COLA’s

The Legislature passed House Bill 2123, which has a number of provisions which will effect workers compensation in our State. I hope to discuss all of them eventually. But, most immediately, if you are receiving time loss or permanent total disability/pension benefits there will not be a cost-of-living adjustment this July. This is a one-time pass on COLA’s designed to save money.

If you have thoughts on any of the items contained in this Legislation, please forward them directly to our Governor – the prime architect of this year’s workers compensation ‘reform’.

Christine.Gregoire@GOV.WA.Gov

Medical Provider Network

You may hear about a new Medical Provider Network, or MPN, being created by the Department of Labor & Industries. Legislation was recently signed by the Governor giving the Department the authority to create a network of medical providers to provide treatment to injured workers. This was a Legislative proposal which Business and Labor groups worked on together and ultimately both supported.

There are a lot of details to be ironed out, and the new Network will be rolled out slowly to limit unanticipated problems and preserve access to care. The most important thing for injured workers to know is they still have the choice to determine who will provide treatment for their industrial injury.

Workers’ choice of treating medical provider has been a cornerstone of our system, and nothing in the creation of a new MPN will alter that free choice. Currently, the worker may receive treatment from any provider who has an L&I provider number for billing purposes. In the new MPN the worker may choose to treat with any provider in the network.

The Network itself will be very broad, and will include virtually every medical provider who currently has a Provider number for billing purposes. The Network allows the Department to review the credentials of medical providers. Providers will be accepted into the Network if they are already credentialed by another health care system, for instance Blue Cross, Uniform Medical, or Group Health. There will be incentives for Providers who meet some additional standards in Occupational Medicine best practices,  encouraging quality care for injured workers.

One of the basic tenets of our workers compensation system is better medical care improves return to work and overall outcomes for injured workers. The Network will provide the Department with additional tools to meet this goal, while preserving access to care, choice of provider and improving medical treatment.

More on Third Party Claims

I liked Dave’s last post about third-party claims. It’s not a topic we’ve talked about very much, but it can be an important avenue of recovery for someone severely hurt at work. So, what types of situations will result in a claim against a third-party?

We see a lot of third party claims involving injuries on construction sites. Just think of all the activity on your everyday construction project. The General Contractor has the overall duty to provide a safe work environment for all workers on the site. The General contracts with a number of specialty subcontractors.   It’s not unusually to have  subcontractors in charge of site preparation, framing, electrical, plumbing, mechanical work, roofing, cement and even landscaping. Each of these subcontractors hires their own employees, and must make sure those workers are performing their work safely, and just as importantly, not endangering any of the other workers on the site. So, if the framer leaves a hole in a floor uncovered and an employee of the electrician falls through it and is injured, there is a potential third-party claim against the framing subcontractor and maybe the General Contractor as well. A roofer who doesn’t tie off properly and falls off a roof injuring himself does not have a claim against his own employer, other than his workers compensation claim. But, the landscaper who is hit by the roofer’s falling ladder may very well have a third party claim against the roofing subcontractor. Any work injury which occurs at work site with multiple employers or subcontractors should be carefully evaluated for potential third party claims.

 If a product or piece of equipment being used by a worker, but not owned by the workers employer, fails or is defective there may be a third-party claim against the product manufacture or owner. For example, a metal ladder with a faulty weld or a rented back hoe with no functioning back up warning signal. If either of these defects proximately causes a work injury the product manufactory or owner may be held responsible.

 If the worker is driving as part of regular work duties and is involved in a motor vehicle accident, there may be a third party claim against the negligent driver. If a worker is assaulted by a customer, there may be a third party claim. A worker who is injured on physical premises not owned or maintained by his employer, may have a third party claim. For instance, the delivery driver who slips on ice on the loading dock while making a delivery, may have a claim against the company responsible for the property. Any number of situations can give rise to a potential third party claim. As a general rule of thumb, if a work injury involves some entity other than your immediate employer, some product or equipment that your employer does not own or control, you should explore your options. As Dave mentioned, third party claims involve proof of negligence, which worker’s compensation claims do not require, and they can take a long time to resolve. But they can also be an effective tool in making sure your recover for all your damages, not just the limited statutory benefits provide in our workers compensation laws.

Recorded Statement?

I have heard recently some injured workers are being told by their Employer’s TPA (third-party Administrators) that they have to give a recorded statement about their injury. If the worker refuses, they are told their claim will be denied or rejected.

 While it is true that an injured worker must cooperate in providing information about their injury it is NOT true that they must consent to a RECORDED statement.  An unrecorded conversation is fine, so is a written explanation. There is no requirement that the worker consent to a recorded statement in order to have their claim properly adjudicated.

 I am not exactly sure where this insistence for a recorded statement originates. It does not seem to be a problem with the Claims Managers at the Department. It seems to be with the TPAs for the self-insured employers, and even more so with the TPAs for the Retro Employers. These latter are shadow managing a claim which is technically managed by the Department. These Retro TPAs can be very aggressive. The less paid in benefits, the larger the Employers’ Retro refund (in very broad brush strokes). Some of these TPAs are out of state, although that is really no excuse for misrepresenting the law. This is most likely symptomatic of broader involvement in claims management with out corresponding oversight and required training. You’ll see more on these themes in the coming days.

