Reducing Long Term Disability

Someone asked, “what are the benefits of having a light duty program?”  It’s a really good question, and I suppose you would get different answers depending on who you ask. While I fully realize light duty programs are a cost saving mechanism for employers, I don’t believe these programs are inherently evil.  I won’t bore you with the research, but it seems well accepted the longer an injured worker is away from employment, the more devastating the financial impact on that worker and their family. Staying connected to your work place, and returning to some type of daily work activity as soon as possible, can be much better than long-term disability. Those who have a strong work ethic and a sense of self which is closely tied to employment, can avoid the feelings of loss and hopelessness which come with losing that employment or ability to work.

 However, like everything else in life, light duty programs run the gambit from good, to bad, to really ugly. There are those which are designed and intended to do all the right things; keep the worker connected to employment, offer meaningful work at fair pay, while affording dignity, respect and security.  And, there are those whose main goal seems to be to create such a hostile work environment that the worker will quit, or be set up for termination. The question is, how do we create incentives for the former and discourage the latter? How do we create a culture where employers and employees both see the benefit of working together to insure quick, meaningful, and permanent return to work after an industrial injury or occupational disease?

 I don’t mean that to be a rhetorical question – I really am looking for ideas. I think we have an opportunity in this State to move forward with productive changes which improve return to work and reduce long-term disability, like the Vocational Improvement Project which is currently in year 2 of a 5 year pilot. I’m not talking about redefining what is or is not an injury, or allowing workers to settle claims for a lump sum rather than holding employers accountable. These maneuvers may reduce costs, but they do not address return to work or reduce long-term disability. We don’t need to shift the problem out of sight, we need to solve it.

 From a workers perspective, what will  encourage a return to work? From an employer perspective, what reduces the risk of retaining a worker who has sustained an injury? How do we reshape the trajectory of  our work lives so that as we age work duties become less physically demanding, thereby reducing the prevalence of injury and occupational disease? Our ageing work force has value, with skills and knowledge that can and should be used. How do we harness that skill and knowledge when their bodies start to fail them?

 Light duty programs are one tool which can be used to reduce long-term disability. The trick is to insure it is used for the right reasons at the right time. The bigger trick is to put more tools in the toolbox.

What if my employer is a Native American Tribe?

The number of workers in Washington State who work for a Tribe, or in a Tribal owned business, is growing every day. Just think of all the casinos and associated businesses you see opening in your area. If you are employed by a Tribe, and are injured at work, do you have a L&I claim?

There is not an easy answer to that question. But I do have an easy first step if you are injured – file a Washington State Labor and Industries claim AND file a claim with the particular Tribe as required by your employer.

Tribes are Sovereign Nations. As such, they are not bound by our State workers compensation law. By way of example, if you were injured working for an Australian employer in Australia, you would be entitled to whatever rights or benefits Australian Law outlined. The same is true if you work for a Native American Tribe on Tribal owned land. You are entitled to whatever rights and benefits are outlined by the Tribe. While some of those benefits may track what is provided by the State, the exact nature of the rights and the processes for filing a claim will be dictated by each individual tribe.

So, why file a State L&I claim? L&I will allow claims where the employer is a Tribe, but the business is not on Tribal Land, or where the business is on Tribal land, but is not owned by a Tribe. As an employee, you may have no way ascertaining who exactly owns a business, and whether the property is Tribal land or not. The Department will investigate and allow or reject the claim as appropriate.

There is another good reason to file a claim, even if you are fairly certain it will be rejected because the business is owned by a Tribe, and is clearly on Tribal land. The State has no way of gathering information about how many injuries are occurring in these situations. Tribes are not required to report on the job injuries to the State. As a result, the State has no way of tracking these injuries or documenting whether such injuries are increasing. If an L&I claim is filed, and rejected, the Department has been able to gather the information. With information on the number and types of injuries occurring in Tribal businesses, the State will be in a better position to understand how this growing sector of our economy is effecting workers injured on the job in our State.

