How does the Department determine if I'm entitled to an L & I pension?

The definition of gainful employment is "performing work at any regular, gainful occupation for income, salary, or wages." (WAC 206-14-150) If you were working full time at the time of your claim, then finding you employable at part time work after your injury is not "gainful employment."

Under the laws of this state, the Department of Labor & Industries must take you as you are at the time of your workers' compensation claim. The Washington Court of Appeals in Fochtman vs Dep't of L & Indus. (1972) determined:

Proof of permanent total disability is more individualized than proof of permanent partial disability. The testimony necessarily requires a study of the whole man as an individual — his weakness and strengths, his age, education, training and experience, his reaction to his injury, his loss of function and other relevant factors that build toward the ultimate conclusion of whether he is, as a result of his injury, disqualified from employment generally available in the labor market.

The Department of Labor & Industries or self-insured employers need specific information to grant a pension. Getting your claim before the pension adjudicator at the Department is difficult. Claims managers seldom refer a claim to the pension section. Claims managers will close a claim even though the injured worker has not returned to work at the time of closure.