There is a lot going on in the Legislature this year in Washington state, some of it of interest to those involved in our workers comp system. The Senate passed 3 proposals dealing with workers compensation that are not beneficial to injured workers. Those proposals now go to the House, where, thankfully, there are more voices supporting the injured workers in our state.
Two of the proposals deal with our relatively new structured settlements in the workers compensation arena. For the last year injured workers over the age of 55 with allowed claims have been permitted to seek a resolution of their claims through a structured settlement. There is strict review process for these agreements by the Board of Industrial Appeals to insure these agreements are in the best interest of the worker. Well, ‘insure’ is a strong word. The review tries to establish the worker knows what they are giving up, and asks that worker to articulate why they believe taking less than their claim is potentially worth is in their best interest. Over the last year slightly more than 2 dozen of these structured settlements were approved.
Needless to say, this is not the flood of settlements the business community had hoped for, nor has it resulted in the significant savings projected. Wait, think about that. Structured settlements are supposed to save money for business. How is that? Of course, if you pay an injured worker less than they would otherwise be entitled to receive, you save money. Do that enough times, you save a lot of money. So, the business community convinced our state Senate to relax the age restriction and review process in the hopes there will be more workers rushing to settle their claims. In support, they point to the number of States where there are few, if any, controls on settlements of workers compensation claims. Businesses in our state, they say, are at a competitive disadvantage because they cannot short change their injured employees. It is disturbing logic.
Fortunately, there are a couple of barriers to the Senate proposals. First, our State House of Representatives has long been a strong champion for workers in this state. Contact your Representative now, it just takes a short e-mail, to let them know you oppose any attempt to dilute the strong protections for injured workers in our current structured settlement process. You can find your Legislators here:
The other barrier? The workers in this state, themselves. There hasn’t been a flood of workers clamoring to enter into structured settlements because, for the most part, they aren’t in your best interest. Yes, there are specific particular circumstances where it may be best for an injured worker to negotiate a structured settlement. Personally, I think they are, and should be, few and far between. Definitely, talk to a good workers comp attorney if you think you may be in that camp. But for most workers, a structured settlement is just a bad idea. Our workers compensation process is a safety net system, not an injury recovery system. It is not designed to reimburse you for what you’ve lost, like an auto accident claim. It is supposed to provided needed wage replacement, medical services and vocational assistance when you need them – not some projected lump sum value of what you might need, if you guess right. Most injured workers will not be better off giving up that safety net in exchange for a structured settlement, any more than an unemployed worker would be better off accepting 6 months of unemployment benefits in a lump sum instead of preserving entitlement to 12 months of benefits should they need them. Sure, Employment Security would save money, businesses would save money, they might even be more competitive as a result. But would anyone think that’s a good idea?
I seem to be getting a lot of questions about IME’s lately – so here’s a bit more on the topic.
If you have specific complaints about the way in which a medical exam ordered by the Department was conducted, put them in writing. An IME Comments Form (F245‑053‑000) is available online, or you may call 1‑888‑784‑8059 to request a comment form. You can specify your preferred language. The Department has made efforts to improve the quality of physicians who are approved to perform IME’s, and does take comments and complaints seriously.
That said, these exams are a thorn in everyone’s side. However, they are with us to stay. There are a couple of things you can do.
Make sure you provide an accurate and complete history at your first medical visit following your injury. Often IME’s are ordered because the claims manager does not have a clear picture of how or where the accident occurred and is not sure whether to allow or reject the claim. I can’t tell you how many times I talk to a worker who saw a physician for their injury, but didn’t ‘mention’ it was work related. They didn’t think they were hurt that bad, wanted to keep their job, didn’t want to report it to L&I . . . whatever the reason, we’re working on cleaning up the discrepancy – and the CM orders an IME to try and get a clear picture of what happened.
Encourage your treating medical provider to provide detailed chart notes and comprehensive treatment plans to the claims manager. Often IME’s are ordered because the claims manager is not getting information from the Doctor. Make sure the AP is responding to all requests for information as timely as possible and is keeping the CM informed.