When should you be receiving Time Loss?

When should you be receiving Time Loss?

The obvious answer is, ‘When you can not work because of your injury’.  But as with most things in the workers compensation world, it is not always as easy as the obvious answer.  Several hurdles must be maneuvered before you are entitled to time loss payments.

 First, there must be medical certification that you are unable to work because of  your work related injury.  At the beginning of your claim this should come from your attending medical provider. Unfortunately, this is one of those areas where it does not matter if you think you can do your  regular work – it matters what a medical provider thinks. So, get yourself to a  Doctor as soon as you can.  The certification will address your ability to return to work at your job of injury. There is no magic time loss form for your doctor to complete. Although the claims manager may send your medical provider an Activity Prescription Form, this specific form is not required to collect time loss. The same information can be found in the providers chart notes or any other form used by the Doctor’s office.  You will not receive time loss for the day of injury, or the 3 days following the injury, unless you remain off  work for 14 days. 

You will also be required to sign a Worker Verification Form to certify you have not worked, and to let the Department know if you have applied for any public assistance. (note – self-insured claims may not use this particular form)  The Department may send you this form, or you can complete it on-line in the Claim and Account Center. You can mail it, fax it, or drop it off at a service location.  If you have an attorney, your attorney will make sure you get one to complete when necessary.

 Time loss can be paid even before the Department issues an order formally allowing your claim. If there is medical certification and worker verification, provisional time loss benefits should be paid pending the Department’s review of the claim and allowance or rejection of the claim.  Of course, if the claim is ultimately rejected, these provisional benefits will need to be repaid. (in limited circumstance, the Director may waive repayment if recovery would be against equity or good conscience.)

 As the claim progresses, your medical provider may be asked by your employer to release you to light duty or modified work of some type.  (see previous posts on light duty work) The Employer should provide a specific job description which allows your medical provider to assess whether you can perform the work described. If your physician releases you to this work, you will not be entitled to time loss benefits. However, if this temporary light duty work pays less than your regular work, you may be entitled to Loss of Earning Power benefits to make up some of the wage loss. If this light duty work interferes with your recovery and your physician again certifies you are not able to work, your time loss should resume. Likewise, if the employer no longer has light duty work available, time loss should be paid.

 If you leave your employment, and take another job with another employer, you may still be entitled to time loss if your physician subsequently indicates your injury interferes with your ability to work at either your job of injury or your new job. I had a worker call the other day who had changed employers several months after her injury. About a year later she had surgery for her work related injury. The claim was open and the surgery was approved treatment. She wanted to know if she should have received time loss while she was recovering from surgery and unable to work at her new job. Absolutely, yes! It does not matter that she was working for a different employer, she should have received time loss, and we will be following up on her claim to make sure she does.

 If you move out of state you are still entitled to time loss benefits. There is no rule or law which requires that you reside in Washington to continue receiving benefits under your claim. We have clients in a lot of different states, and several foreign countries. While medical treatment may be a challenge, there is nothing about a move, in and of itself, which limits the payment of time loss benefits.

 If your injury is serious and permanently prevents a return to work at your job of injury a vocational assessment will be conducted. You should receive time loss during this process. If the vocational assessment concludes you are employable, your time loss benefits will stop.

 This is really only a very basic outline of when time loss should be paid. As a general rule, if you have an open claim, are not working because of your injury and are not receiving time loss benefits, you should talk to an attorney about your specific circumstances. There may be some arguments to be made that benefits should be paid. It is always worth taking a look, and may result in the payment of significant back due benefits.

Independent Medical Exams or IME’s

Perhaps it comes from reading hundreds of them. While medical exams arranged  by the Department of Labor & Industries or a self-insured employer may be called “independent”, they seem to be anything but “independent”. I generally refer to them as panel exams or defense medical exams. Whenever a dispute, question, concern or confusion arises in a claim, a medical exam is scheduled. The reports are often boilerplate, the same physicians show up time and time again. They seem to stall medical treatment rather than facilitate it.  

