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.

Vocational Option 2

There have been some changes to the choices you have when you have been found eligible for Vocational Retraining. You will still work with your vocational counselor to develop a retraining plan, which will include a specific job goal approved by your medical provider as appropriate for your injury. The plan will be submitted to L&I for review. Once the plan is approved you have a choice to make.

You can participate in the retraining as proposed. Or you can choice Option 2. Taking Option 2 means you will receive some additional payments (similar to your time loss), you will not participate in the retraining program, and your claim will be closed with whatever permanent impairment has been rated for your particular injury. Then, anytime in the next 5 years, you can use the training funds to pursue re-training on your own. You simple contact the department, enroll in an approved or accredited school or course, and the department will pay the costs.

Here’s where the changes are. Instead of 6 months of Option 2 additional payments, you will get 9 months. That’s an extra 3 months of biweekly payments to help provide a soft landing as your claim closes. You can also delay making the Option 2 choice. Instead of having to make the choice shortly after the retraining plan is approved, you have some time. You can actually start the retraining plan, and see how you do. Time-loss will continue while you are participating in retraining. Anytime within the first quarter of training, or within 3 months, you can decide to stop participating in the program and elect Option 2. At that point the 9 months of payments will be reduced by the amount of time loss paid starting with the first day of the retraining program, and you will be entitled to the remainder of the Option 2 payments

This change allows you to try out a retraining program, see how you do, decide whether the program is a good fit, and then make a more informed decision about whether to continue the retraining. For most injured workers, school days are a distant memory. The routine of going to class, studying, completing assignments, and taking tests can be an overwhelming idea.  Now you can try it on for size without losing the benefit of the Option 2 payments.

Whether to take Option 2 or participate in retraining is an important decision. There are a lot of factors you should consider. (That’s another post!) This change allows you to take a bit more time and, hopefully, make the decision which is best for you. If you do not already have an attorney, this may be a good time to make an appointment and ask some questions.

 

NO ON INITIATIVE 1082

As a general rule, I keep political views off this blog. I am making an exception for Initiative 1082, because it will have such a devastating impact on those we represent.

Washington workers’ compensation is there when you and your family need it. If you are injured on the job, workers’ compensation pays your doctor bills and provides some income until you can work again.  Our current system is highly rated by independent assessments because it is non-profit and required by law to operate with minimal costs.

The insurance industry wrote and is backing 1082 because they want to turn our State’s workers compensation insurance over to private industry. They wrote the initiative to set up a system where they can wrongly delay and deny legitimate claims, making a profit on the backs of injured workers.

The initiative is filled with fine print that hurts working families and according to its sponsors will cost small businesses $315 million. And, according to the State’s Office of Financial Management, 1082 will cost taxpayers $250 million.

Our Insurance Commissioner Mike Kreidler warns that the initiative would gut consumer protections and eliminate necessary oversight.

You have already received your Washington Ballot in the mail. Our office urges you to VOTE NO on 1082.

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.

The Importance of Wage Orders

 

I write about wage orders because they are important, they can be issued early in a claim, and are they are often final before an injured worker ever talks to an attorney.

 

In a Labor & Industries claim benefits are paid as a percentage of the workers monthly wage at the time of injury.  Benefits such as time loss, death benefits and pension or permanent total disability benefits are all paid based on the original calculation of the workers monthly wage at the time of injury.  Consequently, getting the monthly wage incorrect, can result in a worker receiving less benefits then they are entitled to receive for the life of the claim. Hopefully, you are back to work quickly, but for those workers with a serious injury and long-term disability, the value of underpaid benefits can be significant.

 

I’ve been told by those at the department that correctly calculating a worker’s monthly wage is the single most complicated task a claims manager does on a newly filed claim.  There are so many considerations which can effect the equation. Is the worker a regularly scheduled worker or a part-time or seasonal worker? What is the rate of pay? Are there different pay differentials for different shifts? Is the worker paid for overtime?  Does the worker receive bonuses, commission, or a per diem? Does the employer make contributions to the worker’s health care benefits? Is the worker employed at more than one job? These are just some of the many issues which must be considered in setting the monthly wage for purposes of paying benefits under a claim.

