Remote Workplace Injuries – Are You Covered?

Are remote workplace injuries a covered event? Maybe, yes.

Now that we’re in a pandemic, it is possible for workers to be injured while not in the office or on the job site. Because many employees are working from home, it is possible that an injury at home might be a covered event.

Course of Employment

The Board of Industrial Insurance Appeals is an administrative law court that oversees, among other things, appeals in workers’ compensation cases. The Board publishes significant decisions made on a variety of topics, including course of employment questions. The sheer number of significant decisions on this topic demonstrates that the answer to most questions of “Am I Covered?” is “maybe.”

Generally, a worker who is injured while in the course of employment is able to file a workers’ compensation claim. In most cases, an injury occurs on the employer’s premises, but not always. For instance, an employee driving a car while furthering the employer’s business – say, a plumber driving a truck to a site where work will be performed, bringing tools and equipment required for the job – is likely a covered employee.

In the case of employees working from home due to protective steps taken in response to the pandemic, coverage may extend to the employee’s home. As an example, if you are working from home and, as part of your usual work duties, you have to lift a box of necessary tools up to your work surface and, while doing so, you injure your shoulder, you may have a covered injury event. Remote workplace injuries may be covered events, if the criteria for claim allowance are met.

Filing a Claim for an Injury

For those that have suffered an injury, whether on the employer’s premises or at home, a claim may be filed with the Department of Labor and Industries. A claim can be filed:

  • Online via DLI’s FileFast tool.
  • By phone: 1-877-561-3453 (FILE).
  • At your doctor’s office (if you complete the Report of Accident at your doctor’s office, the doctor files the form for you).

You can watch a DLI video that generally describes the process for filing a claim if you need more information about the steps to be taken.

More Information or Assistance

If you have questions about workers’ compensation, or if you already filed a claim and your claim was denied, please feel free to contact our firm. We offer a free case analysis, and would be happy to discuss your specific circumstances with you.

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Wildfire Smoke Worker-Safety Rules

Washington State is among the first to begin developing wildfire smoke worker-safety rules.

Wildfire Smoke Exposure is a Problem for Workers

The number of acres burned by wildfires in our state each year is increasing. Smoke from the Western wildfires last month left Washington with some of the worst air quality in the world at times, according to the Environmental Protection Agency.

For outdoor workers in construction, agriculture, and other jobs, being exposed to the bad air and the health risks that came with it was especially concerning as they reported to work each day.

What’s Being Done

To help these and other workers, the Department of Labor & Industries (L&I) is developing new workplace safety and health rules regarding wildfire smoke. This week, L&I filed the official notification, known as a CR-101, the first step in the rulemaking process.

“It’s clear that wildfire smoke isn’t a short-term issue. It impacts all of us, but is especially concerning for workers who have to be outside and breathe it in all day long,” said Craig Blackwood, deputy assistant director, Division of Occupational Safety and Health.

“By developing clear rules that spell out the safety and health requirements related to protective equipment and training, we can help businesses protect workers from these serious hazards,” said Blackwood.

Smoke from wildfires contains chemicals, gases and fine particles that can harm health. The health hazards continue even after fires are extinguished and cleanup work begins.

Some of the issues expected to be addressed in the new wildfire smoke worker-safety rules include:

  • identification of harmful exposures;
  • training and instruction; and
  • control of harmful exposures.

Washington is just the second state to formally undertake rulemaking regarding workers and wildfire smoke. California was the first, adopting wildfire smoke worker-safety rules in 2019.

You can Provide Input to the Process

L&I plans to hold meetings in the next few months to begin gathering information from stakeholders to help create an initial draft wildfire smoke rule. Like all rulemaking processes, once there is an official draft rule, there will also be opportunities for public input.

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Washington COVID-19 Immigrant Relief Fund

The Washington COVID-19 Immigrant Relief Fund was set up to support undocumented immigrants. All of us are being impacted by COVID-19, but many people in Washington aren’t eligible for federal stimulus funds or unemployment insurance because of immigration status. Now, they can apply for a one-time direct payment of $1,000, up to $3,000 per household.

In Washington State, immigrants have always been neighbors and essential workers. They help keep the economy strong, contribute to our communities, and care for our families.

During the COVID-19 pandemic, immigrant families have been at the highest risk for getting the virus, losing work, or needing to support family members in new ways. The federal government intentionally left millions of people out of much-needed financial support, based on immigration status.

