Just saw a super cool aerial video of the Port of Tacoma at the ILWU 23 Home page.
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!
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.
What is Opt-out? Why should you care? I’ve attached a link to a new ProPublica article which is well worth reading.
Two States, Texas and Oklahoma, already allow employers to opt-out of mandatory workers compensation coverage. That’s right – the employer gets to decide whether to provide the workers compensation safety net for its employees. If the employer opts-out of mandatory coverage, they then design their own bucket of benefits for injured workers, being sure to protect themselves in the process. More often than not, these employer designed benefits provide less protection than that required by State law. Employers do give up protections from law suits for work injuries if they opt-out of mandatory coverage. But to pursue such a claim the injured worker has to prove the employer’s negligence caused the injury; and there is always the risk the employer will file bankruptcy if there are catastrophic injuries and loss of life. This trend to opt-out of workers compensation coverage inevitably results in shifting the cost of work injuries away from the responsible employer and into state and federal programs, like Social Security, Medicare, unemployment and other public assistance programs. When the cost of injuries is not born by the employer, do they have an incentive to provide a safe workplace?
Why should you care? Read the article. This opt-out strategy could be coming to your State. If you are in a position to talk to your State Legislator about issues which concern you – put this on the the list.
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.
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.
We launched a new website a few months ago! Check it out.
Thanks to the folks at Hemisphere for doing such a great job. We hope this new site makes us more accessible to our clients, and to those who need help, but have been hesitant to reach out and talk to an attorney.
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.