It seems the Department of Labor & Industries is issuing more and more denial orders. They issue orders saying they are “not responsible” for a condition which pre-existed the industrial injury or some condition which an injured worker may have had at some point in their life. These seemingly harmless orders can negatively impact a claim.
Workers’ comp laws are to be “liberally construed in favor of the injured worker.” RCW 51.12.010 states:
This title shall be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.
The “liberal construction” mandate often seems forgotten by the Department of Labor & Industries and self-insured employers.
One of the big issues we see these days is the failure of the Department and their so-called “independent” (IME) examiners to recognize the leading case of Miller v. Dept , 200 Wash, 674, 94 P. 2d 764. Our Washington State Supreme Court in 1939 said that if an industrial injury “lit up and made symptomatic” a condition which was previously not painful or which the worker was not even aware, the Department is responsible for that condition. A good example of this is a degenerative spinal condition. Many people have degeneration in their spines or other joints in their body but have no pain. If an industrial injury to someone’s low back makes that degenerative process painful and in need of treatment, then the degeneration becomes part of the claim. IME examiners, self-insured employers, and the Department are ignoring this case law and denying underlying degenerative conditions aggravated by an industrial injury. Those denials are contrary to well-established case law – the Miller case – and the “liberal construction” mandate.
When you receive an order unfavorable to you, you have 60 days from the date you receive the order to write your protest to the Department of Labor & Industries. We recommend protesting no late r than 60 days from the date of the order. A phone call to the Department or the self-insured claims manager is not good enough – the protest must be in writing. Failure to protest an unfavorable order could mean you don’t get needed treatment for a condition aggravated by an industrial injury. The Department could deny surgery, injections, or physical therapy for the denied condition.
Do not let this happen to you. If you receive an order which denies a condition you and your doctor know was caused or aggravated by an industrial injury, please call us right away. Don’t lose important rights in your claim. We can help you protect your rights.
Marilyn McAdoo is the Administrator at The Walthew Law Firm and is a workers’ comp paralegal with more than 30 years experience.