 

Be that as it may, if you are scheduled for such an exam, you need to go. Failure to attend will likely result in some negative action being taken on your claim. The Department or the self-insured employer has the right to have you evaluated by a physician or physicians of their choosing. These exams can be scheduled for any reason, and pretty much as often as they want. That said, I do have some suggestions.

 

If the date or time of the exam is inconvenient, it is ok to reschedule. Just call the phone number on the notice and reset the exam for a better time.  Despite what a frustrated claim manager may tell you, you are allowed to go on vacation, make plans, and have appointments unrelated to your claim. You are not at the beck and call of your claim manager 24/7. While your personal activities can not completely prevent your cooperation with reasonable claim management requests, they may make you temporarily unavailable, necessitating an exam be rescheduled.

 

If you have an emergency and need to cancel the exam at the last minute, call. It happens. Hopefully, not to the same worker over and over again, but it does happen. It could be the weather, or car trouble, or a sick child. Whatever the reason, call the facility and your claim manager as soon as possible. Unless you have a pattern of last minute missed appointments, it will not be grounds for suspending benefits. Although, you may be asked to write a short statement about the reason for the last minute cancellation for your file. The exam will be rescheduled.

 

If your injury makes driving difficult, you can ask that transportation be provided. Usually, the Department or self-insured will arrange a taxi pick-up. If you are traveling from out of  Washington State, travel will definitely be provided, as well as hotel accommodations if necessary. If you do drive, keep track of your mileage and submit a travel reimbursement. You can get a form here.

http://www.lni.wa.gov/FormPub/Detail.asp?DocID=1631

  

Take someone with you. If you have an attorney, they can not go with you. But, you can certainly take a friend or family member. Not only will this give you some piece of mind, it will be an extra set of eyes and ears.  Your companion may sit through all parts of a physical exam. They will not be permitted to sit through a psychiatric or psychological evaluation.

 

Report any misconduct or inappropriate action by the physician who examines you or any other person associated with the facility where you have the exam. The Department will take action if they receive a number of valid complaints involving a particular provider or facility. If you have a concern about your exam, put it in writing right away and send it to your claims manager. It is perhaps human nature to view complaints made only after the report is received as a bit less credible. Complaints can be sent to:

IME Quality Assurance
Provider Review & Education Unit
Labor & Industries
PO Box 44322
Olympia, WA 98504-4322
360-902-6818

Do not rest up before your exam. I tell my clients to go about their normal activities before an exam, so the provider can see them in their normal state. Keep in mind it is important to be honest with the examiner. Not every test will cause symptoms, and you should be straight up about what does and does not effect your condition.

 

You are entitled to a copy of the exam report, although, the examiner will not send a copy to you. If you have an attorney they will get a copy of the exam and send it to you and your medical provider and request any necessary response. If you do not have an attorney, send a request for a copy of the exam in writing to your claim manager. While there is no law which says the request has to be in writing, I find it harder to ignore or forget about if it is in writing. When you get a copy of the report, take it to your attending medical provider. While the claims manger should send the report to your doctor, it does not always happen. Ask your physician to review and forward any comments directly to your claims manager.

 

You may find a second medical exam is scheduled shortly after  a report is received from the first exam. This is an unfortunate outcome of claim mangers looking for a “preponderance” of medical opinion. Many claim managers seem to feel this means the number of opinions on a particular issue, completely ignoring the quality or credibility of those opinions.  There is not much you can do about it.  If you have an attorney they will make the appropriate arguments, and work with your physician to obtain helpful information to forward to the claim manager.  However, to avoid being found uncooperative and having your claim or benefits suspended, you will need to attend the follow up exams.

 

The Department is currently drafting new Rules defining who can conduct these “Independent Medical Exams” and what those exams should look like. There is some hope these new Rules will serve to improve the quality of the exams themselves and make them more objective and fair.  I suppose we’ll see. In the meantime, these exams are a necessary part of your journey through the workers compensation system. Understanding them, and following a few common sense suggestions will  improve the experience.

