What's the difference between an industrial injury and an occupational disease claim?
An industrial injury under the Workers' Compensation laws of the state of Washington is defined as "a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom." (RCW 51.08.100). An injury is just that - something which happens suddenly at a specific time.
An occupational disease on the other hand is a condition which develops over time as a result of work performed. RCW 51.08.140 defines an occupational disease under the Washington State Workers' Compensation laws as "such disease or infection as arises naturally and proximately out of employment." Examples of occupational diseases are carpal tunnel syndrome or asbestos lung disease. An office worker who does repetitive typing all day can develop carpal tunnel syndrome. A worker who is repeatedly exposed to asbestos on the job can develop asbestosis or mesothelioma, a type of lung cancer. Conditions such as these are compensable under this state's Workers' Compensation laws.
What are the time limits for filing an industrial injury or an occupational disease claim?
An industrial injury claim must be filed with the Department of Labor & Industries or self-insured employer within one year of the date of the injury or the claim will be rejected.
An occupational disease claim must be filed within two years of when your doctor advises you in writing that your work produced your symptomatic physical condition and that you should file a claim. It is best to file the claim as soon as you and your doctor determine that your physical condition is related to the work you are or have performed in the past.
For hearing loss claims, however, the claim must be filed within two years of last exposure to work-related noise. If the claim is filed after that two-year deadline, you will only be entitled to medical treatment and hearing aids, but no permanent partial disability award for occupational hearing loss.
What if my industrial injury worsens a physical condition I already had?
The Washington courts have established that a worker is to be accepted as he or she is at the time of any injury or occupational disease and need not be in perfect physical shape. That means if someone already has a symptomatic physical condition or disability, is able to work, and an injury or occupational disease makes that physical condition or disability worse, then the injured worker is still entitled to receive benefits. An example of this would be someone with a prior back condition who is able to work. That person suffers a new injury to his or her back and files a new claim. If there is medical opinion that the prior back condition is worsened as a result of the injury, then the Workers' Compensation claim should be allowed and treatment and benefits paid.
What do I do if my claim is rejected or the Department denies benefits on my claim?
All Department orders must contain the following language: This order shall become final within sixty days from the date the order is communicated to the parties unless a written request for reconsideration is filed with the department of labor and industries, Olympia, or an appeal is filed with the board of industrial insurance appeals, Olympia. Any decision made by the Department of Labor & Industries by formal written order will become final within 60 days of the date of receipt, unless protested in writing to the Department of Labor & Industries or appealed in writing to the Board of Industrial Insurance Appeals.
How do I protest or appeal an unfavorable order from the Department of Labor & Industries?
If you receive a denial or rejection order from the Department, you should contact one of our attorneys as soon as possible so that we can review your claim and take appropriate action within the protest or appeal period. Taking an appeal to the Board of Industrial Insurance Appeals before speaking with a qualified Workers' Compensation attorney can lead to delays in benefits or difficulty in finding an attorney to take your appeal. In many instances, a further protest to a higher level adjudicator at the Department of Labor & Industries can expedite payment of benefits without the necessity of an appeal. Any unfavorable order must be protested or appealed within 60 days of the date of receipt of that order or the order becomes final.
Litigating an appeal to the Board of Industrial Insurance Appeals can be lengthy and expensive and will require representation by a qualified Workers' Compensation attorney. An appeal can take months just to go through the mediation process. If mediation is not successful, it will take more time to schedule hearings, present testimony of lay and expert witnesses, and then wait for the Industrial Appeals Judge to issue the preliminary decision. Once that preliminary decision (called a Proposed Decision and Order) is issued, any party to the appeal may ask for review from the full Board (called a Petition for Review), after asking for an extension of time to do so. The full Board must then issue either a final Decision and Order or an Order Denying the Petition for Review. The entire appeal process can take from 10 to 15 months or longer, with substantial costs involved to pay for the professional time of expert medical and vocational witnesses. Any final decision from the full Board can be appealed to Superior Court by the party not prevailing in the appeal.
Can I sue my employer or my coworker for causing the injury?
No. The Washington State Workers' Compensation laws are no fault, meaning you have the right to benefits even if you are at fault for the injury. The law specifically prohibits any lawsuit against your employer or coworker, with the very limited exception of deliberately caused injuries.
