WELCH&CONDON

If you are receiving Time Loss or Pension benefits under a Washington State Labor & Industries claim, your July check will reflect an increase. Cost of Living Adjustments are effective July 1 each year. This year’s increase is 5.018%. Pension payments, which go out the 15^th of each month, will reflect the increase. Time loss for periods on or after July 1 will also reflect the increase. Your time loss check may cover periods both before and after the COLA,  the daily rate will reflect the difference.  You can read the press release from the Department here;

http://www.lni.wa.gov/news/2008/pr080626a.asp 

If you have a Washington Labor & Industries claim, you may be wondering who exactly is managing your claim. Here’s a brief roadmap.

The majority of workers compensation claims in this state are insured by and handled by the Department of Labor &  Industries. (L&I) This is the  state agency which oversees all workers compensation claims, health and safety issues, and wage compliance issues. We call these State Fund employers. Your claim is being managed by a claims manager at the Department’s main location in Tumwater. You may have several claims managers over the life of your claim. Don’t take it personally. Claims which are more complicated are transferred to more experienced adjudicators. Claims managers may leave or be promoted, with someone else taking over their existing case load. 

Some employers in this state are self-insured (SIE) These employers cover their own workers compensation costs and manage claims themselves. But remember, they must follow the same law, and you are entitled to the same benefits. Some of this state’s larger employers are self-insured; Boeing, Alaska Airlines, Costco and Weyerhaeuser come to mind. School Districts, some grocery stores, cities and municipalities are also self-insured. If your employer is self-insured your claim is being managed, in most cases, by a  private third-party administrative.(TPA) Your claims manger will work for a company like Puget Sound Workers Compensation Trust, Broadspire or Sedgwick.  The claims manager will likely have a closer working relationship with your employer then you might see with a State Fund employer. This may be helpful if you are dealing with early return to work efforts. Although your self-insured claim is managed by a private TPA, the Department of Labor & Industries still has authority to assist in resolving disputes or working out wrinkles. While the SIE has authority to issue some types of orders on your claim, on many issues the SIE has to provide documentation to the Department and request an order to be issued. You can always contact the self-insured section at L&I if you are having a problem with the claims manager from the TPA.

A growing number of employers in this state are what we call Retrospective Rated Employers, or Retro employers. These are still State Fund employers, they are not self-insured. Your claim is still managed by a claims manger with the Department in Tumwater. But this is where it gets interesting. These Retro employers receive significant refunds if they keep their claim costs below some set measurement. (Don’t ask me to explain the formula. I listened to an actuary try to explain it once, and my eyes glazed over . . ) Because these employers have an interest in keeping claim costs down they often hire ‘shadow’ claims managers. These are also third-party administrators (TPA) except these shadow TPA’s  do not have the actual authority to make decisions about your claim. They represent the employer and may be aggressive in contacting your claims manager and pushing them into taking certain action.  The State Fund CM is still responsible for management of the claim, but the Retro TPA is acting as an advocate for the employer, encouraging the CM to terminate TL and close the claim in a timely manner.  In many ways, these Retro TPA’s are doing the exact opposite of the work being done by your attorney, if you have one. If the TPA is being overly aggressive, it may be time to involve an attorney on your behalf to insure the CM is getting a balanced picture of your claim.

If you are confused and do not know who is managing your claim, you can always call Labor & Industries, and they will get you the correct contact information.

If you are currently receiving Time Loss (TL) benefits paid by Labor & Industries you may have seen a recent change in when your checks arrive.  This short note is just me, touching base and saying – nothing to worry about.

The Department’s computer system was recently updated. This update eliminated the lag which we have always seen in the processing of TL checks. In the ‘olden’ days if a TL check paid benefits through the 10^th, it would process and mail 4 days later on the 14^th. Now, through the miracles of modern computer technology, a TL check which pays benefits through the 10^th will process and mail that same day. You may have received your TL check days before you were expecting it. Not to worry, your next check will mail just as promptly.

