In the state of Washington, workers’ compensation may also be referred to as “Labor and Industries” or “L&I.” Our L&I attorneysÂ will fight to establish disputed claims, persuade L&I claim managers to issue all appropriate benefits, seek sanctions for inappropriate conduct, and appeal adverse orders and decisions to the Board of Industrial Insurance Appeals or higher courts (where appropriate).
There are many things that can halt or hold up the processing of a L&I claim. The problem is that those people that have filed a claim and get held up in the process do not know where to go next. Our experienced Washington L&I attorneys can check on the status, where you are in the process, and what steps are needed to get you back on track. In many cases only a L&I attorney can speed up the process on getting these claims accepted.
For more information on fair compensation, pension settlements, injured workerâs rights, medical & prescription benefits, permanent/partial disability, or anything else L&I related in Washington, see the sections below to read more.
We have offices in Tukwila, Tacoma, and Spokane and, for your convenience, are able represent you remotely throughout the state of Washington.
Washington’s workers’ compensation system is governed by Title 51 RCW and administered by the Department of Labor and Industries. Washington’s first workers’ compensation act passed in 1911. The Act was drafted by representatives for both industry and labor based upon a mutual desire to end wasteful and costly litigation.Â StertzÂ v.Â Industrial Ins. Com’n of Washington,Â 91 Wash. 588, 590, 158 P. 256 (1916). From this “great compromise,” employers gained immunity from suit and employees obtained guaranteed “sure and certain relief” via the accident fund established and paid for by employers. Id.; State v. Clausen, 65 Wash. 156, 169-170, 175, 117 P. 1101 (1911). Employees gave up their right to substantial damages at trial in exchange for “a small sum without having to fight for it.”Â Stertz, 91 Wash. at 590.
If you’ve been injured on the job in Washington state, Washington Law Center can assist you to obtain the money and medical benefits you deserve. Too many workers get denied benefits, or get benefits which are far lower than they should be. The Department of Labor and Industries has split duties: those to the injured worker and those to the state compensation funds. The L&I Claim Manager is responsible to hold costs and disbursements as low as possible, notwithstanding that the Claims Manager is also the one who decides whether or not additional benefits get awarded.
Injured workers have enough to do in just trying to heal and get back to work. The workers’ compensation lawyers at Washington Law Center know the system better than the Claims Managers which administer the claims. Our attorneys are therefore able to bring the force of law to bear in order to influence decisions which the injured worker might otherwise lose. Many injured workers report that having an attorney to watch over their rights was a tremendous relief and benefit while they engaged in rehabilitation. The cost of hiring counsel in Washington is very reasonable since attorney fees are regulated and limited by statute. Injured workers therefore pay an effective rate of attorney fee which is far lower than the plaintiffs in personal injury matters, for instance. Our attorneys will not work in your claim if we believe we cannot be of benefit to you, even when considering the cost of our contingent fees (we don’t get paid unless you do). We also offer free initial consultations so that you can explore the benefits of having an attorney while also learning about your rights without having to make any payment at all.
Work related injuries can often be caused by the negligence of an individual who is not in the same employment as the injured worker.Â When this happens, the injured worker may maintain a negligence suit against the person who caused them injury.Â However, special rules apply to suits like this since the Department of Labor & Industries retains automatic lien rights against certain portions of the injured workerâs recovery.
The elements of a negligence suit on behalf of an injured worker are:
Certain portions of the damages recovered in a personal injury lawsuit on behalf of an injured worker are considered to be an âadvance payment of workersâ compensation.âÂ This means that the personal injury lawsuit pays in advance what would otherwise be paid over an extended period of time in the L&I claim.Â Under RCW 51.24.060, the injured worker must pay back the Department of Labor and Industries for all expenditures the Department makes or is expected to make in the future.Â In practice, the injured worker generally receives a large sum of money in the personal injury action, and then the Department of Labor and Industries takes a âholidayâ from payments until its lien credit has been exhausted.Â The amount of this lien credit can be structured and negotiated by competent, experienced counsel.
