The number of workers in Washington State who work for a Tribe, or in a Tribal owned business, is growing every day. Just think of all the casinos and associated businesses you see opening in your area. If you are employed by a Tribe, and are injured at work, do you have a L&I claim?
There is not an easy answer to that question. But I do have an easy first step if you are injured – file a Washington State Labor and Industries claim AND file a claim with the particular Tribe as required by your employer.
Tribes are Sovereign Nations. As such, they are not bound by our State workers compensation law. By way of example, if you were injured working for an Australian employer in Australia, you would be entitled to whatever rights or benefits Australian Law outlined. The same is true if you work for a Native American Tribe on Tribal owned land. You are entitled to whatever rights and benefits are outlined by the Tribe. While some of those benefits may track what is provided by the State, the exact nature of the rights and the processes for filing a claim will be dictated by each individual tribe.
So, why file a State L&I claim? L&I will allow claims where the employer is a Tribe, but the business is not on Tribal Land, or where the business is on Tribal land, but is not owned by a Tribe. As an employee, you may have no way ascertaining who exactly owns a business, and whether the property is Tribal land or not. The Department will investigate and allow or reject the claim as appropriate.
There is another good reason to file a claim, even if you are fairly certain it will be rejected because the business is owned by a Tribe, and is clearly on Tribal land. The State has no way of gathering information about how many injuries are occurring in these situations. Tribes are not required to report on the job injuries to the State. As a result, the State has no way of tracking these injuries or documenting whether such injuries are increasing. If an L&I claim is filed, and rejected, the Department has been able to gather the information. With information on the number and types of injuries occurring in Tribal businesses, the State will be in a better position to understand how this growing sector of our economy is effecting workers injured on the job in our State.
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?
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.
I am asked a lot of questions about light duty work. If you are injured at work and your employer offers you light duty work, what should you do?
Well, first and foremost, the statute requires the employer to provide to your physician a statement describing the available work in terms which will allow the physician to determine the physical activities of job. The physician then determines whether the worker is able to perform the work described. You are also to be provided with a copy. So, if you get a phone call from your employer asking you to report to light duty work, ask for the written description and ask whether it has been provided to your physician, and whether your physician has approved it. Sometimes this paperwork flies around fairly quickly by Fax, so you might not be aware the job description was sent to your doctor. Ask for a copy.
If there is a written job description, and it has been approved by your medical provider – do you have to report to work? The choice is yours, of course. However, if you decline light duty work which has been approved by your physician your time loss benefits will stop. And, it will be hard to get them reinstated. Not impossible, but very difficult. You are better off reporting to work.
There are some things to keep in mind if you are returning to light duty work with your employer after an injury. First, this is not necessarily a bad thing. It may help your recovery to stay active, working a few hours a day can help ease you into a return to regular work. Staying connected to the work force reduces long-term disability. Returning to light duty or modified work may preserve your benefits including health care, pension contributions, vacation pay and the like. In most cases, workers will be better off financially if they return to work with their employer, even part-time work, sooner rather than later.
Making sure your physical restrictions and limitations are honored is your responsibility. If you are asked to do something outside your restrictions, politely decline. If you don’t enforce your restrictions, no one else will. If you are consistently asked to do work which exceeds your limitations, speak to a supervisor, and tell your attending medical provider. Your doctor may decide to pull you off the light duty work if you are doing tasks which place you at risk of reinjury or will slow your recovery.
Most employers are genuine in their desire to get you back to work, keep you connected to the work force, reduce your lost wages, and ultimately return you to regular work. I said ‘most’ not ‘all’. There is no rule of law which requires your employer to be nice to you. Some won’t be. Some will be rude, some will give you demeaning work, some will belittle you in front of your co-workers. They want you to quit. They want to trump up a reason to fire you for violating a company rule. If you are fired for cause or quit light duty work which was approved by your physician, your time loss benefits will not be reinstated. At least, not without a fight. These bad apple employers do not want you around. If they can not get you to quit, or find a reason to fire you for cause, the light duty work will likely evaporate and you will be eligible for time loss again. In the meantime, mutter karma, karma, karma under your breath, enforce your physical restrictions, and concentrate on your recovery.