Can I sue someone else for causing my injury?
Yes. If a third party, other than your employer or coworker, causes the injury, then a third-party action can be brought against the negligent person or company. Examples would be a car accident caused by someone else, injury by defective products or machinery manufactured by a company other than your employer, or injury by a general or subcontractor on a construction site. Any such lawsuit would have to be brought within the time provided by law.
You can receive your benefits under your Workers' Compensation claim while pursuing a third-party action. The Department of Labor & Industries or your self-insured employer will have a lien on any third-party recovery, with allowance for attorney fees and costs in bringing the third-party action.
If I am unable to work after an industrial injury, how long do I have to wait to receive my time loss compensation?
The law provides that the Department of Labor & Industries or the self-insured employer shall pay time loss within 14 days of the date the Department or self-insured employer receives the report of accident. The report of accident must include certification by your treating physician that you are unable to work as a direct result of the industrial injury. The day of the injury and the three days following will only be paid if you remain unable to work for at least 14 days after the date of the industrial injury and your inability to work is certified by your treating physician.
How will my time loss compensation be calculated?
Your time loss is determined by your monthly wages at the time of the injury. Wages can include room and board, income from a second job or self-employment, tips, bonuses, and overtime, if overtime is worked on a regular basis. For part-time, seasonal, or intermittent workers, wages from all employment are averaged over the 12 months prior to the date of injury. Wages should also include the cost of employer-paid medical, dental, and vision insurance premiums, but not employer contributions to any retirement plan.
Once your monthly wages are determined, the Department of Labor & Industries pays a percentage of those monthly wages as follows: single workers - 60%; married workers - 65%; for each child born or conceived prior to the date of injury - 2%. The maximum payable by law is 75% of your monthly wage.
It is very important to watch for an order from the Department of Labor & Industries setting wages on a claim. If the wages and benefits listed in the Department's wage order are incorrect, that order must be protested within 60 days. If the order is not protested in writing, the incorrect wages listed on that order will impact time loss or pension benefits for the life of the claim.
Can I see my own doctor for treatment for my industrial injury?
Yes. Under the Washington State Workers' Compensation laws, an injured worker has the right to choose his or her own doctor for treatment. The doctor can be a medical doctor or an alternative care practitioner, such as a chiropractor, a naturopath, or even a physicians' assistant supervised by a doctor.
If medically necessary and approved by the Department or self-insured employer, you can treat with more than one doctor at a time. Generally, however, you will have one attending physician who will direct your care.
You may periodically be asked to be examined by doctors selected by the Department of Labor & Industries or your self-insured employer. Those special examinations are provided for under the industrial insurance laws of this state. The location of those examinations must be reasonably convenient to your home.
What if I can't go back to my old job or the type of work I used to be able to do?
If your attending physician determines that as a result of your on-the-job injuries you are unable to return to any type of work you have done in the past, you may be entitled to receive vocational retraining and ongoing time loss compensation. A vocational counselor will meet with you, obtain a complete work history, and then submit written job analyses to your attending physician. Those job analyses can include your job at the time of your injury, some lighter duty work you performed in the past, or some modified job which you have the skills to perform. If your attending physician signs one of these jobs analyses releasing you to perform that type of work, you will be found able to work by the Department and your time loss compensation will stop. If, however, your physician says that you cannot return to your regular work or any work you have performed in the past and the vocational counselor determines that you do not have skills to perform other work without training, you will be provided with limited retraining.
What if I am never able to return to any type of work because of my industrial injury?
You may be entitled to a total disability, lifetime pension from the Department of Labor & Industries if you are never able to return to work as a result of your industrial injury or occupational disease claim. The determination is made by a pension adjudicator at the Department and is based on a number of factors - your age, education, work history, pre-existing conditions, and the conditions resulting from your Workers' Compensation claim. The pension adjudicator will review the medical and vocational information from your claim file and issue an order.
The issue of pension is a complex one and requires knowledge of the laws, court decisions, and the specific issues surrounding the injured worker's life - education, work history, effects of the industrial injury or occupational disease, labor market in the area where the injured worker lives, and many other factors. Often times, the issue of total permanent disability is one which must be litigated.