 The message? Know your rights. If you’re not sure – ask.

So,  here is my question to those of you out there who read this blog.

What incentives could be created which would result in more workers returning to work after they are injured on the job?

I ask because I spent a number of hours this last Fall in meetings with Business and Labor representatives, and representatives from the Department of Labor & Industries and the Governor’s office. We were tasked with exploring ways to reduce long term disability in the workers compensation system. By the way, a nearly impossible task given the short time frame to work before the start of the Legislative session. But, we did have some interesting and productive conversations about what contributes to long-term disability. As you might imagine, the factors vary from claim to claim, and there is not one single contributing factor which we could eliminate, thereby reducing overall long term disability.

We did just start to explore the idea of incentives to improve return to work. We didn’t get anywhere. The Legislative session was looming; the room was getting tense; and battle lines were being drawn. But, we were close to the beginnings of a conversation about ideas. I know, that sounds three steps removed from anything productive. However, there were thoughtful people in the room. Without the pressures of a cantankerous legislative session breathing down everyone’s neck, I think we could actually have those productive discussions. I hope we do, time will tell, I suppose.

In the meantime, I’m interested in anything you might have to say on the subject.  Any thoughts??

Ability To Work Assessment

A referral for an Ability to Work Assessment is used to determine if an injured worker should receive vocational rehabilitation plan development services. Ideally, the referral for assessment services is not made until your permanent restrictions or limitations have been defined either by your attending medical provider, a physical capacity evaluation, or possibly a defense medical exam.

This assessment is the gateway to retraining services, and the door is just barely ajar. Because of what is commonly called the “employability standard”, very few injured workers are provided the full benefit of vocational plan development and retraining services. If a worker is able to obtain and perform reasonable continuous gainful employment, paying at least minimum wage, they are “employable” and not eligible for further vocational services or retraining. This is a very low threshold for employability. An injured worker will only be found eligible for further vocational services if, in the sole discretion of the Director, vocational rehabilitation is both necessary and likely to enable the injured worker to become employable at gainful employment.

The VRC will perform the assessment by gathering and evaluating a variety of information. This should include your work restrictions, pre-existing conditions and limitations, ability to work at the job of injury, assessment of transferable work skills, and ability to work at other jobs. The VRC may have vocational testing done to assist in this assessment.

The VRC will develop job analyses (JA), descriptions of your job at the time of injury, past employment, and employment you may have the ability to perform given transferable work skills and physical restrictions and limitations resulting from the industrial injury. These JA’s will be sent to medical providers, who will be asked whether you can perform the work as described, or with reasonable modifications. Any medical provider can be asked to review these JA’s, the attending physician, the therapist who performs a physical capacity evaluation or a defense medical examiner. When Job Analyses are received, you should carefully reviewed them, and discuss them with your attending medical provider prior to approval or disapproval, if at all possible.

If one or more JA’s are approved, the VRC will conduct a Labor Market Survey (LMS) to document the availability of the positions described in the general labor market. If there is a positive labor market, the VRC will conclude you are “employable” and a closing report will be forwarded to the Department. The Claims Manager will review the vocational report and if they agree, correspondence will be forwarded indicating further vocational services will not be provided, as you are employable. This correspondence comes with a short 15 day dispute window. If no JA’s are approved, you may be found eligible for plan development services. This discretionary vocational determination may also be disputed by either the worker or the employer.

It is possible for the VRC to conclude a worker is not currently employable based on transferable skills, and is not likely to benefit from further services, including plan development. VRCs are encouraged to thoroughly evaluate pre-existing conditions and limitations, aptitudes and learning abilities, and even conduct some initial investigation into possible training plans where it is possible a worker will be found eligible for vocational rehabilitation. You should expect and cooperate with any testing or evaluations requested by the VRC during this stage.

You have a right to be provided copies of any and all vocational reports, upon request. Generally, VRCs will report only to the Department or the self-insured employer unless a specific request for copies of all reports is made. You should also request copies of all Job Analyses as they are forwarded to medical providers, as well as the responses received. It may take continued follow up with the VRC to insure you are provided copies of all the documents.

It is important to remember what the VRC is NOT going to do during this assessment phase. The VRC is not gong to find you a job, help with job search, help with resume writing or interview techniques. It is not the VRC’s job at this stage to assist in actually returning to work. It is the VRC’s job to assess not to assist at this stage.

This does not mean there is nothing you can do. I advise those clients who are likely to be assessed as “employable” to be proactive. Time loss benefits are going to stop when the vocational assessment is done, if you are found employable. So take advantage of this assessment period. Be in charge of your own life and make decisions about what is next for you. While there may be steps an attorney can take following the assessment to challenge the results or seek additional benefits on your behalf, you need to be prepared. Look for work, if that’s your path, apply for Social Security Disability if it’s not. Too many workers are “surprised” when they are found “employable” and time loss benefits stop. The best advise is to be aware of what is coming, and prepare for it.

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.