L&I and Structured Settlements

Is a structured settlement of your L&I claim right for you? I know the department sends out form letters to injured workers who are at least 50 years old and have allowed claims informing them that they may be eligible for a structured settlement of their claim. What is a structured settlement, and is it in your best interest to “settle” your claim.

The Legislature called them structured settlements because you do not get the total agreed to amount in a lump sum. It is parceled out to you based on what can only be described as a weird formula. (payments of at least 25% but not more than 150% of the State’s average monthly wage – who makes this stuff up!?) The idea is the funds will provide a soft landing back into the world without L&I. In exchange for the settlement, your claim is closed with only the possibility of payment for future medical treatment if the claim is reopened. That means no future time-loss, vocational benefits, PPD or Pension awards. Is that a good idea for you?

Maybe – maybe not. There are a lot of things to consider.

What is the status  of your medical treatment? While a structured settlement leaves open the possibility of reopening your claim for medical treatment, moving forward with a settlement if you are still actively treating for your work injury is probably not a good idea. Reopening a claim for medical treatment can be an expensive proposition if there are any disputes about whether your condition has objectively worsened.

Are there disputes in your claim? There probably are, if you are being offered or are considering a Structured Settlement. Is there a sum of money for which it makes sense to walk away from those disputes? Perhaps. It depends on what the dispute is about, what you have to gain, and how much it may cost you out of pocket to litigate the issue. Do you have more to gain than lose? These are questions an attorney can help answer.

Can you support yourself without payments from L&I? Do you have a real plan to return to work, are you on Social Security Disability or Retirement? If L&I is out of the picture, can you make ends meet? You have to be honest with yourself about your financial situation. Whatever the amount of your Structured Settlement, it will be paid in full at some point, and there will be no further payments from L&I, no matter what your situation.

These are only a few of the things you should consider. Deciding to accept or negotiate a structured settlement is a big step. It may be right for some injured workers in some situations, but it is certainly not a one size fits all answer. Make sure you understand what is being offered and what you will be giving up. Ask questions. Get legal advice. Give yourself the best possible chance to make the right choice for your particular circumstances.

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

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.

OPT-OUT

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.

https://www.propublica.org/article/inside-corporate-americas-plan-to-ditch-workers-comp?utm_content=buffer926c7&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer

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.

Proposed Changes to Structured Settlements

There is a lot going on in the Legislature this year in Washington state, some of it of interest to those involved in our workers comp system. The Senate passed 3 proposals dealing with workers compensation that are not beneficial to injured workers. Those proposals now go to the House, where, thankfully, there are more voices supporting the injured workers in our state.

Two of the proposals deal with our relatively new structured settlements in the workers compensation arena. For the last year injured workers over the age of 55 with allowed claims have been permitted to seek a resolution of their claims through a structured settlement. There is strict review process for these agreements by the Board of Industrial Appeals to insure these agreements are in the best interest of the worker. Well, ‘insure’ is a strong word. The review tries to establish the worker knows what they are giving up, and asks that worker to articulate why they believe taking less than their claim is potentially worth is in their best interest. Over the last year slightly more than 2 dozen of these structured settlements were approved.

Needless to say, this is not the flood of settlements the business community had hoped for, nor has it resulted in the significant savings projected. Wait,  think about that. Structured settlements are supposed to save money for business.  How is that? Of course, if you pay an injured worker less than they would otherwise be entitled to receive, you save money. Do that enough times, you save a lot of money. So, the business community convinced our state Senate to relax the age restriction and review process in the hopes there will be more workers rushing to settle their claims. In support, they point to the number of States where there are few, if any, controls on settlements of workers compensation claims. Businesses in our state, they say, are at a competitive disadvantage because they cannot short change their injured employees. It is disturbing logic.

Fortunately, there are a couple of barriers to the Senate proposals. First, our State House of Representatives has long been a strong champion for workers in this state. Contact your Representative now, it just takes a short e-mail, to let them know you oppose any attempt to dilute the strong protections for injured workers in our current structured settlement process. You can find your Legislators here:

http://app.leg.wa.gov/DistrictFinder/

The other barrier? The workers in this state, themselves. There hasn’t been a flood of workers clamoring to enter into structured settlements because, for the most part, they aren’t in your best interest. Yes, there are specific  particular circumstances where it may be best for an injured worker to negotiate a structured settlement. Personally, I think they are, and should be, few and far between. Definitely, talk to a good workers comp attorney if you think you may be in that camp. But for most workers, a structured settlement is just a bad idea. Our workers compensation process is a safety net system, not an injury recovery system. It is not designed to reimburse you for what you’ve lost, like an auto accident claim. It is supposed to provided needed wage replacement, medical services and vocational assistance when you need them –  not some projected lump sum value of what you might need, if you guess right. Most injured workers will not be better off giving up that safety net in exchange for a structured settlement, any more than an unemployed worker would be better off accepting 6 months of unemployment benefits in a lump sum instead of preserving entitlement to 12 months of benefits should they need them. Sure, Employment Security would save money, businesses would save money, they might even be more competitive as a result. But would anyone think that’s  a good idea?