You must be proactive in your treatment. Often IME’s are ordered because treatment seems to be stalled with no discernible improvement over multiple follow up visits. If all the CM sees is the same chart note with a different date, no change in findings or treatment recommendations and instructions to follow up in 6 weeks, an IME is going to be ordered. This is especially true if you are not working. Your condition should be improving, treatment or diagnostic studies should be ordered and obtained smoothly. There should be progress.
When your medical condition stabilizes and its time to get a permanent impairment rating and close the claim, ask your AP to do the exam and the rating. The Department encourages treating physicians to provide PPD ratings for their patients. If your AP provides a rating, you are less likely to see an IME ordered. If your physician can’t or won’t provide an impairment rating, ask them to refer you to someone else to get the rating. They can refer you to a colleague or someone on the Department’s Approved list – in either case you may avoid having to attend an IME.
These steps may help avoid an IME in the first place. When an exam is scheduled, be prepared, be honest, do not exaggerate. (This topic should be an entire post!)
I try to speak with a potential new client on the phone before that first appointment is scheduled. Sometimes I’m able to answer a quick question, and the worker does not really need an attorney, yet. But when an appointment is necessary, I am often asked, “What should I bring with me?”.
Injured workers come with a variety of organizational styles, and I’ve seen them all. Some workers have carefully saved every letter and medical report, and logged every phone call. Some workers have stacks of envelopes with the papers still in them (sometimes unopened!) Some workers keep nothing. Some workers have spouses who keep track of and organize everything related to their claims.
So here’s the truth. The first thing I am going to do after filing my Notice of Appearance is get a complete copy of the claim file. If I’m working on a State L&I claim, I’ll request a copy of the document imaged microfiche, but I usually have access to the complete
file through the Claim and Account Center within a few days. If the claim is Longshore or DBA I will request a complete file from the insurance carrier and I also routinely get a copy of the Department of Labor file.
Once I receive the file, I’m going to review it – start to finish. This file is going to have all the medical records, correspondence, payment records, IME reports and vocational records. I’m going to have a really thorough understanding of what has happened to date, and what present problem needs resolving. I’ll know what information I am missing, and I can easily request it.
Which is all by the way of saying, you do not have to track down all your medical records to bring to me. You do not have to scour your home for every scrap of paper related to your claim. It is all in the file, and I’m going to get it and read it. I tell potential clients to bring with them whatever prompted their call to my office. It might be a letter from the claims manager, a notice of controversion or Department Order. It might be a vocational report, or medical report. You received something which caused concern or which you did not understand. Bring at least that with you to your first appointment.
That is enough to let me know what type of claim you have, who I need to contact to file a notice of appearance and request the file, and what immediate problem or dispute is at issue. I’ll be able to ask enough questions when we meet to get the ball rolling. Hiring an attorney is supposed to provide some relief from the stress. So, let’s start by making that first appointment as easy as possible!
I am at a bit of a loss to explain the new provision in our workers compensation law which allows for lump sum settlements. (HB 2123) It is a poorly written provision, passed with no public hearings, for purely political reasons. There are so many unanswered questions and issues and processes which will need to be developed, that I cannot begin to explain to you how these new settlements will be negotiated, approved, or paid. So, definitely topics for another day as we know more answers.