How and When to Reopen your Claim

A L&I claim may be reopened within 7 years from the date the first closing order becomes final, for full benefits. That means, time loss, medical benefits, vocational services, disability awards, all benefits that are available under the law. If it has been more than 7 years since the claim was first closed, the claim may be reopened for medical benefits only. The Director of the Department has discretion to provide full benefits in certain circumstances in these ‘over 7’ reopenings.

 

Keep in mind, the time limit is 7 years from first claim closure, not the date of injury, not the date you returned to work, not the date the final installment of  any PPD was paid.  If a closing order was protested or appealed, and ultimately set aside, that is NOT the first claim closure. You are looking for the first final claim closing order. That is the start of the 7 year clock.

 

In a nutshell, a claim will be reopened only where there is medical evidence, based on objective medical findings, that the industrially related condition has worsened, or become aggravated, since the claim was closed.  Your own subjective descriptions of increased pain, loss of function, or inability to work are not enough. A claim can not be reopened solely for vocational services. The Department is looking for increases in objectively measurable findings. Worsening in measures of atrophy, nerve damage, degenerative changes, muscle wasting, range of motion, sensation. Worsening which is evident on MRI, CT scan, EMG. I tell clients, we are looking for concrete, objectively measurable changes in their work related condition.

 

Reopening requests, or aggravation applications as they are sometimes called, should be forwarded directly to the Department, even if your employer was self-insured. There is an actual form, which you can get here:

http://www.lni.wa.gov/FormPub/Detail.asp?DocID=1591

However, an informal written requests, with or without supporting medical information, will start the ball rolling. If there is such an informal request, the Department will forward you the reopening application to complete.  There is a portion of the form for you and a section for your medical provider to complete.

 

You can go to any medical provider to complete a reopening application. If you had a good relationship with the physician who treated you while your claim was open, that is a great place to start. Your primary care provider is ok, an appropriate specialist may be even better. If you have a copy of the closing medical report, take it with you. This will help the physician in comparing your current findings on exam to those at the time your claim was closed.  The medical provider will be paid by the Department for performing the exam and completing the paperwork, whether the claim is ultimately reopened or not. If the physician recommends a diagnostic study to complete the exam, the request should be forwarded to the Department along with the reopening application. The Department will approve many diagnostic procedures in order to gather all the medical information necessary to review the reopening application. Again, if the Department authorizes such a study, they will pay for it. The Department will likely schedule you for a medical exam, called an Independent Medical Exam, or IME. (We can discuss some other time whether there is anything ‘independent’ about these exams)

 

When in this process should you talk to an attorney? There is no hard and fast rule, although I tend to be in the ‘earlier is better’ camp.  The Department will issue an Order either reopening the claim or denying the application. You can protest or appeal a denial, and an attorney will most definitely be helpful, if not indispensable. However, earlier involvement has its up side. An attorney with a good relationship with the Department can nudge a claims manager in the right direction, help make sure all necessary diagnostic studies have been done (on the Department’s nickel), help the attending physician articulate the objective findings which have worsened or respond coherently to an IME report. It is, of course, quicker and less expensive if your claim can be reopened without having to litigate the matter. Getting an attorney involved early in the process will only serve to make sure all possible avenues are being examined before the Order is issued.

Light Duty Trap

In a previous post I encouraged you to have an open mind if your employer offers light duty work while you are recovering from your injury. It is generally a good thing to remain connected to your employer and the work force.

 

I touch on this topic again to alert you to the down side of  light duty work. If you are working light duty, your employer can still fire you for cause. If you are fired for cause, you do not receive time loss benefits. The employer will argue light duty work was available for you, but because of your own actions you are no longer working. Time loss is not payable, since it is not your injury which is preventing you from working and receiving a paycheck.

 

The most common scenario is a worker who does not call in to report an absence while on light duty. Most employers have a call in policy of one sort or another, some less strictly enforced then others. But I promise, if you violate these internal company polices while on light duty, you will find yourself out of a job, light duty or otherwise.

