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.

Vocational Option 2

We are about a year and a half into the 5 year pilot Vocational Improvement Project (VIP) at the Department of Labor & Industries. The Vocational Subcommittee (which I am on) continues to meet regularly. This first year has been busy with issues surrounding how to implement the changes to the vocational system, and the Department has done a good job with an overwhelming number of changes, both anticipated and not anticipated.

 The VIP has a feature which was not present in our former vocational system, for shorthand we call it “Option 2”.  Because it is new, workers have a lot of questions. Let me explain what it is, and then try to walk through some of the considerations.

 If a worker is found eligible for vocational retraining (that is, further vocational assistance is both necessary and likely to assist the worker in returning to reasonable continuous gainful employment) he or she works with a vocational rehabilitation counselor (VRC) to develop a comprehensive retraining program. This program can cost up to $12,240.00 (as of 7/1/08) and take up to two years. The vocational plan is submitted to the Department for approval. Once approved the worker has 15 days to choose one of two ‘options’.  You will receive information about these options as you progress in the plan development process, so the 15 day window should not be a surprise. You can not elect an option until your retraining program has been developed an approved. In theory, this insures you have had an opportunity to fully explore the retraining possibilities open to you, and have an exact plan developed so you are aware of exactly what the consequences of the ‘option’ choice will be.

 Option 1 – the worker participates in the plan as outlined and approved. This is the easy one, you know exactly what you are committing to.

 Option 2 – the worker declines participation in the retraining program. Time loss benefits stop. The worker is entitled to the equivalent of an additional 6 months of benefits, at the same time loss rate. The claim is closed with the appropriate permanent partial disability award.  Any time within the next 5 years the worker may use the reserved vocational retraining costs (the $12,000 plus) to pay for training or classes at any accredited or approved school or program.

 Most of the questions I field about Option 2 are whether to take it or not. I will leave for another day the questions surrounding how, and for what, the reserved vocational funds are used.  I will admit to being surprised at the number of workers who have chosen Option 2, it’s running pretty steady at around 25%. When the Subcommittee discussed including a way to ‘opt out’ of vocational retraining in this new pilot, I had in mind those workers who were at or near retirement age, were already receiving Social Security either disability or retirement, had a work history in a single occupation and who were clearly not returning to the workforce.  This was my picture of who would choose Option 2. 

 Well, I was quite wrong. The stories behind who and why workers are choosing to opt-out of the vocational process have been interesting and varied.  One very young worker wanted to retrain in a occupation which just very slightly exceeded her physical limitations. Although she believed she could do the job, the Department would not approve the retraining plan. The alternative plan, which was approved, was not exactly what she wanted to do.  She choose Option 2, got a student loan to replace the lost stream of time loss, and immediately accessed the reserved training funds to enroll in her chosen program.  Who would have thought? Several workers have chosen option 2 because their time loss rate is not enough to pay the bills. They believed their families would be better off if they found a job immediately, rather than scraping by for two years in a retraining program. Several workers talk of taking their Option 2 payout and their PPD award and starting their own business. In the end, it will be interesting to see the results of the study which will track outcomes for workers in this new VIP, including those who have chosen Option 2.

 The lesson I have learned is there is no one answer or test which will help a worker decide whether to choose Option 2 or participate in their retraining program. Every situation is different, in ways I had not anticipated.  However, there are some basic considerations which will be common to all workers. First, I ask my clients if they have a way to pay the bills when the 6 months of Option 2 payments and the PPD award are paid out. If not, then participating in retraining will keep the flow of time loss coming for the duration of the program, will provide return to work skills, and will buy some time to decide ‘what’s next’.  To those clients who say they will just go look for work, we have a frank conversation about the state of the economy and the unemployment rate in the state of Washington. If you do not have a job absolutely positively lined up, taking a pass on retraining might not be the best choice.

 You should consider your age, and whether you want to, and are able to, retire.  If you honestly have no desire or need to work, and are financially secure, then participating in a retraining program might not suit you.  On the other hand, if a you are relatively young, with years of work life remaining, this may be a golden opportunity to receive additional occupational training or education opening an entirely new chapter in your career. Choosing Option 2 and passing up this opportunity might be a mistake.

 One of the hurdles for workers at this stage of their claims is actually picturing themselves back in the work force, in any capacity. This is not a swift moving system. By the time a worker is found eligible for vocational assistance in the form of retraining they are years into their claim. Their lives have been a revolving door of physicians, surgery, therapy, testing, medical evaluations and endless appointments. Being disconnected from the workforce for such an extended period of time makes imagining a return very overwhelming. For those workers struggling with this reality, I urge you to pass up Option 2 and give your retraining program your best effort.  Just like education and training after High School can bridge the divide into the real world, this opportunity for retraining during your adulthood can bridge the gap between injury and returning to enjoyable employment.  Maybe you will get to the conclusion of your program and decide to retire. But maybe, and I believe more likely, you will get to the end of your program enthused, re-energized and optimistic about your future, with a new skill set as an added bonus.

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.

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.