TL is generally paid in 14 day cycles. So, you should be able to predict with some degree of accuracy when your check will be received.  Everyone has a budget. Every budget revolves around ‘payday’. If you are receiving TL paid by the Department (as opposed to TL paid by your self-insured employer) your payday just moved up a few days.

We have many clients who receive benefits under both their workers compensation claim and a Social Security Disability claim. This is absolutely allowed, and may well increase your overall monthly income. You can collect both benefits, up to a cap of 80% of your highest average annual earnings.  Because everyone’s earning are different, everyone’s 80% cap will be different.  The Social Security Administration (SSA) has various formulas for figuring each person’s highest average annual earnings, and they will use the formula which is the most advantageous to you.

Individuals with a high earning history will have a high 80% cap, and may get nearly the full benefit of both the Social Security Disability and Labor & Industries (L&I) benefits. Workers with a lower earnings history will have a lower 80% cap, and payment of either Social Security or L&I benefits alone may put the worker at or near the cap. If combined benefits exceed the 80% cap, either the SSA or L&I will take an offset, reducing your payments to the 80% cap. 

If you have applied for Social Security Disability benefits and your application has been denied, it is important to Request Reconsideration. The denial will come with instructions for how to make such a request, and the timeline for doing so. It is important to request reconsideration within the time allowed.  You do not need an attorney at this stage.

After you have requested reconsideration, you should work with the SSA to provide all the up to date information about your condition. Keep in mind that for purposes of Social Security Disability it does not matter what caused the particular condition, or whether the condition is related to a work injury. Social Security looks at your complete medical and/or psychiatric picture.

If you application is denied a second time, this is when you should contact an attorney. At this stage your claim is moving toward a Hearing. Hiring an attorney will assure you the best possible chance of obtaining a favorable result.

While you can collect benefits under both a Social Security Disability and a workers compensation claim, they are two completely different systems. Obviously, one is a Federal benefit and one is a State benefit. Beyond that, each system uses its own criteria for determining total disability. Being found totally disabled under one set of guidelines does not necessarily mean you will considered disabled under the other. A decision by one agency is not binding on the other agency.  It can be a bit of a maze. But, applying for Social Security Disability benefits when you have a long-term work related disability can be to your advantage. Get the ball rolling, and call for help if your application is denied a second time.

I write about wage orders because they are important, they can be issued early in a claim, and are they are often final before an injured worker ever talks to an attorney.

In a Labor & Industries claim benefits are paid as a percentage of the workers monthly wage at the time of injury.  Benefits such as time loss, death benefits and pension or permanent total disability benefits are all paid based on the original calculation of the workers monthly wage at the time of injury.  Consequently, getting the monthly wage incorrect, can result in a worker receiving less benefits then they are entitled to receive for the life of the claim. Hopefully, you are back to work quickly, but for those workers with a serious injury and long-term disability, the value of underpaid benefits can be significant.

I’ve been told by those at the department that correctly calculating a worker’s monthly wage is the single most complicated task a claims manager does on a newly filed claim.  There are so many considerations which can effect the equation. Is the worker a regularly scheduled worker or a part-time or seasonal worker? What is the rate of pay? Are there different pay differentials for different shifts? Is the worker paid for overtime?  Does the worker receive bonuses, commission, or a per diem? Does the employer make contributions to the worker’s health care benefits? Is the worker employed at more than one job? These are just some of the many issues which must be considered in setting the monthly wage for purposes of paying benefits under a claim.

Time loss benefits may be paid at the beginning of the claim on temporary orders or on a provisional basis. These benefits will be paid using the most accurate, quick and dirty, calculation the claims manager can make using the information currently on hand. The claims manager may send a request to either the worker or the employer requesting additional information or clarification of wages paid. When the claims manager believes all relevant information is in the file, a final wage calculation is done and a wage order is issued. Previously paid benefits will be adjusted to reflect the correct calculation. This may result in an extra payment of time loss (yeah!) or an overpayment (hiss!) The department does try to avoid overpaying time loss on a claim, but it happens. The overpayment can be deducted from future payments on the claim.