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 15th 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;
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 10th, it would process and mail 4 days later on the 14th. Now, through the miracles of modern computer technology, a TL check which pays benefits through the 10th 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.
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.
If you are dealing with a workers compensation claim you probably feel like you are swimming in alphabet soup. Everything, and I mean EVERYTHING, has an acronym. So here are a few translations, with very basic definitions – hope they help.
L&I – Labor & Industries. The Washington State Agency charged with managing workers compensation claims. Often referred to as the Department.
SI or SIE – Self-Insured or Self-Insured Employer. Some employers are self-insured. They must still follow the same law, and the Department has oversight and can help resolve any problems or disputes.
TL – Time Loss. The benefits you receive while you can not work because of your injury.
LEP – Loss of Earning Power Benefits. The benefits you receive if you are able to return to some work, but not at your full earning power. These benefits are paid only while your claim is open.
KOS – Kept on Salary. Some employers may choose to continue your regular pay, and benefits, instead of placing you on time loss (TL) when you can not return to work because of your work injury.
AP – Attending Physician. Your treating medical provider under the claim. You have the right to choose who will treat your work injury, although all providers must have an L&I provider number to bill the Department for treating you.
APF – Activity Prescription Form. The form sent to your medical provider by your claims manger to gather specific information about your condition, treatment plan and work limitations.
MMI – Maximum Medical Improvement. When your medical condition is fixed and stable, and there are no additional curative treatment recommendations.
PPD – Permanent Partial Disability. The permanent loss of function or use of a part of your body because of your injury. Called a ‘partial’ disability because you are able to return to some type of gainful employment.
PTD –Permanent Total Disability or Pension. The inability to return to reasonable continuous gainful employment in any capacity because of your work injury.
CM- Claims Manager. The person in charge of managing the day to day activities on your claim.
TPA – Third Party Administrator. If your employer is self-insured your claim may be managed by a third party, or private company, hired to manage claims.
VRC- Vocational Rehabilitation Counselor. The professional assigned to assist with early return to work, assess your ability to return to work when your medical condition stabilizes, and to assist with vocational retraining if you are found eligible.
VDRO – Vocational Dispute Resolution Office. The section of the Department in charge of resolving disputes about employability determinations or vocational services.
IME – Independent Medical Exam. A medical exam done at the request of your claims manager. (We’ll debate another time whether these are truly “independent”)
DO – Department Order. The notice you receive from the department when they take action on your claim, including payment of benefits. Watch carefully, if you disagree with this order you have 60 days to file a written protest or appeal.
BIIA – Board of Industrial Insurance Appeals. The State agency charged with holding hearings to resolve dispute in a Labor & Industries Claim.
IAJ – Industrial Appeals Judge. Hearings are conducted by an Industrial Appeals Judge.
AAG – Assistant Attorney General. The attorney who represents the Department, and defends the Department orders in litigation.
If you are in the Longshore Arena you may run into some different initials:
OWCP – Office of Workers Compensation Programs. A subpart of the Federal Department of Labor, which has oversight of Longshore claims
TTD – Temporary Total Disability. Similar to time loss, the wage replacement benefit you receive while you unable to work because of your work injury.
TPD – Temporary Partial Disability benefits. Similar to Loss of Earning Power, the benefits you receive if you are able to return to some work, but not at your full earning power. Paid until your medical condition is stable.
AWW- Average Weekly Wage. The base rate used to determine the amount of your weekly benefits.
ALJ – Administrative Law Judge. Longshore hearings are conducted by Administrative Law Judges.
- Why talk to an attorney?
- 2013 in review
- Government shutdown and your Benefits
- Longshore Basics – when is it Longshore?
- Proposed Changes to Structured Settlements
- Defense Base Act claims for respiratory illness from exposures in Iraq and Afghanistan.
- The Social Security Offset Nightmare – it only gets worse.
- What to bring to that first appointment
- Settlement Agreements
- Washington State Department of Labor & Industries
- Title 51
- Washington Administrtive Code chapter 296
- Board of Industrial Insurance Appeals
- Washinton State Labor Council
- BIIA Significant Decisions
- Welch & Condon
- Division of Longshore and Harbor Workers' Compensation
- Department of Labor Defense Act Page