What will happen when my medical treatment is concluded and my claim is ready for closure?
Your claim will be ready for closure when your attending physician says that your medical condition is fixed and stable (meaning there is no further curative treatment) and, hopefully, you have returned to work. You will be entitled to a rating of permanent impairment for conditions resulting from your industrial injury or occupational disease. The rating can be done by your attending physician, or your claims manager may send you for an examination by one or several physicians. If you are sent for such an examination (by so-called independent examiners), your attending physician should have the opportunity to review and comment on the report.
The rating of impairment is done based on the area of your body which was injured. For arms and hands, feet and legs, vision or hearing loss, a doctor will use the AMA Guides to Permanent Impairment, Fifth Edition, to determine the percentage of amputation value of your finger, hand, arm, foot, leg, or percentage of your loss of vision or hearing. These are called specified disabilities. The doctor will determine your permanent partial disability by examination and will base his or her rating on criteria such as loss of range of motion, muscle wasting and weakness, and nerve damage, or objective testing of your hearing or vision loss. The resulting percentage of loss based on the AMA Guides is then multiplied by the value of your finger, hand, arm, foot, leg, etc., as set by law, to determine the permanent partial disability to be paid for your injury-related disability.
For injuries involving your neck, mid or low back, mental health impairments, and other areas not listed above, also called unspecified disabilities, the rating doctor will use the Categories of Permanent Impairments. Each Category is a percentage of total bodily impairment, the value of your entire body - an amount set by law, and is based on criteria determined by law.
If you feel that your claim has been closed prematurely or that the rating of your disability is low, you will have only 60 days from the date you receive the Department's closing order to protest or appeal the closure of your claim.
How do I reopen my claim if my condition worsens after my claim is closed?
You can apply to reopen your claim for further specific treatment within seven years from the date of first, final claim closure. If the application to reopen is made within seven years from first closure and your claim is reopened, the Department can pay time loss compensation, medical treatment, and permanent partial disability, if applicable. If the application to reopen is made more than seven years after first final closure, then it is discretionary on the part of the Director of the Department of Labor & Industries as to whether any benefits other than medical treatment will be paid.
In order for your claim to be reopened, your doctor must establish that your medical condition related to the original injury has objectively worsened (called aggravation of condition) without any new injury occurring. If a different area of your body is affected as a result of the original injury, then your claim can be reopened to treat that new condition, again based on the opinion of your doctor. For example, if you suffered a knee injury and as a result of your knee injury and the change in the way you walk your back becomes painful and in need of treatment, then your claim can be reopened for treatment to your back. Your doctor must clearly establish, however, that your back condition arose from your knee condition.
If the Department denies your reopening application, the denial order must be protested or appealed in writing within 60 days of the date you receive the denial order.
Can I draw Social Security benefits at the same time as I am drawing my time loss or pension benefits?
Yes. Between Social Security and the Department of Labor & Industries benefits, you are entitled to receive 80% of your highest years earnings or your time loss compensation or pension rate, whichever is higher. The highest year's earnings must be within the five years prior to when Social Security determined you to be disabled or the average of your highest five consecutive years of earnings. Social Security will reduce any retroactive benefits based on the benefits you were receiving from the Department of Labor & Industries and the Department will reduce your ongoing benefits based on your receipt of Social Security benefits. It is a good idea to apply for Social Security benefits if you know that you are going to be disabled for at least one year.
When should I talk to a lawyer about my industrial injury claim?
You should never hesitate to contact a qualified Workers' Compensation attorney at any time during your claim when you have questions. You should certainly speak with an attorney when you are being denied benefits by the Department of Labor & Industries or self-insured employer and prior to taking any appeal from an unfavorable order. Often times, your questions can be answered during the initial consultation and recommendations made regarding further representation by the attorney.
A qualified and experienced Workers' Compensation attorney can facilitate the process of obtaining benefits for you and make certain that you are receiving all of the benefits you are entitled to under the laws in Washington State. The Workers' Compensation laws are complex and ever changing. You should protect yourself by contacting an experienced Workers' Compensation attorney who can answer your questions and effectively pursue benefits for you.