Because the Department is trying to avoid underpaying or overpaying benefits, claims managers are encouraged to collect the necessary information and issue the wage order early in the claim.  You may see a wage order in the first few weeks of filing your claim if you are receiving time loss benefits.

The wage order will look similar to the other orders you may have received on your claim. It will provide the details on how the monthly wage was calculated, including any overtime, bonus, health care benefits or other consideration which was included in the calculation.  The wage order will also let you know what was not included. For instance, if no overtime is included, there will be a zero next to overtime. The wage order is suppose to have enough information for you to determine how the monthly wage was calculated, and what was included. 

The  wage order will have the magic 60 day protest or appeal language. If no protest or appeal is filed in writing with either the Department of Labor & Industries or the Board of Industrial Insurance Appeals, the order will become final and binding.  Even if the wage order is clearly incorrect based on the information in the file, it can not be changed later if a timely protest or appeal was not filed.  (This rule was clarified in a case called Marley, and was a hot topic in my household one legislative session; that session saw a change to the statute allowing the department to correct an underpayment of benefits under the same circumstance they had always been able to collect an overpayment of benefits; and we ended up with a dog named Marley that session – but that’s another story. . .) I always review a new file for a wage order. Oftentimes the order is already final.  Even if I believe the monthly wage was calculated incorrectly there is nothing I can do about it.

This is why it is so important to careful review the wage order when you receive it. That said, if calculating monthly wage is one of the most difficult tasks the claims manager does early in your claim, how are you to know if it was done correctly? That’s a fair question.  If you’ve been reading this blog, you’ll know my mantra, ‘talk to a workers comp attorney’.

You will know the basics of your wages. For instance, if you worked overtime and no overtime is reflected in the wage order, you know there is a problem.  If the monthly wage listed on the wage order seems lower then you would expect, something may be missing from the calculation. If you worked more than one job, or were paid shift differentials, the monthly wage calculation has the potential to be incorrect simply because it can be complicated. If you’re a construction worker and were treated as a seasonal worker, you definitely have a problem.

If you are at all unsure, get yourself to an attorney who represents injured workers and ask. Do not put it off. You only have 60 days from receipt of the wage order to file a protest.  Filing a written protest will stop the clock ticking, and allow us time to gather all the correct information and work on a correct calculation.  Filing a protest will not stop your time loss benefits if you are otherwise entitled to them. Time loss will continue to be paid based on the Department’s best calculation.  Any necessary adjustment in benefits paid will be made when a new wage order is issued.

So, watch for that wage order to be issued early in your claim. Pay attention to the information in the order about how the monthly wage was calculated. Remember, you have 60 days to take action if you believe the monthly wage may be wrong.  This calculation effects many of the benefits paid to you for the life of your claim, and you want to make sure it is done correctly.

I keep harping on calling an attorney when you have questions or need help with a workers compensation claim.  I started thinking about what might stop an injured worker from making that call. I suppose there could be a lot of reasons, from simple procrastination to intimidation.  If you’ve never needed an attorney, this could really be a daunting task. But, push comes to shove, I think the number one reason injured workers may put off talking to an attorney is fear of what it is going to cost them. Am I right? You are reluctant to ask, not sure what the protocol is, and frankly, we can be a scary bunch sometimes. (Not really, but it is a lot like being assertive with your medical provider. We are providing a service, and you shouldn’t be afraid to ask)

So, let’s talk head on about what it will cost you to ask for help with your work related injury claim.  The first thing to remember is any attorney in this line of work will talk to you on the phone or at an initial office consultation for free. It cost you nothing, nada, zip out of pocket.  Pick our brains, ask your questions. It will not cost you a dime.  It’s a relief to get that out of the way, isn’t it?