All of us who call Washington home deserve support to make it through this time. That’s why immigrant-led organizations partnered with the Governor’s office to establish the Washington COVID-19 Immigrant Relief Fund. This year, they will distribute $40 million in CARES Act funds allocated to Washington to support immigrants in Washington who are ineligible for other federal funds or unemployment insurance due to their immigration status.

Who Can Apply, and How

People in need of this assistance can apply to receive a $1,000 one-time direct payment (up to $3,000 per household). Your information will never be voluntarily shared with the government or ICE, and the public charge rule should not apply for this fund. You can get help with your application in multiple languages.

Apply for the Washington COVID-19 Immigrant Relief Fund

To apply for the relief fund, you must:

  • Be a Washington resident
  • Be at least 18 years old
  • Have been been significantly affected by the pandemic (such as losing work, being infected by the virus, or caring for a family member who was infected)
  • Not be eligible to receive federal stimulus funds or unemployment insurance because of immigration status

The last day to apply is December 6th.

Applications will be accepted on a first come, first served basis since the total fund is limited. Applications will be prioritized by those in greatest need.

Please share this information broadly. Together, we can be neighbors taking care of neighbors.

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Truckers Need Face Masks, Too

Truckers need face masks. They travel alone a lot, isolated in truck cabs, often with little direct contact with other people. While this may lower their risk of catching or spreading COVID-19, they must still protect themselves and others when making even brief stops along their route.

There is no assurance that a person who talks, coughs or sneezes – or even breathes heavily – as they walk by is not infected. Many people don’t realize they are infected, because they may be infectious BEFORE they feel any symptoms.

Drivers may feel a false sense of security at familiar customer sites, truck stops or other public places. This is especially true if they don’t expect lengthy social interactions. Wearing a face mask helps keep drivers and others safe, along with social distancing and other prevention measures.

High-Risk Truckers Need Face Masks Even More

Long-haul truckers may make repeat trips to hotspot areas of the country. Traveling from one hotspot region to another, and another, puts them at increased risk for exposure to the coronavirus.

Some drivers serve clients who are operating high-risk worksites, such as meatpacking plants. Often, drivers need to wait while a trailer is loaded. At a minimum, there is interaction required to handle the paperwork when picking up or dropping off a load.

All drivers need to interact people along their journey. Truck stops often have drive-through fast-food options that allow truckers to avoid indoor dining. Some we have spoken with report that these fast-food lanes are now more crowded than usual, as the general public utilizes them to also avoid inside dining. Truckers need to keep up the pace to finish their runs on time, so may opt to go into a store or fast-food restaurant to get food rather than use the drive-throughs, increasing their risk of exposure.

Using a mask, practicing social distancing and following hand washing protocols are the best tools available to keep drivers, and their families, safe. Truckers need face masks, too.

More Information For Truckers About Face Masks

As part of the Keep Trucking Safe program, a Tip Sheet is available with information about the use of face masks for truckers. You can download the Tip Sheet here.

The Tip Sheet covers selecting the right mask, how properly use and care for the mask, and has a link for more information if use of a respirator is needed.

The Keep Trucking Safe program is run by the Trucking Injury Reduction Emphasis (TIRES), a project of the Safety & Health Assessment & Research for Prevention (SHARP) program of the Washington State Department of Labor and Industries.

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National Average Weekly Wage Increase

The new national average weekly wage increase, or NAWW, means an increase in maximum and minimum compensation rates for Longshore claims, as described below, effective October 1st.

Industry Notice 182 – National Average Weekly Wage (NAWW), Maximum and Minimum Compensation Rates, and Annual Adjustments Under Section 10(f), Effective October 1, 2020

Based on data compiled and published by the Bureau of Labor Statistics (BLS), the United States Department of Labor has made a final determination of the national average weekly wage, for the period commencing October 1, 2020.  Determinations have also been made for the maximum and minimum compensation rates and the percentage increase from the current national average weekly wage.

The following determinations are for the period October 1, 2020 through September 30, 2021:

  • National Average Weekly Wag                $816.35
  • Maximum Compensation                            $1,632.70
  • Minimum Compensation                             $408.18
  • Percentage Increase                                      4.65%

Industry Notice 182, which is available here on the OWCP, Division of Federal Employees’, Longshore and Harbor Workers’ Compensation website, outlines the annual 10(f)  adjustments in detail.

Longshore Industry Notices are documents issued typically to Longshore’s business partners and/or clients and provide guidance, instruction, and/or information relevant to the application of the Longshore and Harbor Workers’ Compensation Act (LHWCA).

