COVID-19 and Social Distancing

“Social Distancing” – I bet that is not a phrase you used with regularity before this pandemic became a part of our lives! Now it’s an everyday part of our vocabulary.  Along with face masks, grocery home delivery,  hand sanitizer, and far too many workers laid off from their jobs – these are all a part of our daily lives. Stay at Home Orders and efforts to flatten the curve also mean Home Offices are our new normal.

Having a Law Practice which focuses on injured workers means we still need to be here for  workers with existing claims, new injuries, or questions about the CoronaVirus and returning to work during a pandemic. We’re all working from home – you would see my two big dogs stretched out on the floor if my camera was on. Our office phones are sitting on our Dinning Room tables. Our client files are on our laptops. We have conferences by phone, Depositions on Zoom, send letters via e-mail.  It’s all different, but it is slowly becoming our new normal.

We’re still here. Someone will answer the phone if you call. Your questions will still be answered. Your claim will still be allowed, your benefits paid, your claim litigated, your rights protected. You don’t have to leave your house. You can stay safe. We can still help you – even during a Pandemic.

Stay Well –

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.

 

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.

Longshore Notice of Calendar Call

When a Longshore, DBA, or non-appropriated fund claim is set for Hearing the Judge sends out a Notice of Calendar Call. This notice not only provides the date of the Calendar Call, it includes a long list of actions and due dates the parties must attend to. All these actions and deadlines get added to my calendar, with tickle dates. It can look like a lot to do, and, well, it is!
I can also look at this notice and see what other claims are set for Hearing the same week, and which attorneys represent the various parties – mildly interesting stuff.
What is somewhat terrifying is to see a Claimant’s name listed, with no attorney representation noted. I never know whether this unrepresented Claimant has a legitimate case to make, or whether it’s a bad case, for whatever reason, and no attorney is willing to take it on. It troubles me to think some Claimant may have a decent argument to make, but may be going it alone, pro se, representing themselves.
I know there are all lot of smart people out there who aren’t attorneys. Or, people who don’t trust attorneys, or who had a bad experience with an attorney. But this system is fraught with deadlines and pitfalls and rules. While an Administrative Law Judge will be nice, and will absolutely let a pro se Claimant put on a case, the Judge cannot help you. You have the burden of putting on a prima facia case, the burden of presenting expert medical and/or vocational testimony, not to mention the organization and presentation of documentary evidence. This is your one shot to make a record, present evidence, and argue the relevant law. There is not another opportunity to make your case. You cannot take a run at doing it yourself, and then ask for a do over if it goes poorly.
If a Hearing has been requested, by either party, you are going to wait several months before you receive a Notice of Calendar Call. Take this time to consult with an attorney. The earlier an attorney gets involved, the better a case can be documented and presented. Maybe there is no good arguments to make – if that’s the case a good attorney will tell you the cons outweigh the pros. But you are not going to know if you don’t ask. Don’t end up on a Notice of Calendar Call unrepresented – there is just too much at stake.

Request a copy of your IME

I try not to call these claims manager ordered medical exams ‘IMEs’. While this is an acronym for Independent Medical Examination there really isn’t anything independent about them. But, that’s not today’s topic.
You have a right to a copy of the report from your IME. It doesn’t matter whether you have a Washington L&I claim or a Federal Longshore or DBA claim. This is a medical examination of you and you are entitled to a copy.
You have to request a copy from the right place. The examining physicians or their office will not send it to you. If there is an assigned vocational counselor, they will not send it to you. Your employer will not send it to you. It is the claims manager who is responsible for sending you a copy of the report. This may be the State agency L&I, or a third party administrator if your employer is self-insured, or an insurance company. Make your request in writing. It is too easy for a phone message to get dropped or forgotten. Just a short note is all it takes, ‘Please send me a copy of the report from my exam on May 6’. The claims manger will generally have the report a couple of weeks after the exam, that’s a good time frame for making your request.
So, why request a copy? The most obvious answer is, so you can note any discrepancies or inaccuracies. Take a copy to your medical provider and ask them to do an exam and compare findings to those in the report. Have your physician point out any important medical history or recent diagnostic studies missing from the report’s summary. A thorough report from your treating medical provider providing a rebuttal to the examiners conclusions can be very helpful.
The less obvious reason to request a copy of the report – occasionally they are favorable and helpful. While it may seem unlikely, it does happen. I just read a report from 8 months ago that the injured worker never received. The examining physicians recommended treatment including injections targeting an area which had not previously been treated, and a possible joint replacement. Neither the injured worker or his physician were provided a copy of the report and the recommendations. The worker has not received the treatment, and has endured an unnecessary 8 months of uncertainty and pain. The physician did not request authorization for treatment, not knowing it would likely be granted in light of the IME findings. Everyone was in the dark, and no one needed to be.
I will say, if you are represented, your attorney will absolutely get a timely copy of all reports, and will make sure they get to the right people for review, comment and follow-up. But if you are still navigating your claim on your own, you are entitled to a copy of these reports. You just have to ask for it.

