Can I get my residence modified under the Industrial Insurance Act as part of Washington’s workers’ compensation system of benefits?
The short answer is “yes, but only in limited circumstances.” If you are in true need of such benefits, for either a home or rental property in which you live, you should take care to read the following information. Make sure your Attending Physician is aware of the rules set forth below as well. You will then need the Attending Provider to request that a residency modification consultant is assigned to your L&I case. The Attending Provider should also give a preliminary written opinion as to the types of modifications the Attending Physician believes you may likely need. This will begin the process.
A residency modification consultant will then be employed at the cost of the employer or state fund. The consultant will be a licensed physical or occupational therapist or a licensed nurse who has experience in rehabilitation of catastrophic injuries and residency modifications. The residency modification consultant will work with the Department of Labor & Industries, Self-Insured Employer (unless the claim is a state fund claim), the injured worker and the Attending Physician to determine which modifications are medically necessary. It is the job of the residency modification consultant to work with a licensed contractor to submit a written report requesting approval of the modifications, including the costs of architectural, engineering, predesign and planning services which may be requested.
Pursuant to WAC 296-14-6228, a self-insured employer (SIE) may approve a residence modification benefits request but may not deny such an application. Only the supervisor of industrial insurance (the Director of the Department of Labor & Industries) has the authority to deny a residence modification benefits application. If approved, residency modification benefits will usually be paid directly to the contractor once the work is complete or will be reimbursed to the injured worker if the costs have been paid in advance. A letter of satisfaction from the worker, a final inspection from relevant inspectors (electrical inspector, plumbing inspector, etc.), a report from the residence modification consultant and a release of lien form signed by contractors and subcontractors will be required before payment will be made. Many technicalities and hardships may be involved with which an experienced workers’ compensation lawyer should be consulted.
What is a residence modification?
A residence modification is defined in WAC 296-14-6200 as a “permanent change to an existing residence or a repair of a modification previously approved and paid for by the Department or Self-Insured Employer, or a modification made when constructing a new residence.” The Washington Administrative Code gives an example of a kitchen counter being lowered for an injured worker in a wheelchair, but other modifications might include installing wheelchair ramps, widening door access ways to make them wheelchair-accessible, and installing lift systems, handles or bars that help the injured worker get into and out of a bathtub, etc. WAC 296-14-6202 defines the residence modification benefit as being a “sum of money used to modify a worker’s residence for purposes of safety, mobility, and activities of daily living when those modifications are necessary by the nature of the worker’s condition subsequent to a catastrophic injury.” Activities of daily living are defined as “tasks required for self-care, communication, and mobility and include, but are not limited to bathing, bed mobility, dressing, eating, grooming, toileting, and transfers.”
What is not considered a residence modification?
WAC 296-14-6200 provides that household appliances “such as refrigerators, washers, and dryers, are generally not residence modifications and the Department or Self-Insured Employer will approve them only under unique circumstances as approved by the supervisor of industrial insurance.” Unique circumstances may involve such things as paying for specialized appliances where means of utilizing normal appliances is physically incapable of meeting the needs of the injured worker. However, this determination is also based on the discretion of the Department’s Director, so in general, cannot be appealed successfully if the Department denies the worker’s request for payment. On Separation of Powers Doctrinal grounds, courts will not order the Director to approve the appliance requested unless it can be shown (a very hard thing to do) that the Director’s decision was entirely arbitrary and capricious.
When can the worker apply for a residency modification benefit?
WAC 296-14-6208 provides that a claim for residency modification benefits can be made at any time while a claim is allowed and open at any time after the worker has already been determined to be permanently and totally disabled. However, WAC 296-14-6204 provides that only workers with an allowed “catastrophic injury” claim will be permitted the residency modification benefits. This code provision then defines “catastrophic injuries” as being “the most serious of conditions and include, but are not limited to, head trauma, paralysis, and amputation.” This definition leaves a lot to be desired because it fails to indicate whether “equivalent” circumstances will qualify, and in doing so, largely leaves the determination to the discretion of the Director of Labor and Industries. That discretion will not be overturned in court except upon the extremely difficult showing of “abuse of discretion,” which means the injured worker effectively has to prove “beyond a reasonable doubt,” that no rational person could make the decision the way the Director has decided. Such a claim is generally non-viable in the courts because the courts dare not under our multi-branch constitutional system of government invade the proper discretion of the Executive Branch.
Is there a maximum residency modification benefit?
The answer is “yes,” a maximum benefit does apply. Pursuant to WAC 296-14-620, an injured worker may only claim a residency modification benefit under the Industrial Insurance Act up to the amount of Washington’s average annual wage “at the time that each modification request is approved.” Washington’s average annual wage in 2016, as reported by the Employer Security Department, was $58,957. By 2017, that number had grown to $61,887. The number can go up or down each year, but it’s safe to say will hover at or over $60,000 for the foreseeable future. The language “at the time that each modification request is approved” makes a residency modification benefit determination somewhat difficult to define in terms of exact dollar amounts, even within a given year, because if the injured worker’s condition changes and requires additional residency modifications, the injured worker can apply for a new benefit.
Washington Law Center’s Labor & Industries Supervising Attorney, Spencer D. Parr, is responsible for the content of this page. Any questions or inquiries about injured worker eligibility for residency modification benefits in Washington L&I claims involving catastrophic injuries can be answered by any of our experienced L&I lawyers. The facts of each case differ and may determine the outcome of your particular workers’ compensation claim. As a leading Washington workers’ compensation law firm with offices in King and Pierce Counties and hundreds of Washington’s most severely injured workers under representation at any one time, we may likely be the best attorneys to represent you in your L&I claim, and we do give free telephone consultations so you can find out more immediately. We are known for our “We Fight, You Win” representation at the Board of Industrial Insurance Appeals, in the higher courts, and of course, before the Department of Labor and Industries. Please see just one of our many positive Labor & Industries Client Testimonials to understand how others have made the right decision to hire Washington Law Center to fight for their rights in complex Washington workers’ compensation matters.
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.