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.
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.
If you do not have an attorney representing you on your L&I claim, and you’re offered light duty work – Take it. Please, just accept the offer, and show up at work. Then, call a good comp attorney. There are a whole host of arguments I can make if an injured worker has accepted a temporary light duty or modified work position with the employer of injury.
– The job tasks approved by the attending physician are being exceeded.
– The job is not what was described and approved by the attending physician.
– The commute is too long, and the attending provider has recommended against it.
– The hours are interfering with required treatment.
– The offer is not for bona fide work, as the worker is just showing up and performing no task.
– The temporary work is no longer available.
– The condition has worsened, and the light duty job is no longer approved.
– A newly contended condition prevents continued work in the light duty position.
– The temporary position should be offered as a permanent accommodation for the worker’s injuries, allowing for a stable return to work.
You get the idea – a whole lot of arguments to make. I have a lot to work with, because I have an injured worker who has done everything possible to remain at or return to work. What arguments can I make if the injured worker turns down the offer of light duty work, or just fails to show up? My hands are really tied at that point. The employer argues the worker’s restrictions could have been accommodated, but the worker choose not to accept the light duty offer and return to work, even where their own medical provider had approved the position. That doesn’t look so good, right? It is much harder to argue that a position was not as described, or turned out to be harder than anticipated, if the worker never even tried.
Unless you already have an attorney, and are being advised not to accept a modified position, accept the job. Then, get yourself right away to a good comp attorney and get some help. There is a lot we can do, if you have already put your best foot forward.
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 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.