It’s complicated

If you have a Longshore claim with an unscheduled injury, your permanent disability is based on your loss of wage earning capacity. If you have a scheduled injury, your permanent disability is based on a number of weeks of compensation for that particular type of injury.

What the heck does that mean?

Well, I can provide a fairly simple explanation but in reality, it’s complicated.

First, what is the difference between a scheduled an unscheduled injury? For the most part, any injury that is not to an extremity is considered an unscheduled disability. Anything related to the spine, like a back or neck injury is unscheduled. Shoulder injuries are unscheduled. Hip injuries have been argued both ways, but I generally consider them unscheduled. Head injuries and mental health conditions like PTSD are considered unscheduled. Arms, hands, legs, feet, hearing, and vision are all scheduled injuries.

When it comes to compensation for permanent disability, or PPD, what does it mean that the injury is “unscheduled” versus “scheduled”? Scheduled injuries have a schedule of benefits outlined in the Longshore statute which are paid for permanent impairment. For example, loss of an arm is paid at 312 weeks of compensation, loss of the big toe is compensated at 38 weeks of compensation. If the injury results in the partial loss of use, then permanent impairment is compensated as a percentage. That’s why you hear things like a torn meniscus in the knee is a 2% impairment, compensation for permanent disability is paid for 2% of 288 weeks, or 5.76 weeks of compensation. So long as you can perform some type of work, any kind at all, a scheduled impairment is paid based on the schedule, without consideration of your individual circumstances. The concert pianist who losses a finger is compensated the same as the truck driver who loses a finger. That may sound unfair, but the idea is to reduce the uncertainty and litigation surrounding permanent impairments. In reality, we still have litigation and uncertainty, it is just focused on the impairment rating itself, not the established value for the loss of the scheduled member.  Having strong and credible medical support is crucial to receiving fair and just compensation for your injury.

Establishing permanent impairment for an unscheduled injury is like the wild west. Compensation for your permanent impairment when you have something like a back injury or PTSD, is based on the effect of the injury on your earning capacity. For example, you could make $40 an hour prior to the injury, but because you are now limited to lighter work, you can only make $10 per hour. Your permanent impairment is 66 2/3% of the difference between those numbers.

Comparing average weekly wage at the time of injury to post-injury earning capacity is easy as pie if you have actually returned to some type of employment after recovering from your injury. More often than not, the injured worker has not returned to work when this assessment is being made, so we are all guessing about current earning abilities. There may be competing Functional Capacity Evaluations with vastly different estimates of abilities and limitations. Transferable skills will be outlined and debated and debunked. There will be Job Analyses approved by some physicians and disapproved by others. There will be Labor Market Surveys, some accurate some bogus.

Like I said, it’s complicated. The value of your permanent impairment, and in turn the value of your claim, will most definitely rise and fall with the strength of your position on all of these factors. Your employer and its insurance carrier are going to be aggressive in developing their positions, and they will have the help of really experienced defense counsel. That doesn’t mean your sunk. It does mean you need to get your ducks lined up. As your medical condition stabilizes and you start thinking about what’s next, get some help. Talk to an attorney so you understand what’s coming, and can put your best claim forward.

 

L&I and Structured Settlements

Is a structured settlement of your L&I claim right for you? I know the department sends out form letters to injured workers who are at least 50 years old and have allowed claims informing them that they may be eligible for a structured settlement of their claim. What is a structured settlement, and is it in your best interest to “settle” your claim.

The Legislature called them structured settlements because you do not get the total agreed to amount in a lump sum. It is parceled out to you based on what can only be described as a weird formula. (payments of at least 25% but not more than 150% of the State’s average monthly wage – who makes this stuff up!?) The idea is the funds will provide a soft landing back into the world without L&I. In exchange for the settlement, your claim is closed with only the possibility of payment for future medical treatment if the claim is reopened. That means no future time-loss, vocational benefits, PPD or Pension awards. Is that a good idea for you?

Maybe – maybe not. There are a lot of things to consider.

What is the status  of your medical treatment? While a structured settlement leaves open the possibility of reopening your claim for medical treatment, moving forward with a settlement if you are still actively treating for your work injury is probably not a good idea. Reopening a claim for medical treatment can be an expensive proposition if there are any disputes about whether your condition has objectively worsened.

Are there disputes in your claim? There probably are, if you are being offered or are considering a Structured Settlement. Is there a sum of money for which it makes sense to walk away from those disputes? Perhaps. It depends on what the dispute is about, what you have to gain, and how much it may cost you out of pocket to litigate the issue. Do you have more to gain than lose? These are questions an attorney can help answer.

Can you support yourself without payments from L&I? Do you have a real plan to return to work, are you on Social Security Disability or Retirement? If L&I is out of the picture, can you make ends meet? You have to be honest with yourself about your financial situation. Whatever the amount of your Structured Settlement, it will be paid in full at some point, and there will be no further payments from L&I, no matter what your situation.

These are only a few of the things you should consider. Deciding to accept or negotiate a structured settlement is a big step. It may be right for some injured workers in some situations, but it is certainly not a one size fits all answer. Make sure you understand what is being offered and what you will be giving up. Ask questions. Get legal advice. Give yourself the best possible chance to make the right choice for your particular circumstances.

