Light Duty – one more quick thought

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.

Reopening an L&I Claim

I get a lot of phone calls asking questions about reopening an L&I claim. So here are the basics that I share with most everyone who calls.
– A claim can be reopened for full benefits anytime within 7 years of the first claim closure. After 7 years, you can still reopen a claim, but it will be for medical treatment only. (unless there are some exceptional circumstances which would support the Director exercising discretion to provide full benefits.) So, if it’s been more than 7 years since your claim was closed, and you have alternative medical insurance, the cost of chasing a Reopening may outweigh the benefit.
– Go see your doctor. Any medical provider can help you file the reopening application, but a physician who is familiar with your injury and treatment or who is a specialist dealing with your type of injury will be more credible.
– The Reopening Application has a portion for you to complete and a portion for the medical provider to complete. Then, it is sent to L&I.
– The medical provider needs to perform a full examination and will be asked to document objective medical findings that your accepted condition has objectively worsened since the date of claim closure. For example, your claim was closed on 10/1/2010. You go to the doctor on 5/15/15. The doctor will need to document objective worsening between 10/1/2010 and 5/15/15.
– Objective worsening is a high bar to clear. It does not mean you haven’t been able to work, are in a lot of pain, or just feel like you never really got better. It is findings on physical exam like increased atrophy, reduced range of motion, reflex changes or loss of strength or sensation. Evidence from diagnostic studies like MRI and EMG may be helpful. I suggest taking a copy of the medical exam that was done at the time your claim was closed and having your physician compare your current findings on exam to those which were documented at the time of claim closure.
– If a Reopening Application is filed the Department will pay your physician for the exam, whether the claim is reopened or not. If the physician requests authorization for a diagnostic study, the Department may authorize and pay for this as well.
– An IME will likely be scheduled, you have to go. Be honest, be straight forward, don’t exaggerate.
– You do not need an attorney to file the Reopening Application. You do need an attorney if the Reopening is denied and your medical provider feels you have findings which document an objective worsening of your accepted condition. If you do go to an IME and the examiner’s conclusions differ from those of your physician, you may want to get an attorney on board sooner, rather than waiting for the Reopening to be denied.
As always, there are a lot of different situations and nuances to any Reopening Application. But this will get you pointed in the right direction. Once you have some medical support, and the application has been filed, you should get a response in 90 days, unless the time for making a decision is extended by the Department. If the result is not what you and your physician anticipated, get some legal advice.

Light Duty Work

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.

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.

Date of Manifestation

What is a date of manifestation, and why does it matter? To answer that, I have to back up just a little bit.
There are two types of workers compensation claims, industrial injury claims and occupational disease claims. An industrial injury is defined as a ‘sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result’. This is a specific incident, and usually has an obvious date of injury. The injured worker fell off that ladder, picked up that heavy box or stepped in that hole, and felt immediately that something was injured. The date of injury is the specific date the incident occurred. The date of injury is used as the start date for the work related injury claim, the date benefits and medical treatment will be covered.
Occupational disease claims are a bit fuzzier. An occupational disease is ‘such disease or infection as arises naturally and proximately out of employment’. The classic example is a worker who performs some repetitive activity at work, which over time results in a medical condition. For instance, carpal tunnel syndrome from constant keyboarding, or a bum left knee from jumping out of the truck cab. We still need a start date for the claim, but there is not one specific day or incident which caused the condition. In occupational disease claims the start date for the claim is called the date of manifestation. For such claims the date of manifestation is the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first. The date the claim is actually filed does not matter. In broad brush strokes, we look for the first date the worker went to a medical provider for treatment of the condition or first missed work because of the condition.
Why do you care about the date of manifestation? It will be the date used to set the schedule of benefits, and will be the earliest date for payment of benefits and medical coverage for the condition. You want to make sure all related medical bills are covered and that you are compensated for anytime you missed from work due to the condition, so it matters what date is used and that it is accurate.
The order issued by the department which allows the claim or which assigns responsibility between multiple employers will have the date of manifestation being used by the department. If you believe this date is incorrect you have a 60 day window to request reconsideration or file an appeal. Sometimes this is an easy issue to resolve, but sometimes there is an aggressive employer pushing for a date of manifestation which is less advantageous to the worker. If that’s the case, you should get legal assistance well within the 60 day appeal period to make sure your interest are protected.