your own subjective descriptions of increased pain, loss of function, or inability to work are not enough. A claim can not be reopened solely for vocational services. The Department is looking for increases in objectively measurable findings. Worsening in measures of atrophy, nerve damage, degenerative changes, muscle wasting, range of motion, sensation. Worsening which is evident on MRI, CT scan, EMG. I tell clients, we are looking for concrete, objectively measurable changes in their work related condition.

 

Reopening requests, or aggravation applications as they are sometimes called, should be forwarded directly to the Department, even if your employer was self-insured. There is an actual form, which you can get here:

http://www.lni.wa.gov/FormPub/Detail.asp?DocID=1591

However, an informal written requests, with or without supporting medical information, will start the ball rolling. If there is such an informal request, the Department will forward you the reopening application to complete.  There is a portion of the form for you and a section for your medical provider to complete.

 

You can go to any medical provider to complete a reopening application. If you had a good relationship with the physician who treated you while your claim was open, that is a great place to start. Your primary care provider is ok, an appropriate specialist may be even better. If you have a copy of the closing medical report, take it with you. This will help the physician in comparing your current findings on exam to those at the time your claim was closed.  The medical provider will be paid by the Department for performing the exam and completing the paperwork, whether the claim is ultimately reopened or not. If the physician recommends a diagnostic study to complete the exam, the request should be forwarded to the Department along with the reopening application. The Department will approve many diagnostic procedures in order to gather all the medical information necessary to review the reopening application. Again, if the Department authorizes such a study, they will pay for it. The Department will likely schedule you for a medical exam, called an Independent Medical Exam, or IME. (We can discuss some other time whether there is anything ‘independent’ about these exams)

 

When in this process should you talk to an attorney? There is no hard and fast rule, although I tend to be in the ‘earlier is better’ camp.  The Department will issue an Order either reopening the claim or denying the application. You can protest or appeal a denial, and an attorney will most definitely be helpful, if not indispensable. However, earlier involvement has its up side. An attorney with a good relationship with the Department can nudge a claims manager in the right direction, help make sure all necessary diagnostic studies have been done (on the Department’s nickel), help the attending physician articulate the objective findings which have worsened or respond coherently to an IME report. It is, of course, quicker and less expensive if your claim can be reopened without having to litigate the matter. Getting an attorney involved early in the process will only serve to make sure all possible avenues are being examined before the Order is issued.

Light Duty Trap

In a previous post I encouraged you to have an open mind if your employer offers light duty work while you are recovering from your injury. It is generally a good thing to remain connected to your employer and the work force.

 

I touch on this topic again to alert you to the down side of  light duty work. If you are working light duty, your employer can still fire you for cause. If you are fired for cause, you do not receive time loss benefits. The employer will argue light duty work was available for you, but because of your own actions you are no longer working. Time loss is not payable, since it is not your injury which is preventing you from working and receiving a paycheck.

 

The most common scenario is a worker who does not call in to report an absence while on light duty. Most employers have a call in policy of one sort or another, some less strictly enforced then others. But I promise, if you violate these internal company polices while on light duty, you will find yourself out of a job, light duty or otherwise.

 

There is also the occasional horror story of an employer and co-workers treating a worker on light duty so poorly, that the light duty worker gets fed up and quits the job. Again, no time loss is payable, as the reason the worker is not collecting a paycheck has nothing to do with the work injury. I often tell my clients, your employer does not have to be nice to you.

 

The lesson here is to mind your P’s and Q’s. Follow company rules to the letter, even if no one else does. Walk away from taunts and mocking. Enforce the written restrictions from your medical provider. If your employer is one of the good guys, light duty work will be a valuable bridge during your recovery. If your employer is not on the up and up, the light duty job will evaporate just as quickly as it materialized. If the employer indicates they no longer have light duty work for you, at least your time loss benefits will immediately restart.

Social Security Disability Hearings: Should you accept a video hearing if offered?

The Office of Disability Adjudication and Review (ODAR – where the administrative law judges who do hearings are assigned from) has a program where they offer hearings at remote sites where the judge and many times medical or vocational experts appear via video or audio connections. Is this a good idea?

This technology has been used for several years but seems to be picking up steam as means to save travel costs for judges in a time of tight budgetary constraints (yes, even some federal agencies have to tighten their belts). In this technology the claimant (and representative if he/she has one) appear at one hearing site and the judge is at another (in this area usually Seattle, although sometimes to help reduce the backlog a judge from some other region will participate via the video process).

When these first started the technology was very poor and the images were choppy, the sound sometimes a little garbled and frankly they were a very poor way to have a hearing on something as important as ones right to disability benefits, a decision making process that would very significantly affect the claimant’s future. However the technology has improved some to where the flow of images and sound is fairly consistent and clear. Certainly not yet the equivalent of cable TV (analog not even close to digital or HD) but better technology has arrived to the point where consideration of the video hearing might be appropriate if the positives might outweight any negatives from doing it in that manner.