For now, what we do know is the effective date for this legislation is January 2012. So, no settlement agreements before that date. The new statute requires the worker be 55 years old before a settlement can be considered. (this age requirement drops to 50 over time) The settlement amount must be paid with a periodic payment schedule, rather than a single lump sum. (details of what this may require or allow are unclear) Settlement agreements will have to be approved by the Board of Industrial Insurance Appeals. (details are also unclear, other than the Judges may not give legal advice) Once approved, the settlement agreement will resolve all aspects of the claim, except future medical care. (although, whether this is anything more than a hollow promise of future treatment remains to be see)
I can also tell you to be cautious. I will not suggest that under no circumstance should an injured worker consider such a settlement agreement. Now that these agreements are allowed, we will see more benefits being denied and disputed. Given the absence of the sure and speedy safety net which injured workers were promised, there may be situations where such a settlement arrangement may be the best course of action. That said, the Department and Employers have more experience with workers compensation and are under no financial hardship or duress. You won’t necessarily know what you are entitled to, what to ask for, or what’s fair under the circumstances. An unrepresented worker will be at a disadvantage – you will not be bargaining from equal positions. If you are not already represented by an experienced workers comp attorney, consider hiring one. Feel free to take that with a grain of salt if you think it’s self-serving. But, I didn’t write the law, in fact I opposed it. I can protect my clients. Who will protect those who don’t have an attorney? These settlements are risky for unrepresented workers and any cost savings to the system comes from workers getting less than they would otherwise be entitled to receive. So, be cautious. Be informed. Get good advice.
The Legislature passed House Bill 2123, which has a number of provisions which will effect workers compensation in our State. I hope to discuss all of them eventually. But, most immediately, if you are receiving time loss or permanent total disability/pension benefits there will not be a cost-of-living adjustment this July. This is a one-time pass on COLA’s designed to save money.
If you have thoughts on any of the items contained in this Legislation, please forward them directly to our Governor – the prime architect of this year’s workers compensation ‘reform’.
You may hear about a new Medical Provider Network, or MPN, being created by the Department of Labor & Industries. Legislation was recently signed by the Governor giving the Department the authority to create a network of medical providers to provide treatment to injured workers. This was a Legislative proposal which Business and Labor groups worked on together and ultimately both supported.
There are a lot of details to be ironed out, and the new Network will be rolled out slowly to limit unanticipated problems and preserve access to care. The most important thing for injured workers to know is they still have the choice to determine who will provide treatment for their industrial injury.
Workers’ choice of treating medical provider has been a cornerstone of our system, and nothing in the creation of a new MPN will alter that free choice. Currently, the worker may receive treatment from any provider who has an L&I provider number for billing purposes. In the new MPN the worker may choose to treat with any provider in the network.
The Network itself will be very broad, and will include virtually every medical provider who currently has a Provider number for billing purposes. The Network allows the Department to review the credentials of medical providers. Providers will be accepted into the Network if they are already credentialed by another health care system, for instance Blue Cross, Uniform Medical, or Group Health. There will be incentives for Providers who meet some additional standards in Occupational Medicine best practices, encouraging quality care for injured workers.
One of the basic tenets of our workers compensation system is better medical care improves return to work and overall outcomes for injured workers. The Network will provide the Department with additional tools to meet this goal, while preserving access to care, choice of provider and improving medical treatment.
As a general rule, I keep political views off this blog. I am making an exception for Initiative 1082, because it will have such a devastating impact on those we represent.
Washington workers’ compensation is there when you and your family need it. If you are injured on the job, workers’ compensation pays your doctor bills and provides some income until you can work again. Our current system is highly rated by independent assessments because it is non-profit and required by law to operate with minimal costs.
The insurance industry wrote and is backing 1082 because they want to turn our State’s workers compensation insurance over to private industry. They wrote the initiative to set up a system where they can wrongly delay and deny legitimate claims, making a profit on the backs of injured workers.
The initiative is filled with fine print that hurts working families and according to its sponsors will cost small businesses $315 million. And, according to the State’s Office of Financial Management, 1082 will cost taxpayers $250 million.
Our Insurance Commissioner Mike Kreidler warns that the initiative would gut consumer protections and eliminate necessary oversight.
You have already received your Washington Ballot in the mail. Our office urges you to VOTE NO on 1082.
I liked Dave’s last post about third-party claims. It’s not a topic we’ve talked about very much, but it can be an important avenue of recovery for someone severely hurt at work. So, what types of situations will result in a claim against a third-party?