Now, what will it cost you if you hire the attorney you speak with to represent you? Washington State Labor & Industries first. These types of cases are generally done on a contingency fee basis. In plain English this means we are going to take as a fee for our work a percentage of the benefits we obtain for you.  The percentage is different depending on the type of benefit we obtain for you, for instance back due time loss, on-going payment of time loss, permanent partial disability, permanent total disability or pension benefits, to name a few.  The percentage should be clearly spelled out in the contract you sign, and you should definitely ask questions if you have them. If we don’t get you any additional benefits under your claim, we are not going to get paid a fee for our legal services.

Separate from fees for legal services you will be responsible for any out of pocket costs incurred or advance by the office in pursuing your claim. That may sound scary but don’t let it put you off. Initially the costs incurred are very minimal. We get the file for free from Labor & Industries or the self-insured employer. We may pay reasonable fees to get additional medical records from your providers.  There may be larger costs incurred if your claim is in litigation. Unfortunately, medical providers have to be paid for their time to testify, vocational experts have to be paid for their assistance, court reports are necessary to take depositions. All of these costs are ultimately your responsibility. The attorney you hire should talk to you about these types of anticipated costs. You have the final authority to proceed with the litigation or to pull the plug. This is sometimes a tough decision, but can and should be guided by what you have to gain from the litigation. No attorney can guarantee an outcome, sometimes the anticipated benefit is worth the risk, and sometime it isn’t.

I’ve always believed contingent fee arrangements are good for consumers, in this case injured workers. They tend to keep legal professionals more realistic about what they can and can not do.  I honestly tell potential clients if I can do anything to help them. If there are no additional benefits to gain, it is a waste of  time, for both of us, to chase a claim where there are no benefits to be had. If all possible benefits are already being paid, you might not really need an attorney – yet.  In that case, a good attorney may explain what to watch out for, when to call back, and send you on your way.  Contrast that to an attorney who is billing hourly for their work. It might not matter so much what the final outcome for the client may be. Some legal work has to be done hourly, and those consumers have different issues and questions they should be asking. But for injured workers in Washington State I believe the contingency nature of the contract serves everyone well.

There is an additional protection built into the Washington State Labor & Industries law to protect workers who hire attorneys to represent them.  It is not a secret – it is written right there in our fee contract, and when you hire an attorney the Department will send a letter explaining it as well. If you hire an attorney to represent you with respect to an L&I claim and you are charged a fee for legal services, even if it is exactly what you agreed to be charged, if you don’t think it is fair and you and the attorney can not work out an agreement, you can go to the Department or the Board of Industrial Insurance Appeals and ask them to review the matter and set a reasonable fee.  It does not happen often, but it is a fail stop to protect injured workers.  That’s a good thing.

So, what if you have a Longshore and Harbor Workers Compensation claim? By statute, attorneys who represent workers are paid on an hourly contingency fee basis. UH?  I know, that sounds confusing. In a nutshell, we bill for our legal time on an hourly basis, but we only get to recover that hourly fee if we are successful in obtaining benefits for the worker under the claim. So, you still have the consumer protections built into a contingency fee arrangement, but the attorney has to account for all time actually spent working on your file.

There is also a fee shifting provision in Longshore claims. Fee shifting is a nifty mechanism to assist injured workers in getting the legal help they need with their claims. If the employer has controverted or denied your claim, and if we are successful in obtaining additional benefits, the employer can be held responsible for both our hourly fee and the out of pocket costs spent in pursuing the claim.  This has the duel effect of encouraging workers to get legal help when they need it, and discouraging attorney from taking on claims before there is really a dispute. Unfortunately, this fee shifting is not available in Washington State Labor & Industries claims.

