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.

Future Medical Care- Longshore

If you have a Longshore* claim, and have not settled future medical care with an 8(i) agreement – then you have lifetime medical coverage for conditions related to your injury. That sounds great – but I like to tell my clients this does not mean treatment is  automatically authorized, it  means you have the right to fight about it.

The responsible carrier is always going to look for an argument that treatment is related to some new injury or workplace exposure. Such a new injury or worsening related to work activities can serve to shift liability to a more recent employer. That is not necessarily a bad thing – If your condition has worsened or been aggravated by a new injury or work conditions, it may well support a new claim. This may actually benefit the worker if wages have increased over time.

Whether to seek medical care under an existing or older Longshore claim versus filing a new claim will depend in large part on individual circumstances and the opinions of your treating medical provider. Either way, sorting out your best arguments based on your specific circumstance is something a qualified longshore attorney can help you with.

  • This includes non-appropriated fund and DBA claims, which are covered through extensions to the Longshore and Harbor Workers C0mpensation Act.

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.

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!)

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.

L&I and moving out of state

I am often asked by an injured worker if they can move out of state if they have an open Labor & Industries claim. The quick and easy answer is, ‘of course’! You can live anywhere you choose. Sometimes workers relocate because of a spouse’s job opportunities. Sometimes it is a weather related choice (less rain, anyone?) Sometimes it is a desire or need to be with family. The bottom line is you can move whenever you want, for whatever reason. Your claim will not be closed, if you are entitled to benefits they will continue.

That’s the good news. As you might expect, there are some challenges to be faced if you choose to relocate out of state. First and foremost, you must have a treating medical provider. Just like when you are in Washington, the responsibility of finding and choosing an attending medical provider is the workers. Just like when you are in Washington, the medical provider must have or be willing to get an L&I provider number, so they can bill the Department and be recognized as the attending provider. (Have the physician’s office call the provider hotline to find out about a provider number 800-848-0811) Out of state medical providers may be reluctant to take on a workers compensation patient from another jurisdiction. It may take some persistence and follow up to find a willing physician.

Some suggestions: Talk to your attending medical provider before you move. Get any recommendations or leads they may be able to suggest to locate a physician in your new location. Physicians belong to networks, and have colleagues all over the country, particularly in their specialty. They may be able to help with the transition.

Ask your claims manager for a list of physicians in your new city who already have a provider number. This will give you a list to work from of providers who have had at least some contact with our L&I system. They may be currently treating a Washington injured worker, or may have treated someone in the past. In either event, it is a starting point.

The Office of the Medical Director at the Department has been and continues to do outreach to out of state physicians to provided education and information about our system. There has been a concerted effort to bring in networks of physicians, particularly in locations where there seems to be a high number of relocated Washington injured workers. (Florida, California and Arizona come to mind) If you are having trouble locating a new physician don’t hesitate to contact the Medical Director’s office and ask for help. While you are ultimately responsible for locating a physician, the Medical Director’s office may be able to offer some guidance and assistance.

The other unexpected disruption in your claim from an out of state move may be when or if the Department decides they need an IME. Efforts are made to find a qualified examiner where you are living. Your attending medical provider may be asked to refer you for a consultation, or recommend a qualified physician for an exam. However, the Department may choose to have you return to Washington for a medical exam. The Department will arrange and pay for necessary transportation, lodging and a per diem for food as necessary. Work with the scheduler and your Claims Manager to reduce the inconvenience as much as possible, but know you risk suspension of benefits if you refuse to cooperate with such an exam.

Vocational services, including assessments and retraining if you are found eligible, can be provided if you relocate out of state. A local vocational counselor will be assigned if possible, or the Department may assign a Washington VRC to work on your claim. Whatever testing or evaluation is required can be done without returning to Washington. Schools and training programs will have to meet Department guidelines for providing training, and will have to get their own provider numbers to facilitate billing for their services. (Topic for another day; Issues may arise where an employer offers their injured worker a light duty, transitional or even a permanent position, where the worker has relocated out of state. These are complicated situations which may well result in termination of time loss benefits. Get yourself some legal advice if you suspect these issues may arise.)

Lastly, just a heads up – The Department will transfer management of your claim to a Claims Manager in the out of state unit. This is nothing more than a work flow change. CM’s in this unit have experience managing claims where the worker has moved out of state. They try to make the transition as smooth and seamless as possible. It does not mean your claim has been elevated to some problem status, or that the issues will necessarily become more contentious or adversarial. Although, as always, if issues do heat up or become difficult to manage from afar, get yourself a Washington workers compensation attorney. You will find attorneys who regularly represent injured workers in this state are adept at dealing with clients who live all over the country.

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.