 

Time loss benefits may be paid at the beginning of the claim on temporary orders or on a provisional basis. These benefits will be paid using the most accurate, quick and dirty, calculation the claims manager can make using the information currently on hand. The claims manager may send a request to either the worker or the employer requesting additional information or clarification of wages paid. When the claims manager believes all relevant information is in the file, a final wage calculation is done and a wage order is issued. Previously paid benefits will be adjusted to reflect the correct calculation. This may result in an extra payment of time loss (yeah!) or an overpayment (hiss!) The department does try to avoid overpaying time loss on a claim, but it happens. The overpayment can be deducted from future payments on the claim.

 

Because the Department is trying to avoid underpaying or overpaying benefits, claims managers are encouraged to collect the necessary information and issue the wage order early in the claim.  You may see a wage order in the first few weeks of filing your claim if you are receiving time loss benefits.

 

The wage order will look similar to the other orders you may have received on your claim. It will provide the details on how the monthly wage was calculated, including any overtime, bonus, health care benefits or other consideration which was included in the calculation.  The wage order will also let you know what was not included. For instance, if no overtime is included, there will be a zero next to overtime. The wage order is suppose to have enough information for you to determine how the monthly wage was calculated, and what was included. 

 

The  wage order will have the magic 60 day protest or appeal language. If no protest or appeal is filed in writing with either the Department of Labor & Industries or the Board of Industrial Insurance Appeals, the order will become final and binding.  Even if the wage order is clearly incorrect based on the information in the file, it can not be changed later if a timely protest or appeal was not filed.  (This rule was clarified in a case called Marley, and was a hot topic in my household one legislative session; that session saw a change to the statute allowing the department to correct an underpayment of benefits under the same circumstance they had always been able to collect an overpayment of benefits; and we ended up with a dog named Marley that session – but that’s another story. . .) I always review a new file for a wage order. Oftentimes the order is already final.  Even if I believe the monthly wage was calculated incorrectly there is nothing I can do about it.

 

This is why it is so important to careful review the wage order when you receive it. That said, if calculating monthly wage is one of the most difficult tasks the claims manager does early in your claim, how are you to know if it was done correctly? That’s a fair question.  If you’ve been reading this blog, you’ll know my mantra, ‘talk to a workers comp attorney’.

 

You will know the basics of your wages. For instance, if you worked overtime and no overtime is reflected in the wage order, you know there is a problem.  If the monthly wage listed on the wage order seems lower then you would expect, something may be missing from the calculation. If you worked more than one job, or were paid shift differentials, the monthly wage calculation has the potential to be incorrect simply because it can be complicated. If you’re a construction worker and were treated as a seasonal worker, you definitely have a problem.

 

If you are at all unsure, get yourself to an attorney who represents injured workers and ask. Do not put it off. You only have 60 days from receipt of the wage order to file a protest.  Filing a written protest will stop the clock ticking, and allow us time to gather all the correct information and work on a correct calculation.  Filing a protest will not stop your time loss benefits if you are otherwise entitled to them. Time loss will continue to be paid based on the Department’s best calculation.  Any necessary adjustment in benefits paid will be made when a new wage order is issued.

 

So, watch for that wage order to be issued early in your claim. Pay attention to the information in the order about how the monthly wage was calculated. Remember, you have 60 days to take action if you believe the monthly wage may be wrong.  This calculation effects many of the benefits paid to you for the life of your claim, and you want to make sure it is done correctly.

Legal Fees – not a forbidden topic

I keep harping on calling an attorney when you have questions or need help with a workers compensation claim.  I started thinking about what might stop an injured worker from making that call. I suppose there could be a lot of reasons, from simple procrastination to intimidation.  If you’ve never needed an attorney, this could really be a daunting task. But, push comes to shove, I think the number one reason injured workers may put off talking to an attorney is fear of what it is going to cost them. Am I right? You are reluctant to ask, not sure what the protocol is, and frankly, we can be a scary bunch sometimes. (Not really, but it is a lot like being assertive with your medical provider. We are providing a service, and you shouldn’t be afraid to ask)

 

So, let’s talk head on about what it will cost you to ask for help with your work related injury claim.  The first thing to remember is any attorney in this line of work will talk to you on the phone or at an initial office consultation for free. It cost you nothing, nada, zip out of pocket.  Pick our brains, ask your questions. It will not cost you a dime.  It’s a relief to get that out of the way, isn’t it?