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Proposal for Steady Workers’ Comp Rates for 2021

The Washington State Department of Labor & Industries (DLI) is making a proposal for steady workers’ comp rates for 2021. It is proposing no increase in the average cost for workers’ compensation insurance next year. If the proposal is adopted, this will be the first time in 20 years that workers’ compensation rates have dropped or stayed steady for four years in a row.

“Our 2021 rate proposal recognizes the toll the pandemic is taking on employers and workers in our state,” DLI Director Joel Sacks said. “Although our projected workers’ compensation costs are going up, we’re keeping premiums the same by taking advantage of the reserves we’ve built over the years by improving services and reducing disability.”

Employers and workers pay into the workers’ compensation system to help cover the cost of providing wage and disability benefits for injured workers, as well as medical treatment of injuries and illnesses.

On September 22, DLI began the process of taking public comment on the rate proposal. Hearings will be held in October via Zoom, as well, details below.

Keeping rates steady and predictable

If the proposal for steady workers’ comp rates is adopted, this will be the fourth year in a row with no increase in the average rate.

While financial projections point to the need for a significant increase to cover all of the costs for injuries and illnesses that occur in 2021, the agency is proposing using funds from the workers’ compensations contingency reserve to keep the rate from climbing.

DLI has focused on preparing for a downturn in the economy by building workers’ compensation reserve funds and keeping rates steady and predictable, in part through improvements and reforms. These include implementing vocational recovery services to support return to work for injured workers and employers, and using best practices in occupational health and vocational services.

One effort that’s helped thousands of injured workers and employers is the Stay at Work program. Through the program, employers receive financial support from DLI so they can offer light-duty jobs to injured workers, which allows them to remain in the workforce while they recover.

“We all know how tough it is right now. It’s exactly why we have a reserve— so we are ready for an economic downturn,” said Sacks. “We hope that keeping the average rate the same next year will help our communities get through this and come out the other side strong.”

Washington charges for workers compensation coverage based on hours worked. When looking at rates as a percentage of payroll, rates in Washington have gone down each of the last 10 years.

Along with no proposed increase, DLI has been taking steps to help businesses struggling to pay workers’ compensation premiums. In April, the agency announced it was offering a grace period for premium payments, along with payment plans for employers facing financial difficulties during the pandemic. That program was extended in July and has helped thousands of businesses.

Employers and workers would pay the same on average under 2021 proposal

With the proposed overall rate change of zero percent, the average premium per employee is not expected to change overall. However, there will be changes by class and employer.

Workers will pay on average about a quarter of the premium, a similar percentage to that paid in 2020.

Public hearings planned

To support social distancing, public hearings on the rate proposal will be held virtually this year. Two hearings are scheduled to take input about the rate proposal before a final decision is made. Final rates will be adopted by November 30 and go into effect January 1, 2021.

Public hearings are scheduled for 10 a.m. on October 27 and 29. These hearings are being held via ZOOM and by phone to comply with Gov. Jay Inslee’s COVID-19 restrictions limiting the number of people attending in-person public gatherings.

2021 rate hearings
  • October 27, 2020 at 10 a.m.
    Joining by computer:
    Join Zoom Meeting at  https://zoom.us/j/99395316830
    Meeting ID: 993 9531 6830
    Passcode: Oct2720!
    Joining by phone:  253-215-8782 US (Tacoma)
    Meeting ID: 993 9531 6830
    Passcode: 35862365
  • October 29, 2020 at 10 a.m.
    Joining by computer:
    Join Zoom Meeting at  https://zoom.us/j/97637403577
    Meeting ID: 976 3740 3577
    Passcode: 4n*z2LvM
    Joining by phone:  253-215-8782 US (Tacoma)
    Meeting ID: 976 3740 3577
    Passcode: 44645997

People are encouraged to submit comments in writing to:

    Jo Anne Attwood
    Administrative Regulations Analyst
    Department of Labor & Industries
    PO Box 41448
    Olympia, WA  98504-4148
    Or email JoAnne.Attwood@Lni.wa.gov.

All comments must be received by 5 p.m. on October 30.

More information about the proposal is available at www.Lni.wa.gov/2021Rates.

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BIIA Proceedings by Video/Phone Through January 2021

Proceedings by Video/Phone will be how Board of Industrial Insurance Appeals cases will be heard, through at least January 2021. Since we last wrote about this – APPEAL PROCEEDINGS WILL BE BY REMOTE ACCESS THROUGH JULY – additional options have been put in place, including Zoom proceedings.

