Legal Help

I get quite a few questions on this blog and on the phone which start with, “I already have an attorney . . ” Which begs the question – Why don’t people feel comfortable asking their attorneys questions? Are they scared? Intimidated? Is the attorney impatient or in a hurry?

Injured workers have to be good consumers. If you are paying for a service, you should expect the person providing that service to take the time to answer your questions.  Write your questions down. Make an appointment to meet with your attorney. Ask your questions, and listen to the answers.  It might not be the answer you want or were hoping for, but you are entitled to an answer.

Keep in mind, there are no dumb questions. If you have a workers compensation claim, you are in a strange new world of procedures, forms, acronyms, rules and guidelines.  Attorneys are here to help you figure out your next steps, and to insure you are getting the benefits and help this safety net is supposed to provide to you after a work injury.  We’re here because sometimes the system doesn’t work like it is intended to work, and we’ve seen it before and can help you through it.

You are ultimately in control of any decisions to take action on your claim.  To file an appeal or not; to litigate or not; to accept the return to work offer or not. You are in control, because the claim belongs to you and because the consequences are yours. You can only make good choices about what’s next if your questions are answered and you have the information you need to make informed decisions.

Ask the questions – and insist on answers.

 

This post is a reminder that it is OK to pick up the phone and call me.  I know that sounds a bit odd. But, I can tell from the stats on this blog that traffic is up since the first of the year. I get it, you have questions. You’re an injured worker; it’s the first of the year; you want to get moving- take charge of your claim. Nope – take charge of your life again. So, you’re noodling around on ‘the line’ to see if you can get your questions answered.

You can. Just Call.

I had a couple in here a few days ago. Spent an hour or so answering their questions. She didn’t need an attorney, but she felt more at peace from having talked to one. They stopped at our front counter on their way out to pay their bill. Nope. That’s not how it works. Consultations are no charge. If you need an attorney, then we can talk about how fees are paid (hint: it’s a percentage of benefits obtained on your claim) But I am always happy to answer questions, walk you through where you are in the process and explain what to expect.

Workers Compensation claims are weird animals in a weird legal/administrative world. Spend some time talking to someone who understands the lingo and the terrain.

Date of Manifestation

What is a date of manifestation, and why does it matter? To answer that, I have to back up just a little bit.
There are two types of workers compensation claims, industrial injury claims and occupational disease claims. An industrial injury is defined as a ‘sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result’. This is a specific incident, and usually has an obvious date of injury. The injured worker fell off that ladder, picked up that heavy box or stepped in that hole, and felt immediately that something was injured. The date of injury is the specific date the incident occurred. The date of injury is used as the start date for the work related injury claim, the date benefits and medical treatment will be covered.
Occupational disease claims are a bit fuzzier. An occupational disease is ‘such disease or infection as arises naturally and proximately out of employment’. The classic example is a worker who performs some repetitive activity at work, which over time results in a medical condition. For instance, carpal tunnel syndrome from constant keyboarding, or a bum left knee from jumping out of the truck cab. We still need a start date for the claim, but there is not one specific day or incident which caused the condition. In occupational disease claims the start date for the claim is called the date of manifestation. For such claims the date of manifestation is the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first. The date the claim is actually filed does not matter. In broad brush strokes, we look for the first date the worker went to a medical provider for treatment of the condition or first missed work because of the condition.
Why do you care about the date of manifestation? It will be the date used to set the schedule of benefits, and will be the earliest date for payment of benefits and medical coverage for the condition. You want to make sure all related medical bills are covered and that you are compensated for anytime you missed from work due to the condition, so it matters what date is used and that it is accurate.
The order issued by the department which allows the claim or which assigns responsibility between multiple employers will have the date of manifestation being used by the department. If you believe this date is incorrect you have a 60 day window to request reconsideration or file an appeal. Sometimes this is an easy issue to resolve, but sometimes there is an aggressive employer pushing for a date of manifestation which is less advantageous to the worker. If that’s the case, you should get legal assistance well within the 60 day appeal period to make sure your interest are protected.

Government shutdown and your Benefits

 

I’ve avoided posting anything about the Federal Government shutdown, because I had hoped it would be short-lived. Now that we are dragging into week 3, it seems some basic information may reduce some concerns.

The Federal Government shutdown does not affect your Washington State L&I benefits in any way. So, you have nothing to be concerned about.

If you have a Federal Employees Compensation Claim (FECA) and you receive benefits, these benefits will also continue, at least for now. OWCP personnel assigned to the FECA side of OWCP have been designated essential, and are continuing to work so that benefits and claims can be timely processed. No idea if this will change if the shutdown was to drag on for months, but we’re going to be optimistic here.

If you are receiving benefits under a Federal Longshore and Harbor Workers claim, Black Lung claim, Non-Appropriated Fund claim or Defense Base Act claim, your benefits will continue. Although these claims are created by Federal Law and may be overseen by an agency of the Federal Government, your checks come from a private insurance company so are not affected by the shutdown. If you are receiving benefits from the Special Fund, some personnel have been designated as essential and checks will be processed. However, the Administrative Law Judges who hear these types of cases have been furloughed. This means Hearings are being cancelled as they approach, Decisions & Orders are not being written, settlements are not being approved, subpoenas are not being issued, Motions are not being heard. . . you get the picture. Likewise, all personnel on the Longshore side of OWCP have been furloughed. This means referrals to the OALJ are not being made, Informal conferences are being canceled, Informal Recommendations are not being made, disputes surrounding medical treatments are not being evaluated, and ALJ Orders are not being served. In a nutshell, if you are already receiving benefits, you will not see an impact. If you are awaiting some action or adjudication on your claim, everything is on hold.

