COVID-19 and Social Distancing

“Social Distancing” – I bet that is not a phrase you used with regularity before this pandemic became a part of our lives! Now it’s an everyday part of our vocabulary.  Along with face masks, grocery home delivery,  hand sanitizer, and far too many workers laid off from their jobs – these are all a part of our daily lives. Stay at Home Orders and efforts to flatten the curve also mean Home Offices are our new normal.

Having a Law Practice which focuses on injured workers means we still need to be here for  workers with existing claims, new injuries, or questions about the CoronaVirus and returning to work during a pandemic. We’re all working from home – you would see my two big dogs stretched out on the floor if my camera was on. Our office phones are sitting on our Dinning Room tables. Our client files are on our laptops. We have conferences by phone, Depositions on Zoom, send letters via e-mail.  It’s all different, but it is slowly becoming our new normal.

We’re still here. Someone will answer the phone if you call. Your questions will still be answered. Your claim will still be allowed, your benefits paid, your claim litigated, your rights protected. You don’t have to leave your house. You can stay safe. We can still help you – even during a Pandemic.

Stay Well –

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.

 

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.

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.

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!)

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.

Trial News Article

I have a big expando file in the corner of my office labeled  “1999 Voc Project – WSTLA”.  My assistant has tried to shred it more times then I can count. I think I keep it as a reminder. A reminder of one of the low points.  It was not the first year there had been discussions on what to do with vocational services for injured workers. It certainly would not be the last. But, it was memorable year. There were meetings and conferences and summits. That was the year there was an actual two day “retreat”.  I am fairly certain Bill Hochberg was forever scared by the experience. There were graphs and flow charts, bullet points, proposals, drafts, redrafts, re-redrafts, and there were arguments. A typical meeting? Just read the minutes – Meeting Minutes dated August 24, 1999 – “ Doug Connell (then Assistant Director, L&I) suggested the best way to make changes would be if labor and business could agree on an approach”.   Doug always did have a way of understating the obvious. If only . . . labor and business could agree. There wasn’t agreement on what the problems were, much less how to fix them. We failed miserably and spectacularly.  At the end of the day, injured workers still had poor outcomes, and business was still drowning in the administrative expense of those failed outcomes. We had gotten nowhere- again. Well Doug,  put down your fishing pole and look at us now!

I am not sure I can explain just what turned the tide. Sure, it helped that Governor Gregoire made it clear the issue WOULD be a priority this session. Having Marty Brown or Peter Bogdanoff from the Governor’s office in the room does tend to make everyone work just a little harder.  Yes, the Department was willing to look at changes and put some key staff in the room to help. Vickie Kennedy and Rich King were invaluable both as resources and guides. Having the Director, Judy Schurke, taking part in the discussions was key. When the Director of the agency tells you the underlying purpose of workers compensation is to act as a safety net, and she will not let you poke holes in that net . . . well, you listen. It is impossible to discount the fact we had a rosier financial picture to work within. We did not feel constrained to make only changes which would be revenue neutral. (an impossible requirement from earlier attempts at change) Add to the mix a small group of business and labor representatives willing to set aside what could not be agreed upon, and focus instead on what could be done –  Terry Peterson, an attorney representing self-insured employers, Lori Carlson, a business representative from Sellen Construction, Jeff Johnson from the Washington State Labor Council, and myself. Instead of spinning our wheels rehashing the traditional stumbling blocks, there was a true desire to do better for both injured workers and employers. 

The end result – a Vocational Rehabilitation Pilot Program. I will not focus on what the pilot does not do. Those familiar with workers compensation will have no difficulty pinpointing the pet issues left unresolved for another day. What we do have is a program of increased opportunity, increased control and, ultimately, the potential for better outcomes for injured workers.

The Vocational Pilot has a variety of components which will be in effect for all vocational plans approved from January 1, 2008 to June 30, 2013. The Department, with input and assistance from a subcommittee appointed by the Director, will study the heck out of what happens – then recommendations will be made based on the results and outcomes documented. This legislation provides for some impressive changes to the vocational services and benefits as we have come to know them. 

The first set of noticeable changes involve how vocational services are delivered.  The Department will pilot moving some in-house vocational rehabilitation counselors into existing Work Source Centers. Some workers will be referred to these Work Source Center counselors, instead of the traditional referral to private vocational counselors. The idea behind the move is to make better use of  already in place return to work resources. Sort of a one-stop shopping for vocational resources. These centers already exist and provide access to a variety of community, employer and educational resources. Through this change the Department intends to study ways to improve the delivery of vocational services to injured workers, reduce cost, and increase efficiencies. The traditional model of referral to private  vocational counselors will also remain in place and these private counselors will have access to and be encouraged to use the resources at the Work Source Centers.