Opening of BIIA Offices and Live Proceedings on Hold

When and how the BIIA will open their offices depends on the COVID-19 situation and guidance from Governor Inslee’s office.  On July 24, 2020, the Governor extended the Safe Start proclamation, and BIIA offices remain closed to the public at this time.

The BIIA will continue with only telephone/video proceedings through the end of January 2021.  Contact your assigned judge about using CourtCall or Zoom for video proceedings, or if you have questions about how to proceed.

More Information and Assistance

More information about the process for proceedings by video/phone can be found on the Board’s website. There is updated information for the use of Zoom for proceedings on a variety of devices, with step-by-step instructions and helpful screenshots:

If you have an appeal pending, you may also contact the judge assigned to your case, or their assistant, if you more information.

We often suggest that claimants have legal representation when their case is on appeal. This may be especially true when appeal proceedings will be remote access. Feel free to contact our firm for assistance with your case. We offer a free analysis of your case and will give you our opinion on whether you need legal assistance, or not, and how we recommend you proceed.

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Hazard Alert on Hospital Worker Safety

A COVID-19 Hazard Alert on hospital worker safety has been issued by the Washington State Departments of Labor & Industries (DLI) and Health (DOH).

Concern over COVID-19 cases in hospital workers has prompted DLI and DOH to clarify and update hospital guidance to prevent the spread of the virus to staff and patients.

The Hazard Alert on hospital worker safety was issued on September 17, 2020. It highlights key worker safety and health requirements and guidance on employee training, proper use of respirators and Personal Protective Equipment (PPE), social distancing, disinfecting procedures, and the importance of a comprehensive infection control program. The alert aligns hospital requirements with the most current information about transmitting the virus.

“Health care workers are on the front lines of the pandemic caring for others. This Hazard Alert spells out what hospitals must do to take care of all of their workers to prevent them from getting infected on the job,” said Anne Soiza, DLI assistant director for the Division of Occupational Safety and Health (DOSH).

“Employee safety and patient safety are equally important,” Soiza added.

Details of the Hazard Alert on Hospital Worker Safety

The alert covers several key areas including training on COVID-19 procedures and infection control. Among the requirements, hospitals must:

  • Replace disposable respirators and procedural masks daily at the beginning of each shift and immediately upon employee request when soiled or damaged during the shift. Multiple shift use of disposable respirators/masks is not allowed.
  • Train and ensure sick employees do not report to work and immediately leave work when they become symptomatic.
  • Ensure facilities are adequately staffed with qualified infection prevention staff and resources.
  • Provide adequate space and procedures for employees to physically distance at a minimum of six feet in break rooms, nurse stations, cafeteria and other spaces where they congregate.
  • Maintain hospital-wide policies and procedures consistent with state and national guidelines as they evolve for COVID-19.

DLI is working closely with the DOH on this issue. DOH supports local health agencies as they respond to COVID-19 cases and outbreaks, including those at hospitals, and conducts oversight of hospitals under state licensing laws.

DOH is coordinating with local health agencies and the Washington State Hospital Association on opportunities to provide hospitals with the education and support necessary to keep health care employees and patients safe from COVID-19 and other infections.

Guidance for Specific Industries

Along with the guidance for health care and long-term care workers, guidance for other industries is available on the DLI DOSH coronavirus webpage.

The state coronavirus webpage has links to important information and guidance related to the pandemic from numerous state agencies.

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Chilos Builders Fined Over $230,000

Chilos Builders, an Everett company, was fined over $230,000 for safety violations. The Washington State Department of Labor & Industries (DLI) cited the company for eight safety violations, including exposing employees to fall hazards while working two and three stories above ground. The company has a history of safety violations.

“We’ve cited this company for numerous safety violations the past few years, and we’ve told them many times how to protect their workers from falling from elevations,” said Anne Soiza, DLI assistant director for the Division of Occupational Safety and Health (DOSH). “These safety rules are in place to protect workers, and this employer is blatantly ignoring them while other employers protect their workers from harm.”

As a result of these recent violations, DLI has designated the framing contractor a severe violator. That means inspectors will continue to inspect the company’s work sites until the unsafe conditions no longer exist.

It appears from Washington State data that the corporation has been dissolved and the business closed.

Apart from these current citations, DLI has inspected Chilos Builders under its current name and a previous name, Solorio’s Framing, five times since 2016. Each of those prior inspections resulted in DLI citing the company for safety issues including fall violations. Chilos Builders has appealed the citations from one of the inspections in 2018.

In a separate action, DLI suspended the company’s contractor registration in April for failing to have liability insurance. The registration remains suspended.

