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.
If you have a Longshore* claim, and have not settled future medical care with an 8(i) agreement – then you have lifetime medical coverage for conditions related to your injury. That sounds great – but I like to tell my clients this does not mean treatment is automatically authorized, it means you have the right to fight about it.
The responsible carrier is always going to look for an argument that treatment is related to some new injury or workplace exposure. Such a new injury or worsening related to work activities can serve to shift liability to a more recent employer. That is not necessarily a bad thing – If your condition has worsened or been aggravated by a new injury or work conditions, it may well support a new claim. This may actually benefit the worker if wages have increased over time.
Whether to seek medical care under an existing or older Longshore claim versus filing a new claim will depend in large part on individual circumstances and the opinions of your treating medical provider. Either way, sorting out your best arguments based on your specific circumstance is something a qualified longshore attorney can help you with.
- This includes non-appropriated fund and DBA claims, which are covered through extensions to the Longshore and Harbor Workers C0mpensation Act.
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.
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.
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.
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.
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.
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.