If you receive benefits from the Social Security Administration, your benefits will continue, again, for the foreseeable future. Hearings are moving forward where they were already scheduled, although I understand new Hearings are not be calendared at this point.

Proposed Changes to Structured Settlements

There is a lot going on in the Legislature this year in Washington state, some of it of interest to those involved in our workers comp system. The Senate passed 3 proposals dealing with workers compensation that are not beneficial to injured workers. Those proposals now go to the House, where, thankfully, there are more voices supporting the injured workers in our state.

Two of the proposals deal with our relatively new structured settlements in the workers compensation arena. For the last year injured workers over the age of 55 with allowed claims have been permitted to seek a resolution of their claims through a structured settlement. There is strict review process for these agreements by the Board of Industrial Appeals to insure these agreements are in the best interest of the worker. Well, ‘insure’ is a strong word. The review tries to establish the worker knows what they are giving up, and asks that worker to articulate why they believe taking less than their claim is potentially worth is in their best interest. Over the last year slightly more than 2 dozen of these structured settlements were approved.

Needless to say, this is not the flood of settlements the business community had hoped for, nor has it resulted in the significant savings projected. Wait,  think about that. Structured settlements are supposed to save money for business.  How is that? Of course, if you pay an injured worker less than they would otherwise be entitled to receive, you save money. Do that enough times, you save a lot of money. So, the business community convinced our state Senate to relax the age restriction and review process in the hopes there will be more workers rushing to settle their claims. In support, they point to the number of States where there are few, if any, controls on settlements of workers compensation claims. Businesses in our state, they say, are at a competitive disadvantage because they cannot short change their injured employees. It is disturbing logic.

Fortunately, there are a couple of barriers to the Senate proposals. First, our State House of Representatives has long been a strong champion for workers in this state. Contact your Representative now, it just takes a short e-mail, to let them know you oppose any attempt to dilute the strong protections for injured workers in our current structured settlement process. You can find your Legislators here:

http://app.leg.wa.gov/DistrictFinder/

The other barrier? The workers in this state, themselves. There hasn’t been a flood of workers clamoring to enter into structured settlements because, for the most part, they aren’t in your best interest. Yes, there are specific  particular circumstances where it may be best for an injured worker to negotiate a structured settlement. Personally, I think they are, and should be, few and far between. Definitely, talk to a good workers comp attorney if you think you may be in that camp. But for most workers, a structured settlement is just a bad idea. Our workers compensation process is a safety net system, not an injury recovery system. It is not designed to reimburse you for what you’ve lost, like an auto accident claim. It is supposed to provided needed wage replacement, medical services and vocational assistance when you need them –  not some projected lump sum value of what you might need, if you guess right. Most injured workers will not be better off giving up that safety net in exchange for a structured settlement, any more than an unemployed worker would be better off accepting 6 months of unemployment benefits in a lump sum instead of preserving entitlement to 12 months of benefits should they need them. Sure, Employment Security would save money, businesses would save money, they might even be more competitive as a result. But would anyone think that’s  a good idea?

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!)

What to bring to that first appointment

I try to speak with a potential new client on the phone before that first appointment is scheduled. Sometimes I’m able to answer a quick question, and the worker does not really need an attorney, yet.  But when an appointment is necessary, I am often asked, “What should I bring with me?”.

Injured workers come with a variety of organizational styles, and I’ve seen them all.  Some workers have carefully saved every letter and medical report, and logged every phone call. Some workers have stacks of envelopes with the papers still in them (sometimes unopened!) Some workers keep nothing. Some workers have spouses who keep track of and organize everything related to their claims.

So here’s the truth. The first thing I am going to do after filing my Notice of Appearance is get a complete copy of the claim file. If I’m working on a State L&I claim, I’ll request a copy of the document imaged microfiche, but I usually have access to the complete
file through the Claim and Account Center within a few days. If the claim is Longshore or DBA I will request  a complete file from the insurance carrier and I also routinely get a copy of the Department of Labor file.

Once I receive the file, I’m going to review it – start to finish. This file is going to have all the medical records, correspondence, payment records, IME reports and vocational records. I’m going to have a really thorough understanding of what has happened to date, and what present problem needs resolving. I’ll know what information I am missing, and I can easily request it.

Which is all by the way of saying, you do not have to track down all your medical records to bring to me. You do  not have to scour your home for every scrap of paper related to your claim. It is all in the file, and I’m going to get it and read it. I tell potential clients to bring with them whatever prompted their call to my office.  It might be a letter from the claims manager,  a notice of controversion or Department Order. It might be a vocational report, or  medical report. You received something which caused concern or which you did not understand. Bring at least that with you to your first appointment.

That is enough to let me know what type of claim you have, who I need to contact to file a notice of appearance and request the file, and what immediate problem or dispute is at issue. I’ll be able to ask enough questions when we meet to get the ball rolling. Hiring an attorney is supposed to provide some relief from the stress. So, let’s start by making that first appointment as easy as possible!

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

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.