Workers Compensation

You have just been injured on the job. Now what happens? How will your medical bills get paid? What benefits are you entitled to, and what happens if the Department of Labor and Industries or your employer refuses to pay your bills or compensation while you are off work?

These questions and more can seem bewildering to the injured worker. Below is a general overview of the process, what you can expect, and different forms of benefits potentially available to you:

1. Report the injury to your employer

   An injury may result from a sudden mishap at work. Or, you may have a medical condition that results from prolonged exposures or repetitive type work injuries, such as cumulative trauma conditions, like carpal tunnel syndrome. These are commonly referred to as occupational diseases. Once an injury or occupational disease is diagnosed, you should notify your employer immediately and fill out a claim form forindustrial insurance or worker's compensation benefits.

2. File a claim for benefits

   The Application for Benefits is the form used to file claims with the Department of Labor and Industries. Some employers are self insured, and they use a form known as Self Insurer Accident Report. For claims involving traumatic injury, the application must be filed within a period of one year after the day upon which the injury took place. For occupational disease claims, the claim must be filed within two years from the date the disease reaches a stage of development for which it is compensable in some way. The two year time period does not begin to run until the worker has certain notice that the disease or condition is occupational in its nature and causation. Injured workers should consult with an attorney who does these types of cases for a clear understanding of what the worker's rights are.

3. Duty of the injured worker to cooperate

   During the pendency of the claim, the Department of Labor and Industries or Self Insured Employer may compel the injured worker to attend medical examinations commissioned by the Department or the employer to help decide medical issues. Or, the injured worker may be asked to participate in vocational rehabilitation efforts to return the injured worker to gainful employment. The injured worker has a duty to reasonably cooperate with the Department and Self Insured Employers during the claims administration process. If the injured worker is found, however, to not be cooperating, the claim may be suspended until such time as the injured worker cooperates.

4. Compensation
   • Temporary Total Disability

     Temporary Total Disability

     is commonly known as time loss compensation. This benefit is designed to remedy the economic loss of the injured worker when the worker is incapable of returning to gainful employment. As the name implies, the benefit is temporary because the injured worker is expected to recover from his/her injuries.

     Time loss benefits are calculated using a percentage of the injured workers gross wages on the date of the injury, or, in the case of occupational disease claims, when the condition becomes "manifest." Thatpercentage is 60%, plus an additional 5% if married, and 2% for dependents, up to a maximum of 75% of gross wages. There are, in addition, state mandated minimum and maximum time loss rates.

     A Supreme Court decision in Washington held that the value of employer-provided health benefits is another type of compensation that must be included in the calculation of gross wages, except that if the employer continues to pay the health care benefit while the injured worker is off work the contribution will not be included. Other types of compensation to be considered in calculating gross wages includes things like tips and gratuities, bonuses, travel pay, etc.

   • Loss of Earning Power Benefits

     Loss of Earning Power Benefits

     Loss of Earning Power Benefits (LEP) should be thought of as Temporary Partial Disability. LEP is paid where an injured worker is working, or is capable of working, but at earnings that are at least 5% lower than his pre-injury earning capacity. LEP benefits should be considered where the injured worker returns to work on a part time basis where full time employment was previously maintained, or where the injured worker has to return to work at a lighter or less vigorous nature.

     LEP benefits require some type of certification by a medical doctor, or vocational rehabilitation counselor, in some instances. LEP benefits are also only available while the claim is open and the claimant's condition is deemed to have not reached "legal fixity" under current decisions of the Board of Industrial Insurance Appeals. Using a formula, the injured worker's post injury earning capacity is compared to his/her pre injury earning capacity to calculate the LEP benefits due the injured worker.

5. Employer Retaliation

   The injured worker has the right to file a claim for industrial insurance benefits, and his/her employer is prohibited from retaliating against the employee who files and pursues a claim for benefits. Examples of retaliation may include harassment, suspension, demotion, reduction in pay status, discharge, or other adverse job action. If this happens the worker should notify the Department of Labor and Industries and/or contact an attorney, at once.

6. Protests and Appeals

   If the Department of Labor and Industries on its own, or at the request of a Self Insured Employer, issues a decision concerning some aspect of the claim for benefits that the injured worker disagrees with, the injured worker may file a protest back to the Department of Labor and Industries, requesting reconsideration of the Department's action, or they may file an appeal to the Board of Industrial Insurance Appeals (the Board). The Board is a separate state agency, independent of the Department of Labor and Industries, whose sole purpose is to hear appeals from Orders of the Department.

   Protests and Appeals have strict time limitations that the injured worker must be aware of. If the protest or appeal is not filed within the prescribed time limits, the injured worker may be prohibited from further contesting the Department action.

   Appeals to the Board require the parties to participate in hearings where witnesses, including medical experts, are called to testify. It is always advisable for the injured worker to have retained an attorney for any proceedings at the Board level or higher. Litigants, unsuccessful at the Board level may file further appeals to the Superior Court, and beyond, and may request a jury in Superior Court.

   Any protest or appeal involves discerning whether or not an injured worker is receiving all of the benefits to which he or she is entitled, and, thus, it is always advisable to seek the advice of legal counsel well versed in worker's compensation law.

7. Other Forms of Compensation
   • Permanent Partial Disability

     Permanent Partial Disability

     Once the injured worker's condition has reached maximum medical improvement, and the claimant is deemed able to return to some form of gainful employment, the injured worker may be entitled to receive an award that compensates him/her for any physical or mental impairment that he/she may have. Permanent partial disability is evaluated using criteria established by the Department of Labor and Industries which includes, depending upon the area being assessed, the use of a unique "category" system or the AMA Guides to the Evaluation of Permanent Impairment. Injured workers who disagree with the impairment award, if any, may file protests and appeals to the determinations of the Department.

   • Permanent Total Disability

     Permanent Total Disability

     Persons who have reached maximum medical improvement, but are not able to return to work considering the physical and psychological limitations caused by the industrial conditions, together with preexisting conditions, including lack of transferable skills and inability to retrain or learn new skills, are deemed permanently and totally disabled and can be placed upon pensions.

8. Relation of worker's compensation to other disability/retirement benefits

   Certain kinds of public disability benefits, depending upon the nature of the benefit, may or may not be subject to offset with worker's compensation benefits such as time loss or pensions. Individuals who receive worker's compensation and Social Security Disability, for instance, are subject to an offset of benefits, depending upon a number of factors. The social security offset is made that much more complicated because Washington state is a "reverse offset" state which can make Social Security pay its full benefit, first, and the worker's compensation benefits will make up the difference.

   The injured worker has a duty to inform the Social Security Administration if he or she is concurrently receiving worker's compensation benefits.

   This area of the law is sufficiently complex that consultation with an attorney is recommended.

Note: The above information is intended as an overview and not a comprehensive discussion of worker's compensation law. Please contact Robert Merriman at 509-783-7326 to discuss the specifics of your case.