Under Washington Administrative Code, Chapter 296-19A, the Department of Labor and Industries has outlined requirements for finding an injured worker capable of either returning to work or being retrained. If the Department finds that the injured worker is not “employable” even with the assistance of retraining, then an injury pension results; except where the injured worker’s lack of employability is caused by a post-accident or post-disease condition.
Using the Industrial Insurance Act to Determine If You Are Able to Work
“Employable” is defined by WAC 296-19A-010(a) saying that “having the skills and training that are currently necessary in the labor market to be capable of performing and obtaining gainful employment on a reasonably continuous basis when considering the worker’s:
- Age, education, and experience
- Preexisting physical and mental limitations
- Physical and mental limitations caused, at least in part, by the worker’s industrial injury or occupational disease.”
Note: the Department’s employability analysis specifically disregards physical and/or mental conditions that arose after the industrial injury/occupational disease that was not caused or aggravated by the industrial injury/occupational disease. See WAC 296-19A-010(b).
Moreover: “If there are no physical or mental restrictions caused by the worker’s industrial injury/occupational disease, the worker must be found employable under the Industrial Insurance Act.”
In most serious L&I claims, the Department of Labor & Industries obtains an independent medical examiner’s (IME) position that the injured worker can still work despite the limitations imposed by their industrial injury or occupational disease. The IME’s opinion is then sent to the attending physician for a concurrence or non-concurrence. If the attending physician does neither, the concurrence is merely assumed. Yet, even where both IME physician and attending physician each state that an injured worker is still employable, that may not make their unanimous opinions true because a vocational expert may know enough to prove otherwise in the individual worker’s own particular labor market.
At Washington Law Center, we often assist injured workers to prove that they cannot go back to work on a reasonably-continuous basis. We’ve won millions of dollars in injury pension settlements for injured workers as well as their widows and widowers.
If you believe you are not employable, or your spouse who is injured is unemployable (or was so at the time of their death), please call the experienced L&I attorneys of Washington Law Center to learn how we may be able to get you a lifetime of monthly benefit payments. Please call us immediately, as statutes of limitations and particular filing requirements may apply to your case.
Spencer Parr is an attorney/partner at Washington Law Center who works with Washington labor & industries, social security disability, & time-loss benefits. He is experienced in working all across the US as he has worked cases in Washington, California, New York, & Arizona.