 

There is also the occasional horror story of an employer and co-workers treating a worker on light duty so poorly, that the light duty worker gets fed up and quits the job. Again, no time loss is payable, as the reason the worker is not collecting a paycheck has nothing to do with the work injury. I often tell my clients, your employer does not have to be nice to you.

 

The lesson here is to mind your P’s and Q’s. Follow company rules to the letter, even if no one else does. Walk away from taunts and mocking. Enforce the written restrictions from your medical provider. If your employer is one of the good guys, light duty work will be a valuable bridge during your recovery. If your employer is not on the up and up, the light duty job will evaporate just as quickly as it materialized. If the employer indicates they no longer have light duty work for you, at least your time loss benefits will immediately restart.

Should you waive voc services?

My rant for the day .. If you have a Labor & Industries claim – do not EVER waive vocational services.  I can not think of a single situation where it would benefit an injured worker. If you come and see me only after you have waived voc services, and your claim is closing, there is very little I can do to help you.

 

To be clear, I’m talking about declining to participate in early intervention, vocational assessment, or in plan development services. I am not talking about taking the new Option 2 benefit after your retraining plan has been submitted and approved by the Department. There are some interesting reasons to take the Option 2 benefit, rather than participating in a retraining program. That’s a topic for another day.

 

I’m talking about those workers who for whatever reason sign some type of form saying they decline vocational services, understand they can consult an attorney, (please do!) and further understand their time loss benefits will stop. No good can come of signing this waiver. Any attorney will tell you not to sign it.  You are making the Department’s job easier. You are allowing your claim to be closed without an assessment of whether you can return to work.  Whether your employability is a foregone conclusion, or is hotly disputed, never just walk away from the issue. 

 

Make the Vocational Rehabilitation Counselor do their job. Maybe you’ve already returned to work. Fine, let the VRC close vocational services because you are working. Maybe the VRC will conclude you have transferable skills and can return to some type of work. We can dispute that determination if we disagree with it. Maybe the VRC will recommend plan development. If they do, develop a training plan even if you aren’t really interested in retraining and returning to new work. If nothing else, after the plan is approved you have the choice of retraining or taking the Option 2 benefit, with it’s 6 months of additional benefits. Why give that up?

 

Most importantly, don’t take legal advice from a well-meaning doctor, the vocational counselor, or your buddy. They are not going to understand the hole you are digging for yourself by waiving vocational services. Don’t sign a waiver, see an attorney.

Light Duty Work

I  am asked a lot of questions about light duty work.  If you are injured at work and your employer offers you light duty work, what should you do?

 

Well, first and foremost, the statute requires the employer to provide to your physician a statement describing the available work in terms which will allow the physician to determine the physical activities of job. The physician then determines whether the worker is able to perform the work described.  You are also to be provided with a copy. So, if you get a phone call from your employer asking you to report to light duty work, ask for the written description and ask whether it has been provided to your physician, and whether your physician has approved it. Sometimes this paperwork flies around fairly quickly by Fax, so you might not be aware the job description was sent to your doctor. Ask for a copy.

 

If there is a written job description, and it has been approved by your medical provider – do you have to report to work? The choice is yours, of course. However, if you decline  light duty work which has been approved by your physician your time loss benefits will stop. And, it will be hard to get them reinstated. Not impossible, but very difficult.  You are better off reporting to work.

 

There are some things to keep in mind if you are returning to light duty work with your employer after an injury.  First, this is not necessarily a bad thing. It may help your recovery to stay active, working a few hours a day can help ease you into a return to regular work. Staying connected to the work force reduces long-term disability.  Returning to light duty or modified work may preserve your benefits including health care, pension contributions, vacation pay and the like.  In most cases, workers will be better off financially if they return to work with their employer, even part-time work, sooner rather than later.

