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 –

Social Media

You have a Facebook page; You tweet; You Instagram – and you have an injury at work.

BEWARE!

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.

 

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.

 

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.

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.