 

Now, what will it cost you if you hire the attorney you speak with to represent you? Washington State Labor & Industries first. These types of cases are generally done on a contingency fee basis. In plain English this means we are going to take as a fee for our work a percentage of the benefits we obtain for you.  The percentage is different depending on the type of benefit we obtain for you, for instance back due time loss, on-going payment of time loss, permanent partial disability, permanent total disability or pension benefits, to name a few.  The percentage should be clearly spelled out in the contract you sign, and you should definitely ask questions if you have them. If we don’t get you any additional benefits under your claim, we are not going to get paid a fee for our legal services.

 

Separate from fees for legal services you will be responsible for any out of pocket costs incurred or advance by the office in pursuing your claim. That may sound scary but don’t let it put you off. Initially the costs incurred are very minimal. We get the file for free from Labor & Industries or the self-insured employer. We may pay reasonable fees to get additional medical records from your providers.  There may be larger costs incurred if your claim is in litigation. Unfortunately, medical providers have to be paid for their time to testify, vocational experts have to be paid for their assistance, court reports are necessary to take depositions. All of these costs are ultimately your responsibility. The attorney you hire should talk to you about these types of anticipated costs. You have the final authority to proceed with the litigation or to pull the plug. This is sometimes a tough decision, but can and should be guided by what you have to gain from the litigation. No attorney can guarantee an outcome, sometimes the anticipated benefit is worth the risk, and sometime it isn’t.

 

I’ve always believed contingent fee arrangements are good for consumers, in this case injured workers. They tend to keep legal professionals more realistic about what they can and can not do.  I honestly tell potential clients if I can do anything to help them. If there are no additional benefits to gain, it is a waste of  time, for both of us, to chase a claim where there are no benefits to be had. If all possible benefits are already being paid, you might not really need an attorney – yet.  In that case, a good attorney may explain what to watch out for, when to call back, and send you on your way.  Contrast that to an attorney who is billing hourly for their work. It might not matter so much what the final outcome for the client may be. Some legal work has to be done hourly, and those consumers have different issues and questions they should be asking. But for injured workers in Washington State I believe the contingency nature of the contract serves everyone well.

 

There is an additional protection built into the Washington State Labor & Industries law to protect workers who hire attorneys to represent them.  It is not a secret – it is written right there in our fee contract, and when you hire an attorney the Department will send a letter explaining it as well. If you hire an attorney to represent you with respect to an L&I claim and you are charged a fee for legal services, even if it is exactly what you agreed to be charged, if you don’t think it is fair and you and the attorney can not work out an agreement, you can go to the Department or the Board of Industrial Insurance Appeals and ask them to review the matter and set a reasonable fee.  It does not happen often, but it is a fail stop to protect injured workers.  That’s a good thing.

 

So, what if you have a Longshore and Harbor Workers Compensation claim? By statute, attorneys who represent workers are paid on an hourly contingency fee basis. UH?  I know, that sounds confusing. In a nutshell, we bill for our legal time on an hourly basis, but we only get to recover that hourly fee if we are successful in obtaining benefits for the worker under the claim. So, you still have the consumer protections built into a contingency fee arrangement, but the attorney has to account for all time actually spent working on your file.

 

There is also a fee shifting provision in Longshore claims. Fee shifting is a nifty mechanism to assist injured workers in getting the legal help they need with their claims. If the employer has controverted or denied your claim, and if we are successful in obtaining additional benefits, the employer can be held responsible for both our hourly fee and the out of pocket costs spent in pursuing the claim.  This has the duel effect of encouraging workers to get legal help when they need it, and discouraging attorney from taking on claims before there is really a dispute. Unfortunately, this fee shifting is not available in Washington State Labor & Industries claims.

 

There is an added protection for injured workers with Longshore claims. Any attorney seeking to collect a fee for legal services for representing a worker must file a petition documenting the time spent and requesting an award of the fees, specifying whether fees should be paid by the employer or the worker. The requested fee has to be awarded by the District Director, Administrative Law Judge, Board or Court before who the legal work was done, before the attorney can be paid the fee. One more hoop for attorneys, but one more layer of protection for workers with Longshore claims.

 See, all in all, that wasn’t too painful or intimidating. These are all the things I would discuss with a potential client on the phone or in my office.  You are the consumer here, and you have the right to ask questions and understand how your attorney will be paid, and what you will be responsible for yourself.  If an attorney can’t or won’t answer these types of questions, then you are in the wrong office. Ultimately, you have to be comfortable with your attorney.  Questions about legal fees and costs should never stop you from getting the legal help you need with your workers compensation claim.