The Department of Labor and Industries is a massive executive branch agency that uses claims managers who are not attorneys (and who are not even supervised by attorneys). They make critical legal decisions that determine the substantive rights of injured workers.
What could possibly go wrong? In practice, pretty much everything.
How to handle L&I claims involving self-insured employers?
As a result, many closing decisions appear to be arbitrary and capricious. They may be motivated out of a claims manager’s ego or insistence that the claims manager is right to close the claim while the injured worker is just wrong to request more or fairer treatment. Workers whose claims are managed by a third-party administrator (Sedgwick, Eberly Vivian, Broadspire, Gallagher Bassett, ESIS, Zurich and others) may be treated just as poorly, or even worse, than if their claims were managed by the Department of Labor and Industries. Yet, in every workers’ compensation case, certain fundamental principles should apply:
A closing order should not be issued if the injured worker needs more medical treatment.
The Department considers ongoing chiropractic, massage, physical therapy or other medical services after 120 days from the date of original claim allowance, surgical intervention, or consequential injury to be “maintenance” therapy. This means care after the 120 day period is typically denied and cases are closed. Medical care providers are not attorneys. They do not know how to advocate for the medical care they are requesting based upon the applicable, technical legal rules. Our L&I attorneys are able to advocate for you and ensure cases are not closed until you are finished receiving medical treatment.
A closing order should not be issued without a fair vocation assessment.
The Department of Labor and Industries and self-insured employers of Washington State pay the bills. They intend to “get what they pay for.” The self-insured employer and the Department are unwilling to admit they pay for a bogus and biased analysis, that can be challenged based on technical legal deficiencies, unless a judge or jury corrects them.
A closing order should not be issued if the injured worker cannot return to gainful employment in the same pattern of employment as the worker enjoyed at the time of injury.
In other words, if the injured worker was employed full-time as of the date of their injury, the ability for that partially rehabilitated (partially disabled) worker to maintain part-time work is an insufficient legal basis to close the injured worker’s claim. It may even be possible that an injured worker, who can still work in some capacity, may yet be entitled to an injury pension, rather than closure of that worker’s claim.
A closing order should not be issued without a fair assessment of permanent partial disability.
The Department of Labor and Industries is notorious for denying fair permanent partial disability assessments. It should be a very rare serious injury case (one in which there has been a surgery performed or a significant number of weeks of time-loss benefits paid) that results in zero “PPD” payment at the point of claim closure. Unfortunately the Department constantly hires biased Independent Medical Examiners to say that there is no permanent partial disability award due to the injured worker. At the point an injured worker reaches maximum medical improvement, doctors and other medical providers often stop advocating for their patients (they see their job in the claim as having already been done), which can lead to unfair legal outcomes if this delicate situation isn’t properly managed.
A closing order should not be issued if an injury pension is the correct legal result.
The Department and self-insured employers have every financial incentive to close claims without a lifetime of payments made to the injured worker. Many times aging and severely disabled injured workers are actually receiving Social Security Disability Insurance or are being forced by the nature of their injuries to elect early retirement benefits. These are classic situations in which the injured worker should not receive a permanent partial disability award with claim closure, but should instead receive a lifetime of injury pension payments instead. Who gets an injury pension and who does not is always a fact-sensitive inquiry where the same results do not obtain in every case.
If the Department of Labor & Industries or a self-insured employer is attempting to close your claim, you should obtain a free legal consultation from Washington Law Center. It is a myth that your claim can easily be reopened. More than 8 in every 10 reopening applications (supported and filed by the injured worker’s Attending Provider) will be denied. Either there is a chance your claim can be kept open in order to receive additional benefits, or it cannot, but this is not a determination an injured worker should make without the aid of an experienced L&I attorney. The stakes are simply too great at the time of a L&I claim closure to go at it alone.
ABOUT THE AUTHOR:
Partner Labor & Industries / Personal Injury Attorney