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.

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.

Settlement Agreements

I am at a bit of a loss to explain the new provision in our workers compensation law which allows for lump sum settlements. (HB 2123)    It is a poorly written provision, passed with no public hearings, for purely political reasons. There are so many unanswered questions and issues and processes which will need to be developed, that I cannot begin to explain to you how these new settlements will be negotiated, approved, or paid. So, definitely topics for another day as we know more answers.

For now, what we do know is the effective date for this legislation is January 2012. So, no settlement agreements before that date. The new statute requires the worker be 55 years old before a settlement can be considered. (this age requirement drops to 50 over time) The settlement amount must be paid with a periodic payment schedule, rather than a single lump sum. (details of what this may require or allow are unclear) Settlement agreements will have to be approved by the Board of Industrial Insurance Appeals. (details are also unclear, other than the Judges may not give legal advice) Once approved, the settlement agreement will resolve all aspects of the claim, except future medical care. (although, whether this is anything more than a hollow promise of future treatment remains to be see)

I can also tell you to be cautious. I will not suggest that under no circumstance should an injured worker consider such a settlement agreement. Now that these agreements are allowed, we will see more benefits being denied and disputed. Given the absence of the sure and speedy safety net which injured workers were promised, there may be situations where such a settlement arrangement may be the best course of action. That said, the Department and Employers have more experience with workers compensation and are under no financial hardship or duress. You won’t necessarily know what you are entitled to, what to ask for, or what’s fair under the circumstances. An unrepresented worker will be at a disadvantage – you will not be bargaining from equal positions. If you are not already represented by an experienced workers comp attorney, consider hiring one. Feel free to take that with a grain of salt if you think it’s self-serving. But, I didn’t write the law, in fact I opposed it. I can protect my clients. Who will protect those who don’t have an attorney? These settlements are risky for unrepresented workers and any cost savings to the system comes from workers getting less than they would otherwise be entitled to receive. So, be cautious. Be informed. Get good advice.

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

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.

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.

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.