The United States Department of Labor Occupational Safety and Health Administration (OSHA) has an open inspection report with over $137,000 in safety violation fines pending, as well.

History of Workers Injured in Falls

Chilos Builders, owned by Ana Iglesias and managed by Cecilio Solorio, has reported 30 worker injuries under the two companies since 2016. The injuries include three caused by workers falling from heights of 8 to 15 feet.

Details of the Current Citations

DLI issued the recent citations for violations at job sites in the Georgetown and Ballard neighborhoods in Seattle. The fines were imposed after inspections at two Seattle construction job sites found numerous problems that placed workers at significant risk.

Georgetown: Refused to Follow Safety Rules

The most recent safety violations occurred in April when the company was helping build new apartments in Georgetown. Inspectors found inadequate safety rails on the roof, where six of the company’s framers were working just over 28 feet above ground.

In addition, there were four unguarded wall openings 9.5 feet above ground and no handrails on stairways leading to the second floor.

The Georgetown violations resulted in three citations totaling $126,000 in fines. The citations were designated “willful,” meaning the employer knew or should have known the rules, but refused to follow them.

The company corrected the safety hazards the day after inspectors first arrived.

Ballard: Fall Protection Lacking on Second and Third Floors

Two months earlier, in February, inspectors found five safety violations when the company was working in Ballard on another multi-unit residential project.

Two of the citations were considered willful, including one for failing to install fall protection on window and door openings on the three-story building. Inspectors saw at least two workers on the second floor and one worker on the third floor exposed to the potential fall hazards.

The company, which said it had 66 workers, was also cited for failing to train at least three employees on how to prevent fall hazards, failing to document weekly safety inspections and weekly safety meetings, and failing to ensure crew leaders and supervisors held valid first-aid certificates.

The Ballard site citations resulted in a total of $108,360 in fines.

Employers have 15 business days from the time they receive a citation to appeal. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

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Observer is Allowed at IMEs

The Department of Labor and Industries (DLI) recently issued a Statement of Policy advising that an observer is allowed at IMEs. Any injured worker is allowed to bring a friend of family member to an independent medical examination (IME), except in the case of a mental health examination.

IME Firms Were Limiting Observers

We have seen several IME firms include notice of “new rules” that “observers are not allowed due to COVID-19” in their pre-exam paperwork mailed to injured workers. In response to complaints about this practice, primarily from attorneys representing injured workers, DLI has now taken action by issuing the Statement of Policy confirming that an observer is allowed at IMEs. It is unknown how many workers have had exams without observers present in the last few months before this statement was issued.

Statement of Policy – the Full Text

Pursuant to WAC 296-23-362, workers have the right to bring a friend or family member to Independent Medical Exams (IMEs), except for mental health examinations, to serve in the role of observer providing comfort and reassurance. IME firms are expected to support any worker requests for an observer during a non-mental health IME. They must also refrain from any reference, in written or spoken communication with workers, to limitations on observers during IMEs. This worker right remains in effect, and it is up to the IME firm to ensure the ability to comply with the COVID-19 safety requirements for six feet of social distancing.

Firms should obtain information in advance of the IME on whether the worker plans to bring an observer and take steps to ensure the appropriate exam room size. In the event that the firm is unable to accommodate the worker’s IME with an observer, the IME will need to be rescheduled.

What This Means for Workers

The news is simple and straightforward: an observer is allowed at IMEs to support the worker. The implementation of this policy may be more complicated.

Many of the IME firm’s exam rooms are very small. It may be difficult for them to accommodate observers and follow social distancing rules. Some IME firms may try to pivot and, instead of allowing observers, insist on video exams (this is already happening with mental health evaluations). 

We recommend the following tips:

  • all workers have an observer with them during any non-mental health IME
  • make sure social distancing rules are followed
  • do not agree to video exams under nearly any circumstances
  • file a complaint if the doctor or IME firm is not following the policy
  • promptly contact a workers’ compensation attorney with any concerns about your claim or your IME
How Can an Observer Help?

An observer cannot be a legal representative or their staff nor a doctor or their staff. The primary purpose of an observer is to provide comfort and reassurance to the worker. However, an observer can corroborate the workers’ version of events that occurred during the examination process if there is later any discrepancy arising from the physician’s written report.

We suggest that an observer:

  • listen and observe the examination without distractions
  • refrain from asking questions of the physician
  • refrain from providing answers to physician questions of the worker
  • take notes with pen and paper (use of recording devices, including phones, are not usually allowed)
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Published by Causey Wright

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