“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 –
Part 2I’m adding a link to the second part of this story about Office Careers. I will say the workers comp legal community, myself included, have been raising concerns about Office Careers to the Department for years. It’s a bit disingenuous for Rich Wilson to claim ignorance. More than a dozen times, evidence that injured workers had obtained no skills in these programs has been presented to the Board of Industrial Insurance Appeals. 100% of those times the Judge has found in the workers favor.
If you are a injured worker, currently being retrained at Office Careers, and you have any concerns about your training program, I strongly urge you to talk to a workers comp attorney.
Check out this investigative story from King 5 on Office Careers.
Pushing injured works into a training program that provides them with no real marketable skills is just wrong. Either provide vocational assistance that provides them with real skills or acknowledge they are permanently disabled and provide the appropriate benefits.
You have a Facebook page; You tweet; You Instagram – and you have an injury at work.
Whether you intend to or not – you are leaving an evidence trail. While you may believe what you are posting is just for your friends and family, the information may be discoverable. That is a fancy way of saying you may be asked or required to hand over any information which you posted or shared which, in any way, touches on your injury. That information may be used to create doubt about your injury or your work limitations. It can be used to question your credibility and your reliability as a witness.
It is not likely to be something obvious. There isn’t going to be a ‘smoking gun’ admission that you are faking the whole thing. It’s going to be something subtle. A picture of you dancing at a wedding the day after your knee injury. Sure, your knee was hurting you, but it was just one dance . . . A picture of you and your buddy at the football game (GO HAWKS!) But you just testified you can only stand for 15 minutes . . . ? A picture of you holding your two-year old Granddaughter . . . ‘Look how big she’s gotten!” . . . . . Well, how much does she weigh? Why can’t you return to work at your job which requires lifting the same weight?
It’s not that these activities are a secret. It’s more that defense counsel would never think to ask you about something so specific, without the picture floating around out there. The first thing a good defense attorney does when they get a new case is look up the injured worker on Facebook. If everything is private, he’s not going to see much. Maybe there follows a formal discovery request for social media posting, maybe not. That decision will depend on what’s at stake in any given litigation. But imagine the ‘Ah Ha’ moment when the the postings aren’t private. Or, there is a rich and detailed instagram record of . . well . . everything that you’ve done since the date of your injury.
Social Media is so instant. It is a very contemporaneous record of what you are doing, saying, thinking, and sometimes even feeling.
Some of it is very, very permanent.
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.
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.
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.
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.
Segregation Orders matter – sometimes a lot. If you receive an order from the department which says it is denying responsibility for a medical or mental health condition, do not ignore this order. You have a brief window – 60 days- to protest or appeal. If you do nothing the order becomes final, and that denied condition will not be covered under your claim. The department is trying to segregate this condition from your claim.
It might sound like splitting hairs. So what, if osteoarthritis in the lateral compartment of the knee is excluded or denied – you had a meniscus tear which was repaired in the medial compartment. The department is accepting that condition, so why should you worry? You should worry, because the next thing that may happen is some physician who examines you at the request of the department will conclude ALL of your problems with your knee, all of your work restrictions, are due to the osteoarthritis in the lateral compartment. The department isn’t responsible for that condition, so your benefits stop.
Some conditions are correctly excluded from a claim. If you have a work related back injury and cut yourself shaving, obviously the shaving injury should not be covered under your claim. But, if challenged, many attempts to deny conditions are overturned, which can preserve your benefits and your right to treatment. This is one of those issues you should talk to an attorney about. We can review the medical records, talk to the medical providers, and determine whether the denied condition should be accepted, and how best to work toward that outcome.
One more quick thought on light duty. If you have a Washington L&I claim, your attending medical provider must review and approve a specific light duty job description before the employer can make a bona fide offer of a light duty job. It has to be in writing, and must be for a specific position or specific job duties. It is not enough for your employer to call you and say, ‘come on into work, and we’ll figure out something light duty for you to do’.
Your employer is not required to offer you temporary or transitional light duty work. It may be in their best interest to do so, but not all employers see it that way. When an employer does make an offer of transitional light duty work, we need to make sure the attending physician has approved a specific written job description. This reduces the possibility of confusion or miscommunication about what restrictions are in place and what job tasks can safely be performed.