Other portions of the damages recovered are exempt from attachment by the Department of Labor and Industries pursuant to the legal authority provided in the August 12, 2010 decision ofÂ Tobin v. Department of Labor and Industries, No. 81946-7, decided by the Washington Supreme Court.Â In this decision, the majority held that the Department of Labor and Industries cannot attach its lien to damages paid as a result of Pain and Suffering.Â Specifically, the Court stated:
âDamages for pain and suffering, like loss of consortium, constitute noneconomic damage that the workersâ compensation statutes do not pay for. Â The Department did not pay out benefits for pain and suffering; therefore it cannot be âreimbursedâ from amounts recovered for pain and suffering.Â We hold that an award for pain and suffering may not be used by the Department in its distribution calculation.â
Unfortunately, many personal injury attorneys have no idea about the workings of the Department of Labor and Industries, let alone L&I rights to portions of the personal injury recovery.Â If an attorney settles a personal injury case prior to obtaining the agreement of the Department of Labor and Industries, which is represented by a special department within the Attorney Generalâs office, then the personal injury attorney must then petition in Superior Court for a judgment nunc pro tunc (ânow for thenâ) setting aside that portion of the personal injury settlement which constitutes non-attachable compensation for âpain and suffering.â
Donât go it alone if you are an injured worker.Â The presentation on this page is a vastly-simplified explanation for how personal injury lawsuits can overlap with workersâ compensation claims. We have the experience and tenacity to handle your workersâ compensation personal injury case. Call us now.
The injured worker has both rights and responsibilities.Â The responsibilities generally includeÂ following medical treatment recommendations and complying with requestsÂ made by the Department of Labor and Industries or Self-Insured Employers to return documentation or submit to examinations by (so-called) “Independent Medical Examiners.”
If you miss work because of your injury and your doctor certifies you are unable to work, L&I or your self-insured employer may be required to pay for a portion of your lost wages, called “time-loss compensation” or “time-loss benefits.”
The three (3) work days in a row immediately following a work-related injury are considered a waiting period. L&I or your self-insured employer won’t pay for these days if they are the only ones you miss. In other words, there will be no time-loss compensation for injuries causing less than four (4) days of missed work immediately proximate to the injury, where the injured worker never thereafter misses work as a result of the injury. However, a permanent partial disability award may still be available to those suffering such injuries.
Does time-loss compensation pay me the same amount I earned as a worker?
No. Time-loss compensation benefits can replace some âbut not allâ of the wages you were earning. The benefit amount is 60-75% of the wages you were earning (up to a limit), depending on whether you were married at the time of the injury and how many other dependents you have.
What is the applicable time-loss compensation rate in my case?
Single Worker, Three Kids Time Loss Rate = 66%
When Married at time of Injury:
Married Worker, Three Kids Time Loss Rate = 71%
The child’s portion of time-loss compensation benefits must be paid to the person who has legal custody of your child or children. Notify your attorney of any change in the custody of your child or children so the benefits can be paid to the appropriate individual.
Can Same-Sex Domestic Partners Obtain Married-Equivalent Time-Loss Rates?
Because of legislation passed in 2009, time-loss compensation benefits for new claims filed for industrial injuries or illnesses that have occurred on or after December 3, 2009 by individuals in State Registered Domestic Partnerships must be calculated at the same rate as for married persons and will include benefits for any eligible dependent children. This change doesn’t apply to claims for work-related injuries or illnesses prior to December 3, 2009.
Persons in common law marriages, meretricious relationships or in unregistered domestic partnerships aren’t considered married under the workers’ compensation laws and are not eligible for married-equivalent time-loss rates. Compensation for these individuals will be calculated based on a family status of single and will include any eligible dependent children.
When do I begin receiving my time-loss checks? How long will they continue?
By rule, the Department of Labor and Industries or the Self-Insured Employer is to mail you your first time-loss check within 14 days of a qualifying injury. If it has been more than 14 days from the date L&I or your self-insured employer received notice of your injury, you should contact an attorney immediately. Delay of greater than 14 days after a worker begins to miss work is a good indication that the worker’s allegations of injury are not being treated fairly.
Checks are mailed about every 2 weeks or bimonthly, as long as:
Is time-loss compensation taxable?
No. The IRS considers time-loss compensation to be a disability benefit, not earned income.
Did you know?Â Time-loss compensation benefits won’t cover all of your lost wages, only a fraction. Plus, it requires your medical provider’s ongoing certification. Ask your employer if there are other jobs you can do to earn your wage or salary while you recover. Contact an attorney immediately if your time-loss check is missing or delayed, as this may indicate an adverse process for which an attorney’s services should likely be utilized.Â
Medical care will generally beÂ 100% coveredÂ as long as an injured worker’s claim remains open, and as long as the medical care recommended by the treating physician or other Attending Provider is considered “proper and necessary” under WAC 296-20-01002 (below). A provider may not properly charge a co-payment from the injured worker for medical care or services also billed to the Department of Labor and Industries.
WAC 296-20-01002 defines “proper and necessary” as follows:
(1) The department or self-insurer pays for proper and necessary health care services that are related to the diagnosis and treatment of an accepted condition.