The End of Medical Treatment

Here’s the quirky thing about medical treatment and workers compensation claims – injured workers feel like they have to keep seeing a doctor, keep asking for more treatment, requesting another diagnostic study, or another course of physical therapy- even when their condition is not really changing. It is natural to think that as long as you have an open claim, you must be seeking out medical treatment. Doctors fall into this trap as well. The injured worker follows up every 4 to 6 weeks, the medical provider chats for a few minutes, does a brief exam, and says, ‘keep doing what you’re doing, and come back next month’.
But the truth is, medical conditions stabilize. Home exercise programs take over for therapy, new diagnostic studies don’t show anything new, and your exam is the same from visit to visit. When treatment ends, or should end, does that mean your workers’ compensation claim is over? In truth, the end of medical treatment most often signals a change in the focus of a claim, but not necessarily an abrupt end to benefits.
If your treatment is winding down, regardless of whether you feel like you are 100% back to where you were before your injury, it is time to start thinking about a return to work. That can be scary, and employers are not always as helpful as they could be, requiring a full release or not accommodating even simple changes in job duties. It’s scary because some injured workers are not going back to work at their jobs of injury, and that can mean starting all over. It feels overwhelming and uncertain. It’s hard to know where to start or where to turn for help.
There are complex questions involved when an injured worker reaches maximum medical improvement but has not already returned to work. Can the worker return to regular duties? What if specific job requirements were modified? Does the employer have some alternative position the worker could perform? Can the worker use transferable job skills in a new area of employment? Does the worker need help with job search, resume writing or interview techniques? Will retraining help?
Even if your claim has been smooth sailing while you were getting medical treatment, conflicts and disputes often arise when treatment stops and return to work becomes the focus of claims management. This may be the right time to get legal assistance, or at least ask questions of someone with some expertise in worker’s compensation claims. A good attorney can help you figure out what’s next, and head in that direction.
While it may feel safer to keep your head down, and ask your doctor about more therapy, you will be better off in the long run if you look up, ask questions, and take control of the decisions surrounding your return to work.

Government shutdown and your Benefits

 

I’ve avoided posting anything about the Federal Government shutdown, because I had hoped it would be short-lived. Now that we are dragging into week 3, it seems some basic information may reduce some concerns.

The Federal Government shutdown does not affect your Washington State L&I benefits in any way. So, you have nothing to be concerned about.

If you have a Federal Employees Compensation Claim (FECA) and you receive benefits, these benefits will also continue, at least for now. OWCP personnel assigned to the FECA side of OWCP have been designated essential, and are continuing to work so that benefits and claims can be timely processed. No idea if this will change if the shutdown was to drag on for months, but we’re going to be optimistic here.

If you are receiving benefits under a Federal Longshore and Harbor Workers claim, Black Lung claim, Non-Appropriated Fund claim or Defense Base Act claim, your benefits will continue. Although these claims are created by Federal Law and may be overseen by an agency of the Federal Government, your checks come from a private insurance company so are not affected by the shutdown. If you are receiving benefits from the Special Fund, some personnel have been designated as essential and checks will be processed. However, the Administrative Law Judges who hear these types of cases have been furloughed. This means Hearings are being cancelled as they approach, Decisions & Orders are not being written, settlements are not being approved, subpoenas are not being issued, Motions are not being heard. . . you get the picture. Likewise, all personnel on the Longshore side of OWCP have been furloughed. This means referrals to the OALJ are not being made, Informal conferences are being canceled, Informal Recommendations are not being made, disputes surrounding medical treatments are not being evaluated, and ALJ Orders are not being served. In a nutshell, if you are already receiving benefits, you will not see an impact. If you are awaiting some action or adjudication on your claim, everything is on hold.

If you receive benefits from the Social Security Administration, your benefits will continue, again, for the foreseeable future. Hearings are moving forward where they were already scheduled, although I understand new Hearings are not be calendared at this point.

Longshore Basics – when is it Longshore?

For those with claims under the Federal Longshore and Harbors Workers Compensation Act, much of what has been written about Washington State L&I claims does not apply to you. I thought a series of posts specific to Longshore Claims would be helpful.

Let’s start at the beginning. When will you have a Longshore claim rather than a state L&I claim? Generally, and without getting bogged down in a discussion of legal concepts like situs and status – If you work on or near navigable waters, are engaged in maritime employment, including Longshore operations and ship building and repair, and you have a work related injury, you will be covered under the Longshore Act.

There are also several extensions of the Longshore Act which include employment which have absolutely nothing to do with maritime employment. The extensions which we see the most of in this part of the country are those for Defense Base Act claims and Nonappropriated Fund claims. Nonappropriated Fund claims include those who are employed as civilians of armed forces instrumentalities inside the U.S., such as the base exchanges, child care, and food services on base. These employees are not military, but they are employed by the military to provide services on base. Defense Base Act claims include employees who work for a company who is under contract with the U.S., where services are provided in another country. This includes civilians employed at oversees military bases, working on construction projects for the U.S. oversees, and those civilians who are assist the military in a variety of ways with operations overseas, but are not service members.

In most instances, your employer will know whether any work injury is covered under the Longshore Act or state workers compensation, and should assist you in completing the correct paperwork. Medical providers may not understand the difference. We see many instance of a state L&I claim being filed, only to be rejected because proper jurisdiction is under the Federal Longshore Act. Not a problem, the filing provides timely notice, and it’s a simple matter to refile as a Longshore claim. There are gray areas, some parts of a bridge being built may be exclusively land based and not covered under Longshore, while other parts of the construction are most definitely maritime; some ship repair may be done in a shop setting miles from the water; the Port has employees who have strictly administrative positions – if there are any doubts or questions – you should talk to an attorney to make sure your claim is timely filed in the right place, to avoid any unnecessary delay in your medical treatment or benefits.

 

Coming up –who chooses your medical provider; what wage replacement will you receive if you can’t work because of your injury; is vocational retraining available; how is permanent disability compensated.