There is an added protection for injured workers with Longshore claims. Any attorney seeking to collect a fee for legal services for representing a worker must file a petition documenting the time spent and requesting an award of the fees, specifying whether fees should be paid by the employer or the worker. The requested fee has to be awarded by the District Director, Administrative Law Judge, Board or Court before who the legal work was done, before the attorney can be paid the fee. One more hoop for attorneys, but one more layer of protection for workers with Longshore claims.

 See, all in all, that wasn’t too painful or intimidating. These are all the things I would discuss with a potential client on the phone or in my office.  You are the consumer here, and you have the right to ask questions and understand how your attorney will be paid, and what you will be responsible for yourself.  If an attorney can’t or won’t answer these types of questions, then you are in the wrong office. Ultimately, you have to be comfortable with your attorney.  Questions about legal fees and costs should never stop you from getting the legal help you need with your workers compensation claim.

I’ve added a new link – but it comes with a warning. The link will take you to a subject index of Significant Decisions from the Board of Industrial Insurance Appeal.

I should back up.  If the Department of Labor & Industries issues a Decision and Order and you or your employer disagrees, a protest or appeal must be filed within 60 days of receipt of the Order. This magic 60 day language is on the bottom of each and every Department Order.  A protest or appeal must be in writing, a phone call will not be enough to stop the 60 day appeal period from running.

If you disagree with a Department Order, it is a really good time to talk to an attorney.  There are many disputes which can be ironed out without the time, expense and frustration of litigation. An attorney familiar with workers compensation may be able to help.

A written protest is sent to the Department, the address is on the Decision and Order. A protest is a way of asking the Department to take another look at their decision. Sometimes we call it a Request for Reconsideration. Perhaps there is additional information which was not available when the claims manager issued the order.  An additional medical report from your physician, or additional wage information may change the department’s decision if they have an opportunity to review it.  Maybe the claims manager  missed something already in the file, or took action which is not supported by the Departments records. If  a protest is filed the Department must issue a new order. They might issue a new order in as quick as a couple of days, or it may take weeks. The new Decision and Order will also have the magic 60 day appeal period language on it. Either you or the employer can file a further appeal of the order.

An appeal is sent to the Board of Industrial Insurance Appeals which is the administrative agency which conducts hearings on workers compensation claims.  Again, the address is on the Department’s Decision and Order. The Board has Industrial Appeals Judges who conduct mediations, hold hearings and issue what we call Proposed Decision and Orders. These decisions will be reviewed by the full Board if a Petition for Review is filed.  A decision of the full Board can be appealed to Superior Court.

The new link I’ve added to the blogroll will allow you to read decisions from the Board which have been designated as ‘significant’. Usually significant decisions are on issues which are, or have been, hot button topics. The Board follows the reasoning in these significant decisions when ruling on cases being heard. They will give you some understanding of the law which will be applied in your case by the Board. The Board does not have the final say on how to apply or interpret the law in workers compensation claims. This lies with our Courts. But these significant decisions give guidance as to how the Board may view a particular situation.

So, here’s the warning. If your workers compensation claim is at the Board, it is time to talk to an attorney.  Just because you have access to and can easily read these significant decisions does not mean you shouldn’t consult with an attorney. This is your one chance to make a record. Board hearings are like trials.  The Rules of Evidence and Superior Court Civil Rules apply. You must be familiar with these rules in order to ensure that all your testimony and evidence will be admitted at your hearing. If there is an appeal from a decision of the Board it will be decided based on the evidence and testimony present at the hearing. The Department and/or your employer will be represented by an attorney, you should be as well.

So, peruse the significant decisions, they are sometimes interesting reading. But if your claim has been appealed and is at the Board, don’t rely on a reading of these significant decisions to chart your course. Talk to an attorney.

I know there are readers out there. I’d rather not just lecture about workers compensation issues - although I’m more than capable of going on adnauseam. (Just ask anyone who knows me!) I’d rather hear what problems you’re facing with your claim. Chances are someone else is having the same problem or question.  If nothing else, I’d like to know what topics you’d like to hear more about.  So, send in your comments, and we’ll all muddle through together.

