Category Archives: Case Study

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The Long, Hard Road: Litigation in Washington Workers’ Comp

Brian Wright, CLF’s Legal Intern

“How Can it Take that Long…?”

The Claimant’s name has been changed to insure confidentiality.

Our clients who are embroiled in litigation in their seemingly straightforward workers’ comp cases are often shocked when we tell them how long it may likely take to get a final decision.  We recently prevailed in a case that serves as an exemplar of what the litigation process can involve.
David performed maintenance and repair for about five years on large construction equipment, requiring heavy lifting, carrying, torqueing, and other strength maneuvers in awkward positions, all affecting a shoulder condition that had its origins 30 years before in a diving injury followed by an injury on the job to the same shoulder that required surgery.  He had worked at vigorous labor for the ensuing 25 years with no limitations until his work for the last company aggravated his shoulder, disabling him from work and leading to a partial shoulder replacement surgery.
Here’s how the claim went:  David filed to reopen his 30-year old injury claim, but the Dept. of Labor & Industries (L&I) denied the reopening because of information about the recent work activity.  He then filed a claim based on injury from his last repair/maintenance work, and the claim was allowed as an “injury.”  The employer protested the allowance, and L&I took it back for further review.  It was then allowed as an “occupational condition or disease” based on the aggravating effect of the cumulative trauma on David’s pre-existing but non-disabling shoulder condition.  The employer then appealed that order to the Board of Industrial Insurance Appeals (BIIA) – our workers’ compensation “trial court” – and months later full hearings were conducted with live testimony from David and depositions of four medical witnesses.
Months after that, the BIIA judge who heard the evidence issued a decision fully favorable to David, and upholding the L&I allowance order.  The employer then requested reconsideration of the judge’s decision.  That was denied, and the employer then filed an appeal to superior court requesting a jury trial.  Many months later, the case was tried to a jury and the jury upheld the BIIA’s and L&I’s decisions.  At that point, the employer had been given five shots at overturning the allowance of David’s claim.

How long did all this take in a case with a seemingly straightforward medical issue? 

December, 2009 to July, 2012 – over 2 ½ years!

An interesting side-note to this case:  Our Rule 9 intern, Brian Wright, recently graduated from Seattle University School of Law and preparing to take the bar examination later this month, assisted me in trying the case in superior court.  I turned over closing argument to the jury to Brian, and he did a great job, beating a seasoned defense lawyer I’ve been litigating against for 20 years or so.  At Causey Law Firm we’re wagering that Brian is the only Rule 9 intern in the state to prevail over an experienced lawyer in a superior court jury trial this year!

stopwatch

Why Wait? A Case Study…

Don't Wait To Seek CounselI reviewed a workers’ compensation claim for a potential client nine months ago.  At the time, I told him of several items that I saw as upcoming issues in his case and shared my opinion about why it would be important for us to start clearing those issues off the deck sooner rather than later.  Would he be found employable with no services or would he receive just a bit of training to allow him to continue working in his field as a welder but in a lighter-duty capacity?  Would the onset of depression be addressed under the claim and taken into consideration when making employability decisions?  Would his level of permanent impairment be under-rated through the typical Independent Medical Evaluation (IME) process or would his surgeon be willing to provide a rating that more accurately reflects his limitations?  I shared my concerns about his case, explained the process I would recommend for addressing these concerns and discussed the fees and costs to be expected.  He indicated he wanted to go forward with representation.

I did not hear from him again, until yesterday.  He left me a message asking for help with his claim.  I looked at the case this morning before returning his call.  He has been found to be employable with no additional retraining, so he will likely not be able to continue with his favored career but, instead, can look forward to his new line of work as a small parts assembler.  He underwent an IME that conservatively rated his level of permanent impairment and approved the job analysis for small parts assembly.  His attending physician signed the form letter to indicate concurrence with the IME results and, on this basis, the Claims Manager has found him employable and is closing the claim.  What about the depression?  Not addressed by the IME, so the Claims Manager is construing the attending physician’s signature on the concurrence form letter to mean that he is also not contending that depression is an issue, so she is denying this condition under the claim.

I know there are two sides to every argument, and I know that an employer representative would look at this same fact pattern and see a job well done, but I am a claimant’s advocate, so I share my thoughts from only that perspective.  I see a situation where I now have a 15-day deadline for filing a dispute with the Vocational Dispute Resolution Office if I want to argue that Continue reading