Am I covered?
Washington Workers’ compensation coverage is extremely broad. The vast majority of non-feder
al employees working in Washington State are covered by Washington State workers compensation. There are few exclusions to Washington State’s mandatory workers’ compensation coverage including but not limited to: domestic servants (if the employer has less than two); gardening, maintenance or repair in a private home; sole proprietors or partners; jockeys; some corporat
e officers; some musicians and entertainers; newspaper deliverers; federal employees; maritime workers; and independent contractors. An employer may elect coverage for employees otherwise excluded from mandatory coverage. Federal employees are covered by Federal Workers Compensation. Maritime workers are typically covered by Long Shore Harbor Workers Act.
Whether a person is an independent contractor is a question of fact. In general, if the essence of the work is the individual’s physical labor, and the individual is not free from control or direction over the performance of his or her work, he/she is not an independent contractor. There are other factors to consider but control is the most important factor.
A covered worker is entitled to benefits when injured in the course of employment. This includes injuries during lunch while on the jobsite, going to and from work on the jobsite, as well as injuries off the jobsite if acting at the employer’s direction or in furtherance of the employer’s business. A worker is generally not entitled to benefits occurring while travelling to and from work, or injuries occurring in an employee parking lot.
What are the time limits for filing an industrial injury or an occupational disease claim?
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 was a cause of 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 current job or work you 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 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.
Should I report my injury to my employer?
Yes. As soon as you know you have been hurt on the job, report your injury to your immediate supervisor. Your employer may ask you to complete a form describing the injury and you should do that. Be as complete as possible on your employer’s form or the Report of Accident in describing how the injury happened. List your witnesses to the injury if there were any.
What if I don’t think I hurt myself too bad?
Sometimes it takes several days for an injury to really start hurting. That’s why it’s in your best interest to report your injury to your employer right away, even if you don’t think your injury is that serious. For example, a herniated disc in your back can take a week or more to really impact your ability to function. You may initially feel a twinge in your back, but that twinge can turn into a painful back, limping, and numbness into your leg within a week or two. The longer you take to report an injury, the more likely your employer and the Department of Labor & Industries will question how the injury happened.
Do I list all of my injuries on the original Accident Report or just the major ones?
Be as complete as possible on the Report of Accident and list exactly how the injury occurred, the time and location of the injury, and all of your body parts injured. It’s harder later to prove your injury if you fail to list all injured body parts on the original Accident Report. Let’s say you fractured your elbow. Naturally, you focus on that immediate pain and report that to your doctor. After the initial shock of the injury wears off and your arm starts to feel better, you realize you have a lot of pain in your neck. Tell your doctor as soon as possible about that pain. Explain how the original injury happened and how your injured your neck. No matter what, as soon as you know the injury involved your neck or your shoulder or your leg, report it to your doctor and to your claims manager.
When should I see my doctor after an injury?
You should see your doctor as soon as possible after the injury. You will fill out the Report of Accident at your doctor’s office if your employer is a state-fund employer. That Report of Accident has a portion for you to describe the injury and the bottom part is where your doctor completes his/her portion. That is mailed to the Department of Labor & Industries or the form can be completed online at http://www.lni.wa.gov/ORLI/ECS/default.asp?Pub=Worker.
For a self-insured employer (large employers like Boeing or hospital or school districts), you must receive the Report of Accident (SIF-2) from your employer. At your doctor’s office, however, fill out the Physician’s Initial Report (PIR) which your doctor will then complete and mail to your employer. You can find a list of self-insured employers at http://www.lni.wa.gov/ClaimsIns/Insurance/SelfInsure/EmpList/FindEmps/Default.asp.
Who can treat me for my injuries?
Under the Washington State Workers’ Compensation laws, an injured worker has the right to choose his or her own doctor (Provider) for treatment. Only doctors who practice “Medicine and surgery; osteopathic medicine and surgery; chiropractic; naturopathic physician; podiatry; dentistry; optometry, and advanced registered nurse practitioner” can act as the attending provider (AP) on a claim. They can sign original Accident Report forms and certify time loss compensation. (WAC 296-20-01002) For ongoing treatment, he or she must be a part of the Provider Network. If the AP is not part of that Network, they cannot treat an injured worker.
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.
What if I think my injury is very minor?
Sometimes it takes several days for an injury to really start hurting. That’s why it’s in your best interest to report your injury to your employer right away, even if you don’t think your injury is that serious. For example, a herniated disc in your back can take a week or more to really impact your ability to function. You may initially feel a twinge in your back, but that twinge can turn into a painful back, limping, and numbness into your leg within a week or two. The longer you take to report an injury, the more likely your employer and the Department of Labor & Industries will question how the injury happened.
What if my industrial injury worsens a physical condition I already had?
The Washington courts have said 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 painful 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 medical opinion that the prior back condition worsened as a result of the injury.
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 first four days following your injury are only paid if you are unable to work for at least 14 days after the date of the industrial injury. Your attending provider must certify your inability to work.
How often will I get my time loss check when I’m off work?
Time loss “shall continue at regular semimonthly intervals” per RCW 51.32.210. This assumes your inability to work is certified by your attending provider. To trigger payments, advise the Department or self-insured employer that you remain off of work. For the Department, send in Work Status Form regularly. You can complete them online as well. http://www.lni.wa.gov/FormPub/Detail.asp?DocID=1580. Your doctor should complete an Activity Prescription Form and send it to the Department when requested by your claims manager. http://www.lni.wa.gov/FormPub/Detail.asp?DocID=2286. Without those forms, payment of your time loss compensation can be delayed.
My employer wants to pay my regular wages even though I’m not back to work. Is that okay?
Yes. This is called “Kept on Salary.” Your employer can pay you all of your regular wages (including wages from a second job if you had one at the time of injury, overtime, shift differentials, and bonuses) you earned as of the date of injury instead of time loss compensation. You must be paid on your usual pay day. If your employer wants you to take your sick or vacation pay, however, you are entitled to receive time loss compensation as well as your sick and vacation pay.
How is my time loss compensation calculated?
Your monthly wages, marital status, and number of children you had 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 worked on a regular basis. For part-time, seasonal, or intermittent workers, the Department averages wages from all employment, using the12 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, an additional 2% up to the maximum 70% of monthly wage for a single worker with children and 75% of monthly wage for a married worker with children.
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.
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, 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.
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. Your questions can be answered during the initial consultation. The attorney can recommend strategies for pursuing benefits short of an appeal to the Board of Industrial Insurance Appeals. An 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.
Most people will typically not need an attorney. However, when the Department of Labor & Industries or self-insured employer denies benefits, talk to an attorney.
The Workers’ Comp laws are complex and ever changing. Protect yourself. Get your questions answered before taking action which could jeopardize your benefits.
Article by Michael J. Costello