I have often described to my clients that the hearing process is that time where the judge, serving as the final gate keeper to the social disability benefit access, must carefully listen to the claimant and look him/her in the eye and make a decision (assuming the medical evidence will also support a favorable decision) about putting the claimant on disability benefits for what might in most cases be for the rest of their lives. This is an important decision not only for the claimant but for our social security system. We all want to reserve the system for those who truly are qualified and deserving, denying those who chose not to work and seek some form of government support. So, I have always put great importance in how my clients have presented to the judge and have made sure that they understand that the judge is that final gate keeper and he/she will look them in the eye and make very important mental impressions and later decisions about whether to believe what they are told about the nature and extent of disability the claimant has. When my clients have the time to prepare how to describe how their medical conditions prevent them from even living a normal life, let along working, and then look the judge in the eye and with conviction convince the judge of the truth of what they say it almost always results in a favorable outcome (assuming we’ve been able to gather medical evidence that describes the conditions and offer medical opinions about the general limitations imposed by them).

All of this is lost with a video hearing. Even with large projection screens (they’d be great for a football game or the World Series) the judge is usually a relatively small figure and with unprofessional lighting (using the lighting already in the hearing room with no effort to properly light the participants so they are better visible to those watching in remote sites. While I’ve not been on the other side, I can only assume my client and I are similarly relatively small and with no additional lighting make a less than ideal image to try to look my client “in the eye” and judge his/her credibility. This does a disservice to the entire hearing process.

In addition, many times the medical expert (hired by ODAR to help the judge understand the sometimes complicated medical evidence presented in support of a claim) or vocational expert (also hired by ODAR to advise the judge on vocational issues including better understand the claimant’s past work and trying to identify work the claimant can do given any limitations the judge feels are appropriate given the medical evidence and the claimant’s testimony) are also appearing by video or even audio connections (telephone). When they are not at the same site with the claimant the benefit of the claimant’s testimony is largely lost. A medical expert was unable to benefit from watching the claimant testify and being able to “see” the pain in their faces as they testify is going to be less sympathetic in advising the judge about limitations that might be medically appropriate for the claimant. A vocational expert not present is probably less likely to have an opportunity to testify in a manner favorable to a claimant who he/she believes is honestly presenting their condition, but there are times when a claimant’s physical/mental abilities might be close to performing a job, but where the vocational expert might offer some barrier to the position based on his/her perceptions gained through the course of the hearing and thus eliminate it from consideration. A little sympathy cannot hurt and it is lost without the ability to see the claimant in person.

So, that’s a long way of suggesting video hearings are generally not a good idea. The only benefit is possibly to be able to get a hearing scheduled sooner than waiting for judges to travel to remote sites, but if the net result is to have a greater chance to lose the hearing then there really is no benefit. At this point, I’d only consider advising my clients to agree to video hearing if I’ve been able to develop overwhelming medical and vocational evidence supporting their claim and can see not real way that the outcome would not be favorable. Otherwise, I advise ODAR that we’ll wait for a “live” hearing. The delay does not have to be significant. As an example in late May 2008 we were notified we’d been scheduled for a video hearing for June 30 (we were to appear in Olympia, the judge and vocational expert would be in Seattle). We advised the judge that was not acceptable and were then able to wait and have a “live” hearing in Olympia in mid September. While that is a 2½ month longer wait, when hearings take up to two years to achieve, a small additional wait is well worth improving the changes of success. One additional note, by insisting on a “live” hearing we did lost the availabilty of the initial judge we had scheduled in June. That can cut both ways depending on which judge I might consider more conservative (less likely to award benefits) or more liberal (more likely to award benefits), but that is a good subject of another blog another day…

Should you waive voc services?

My rant for the day .. If you have a Labor & Industries claim – do not EVER waive vocational services.  I can not think of a single situation where it would benefit an injured worker. If you come and see me only after you have waived voc services, and your claim is closing, there is very little I can do to help you.

 

To be clear, I’m talking about declining to participate in early intervention, vocational assessment, or in plan development services. I am not talking about taking the new Option 2 benefit after your retraining plan has been submitted and approved by the Department. There are some interesting reasons to take the Option 2 benefit, rather than participating in a retraining program. That’s a topic for another day.

 

I’m talking about those workers who for whatever reason sign some type of form saying they decline vocational services, understand they can consult an attorney, (please do!) and further understand their time loss benefits will stop. No good can come of signing this waiver. Any attorney will tell you not to sign it.  You are making the Department’s job easier. You are allowing your claim to be closed without an assessment of whether you can return to work.  Whether your employability is a foregone conclusion, or is hotly disputed, never just walk away from the issue. 

 

Make the Vocational Rehabilitation Counselor do their job. Maybe you’ve already returned to work. Fine, let the VRC close vocational services because you are working. Maybe the VRC will conclude you have transferable skills and can return to some type of work. We can dispute that determination if we disagree with it. Maybe the VRC will recommend plan development. If they do, develop a training plan even if you aren’t really interested in retraining and returning to new work. If nothing else, after the plan is approved you have the choice of retraining or taking the Option 2 benefit, with it’s 6 months of additional benefits. Why give that up?

 

Most importantly, don’t take legal advice from a well-meaning doctor, the vocational counselor, or your buddy. They are not going to understand the hole you are digging for yourself by waiving vocational services. Don’t sign a waiver, see an attorney.