How is a Vocational Determination of the Director Challenged? It is well-settled that the decision to provide or not provide…
Recently, our firm was approached with a very humble inquiry from an individual on SSI for the past 20 years due to a disability that resulted from a work-related injury. The individual had been forced off of L&I benefits and had their claim closed without them being able to actually return to work in employment they were capable of sustaining.
So, they humbly asked if we could help them get their claim reopened for payment of ongoing benefits, to which we provided the following response (with analysis that is good for any claim that is closed and more than 7 years has gone by since the original claim closure):
“Dear [name redacted]:
You asked about your L&I injury claim from around 20 or more years ago and asked if it was too late to get any additional recovery from that case. The answer is, “probably,” but that only means about a 98% probability, in my estimation (other attorneys may give you other answers). In order to get paid in a workers’ compensation case as old as you describe, it is my belief that you’d have to pull off the following staged effort successfully:
Step 1: Get all of your old claim records from the Department of Labor & Industries;
Step 2: Find a Doctor that is willing to help you (this assumes you need causally-related medical care right now);
Step 3: Have the Doctor review the old medical records, do an examination, obtain updated imagery or other responsible diagnostic tests, and then explain what objective medical findings lead to the conclusion (“on a more probable than not basis”) that your claim-related conditions have objectively worsened and need specific diagnostic and curative care;
Step 4: Get the Department to agree that your claim should be reopened for diagnostic and curative treatment;
Step 5: File a request to the Director of Labor & Industries asking him to personally grant you additional time loss benefits in an act of his statutory discretion;
Step 6: Obtain the Director’s wet ink signature approving the discretionary application described in Step 5.
You get all that done, and then you’ll potentially also be in the running to get an industrial injury pension….eventually…perhaps after more fighting, although there’s never a guarantee. That pension would then be paid at a rate equivalent to the inflation-adjusted time loss rate you originally received when your claim was open. So, for example, if you received $800 per month 20 years ago, that might be worth something like $2,000 today, because the benefits would be inflation-adjusted from back then. Obviously, that amount of money might still be life-changing to somebody on SSI.
No attorney is likely to help you, in my opinion, unless or until you can get through at least step 4 on your own. Of course, if the evidence is fairly obvious that you need medical care as serious as surgery, causally-related to your original claim injuries, you may be able to get an attorney as you first arrive at Step 4 (after a well-supported reopening application has been filed by the Doctor with the Department, but before the Department has agreed to reopen the claim…which the Department almost certainly will not without that issue being litigated successfully to that result at the Board of Industrial Insurance Appeals).
Why might an attorney be more likely to help you in that circumstance? That’s simply because the Director is more likely to bless you with discretionary benefits if your case presents such a hardship that you literally need surgery to have a chance to get better, meaning to return to the baseline circumstances that existed at the time your L&I claim was originally closed.
Now, keep in mind that you will also probably lose your SSI benefits as a result of getting new L&I benefits, but as long as the prospective amount of L&I benefits is higher than your SSI benefits, you should still welcome that result. If by SSI (Title XVI disability benefits, meaning those that are means tested) you actually mean SSDI (Title II disability benefits, meaning those that are not means tested), because those terms are used somewhat loosely and synonymously by members of the public (they are both disability benefits paid as a result of Social Security Act provisions), there is a small chance you could get increased L&I benefits without offsetting (losing) your Social Security Act benefits.
I hope this answer has been helpful to your understanding. You deserve the respect of a truthful and complete answer, so that is what I have tried to provide. I wish you the best of luck, but I also decline further legal services unless or until you have a supporting physician willing to certify that there has been an objective worsening of claim-related conditions which therefore necessitates reopening your L&I claim for identifiable “proper and necessary” (curative or rehabilitative) medical care, specifically involving surgical intervention. Even then, your odds improve to probably no better than 15% (with an attorney), but at least then myself and perhaps others in my profession would be willing to take a close look at your claim facts and maybe then wade in.
Have a good evening.
Spencer D. Parr
ABOUT THE AUTHOR:
Spencer Parr is a litigation and trial attorney at Washington Law Center focused primarily in the areas of Labor & Industries claims and injury pension benefits. Before co-founding Washington Law Center, Spencer served in the U.S. Army. He has litigated major issues in the law, represented clients from coast to coast, and dedicated his professional life to assisting the injured and disabled. Click here to learn more about Spencer. View More Labor & Industries and Work Injury Resources.