IME’s

I seem to be getting a lot of questions about IME’s lately – so here’s a bit more on the topic.

If you have specific complaints about the way in which a medical exam ordered by the Department was conducted, put them in writing.  An IME Comments Form (F245‑053‑000) is available online, or you may call 1‑888‑784‑8059 to request a comment form. You can specify your preferred language. The Department has made efforts to improve the quality of physicians who are approved to perform IME’s, and does take comments and complaints seriously.

That said, these exams are a thorn in everyone’s side. However, they are with us to stay. There are a couple of things you can do.

Make sure you provide an accurate and complete history at your first medical visit following your injury. Often IME’s are ordered because the claims manager does not have a clear picture of how or where the accident occurred and is not sure whether to allow or reject the claim. I can’t tell you how many times I talk to a worker who saw a physician for their injury, but didn’t ‘mention’ it was work related. They didn’t think they were hurt that bad, wanted to keep their job, didn’t want to report it to L&I . . . whatever the reason, we’re working on cleaning up the discrepancy – and the CM orders an IME to try and get a clear picture of what happened.

Encourage your treating medical provider to provide detailed chart notes and comprehensive treatment plans to the claims manager. Often IME’s are ordered because the claims manager is not getting information from the Doctor. Make sure the AP is responding to all requests for information as timely as possible and is keeping the CM informed.

You must be proactive in your treatment. Often IME’s are ordered because treatment seems to be stalled with no discernible improvement over multiple follow up visits. If all the CM sees is the same chart note with a different date, no change in findings or treatment recommendations and instructions to follow up in 6 weeks, an IME is going to be ordered. This is especially true if you are not working. Your condition should be improving, treatment or diagnostic studies should be ordered and obtained smoothly. There should be progress.

When your medical condition stabilizes and its time to get a permanent impairment rating and close the claim, ask your AP to do the exam and the rating. The Department encourages treating physicians to provide PPD ratings for their patients. If your AP provides a rating, you are less likely to see an IME ordered. If your physician can’t or won’t provide an impairment rating, ask them to refer you to someone else to get the rating. They can refer you to a colleague or someone on the Department’s Approved list – in either case you may avoid having to attend an IME.

These steps may help avoid an IME in the first place. When an exam is scheduled, be prepared, be honest, do not exaggerate. (This topic should be an entire post!)

What to bring to that first appointment

I try to speak with a potential new client on the phone before that first appointment is scheduled. Sometimes I’m able to answer a quick question, and the worker does not really need an attorney, yet.  But when an appointment is necessary, I am often asked, “What should I bring with me?”.

Injured workers come with a variety of organizational styles, and I’ve seen them all.  Some workers have carefully saved every letter and medical report, and logged every phone call. Some workers have stacks of envelopes with the papers still in them (sometimes unopened!) Some workers keep nothing. Some workers have spouses who keep track of and organize everything related to their claims.

So here’s the truth. The first thing I am going to do after filing my Notice of Appearance is get a complete copy of the claim file. If I’m working on a State L&I claim, I’ll request a copy of the document imaged microfiche, but I usually have access to the complete
file through the Claim and Account Center within a few days. If the claim is Longshore or DBA I will request  a complete file from the insurance carrier and I also routinely get a copy of the Department of Labor file.

Once I receive the file, I’m going to review it – start to finish. This file is going to have all the medical records, correspondence, payment records, IME reports and vocational records. I’m going to have a really thorough understanding of what has happened to date, and what present problem needs resolving. I’ll know what information I am missing, and I can easily request it.

Which is all by the way of saying, you do not have to track down all your medical records to bring to me. You do  not have to scour your home for every scrap of paper related to your claim. It is all in the file, and I’m going to get it and read it. I tell potential clients to bring with them whatever prompted their call to my office.  It might be a letter from the claims manager,  a notice of controversion or Department Order. It might be a vocational report, or  medical report. You received something which caused concern or which you did not understand. Bring at least that with you to your first appointment.

That is enough to let me know what type of claim you have, who I need to contact to file a notice of appearance and request the file, and what immediate problem or dispute is at issue. I’ll be able to ask enough questions when we meet to get the ball rolling. Hiring an attorney is supposed to provide some relief from the stress. So, let’s start by making that first appointment as easy as possible!