In the state of Washington, workers’ compensation may also be referred to as “Labor and Industries” or “L&I.” Our L&I attorneys 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 worker’s rights, medical & prescription benefits, permanent/partial disability, or anything else L&I related in Washington, see the sections below to read more.
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. Stertz v. Industrial Ins. Com’n of Washington, 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.” 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. When this happens, the injured worker may maintain a negligence suit against the person who caused them injury. However, special rules apply to suits like this since the Department of Labor & Industries retains automatic lien rights against certain portions of the injured worker’s 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 “advance payment of workers’ compensation.” 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. 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. 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 “holiday” from payments until its lien credit has been exhausted. 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 of Tobin v. Department of Labor and Industries, No. 81946-7, decided by the Washington Supreme Court. 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. Specifically, the Court stated:
“Damages for pain and suffering, like loss of consortium, constitute noneconomic damage that the workers’ compensation statutes do not pay for. The Department did not pay out benefits for pain and suffering; therefore it cannot be ‘reimbursed’ from amounts recovered for pain and suffering. We hold that an award for pain and suffering may not be used by the Department in its distribution calculation.”
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. 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 General’s office, then the personal injury attorney must then petition in Superior Court for a judgment nunc pro tunc (“now for then”) setting aside that portion of the personal injury settlement which constitutes non-attachable compensation for “pain and suffering.”
Don’t go it alone if you are an injured worker. The presentation on this page is a vastly-simplified explanation for how personal injury lawsuits can overlap with workers’ compensation claims. We have the experience and tenacity to handle your workers’ compensation personal injury case. Call us now.
The injured worker has both rights and responsibilities. The responsibilities generally include following medical treatment recommendations and complying with requests 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 ”but not all” 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? 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.
Medical care will generally be 100% covered 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, the Department of Labor and Industries website 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 “proper and 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, and 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 the 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: 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: 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: 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: 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). 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. This goal it clearly achieves. 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. 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). Other states also use less formal rules of evidence and procedure for their workers’ compensation systems, which often makes dispute resolution in those states quicker, less expensive and therefore more attainable than here in Washington. The BIIA does not follow the less formal APA, because it is instead required by statute to use the Superior Court Rules of civil procedure and evidence, a result that favors defense interests of large self-insured employers (like Boeing) who can then use the formality of the BIIA system as an additional pressure point to make injured workers forfeit their claims rather than encounter technical rules and procedures which they cannot understand. Because those workers who do proceed must also follow these formal and technical rules, the BIIA is probably incapable of providing a superior, faster, less cost-demanding forum than they would otherwise obtain in Superior Court.
The Board of Industrial Insurance Appeals has expressed the position that, by employing the rules of Superior Court in procedure and evidence, this helps to ensure impartiality and fairness by providing each party complete access to information and predictability of process. These goals are achievable in less technical forums, as has been shown in many other states. Meanwhile, it is somewhat specious to suggest that an injured worker will stand on fairer and more equal grounds with the likes of large and sophisticated, self-insured employers like Boeing if only the worker is required to observe all the same formalities and risk all the same technicalities as Boeing lawyers are able to do. The reality of this scheme is that injured workers may be more likely priced out of justice simply because they must normally hire lawyers and experience the equivalent of a high-cost Superior Court lawsuit in order to obtain a litigated result at the Board of Industrial Insurance Appeals.
Once an appeal is filed, the BIIA has up to sixty days to accept (grant) or deny the appeal. An appeal is then assigned to an industrial appeals judge who acts as a mediator. All industrial appeals judges are required to be active or judicial members of the Washington State Bar Association and must be knowledgeable in all subject areas for which the BIIA has jurisdiction, but because the mediator cannot force a party to settle, or to impose excess costs on those who don’t, mediation is a forum which likely only benefits those who are willing to litigate their claims to an expensive end (as demonstrated by being represented by counsel who states a position built meticulously from prior case law, for example).
In the event an appeal is not settled or dismissed at mediation, the case is assigned to an industrial appeals judge (a hearings judge) for a hearing on the merits of the appeal. The hearing process is adversarial in nature. Attorneys represent over 90% of all parties. Many of those who are unrepresented could not obtain counsel because no attorney wanted to fight a futile, or extremely low-percentile claim, or even if they would have been willing, the injured worker is unable to front the costs of the necessary litigation and this hard but common circumstance otherwise prevents attorneys from representing in the remaining cases. Because the process is technical and follows the rules of Superior Court, unlike the legal process available in other states where a doctor’s treatment note stands for what it says unless challenged by a party litigant, parties must normally present and depose their medical witnesses or else suffer an automatic loss in their case. This formality, whether the medical witness testifies in front of an Industrial Appeals Judge or outside of the IAJ’s presence with testimony transcribed by a Court Reporter, drives much of the cost in Board matters.
As required by law, hearings are held in the county of the worker’s injury, or in the county of residence of the worker, or elsewhere for the convenience of the parties and witnesses. All such hearings are, by law, required to be reported verbatim and transcribed. The BIIA record forms the basis for all subsequent levels of appellate review.
Following the completion of hearings, the hearings judge issues a Proposed Decision and Order (PD&O). This order must contain findings of fact and conclusions of law on all contested issues raised by the appeal. Any party who disagrees with the result of the Proposed Decision and Order may file a Petition for Review (PFR) with the three-member Board. If no petition is filed, the Board must adopt the Proposed Decision and Order as its final order. In such a case, no further appeal to the courts may be taken.
If a PFR is filed requesting review of the PD&O, the Board members must act within twenty days to grant or deny review. If the Board denies the PFR, the PD&O is adopted as the final order of the Board. If the Board grants the PFR, the Board further reviews and analyzes the record and issues a formal Decision and Order.
A Decision and Order (D&O) is based upon a review by the three Board members of the proposed decision, the PFR, and the record of the appeal. The D&O contains a review and analysis of the evidence and applicable law. By statute, the Board’s final D&O must be entered within 180 days of the filing of a PFR.
If a party disagrees with the denial of the PFR or with the Board’s final D&O, a further appeal may be taken to Superior Court. In that event, the Board must forward a certified copy of the entire record of the BIIA proceedings to the parties and to the Superior Court. Approximately 5% of final BIIA orders are appealed to Superior Court. The appeal in Superior Court is based exclusively on the record established at the BIIA.
The best time to hire an attorney to represent in an Industrial Injury or Occupational Disease (workers’ compensation) case is well-prior to the matter reaching the Board of Industrial Insurance Appeals. If an injured worker experiences any adverse decision by the Department of Labor and Industries, they should not wait and attempt to protest on their own, nor appeal to the Board on their own, as these actions could effectively reduce the number of chances that an experience attorney will be able to have to reverse the Department’s course. Please contact Washington Law Center for L&I representation today.
Many items that can slow or halt the process are:
Read Attorney Spencer Parr’s blog for answers to your L&I questions and more.
Read Attorney Spencer Parr’s blog for answers on how presumptions work in L&I cases and why hiring a Washington L&I attorney is in your best benefit.
In addition to your initial free consultation with one of our labor & industries attorneys, any pension awards that you receive as the result of our representation are tax-free under federal law. We limit our contingent attorney fee to just 15% of the pension’s actual value to our client, although the law does allow a 30% fee. We’re confident that the 15% fee you will pay to us will result in your case being open at least 15% longer and that our fees are very comparable to what you will find from other Washington labor and industries attorneys.
Over $100 million awarded to our clients by verdict, settlement, injury pension or judgment