The workers’ compensation laws of the state of Washington define an injury 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 there from.” (RCW 51.08.100). An injury is just that — something that happens suddenly at a specific time.
An occupational disease is a condition that 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 repeatedly exposed to asbestos on the job can develop asbestosis or mesothelioma, a type of lung cancer. An electrician or factory worker who squats, kneels, and crawls frequently can develop knee problems. Conditions such as these are compensable under this state’s workers’ compensation laws.
You must file an industrial injury claim 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.
You must file an occupational disease claim 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 you have a physical condition 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. For a claim file 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.
The Washington courts have established that a worker need not be in perfect physical shape at the time of any injury or occupational disease. 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. You have an allowable claim if there is a medical opinion that the prior back condition worsened as a result of the injury.
All Department orders must contain the following language:
This order shall become final within 60 days from the date the order is communicated to the parties unless a written request for reconsideration is filed with the Department of Labor & 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.
You must file a written protest or appeal to the Department of Labor & Industries or the Board of Industrial Insurance Appeals within 60 days. Without a protest or appeal within those 60 days, you cannot receive the benefits addressed by the Department’s order.
If you receive a denial, segregation, or rejection order from L&I, you should contact one of our denied benefits attorneys as soon as possible so that we can review your claim and take appropriate action within the protest or appeal period. You have 60 days from the date of the order to mail a written protest with L&I. You can protest online as well, but be sure to verify the Department receives the online protest and that it is imaged on your claim.
Taking an appeal to the Board of Industrial Insurance Appeals without 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.
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. The party receiving the unfavorable decision can appeal the full Board’s decision to Superior Court.
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 co-worker, with the very limited exception of deliberately caused injuries.
Yes. If a third party, other than your employer or co-worker, causes the injury, you can bring an action 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. You must bring any such lawsuit 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.
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. Time loss for the day of the injury and the three days following are only payable if you remain unable to work for at least 14 days after the date of the industrial injury and your treating physician certifies your inability to work.
Your monthly wages at the time of the injury determine your time loss rate. Wages can include room and board, income from a second job or self-employment, tips, bonuses, and overtime, if you work overtime on a regular basis. For part-time, seasonal, or intermittent workers, the Department averages wages from all employment 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 80% 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, mail a written protest to that order within 60 days. Without the written and mailed protest to the Department, the incorrect wages listed on that order will impact time loss or pension benefits for the life of the claim.
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.
That doctor, however, has to be part of the Department of Labor & Industries’ Provider Network. Make sure when you see a doctor for treatment related to your workers’ compensation claim that he or she is part of the Provider Network. If not, you will need to find another doctor. Out-of-state doctors need not be part of the Provider Network, but they must be an approved provider.
If medically necessary and approved by the Department or self-insured employer, you can receive treatment from more than one doctor at a time. Generally, however, you will have one attending physician who will direct your care.
The Department of Labor & Industries or your self-insured employer may periodically have you examined by doctors they select. Those special examinations (so-called independent medical examination or IME) are allowed under the industrial insurance laws of this state. The location of those examinations must be reasonably convenient to your home.
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 that you have the skills to perform. If your attending physician signs one of these job 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 the skills to perform other work without training, you can receive retraining.
When the Department approves the formal retraining program, you will have two options. Selecting Option 1 means that you will participate in the retraining program now. You will receive time loss for the entire time of the retraining program — up to two years. Your claim will remain open for medical treatment, as well. Selecting Option 2 means that you can postpone your retraining program, receive a vocational award equaling six months of time loss compensation, but your claim will close. You will have up to five years to use your retraining money. You will receive no time loss compensation while you are going to school. Vocational Option 2 is usually not the best option for most people.
You should never hesitate to contact a qualified workers’ compensation attorney at any time during your claim when you have questions. You should speak with an attorney when the Department of Labor & Industries or self-insured employer denies benefits, and prior to taking any appeal from an unfavorable order. Oftentimes, the attorney can answer your questions during the initial consultation and make recommendations regarding further representation.
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.
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. A pension adjudicator at the Department makes the determination 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. Oftentimes, the issue of total permanent disability is one that must be litigated.
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 employer needs 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.
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 may be entitled to a permanent partial disability award (PPD). You will be entitled to a rating of permanent impairment for conditions resulting from your industrial injury or occupational disease. Your attending physician can do the rating, or your claim manager may send you for an examination by one or several physicians.
A physician must rate PPD. Your own doctor can provide the rating for your injuries. If your doctor is unwilling to rate, however, the Department or self-insured employer will send you to a one-time examiner — a so-called Independent Medical Exam or IME — for purposes of getting rated. WAC 296-20-2010 (1) provides:
Impairment rating examinations shall be performed only by doctors currently licensed in medicine and surgery (including osteopathic and podiatric) or dentistry, and Department-approved chiropractors subject to RCW 51.32.112. The Department or self-insurer may request the worker’s attending doctor conduct the impairment rating when appropriate. If the attending doctor is unable or unwilling to perform the impairment rating examination, a consultant, at the attending doctor’s request, may conduct a consultation examination and provide an impairment rating based on the findings. The Department or self-insurer can also request an impairment rating examination from an independent medical examination (IME) provider. A chiropractic impairment rating examination may be performed only when the worker has been clinically managed by a chiropractor.
It is important to prepare for an IME. You should know what the IME doctors know; what tests they use to try to prove that you are not injured; things they will do to try to minimize your limitations. Some IME doctors make their living from examining injured workers.
If you are sent for such a special 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 based on the area of your body that 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. Multiply the resulting percentage of loss based on the AMA Guides by the value of your finger, hand, arm, foot, leg, etc., as set by law, to determine the permanent partial disability award.
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 based on criteria determined by law.
If you feel that your claim was 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.
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 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, you must protest or appeal the denial order in writing within 60 days of the date you receive the denial order.
Yes. Between Social Security and the Department of Labor & Industries benefits, you are entitled to receive 80 percent of your highest year’s 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 expect your disability to last at least one year.
The Department of Labor & Industries reviews each claim for a cost-of-living increase effective July 1 each year. The increase, based on the state average wage, is released to the public usually toward the end of June each year. If you receive Social Security benefits, however, you may not receive an increase on July 1 each year, but benefits recalculations (called triennial re-determinations) occur January 1 every three years after the Social Security offset or reduction in benefits.
For injuries which occurred on or after July 1, 2011, those workers will not get their first cost-of-living increase. They will receive all subsequent increases, however, as outlined above.
An unfortunate part of the workers’ compensation law is that you only have to be found employable at minimum wage. The job does not have to pay you the same wages you were making when you were injured. Also, the Department of Labor & Industries or the self-insured employer does not have to find you a job. Your time loss compensation terminates when a vocational counselor finds you employable or your doctor releases you to work. It will be left to you to find a job.
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