 

Making sure your physical restrictions and limitations are honored is your responsibility. If you are asked to do something outside your restrictions, politely decline. If you don’t enforce your restrictions, no one else will. If you are consistently asked to do work which exceeds your limitations, speak to a supervisor, and tell your attending medical provider. Your doctor may decide to pull you off the light duty work if you are doing tasks which place you at risk of reinjury or will slow your recovery.

 

Most employers are genuine in their desire to get you back to work, keep you connected to the work force, reduce your lost wages, and ultimately return you to regular work. I said ‘most’ not ‘all’. There is no rule of law which requires your employer to be nice to you. Some won’t be. Some will be rude, some will give you demeaning work, some will belittle you in front of your co-workers. They want you to quit. They want to trump up a reason to fire you for violating a company rule. If  you are fired for cause or quit light duty work which was approved by your physician, your time loss benefits will not be reinstated. At least, not without a fight.  These bad apple employers do not want you around. If they can not get you to quit, or find a reason to fire you for cause, the light duty work will likely evaporate and you will be eligible for time loss again. In the meantime, mutter karma, karma, karma under your breath, enforce your physical restrictions, and concentrate on your recovery.

Time loss payments

If you are currently receiving Time Loss (TL) benefits paid by Labor & Industries you may have seen a recent change in when your checks arrive.  This short note is just me, touching base and saying – nothing to worry about.

 

The Department’s computer system was recently updated. This update eliminated the lag which we have always seen in the processing of TL checks. In the ‘olden’ days if a TL check paid benefits through the 10^th, it would process and mail 4 days later on the 14^th. Now, through the miracles of modern computer technology, a TL check which pays benefits through the 10^th will process and mail that same day. You may have received your TL check days before you were expecting it. Not to worry, your next check will mail just as promptly.

 

TL is generally paid in 14 day cycles. So, you should be able to predict with some degree of accuracy when your check will be received.  Everyone has a budget. Every budget revolves around ‘payday’. If you are receiving TL paid by the Department (as opposed to TL paid by your self-insured employer) your payday just moved up a few days.

Social Security and Workers Compensation

 

We have many clients who receive benefits under both their workers compensation claim and a Social Security Disability claim. This is absolutely allowed, and may well increase your overall monthly income. You can collect both benefits, up to a cap of 80% of your highest average annual earnings.  Because everyone’s earning are different, everyone’s 80% cap will be different.  The Social Security Administration (SSA) has various formulas for figuring each person’s highest average annual earnings, and they will use the formula which is the most advantageous to you.

 

Individuals with a high earning history will have a high 80% cap, and may get nearly the full benefit of both the Social Security Disability and Labor & Industries (L&I) benefits. Workers with a lower earnings history will have a lower 80% cap, and payment of either Social Security or L&I benefits alone may put the worker at or near the cap. If combined benefits exceed the 80% cap, either the SSA or L&I will take an offset, reducing your payments to the 80% cap. 

 

If you have applied for Social Security Disability benefits and your application has been denied, it is important to Request Reconsideration. The denial will come with instructions for how to make such a request, and the timeline for doing so. It is important to request reconsideration within the time allowed.  You do not need an attorney at this stage.

 

After you have requested reconsideration, you should work with the SSA to provide all the up to date information about your condition. Keep in mind that for purposes of Social Security Disability it does not matter what caused the particular condition, or whether the condition is related to a work injury. Social Security looks at your complete medical and/or psychiatric picture.

 

If you application is denied a second time, this is when you should contact an attorney. At this stage your claim is moving toward a Hearing. Hiring an attorney will assure you the best possible chance of obtaining a favorable result.

 

While you can collect benefits under both a Social Security Disability and a workers compensation claim, they are two completely different systems. Obviously, one is a Federal benefit and one is a State benefit. Beyond that, each system uses its own criteria for determining total disability. Being found totally disabled under one set of guidelines does not necessarily mean you will considered disabled under the other. A decision by one agency is not binding on the other agency.  It can be a bit of a maze. But, applying for Social Security Disability benefits when you have a long-term work related disability can be to your advantage. Get the ball rolling, and call for help if your application is denied a second time.