(2) Under the Industrial Insurance Act, “proper and necessary” refers to those health care services which are:
(a) Reflective of accepted standards of good practice, within the scope of practice of the provider’s license or certification;
(b) Curative or rehabilitative. Care must be of a type to cure the effects of a work-related injury or illness, or it must be rehabilitative. Curative treatment produces permanent changes, which eliminate or lessen the clinical effects of an accepted condition. Rehabilitative treatment allows an injured or ill worker to regain functional activity in the presence of an interfering accepted condition. Curative and rehabilitative care produce long-term changes;
(c) Not delivered primarily for the convenience of the claimant, the claimant’s attending doctor, or any other provider; and
(d) Provided at the least cost and in the least intensive setting of care consistent with the other provisions of this definition.
(3) The department or self-insurer stops payment for health care services once a worker reaches a state of maximum medical improvement. Maximum medical improvement occurs when no fundamental or marked change in an accepted condition can be expected, with or without treatment. Maximum medical improvement may be present though there may be fluctuations in levels of pain and function. A worker’s condition may have reached maximum medical improvement though it might be expected to improve or deteriorate with the passage of time. Once a worker’s condition has reached maximum medical improvement, treatment that results only in temporary or transient changes is not proper and necessary. “Maximum medical improvement” is equivalent to “fixed and stable.”
(4) In no case shall services which are inappropriate to the accepted condition or which present hazards in excess of the expected medical benefits be considered proper and necessary. Services that are controversial, obsolete, investigational or experimental are presumed not to be proper and necessary, and shall be authorized only as provided in WAC 296-20-03002(6) and 296-20-02850.
When injured workers are deemed permanently and totally disabled, they become eligible for pension benefits. However, accepting a pension has ramifications beyond just receipt of monthly benefit checks for the rest of an injured worker’s life.
Because the claim is considered closed on the date the pension takes effect, the department generally will not pay for medical treatment provided on or after that date. There are exceptions in which the State Fund or a Self-Insured Employer will continue to pay medical costs and expenses subsequent to the finding of a pension, but these exceptions are fairly rare (consult an experienced attorney). The Department of Labor and Industries or Self-Insured Employer will certainly not pay for ongoing use of prescription pain medication subsequent to the determination of pension eligibility [RCW 51.36.010].
Injury Pensions are awarded for a variety of reasons. Sometimes, a worker is so severely disabled from a work-related accident or occupational disease that the worker can be declared permanently and totally disabled as a result. However, sometimes an injury pension can also result from the combination of the work-related injury or occupational disease and the restrictions imposed as a result of non-work-related, even pre-existing conditions.
Injury pensions are the “holy grail” of the workers’ comp in Washington state because so few are granted without significant conflict, often including substantial amounts of litigation. Many more workers would receive Injury Pensions than actually do if those workers simply had the benefit of experienced counsel prior to claim closure.
As of April 24, 2011, theÂ Department of Labor and Industries websiteÂ contained such disingenuous statements as follows:
“If you need treatment within 60 days after your claim was closed, you or your doctor may protest the closure of your claim. After more than 60 days from claim closure, you and your doctor may apply to have your claim reopened so that your medical bills can be paid, as long [as] it is for the same workplace injury.”
This statement is disingenuous and misleading because it is incomplete, fails to state the applicable legal standard and appears to represent that getting medical bills paid in the future will be easier than most injured workers experience. Because the proper legal standard is not “as long as it is for the same workplace injury,” this statement by the Department of Labor and Industries cannot be trusted.
In truth, the Department of Labor and Industries remains liable only for medical treatment and costs which are considered “properÂ andÂ necessary,” while it is generally true that NO MEDICAL BENEFITS OR COSTS will be considered “proper” after claim closure, unless there has been a significant worsening in your condition which necessitates curative treatment,Â andÂ curative treatment is also recommended and available by an approved provider. Under this real-world standard, the Department of Labor and Industries rejects the vast majority of claim reopening attempts, and there with the vast majority of all medical and prescription drug costs submitted after initial claim closure. It doesn’t matter that the rejected medical treatment is both recommended by the injured worker’s physician and appropriate to the applicable standard of medical care. For these reasons, if you believe you will need medical benefits after claim closure, seek legal counsel immediately.
After many work-related injuries have healed to the maximum extent possible, a point in the healing process known as “Maximum Medical Improvement” or “MMI,” the treating physician should provide a permanency rating. Ratings are performed by referencing theÂ AMA Guidelines to Evaluating Permanent Impairments, Fifth Edition, a set of guidelines that attempt to provide equality in rating exams, but which do so at the expense of fairness to anyone whose remaining impairments are largely based on subjective manifestations of injury, such as PAIN.