One of the most critical rights an injured worker has in Washington State’s workers compensation is the right to choose the medical provider who will treat the industrial injury or occupational disease.  Imagine if you could only treat with the ‘company doctor’. Would that medical provider be looking out for your health and welfare, or would the provider be more interested in shielding the employer, or minimizing the injury?  The answer is so obvious it is not really worth debating.

So, this entry is not about why the right is important, that is a given. All rights come with responsibilities. The right to choose your medical provider when you have a work injury is no different.  As the person who is injured you have the right to choose your medical provider, you also have the responsibility to choose a qualified provider. While you may have a primary care provider who you consider your ‘regular’ doctor, that person may not necessarily be the best qualified specialists to deal with your particular injury or disease.  It is your responsibility to get to the right medical provider. 

You might need an orthopedic specialist if you have a low back or neck injury. You might need a podiatrist if you have a foot or ankle problem.  A chiropractor may be best to evaluate and treat a strain or subluxation, but if you have neurological symptoms you may need a consultation with a neurologist.  To further confuse the issue, there are specialties within specialties. An orthopedic specialists who primarily treats the spine, might be a lousy choose for a hand or arm injury, and visa versa. The type of medical provider you need may evolve over the life of your claim.  If you initially treated with an orthopedic surgeon, post surgery you may be better served by a Physiatrist who specializes in rehabilitation and physical medicine.

The point here is not to scare you with the wild and confusing world which is the medical profession. The point is to encourage you to open your eyes and be proactive with your medical treatment, beginning with your choice of physician. How to start? Well, you initially reported your injury to a medical provider.  In Washington an L&I claim is started with an application for benefits completed in part by a medical provider.  Ask questions of that provider, whether it was your ‘regular’ doctor or an emergency room physician. Ask what kinds of physicians evaluate and treat the type of condition or injury you have. Ask for names or referrals. Write it down and follow up.

What if the initial physician who evaluated you doesn’t know yet what your diagnoses is? Often additional tests or studies are necessary before you can get an understandable diagnoses and responsibly choose an attending medical provider. That’s ok. Follow up as instructed by the provider who is ordering the tests. When you do have a diagnoses, then ask about the type of specialists you should be seeing. 

What if over the course of your treatment the type of medical provider best suited to treat your injury changes? No problem.  You can change your attending medical provider by simply notifying your claims manager. What if it turns out you just simply don’t care for the physician who is treating you? Again, no problem. Find a medical provider you are more comfortable with, and notify your claims manager of the change. Be aware of “doctor shopping”- a phrase thrown about to describe the patient who bounces from doctor to doctor. You may have a legitimate reason for changing physicians, if so you shouldn’t hesitate. However, beware of changing doctors repeatedly because you aren’t getting the answer you want. Physicians can only give you their best answer, it might not be the one you want.

Which brings me to part two of your responsibility with respect to medical treatment. Follow-up. It is so easy in a busy physicians office to get dropped through the cracks. You had your MRI and the office was suppose to call you to schedule a follow-up appointment but you haven’t heard anything yet? Call and ask to schedule an appointment. You’re given a referral for physical therapy? Please call and schedule the initial appointment. It seems like your are not getting any better? Ask what’s next or what other treatment options are available. You have a responsibility to get the treatment you need for your work injury. Sadly, no one is going to walk you through this part of the maze. The good news is most medical providers, be they orthopedists, neurologists, physiatrists, physical therapist,  chiropractors, podiatrist or psychiatrists are genuinely nice people who are interested in getting you better and back on your feet. If you ask, they’ll get you an answer. They want to help, let them.

It is safe to say there is nothing in the workers compensation world which has more rules, regulations and policies than medical treatment for work related injuries or diseases. It is a huge cost driver of the entire system. I expect there will be a number of posts on this blog about medical issues. For instance, what types of treatment are allowed; what requires pre-authorization; issues surrounding pain medication; what to do if treatment is denied; treatment for conditions not allowed on your claim which are retarding recovery; the department’s responsibilities; the medical provider’s responsibilities, the list is almost endless. So, for now, take away this thought. You have the right to choose your attending medical provider. Don’t squander that right, choose responsibly.