We see a lot of third party claims involving injuries on construction sites. Just think of all the activity on your everyday construction project. The General Contractor has the overall duty to provide a safe work environment for all workers on the site. The General contracts with a number of specialty subcontractors. It’s not unusually to have subcontractors in charge of site preparation, framing, electrical, plumbing, mechanical work, roofing, cement and even landscaping. Each of these subcontractors hires their own employees, and must make sure those workers are performing their work safely, and just as importantly, not endangering any of the other workers on the site. So, if the framer leaves a hole in a floor uncovered and an employee of the electrician falls through it and is injured, there is a potential third-party claim against the framing subcontractor and maybe the General Contractor as well. A roofer who doesn’t tie off properly and falls off a roof injuring himself does not have a claim against his own employer, other than his workers compensation claim. But, the landscaper who is hit by the roofer’s falling ladder may very well have a third party claim against the roofing subcontractor. Any work injury which occurs at work site with multiple employers or subcontractors should be carefully evaluated for potential third party claims.
If a product or piece of equipment being used by a worker, but not owned by the workers employer, fails or is defective there may be a third-party claim against the product manufacture or owner. For example, a metal ladder with a faulty weld or a rented back hoe with no functioning back up warning signal. If either of these defects proximately causes a work injury the product manufactory or owner may be held responsible.
If the worker is driving as part of regular work duties and is involved in a motor vehicle accident, there may be a third party claim against the negligent driver. If a worker is assaulted by a customer, there may be a third party claim. A worker who is injured on physical premises not owned or maintained by his employer, may have a third party claim. For instance, the delivery driver who slips on ice on the loading dock while making a delivery, may have a claim against the company responsible for the property. Any number of situations can give rise to a potential third party claim. As a general rule of thumb, if a work injury involves some entity other than your immediate employer, some product or equipment that your employer does not own or control, you should explore your options. As Dave mentioned, third party claims involve proof of negligence, which worker’s compensation claims do not require, and they can take a long time to resolve. But they can also be an effective tool in making sure your recover for all your damages, not just the limited statutory benefits provide in our workers compensation laws.
Someone asked, “what are the benefits of having a light duty program?” It’s a really good question, and I suppose you would get different answers depending on who you ask. While I fully realize light duty programs are a cost saving mechanism for employers, I don’t believe these programs are inherently evil. I won’t bore you with the research, but it seems well accepted the longer an injured worker is away from employment, the more devastating the financial impact on that worker and their family. Staying connected to your work place, and returning to some type of daily work activity as soon as possible, can be much better than long-term disability. Those who have a strong work ethic and a sense of self which is closely tied to employment, can avoid the feelings of loss and hopelessness which come with losing that employment or ability to work.
However, like everything else in life, light duty programs run the gambit from good, to bad, to really ugly. There are those which are designed and intended to do all the right things; keep the worker connected to employment, offer meaningful work at fair pay, while affording dignity, respect and security. And, there are those whose main goal seems to be to create such a hostile work environment that the worker will quit, or be set up for termination. The question is, how do we create incentives for the former and discourage the latter? How do we create a culture where employers and employees both see the benefit of working together to insure quick, meaningful, and permanent return to work after an industrial injury or occupational disease?
I don’t mean that to be a rhetorical question – I really am looking for ideas. I think we have an opportunity in this State to move forward with productive changes which improve return to work and reduce long-term disability, like the Vocational Improvement Project which is currently in year 2 of a 5 year pilot. I’m not talking about redefining what is or is not an injury, or allowing workers to settle claims for a lump sum rather than holding employers accountable. These maneuvers may reduce costs, but they do not address return to work or reduce long-term disability. We don’t need to shift the problem out of sight, we need to solve it.
From a workers perspective, what will encourage a return to work? From an employer perspective, what reduces the risk of retaining a worker who has sustained an injury? How do we reshape the trajectory of our work lives so that as we age work duties become less physically demanding, thereby reducing the prevalence of injury and occupational disease? Our ageing work force has value, with skills and knowledge that can and should be used. How do we harness that skill and knowledge when their bodies start to fail them?
Light duty programs are one tool which can be used to reduce long-term disability. The trick is to insure it is used for the right reasons at the right time. The bigger trick is to put more tools in the toolbox.
- 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