Because of their widely acknowledged deficiencies, The AMA Guidelines have undergone numerous revisions, but remain inadequate to reflect the true losses suffered by most injured workers. These Guidelines are widely ridiculed in medical and professional circles nationally, and have been rejected as being too harsh against the interests of injured workers during major reform efforts in other states (for instance, New York roundly rejected these Guidelines in favor of developing its own permanency evaluation guidelines during its major Workers’ Compensation reforms of 2007). It’s too bad Washington’s legislators haven’t realized that Washington’s injured workers deserve better.
Please review the harsh reality of how Washington’s legislature has chosen to define “Permanent Partial Disability” (Washington Administrative Code Section 296-20-19000):
“Permanent partial disability is any anatomic or functional abnormality or loss after maximum medical improvement (MMI) has been achieved. At MMI, the worker’s condition is determined to be stable or non progressive at the time the evaluation is made. A permanent partial disability award is a monetary award designed to compensate the worker for the amputation or loss of function of a body part or organ system. Impairment is evaluated without reference to the nature of the injury or the treatment given. To ensure uniformity, consistency and fairness in rating permanent partial disability, it is essential that injured workers with comparable anatomic abnormalities and functional loss receive comparable disability awards. As such, the amount of the permanent partial disability award is not dependent upon or influenced by the economic impact of the occupational injury or disease on an individual worker. Rather, Washington’s Industrial Insurance Act requires that permanent partial disability be established primarily by objective physical or clinical findings establishing a loss of function.”
In addition to providing an anti-worker definition of permanent partial disability, the state of Washington also provides payment schedules in which the amount paid in a work-related injury situation (under the “strict liability” scheme observed in workers’ compensation matters) is often restricted to only about 10-20% of what would be achieved in a typical personal injury award involving the same injury. From this combination of using harsh evaluation guidelines, with stingy payment schedules, in combination with “bought and paid for” IME evaluators, and forcing injured workers to pay for litigation (unlike other, more progressive states) when an important decision is placed into legitimate dispute, Washington’s system has become downright abusive toward injured workers.
Reality #1:Â Washington’s system does not adequately compensate for pain, so if your injury causes pain, you won’t be paid enough to make the award seem fair (other states allow for greater evaluation of subjective complaints).
Reality #2:Â Washington’s system does not adequately compensate for extended healing periods or the experience of a difficult medical courses, such as when an injured worker has to have three surgeries to help correct a problem instead of just one (other states make additional adjustments to their permanency awards for injured workers who have been unable to heal within the expected time frame for the specific type of injury suffered).
Reality #3: Average and high wage earners, like those who are more advanced in their careers, union workers, and highly-skilled workers will receive the exact same compensation under the Permanent Partial Disability schedules in Washington as a minimum wage, part-time, intermittent worker. Thus, the more a person has achieved through work in life, the more the Washington permanency scheme is likely to be experienced as a form of punishment for being injured in this state.
Reality #4:Â The Department of Labor and Industries routinely denies that any compensable permanency has resulted, or alternately, agrees that only a small amount of compensable loss has taken place. The IME physicians who work for the Department of Labor and Industries are often considered “bought and paid for” by many informed observers. Unfortunately, receipt of a substantial permanency award may be difficult to obtain, at least without the assistance of competent and determined advocates on the injured worker’s side.
Reality #5:Â If the injured worker receives an adverse order or decision from the Department of Labor and Industries and does not achieve a reversal in the “free” protest stage (which is decided by the same Claims Manager as made the original decision), the extremely high costs of litigation in Washington will be foisted onto the injured worker whose paycheck and savings have likely already been lost to the injury (other states make litigation less costly by reducing formalities, restricting the amount doctors can charge for giving depositions, and absorbing the cost within rates spread over the entire population instead of having these born only by the few workers unfortunate to also be injured, in addition to having a valid dispute).
The Board of Industrial Insurance Appeals (BIIA) was created in 1949 to hear appeals from decisions made by the Department of Labor and Industries (DLI). Â The Board of Industrial Insurance Appeals was established as a separate and independent agency from DLI to ensure the impartiality and fairness of the dispute resolution process. Â This goal it clearly achieves.Â As an administrative tribunal, the BIIA is supposed to provide a faster and less expensive forum for dispute resolution than is available through the court system.Â It is not as clear that the BIIA meets these goals, at least in the disputes which require actual litigation to resolve.
Most adjudicatory agencies in Washington state conduct proceedings under the provisions of the Administrative Procedures Act (APA).Â Other states also use less formal rules of evidence and procedure for their workersâ compensation systems, which often makes dispute resolution in those states quicker, less expensive and therefore more attainable than here in Washington. Â The BIIA does not follow the less formal APA, because it is in