What if someone besides my employer causes my work injury? I noted in a previous post that I would answer this question. We’ve already discussed the restriction against suing your own employer for your work related injury.  But sometimes a work injury is caused by someone, or something, not associated with your employer. In this situation you may have what we refer to as a “third-party” claim. That is, a claim against a third-party other than your employer. 

There are may common situations where a third-party may be responsible for your work injury.  You may have been injured while using equipment which was faulty. If that equipment was manufactured, installed, owned or maintained by a company other than your employer, you may have a claim for your injury.  You may have been injured on a construction site due to the actions of an employee from a different contractor, or by the actions of the General Contractor on the site. You may have been driving as part of your job and been involved in an auto accident. All of these situations may result in a potential third-party claim. 

If you have a potential third-party claim it is worked up the same way any other injury claim or lawsuit is developed. The responsible party or entity must be identified. There must be duty owed to you by that defendant. There must be evidence the defendant breached or violated that duty,  proximately causing your injuries. These are the basic elements of a negligence claim. While fault or negligence is not a factor to be considered in your underlying workers compensation claim,  it is at the very heart of a third-party claim. Without factual evidence of negligence there can be no recovery. 

If you have a potential third-party claim you must still file your workers compensation or L&I claim. You are still entitled to benefits under that claim. You do not have to choose between workers compensation benefits and damages from a third-party claim. You can still collect all of the benefits you would expect to receive because of your work injury through your L&I claim. These benefits are important because they will be paid quickly, and will assist you in the weeks and months immediately following your work injury. At the same time, you may also file a lawsuit and seek damages for your injuries from the third-party defendant.   

At first blush this may sound like a windfall because the injured worker is obtaining payments from two sources for the same injury. Of course, there is a provision built into the workers compensation statute which prevents any double recovery. The Department or the self-insured employer has a lien, or right to recover, what it has paid on your workers compensation claim out of the damages you may collect on your third-party claim.  This keeps the worker from getting a double recovery. 

What good is it to get damages from the third-party if you just have to pay back the L&I benefits you received in your workers compensation claim?  Remember the benefits you can get under your workers compensation claim are spelled out and limited by the language in the statute. A regular personal injury type lawsuit, like a third-party claim, does not have these limits. In a third-party claim you can recover your full wage loss, including future loss of earning potential. You can recover general damages like pain and suffering, inconvenience, changes in lifestyle. Your spouse may have a loss of consortum claim for the loss of love and companionship flowing from your injury. All of these elements of your damages are not recoverable in your workers compensation claim. The recovery from a third-party claim can quickly exceed what has to be reimbursed or paid back to the Department on your L&I claim, particularly if your injury is serious and keeps you away from work for an extended period of time.  

How can you tell if you have a potential third-party claim? Sometimes the Department will send a letter letting you know you may have a potential third-party claim based on information about how you were injured. Whether you get this letter or not, if you think someone other than your employer may have caused or contributed to your injury, you should talk with an attorney. We can ask the who, what, when, where, why, and how questions about your work injury and assist in determining if there is a potential third-party at fault.  If there is, we can assist in investigating and documenting that claim, and filing a lawsuit if necessary. It helps to hire an attorney that is familiar with both workers compensation and regular personal injury claims. One office can handle all the questions or issues which may come up in both claims. If an attorney represents you in a recovery from a third-party, the Department or self-insured employer’s lien will be reduced by a proportionate share of your attorneys fees and costs.  

Not all work injuries will be the fault of a third-party other than your employer or a coworker. But, where you suspect something or someone other than your immediate employer may be responsible for your work injury you should talk with an attorney to make sure your rights are protected.