The process for evaluating whether a worker is eligible for vocational services is not changed in the pilot. An Ability to Work Assessment, or Employability Assessment will still be conducted to determine whether vocational rehabilitation is both necessary and likely to enable the injured worker to become employable at gainful employment. Once a worker is found eligible for further services, vocational plan development begins. Employers are provided a last opportunity to offer the worker a bona fide permanent position, within restrictions provided by the worker’s health care provider. After this last opportunity to offer bona fide employment the employer is taken out of the picture. This allows the worker to be in the driver’s seat without interruption from the previous employer.

There are a number of areas in the pilot which speak to increased worker control, and in turn increased responsibility and accountability during plan development, and throughout the vocational plan itself. These include consequences for plan interruptions which are within the workers control, and suspension of benefits for noncooperation. Vocational Counselors are also held accountable with timelines for plan development and detailed progress reporting. These components exist to some degree in our current vocational system, but are not uniformly or consistently applied. Within  the pilot expectations and accountability will be better articulated in each retraining program, so all parties are clear on their rights and responsibilities.

With this increased control and responsibility, the pilot program offers significantly increased time and money for retraining programs. Workers will have up to two years and $12,000 to utilize for their retraining. The dollars for tuition are indexed to the cost of community college. As tuition in our state rises, so will the available money for retraining of injured workers. The tuition dollars can be used in any accredited or licensed program, or a program from a list approved by the Department. Two years provides sufficient time to complete virtually every community college level training or certificate program as well as needed time for ESL, GED, or other basic skill level  enhancements.  There are also a variety of shorter but more costly training programs in our state, focused on a specific skill set or return to work option. With the increased funding, these programs will also be available for injured workers. On the job training options will be fostered as a useful tool for those workers not interested in traditional classroom instruction. With this rich benefit in hand, workers will truly have choices for retraining, increasing the potential for return to work at real family wage jobs.

Recognizing vocational retraining is not an attractive option for all injured workers, the pilot includes a new opt-out provision. A worker who has been found eligible for and likely to benefit from further vocational services, may decline to participate in a vocational plan, choosing Option 2 under the new provisions. The worker will then receive an amount equal to 6  months of time loss,  payable biweekly. The claim will be closed and any permanent partial disability paid.  The vocational costs for tuition (the $12,000) is reserved and may be accessed by the worker for a period of  5 years, should the worker decide to follow up with training at a later date. The claim will not have to be reopened to access the vocational training dollars. At the workers request the funds would be paid to a training or educational facility, to assist in retraining. If a worker chooses the opt-out and  is again found eligible for vocational services under a reopened or new claim within 5 years, the available time for a retraining program will be limited to 18 months. This represents the original 24 months less the 6 months paid at the time of the opt-out. A worker may only decline vocational services and receive the opt-out benefit once. 

  

Where there is a pilot, there is a study. For the first time ever, the Department is going to track outcomes. Do workers finish their retraining programs? Do they re-enter the workforce in their newly trained capacity, or do they return to their original job of injury? What do wages look like? What percentage of workers are re-injured after retraining? How many workers are found eligible for retraining a second time under a subsequent claim? What do the pension rates look like? How much is this costing, or saving?  Can we create incentives for employers to re-hire their injured and retrained workers? Are employers seeing finality and cost predictability? Who is choosing to opt-out and do they return to work?  Do workers who choose the opt-out come back later and use the vocational retraining dollars? The answers to these questions, and many others, will direct what vocational services look like at the conclusion of the pilot period. The intent is to build on the successful components, and to use what we have learned to continue improvements.

Future recommendations for vocational services for injured workers will depend on outcomes documented during this pilot. What your individual clients do with these vocational services, and their return to work outcomes,  DOES matter.  The actions and outcomes today will direct where we go next. If you take nothing else away from reading this article- take this. Help your clients succeed. Over the course of the next 5 years each of us will have a handful of  clients who receive vocational assistance under this pilot. Those clients are our guinea pigs. Those of us who do this kind of work know how devastating an injury can be to a worker and their family. I have always believed we must give these individuals the tools to rebuild a secure place in the workforce. A place with dignity and financial security, where their contribution is valued and respected. This pilot is a test of  some of those  tools.  Help your clients understand them, use them, and benefit from them.