Vocational Option 2

There have been some changes to the choices you have when you have been found eligible for Vocational Retraining. You will still work with your vocational counselor to develop a retraining plan, which will include a specific job goal approved by your medical provider as appropriate for your injury. The plan will be submitted to L&I for review. Once the plan is approved you have a choice to make.

You can participate in the retraining as proposed. Or you can choice Option 2. Taking Option 2 means you will receive some additional payments (similar to your time loss), you will not participate in the retraining program, and your claim will be closed with whatever permanent impairment has been rated for your particular injury. Then, anytime in the next 5 years, you can use the training funds to pursue re-training on your own. You simple contact the department, enroll in an approved or accredited school or course, and the department will pay the costs.

Here’s where the changes are. Instead of 6 months of Option 2 additional payments, you will get 9 months. That’s an extra 3 months of biweekly payments to help provide a soft landing as your claim closes. You can also delay making the Option 2 choice. Instead of having to make the choice shortly after the retraining plan is approved, you have some time. You can actually start the retraining plan, and see how you do. Time-loss will continue while you are participating in retraining. Anytime within the first quarter of training, or within 3 months, you can decide to stop participating in the program and elect Option 2. At that point the 9 months of payments will be reduced by the amount of time loss paid starting with the first day of the retraining program, and you will be entitled to the remainder of the Option 2 payments

This change allows you to try out a retraining program, see how you do, decide whether the program is a good fit, and then make a more informed decision about whether to continue the retraining. For most injured workers, school days are a distant memory. The routine of going to class, studying, completing assignments, and taking tests can be an overwhelming idea.  Now you can try it on for size without losing the benefit of the Option 2 payments.

Whether to take Option 2 or participate in retraining is an important decision. There are a lot of factors you should consider. (That’s another post!) This change allows you to take a bit more time and, hopefully, make the decision which is best for you. If you do not already have an attorney, this may be a good time to make an appointment and ask some questions.

 

Legal Help

I get quite a few questions on this blog and on the phone which start with, “I already have an attorney . . ” Which begs the question – Why don’t people feel comfortable asking their attorneys questions? Are they scared? Intimidated? Is the attorney impatient or in a hurry?

Injured workers have to be good consumers. If you are paying for a service, you should expect the person providing that service to take the time to answer your questions.  Write your questions down. Make an appointment to meet with your attorney. Ask your questions, and listen to the answers.  It might not be the answer you want or were hoping for, but you are entitled to an answer.

Keep in mind, there are no dumb questions. If you have a workers compensation claim, you are in a strange new world of procedures, forms, acronyms, rules and guidelines.  Attorneys are here to help you figure out your next steps, and to insure you are getting the benefits and help this safety net is supposed to provide to you after a work injury.  We’re here because sometimes the system doesn’t work like it is intended to work, and we’ve seen it before and can help you through it.

You are ultimately in control of any decisions to take action on your claim.  To file an appeal or not; to litigate or not; to accept the return to work offer or not. You are in control, because the claim belongs to you and because the consequences are yours. You can only make good choices about what’s next if your questions are answered and you have the information you need to make informed decisions.

Ask the questions – and insist on answers.

 

Future Medical Care- Longshore

If you have a Longshore* claim, and have not settled future medical care with an 8(i) agreement – then you have lifetime medical coverage for conditions related to your injury. That sounds great – but I like to tell my clients this does not mean treatment is  automatically authorized, it  means you have the right to fight about it.

The responsible carrier is always going to look for an argument that treatment is related to some new injury or workplace exposure. Such a new injury or worsening related to work activities can serve to shift liability to a more recent employer. That is not necessarily a bad thing – If your condition has worsened or been aggravated by a new injury or work conditions, it may well support a new claim. This may actually benefit the worker if wages have increased over time.

Whether to seek medical care under an existing or older Longshore claim versus filing a new claim will depend in large part on individual circumstances and the opinions of your treating medical provider. Either way, sorting out your best arguments based on your specific circumstance is something a qualified longshore attorney can help you with.

  • This includes non-appropriated fund and DBA claims, which are covered through extensions to the Longshore and Harbor Workers C0mpensation Act.

This post is a reminder that it is OK to pick up the phone and call me.  I know that sounds a bit odd. But, I can tell from the stats on this blog that traffic is up since the first of the year. I get it, you have questions. You’re an injured worker; it’s the first of the year; you want to get moving- take charge of your claim. Nope – take charge of your life again. So, you’re noodling around on ‘the line’ to see if you can get your questions answered.

You can. Just Call.

I had a couple in here a few days ago. Spent an hour or so answering their questions. She didn’t need an attorney, but she felt more at peace from having talked to one. They stopped at our front counter on their way out to pay their bill. Nope. That’s not how it works. Consultations are no charge. If you need an attorney, then we can talk about how fees are paid (hint: it’s a percentage of benefits obtained on your claim) But I am always happy to answer questions, walk you through where you are in the process and explain what to expect.

Workers Compensation claims are weird animals in a weird legal/administrative world. Spend some time talking to someone who understands the lingo and the terrain.

Port of Tacoma

Just saw a super cool aerial video of the Port of Tacoma at the ILWU 23 Home page.

http://www.ilwulocal23.org

The fly over of the cranes is pretty spectacular. I represent workers who are injured at the Port, so sometimes I forget it can be a beautiful place. The aerial is a different view then I suspect most Longshoremen (and women!) appreciate, day to day. It’s worth a few minutes – and kudos to those responsible for the video!