All posts by Brian M. Wright

Exposure to the Coronavirus, development of COVID-19 and workers’ compensation can be connected. In some cases, workers with COVID-19 may be able to file a workers’ compensation claim in Washington State. Allowance of a claim is possible as an occupational disease according to the Department of Labor and Industries, which generally means that there must be something “distinctive” about the type of employment in which the individual is exposed to the virus (as opposed to simply a coincidental exposure).

COVID-19 Pandemic is Ongoing in Washington State

The Coronavirus is highly contagious and easily transmissible. It is now present throughout the country, with some areas more saturated than others. Although the overall case numbers in Washington State are better than many other states, we have not yet bent the curve to bring case numbers down to baseline. Instead, most areas are holding steady in the mid-range of our case numbers. Some areas, such as Yakima County, remain hotspots.

Governor Inslee recently visited Yakima County to address the county’s high rate of infection. The rate of transmission reflects the number of people each infected person would be expected to transmit the virus to, with a rate of 1 or fewer allowing for a decline in cases or over 1 an expansion of cases.

The Yakima Health District said that Yakima County’s transmission rate was 2 to 2.5 while Western Washington’s rate is under 1, according to reporting by the Yakima Herald. The rate of COVID-19 spread in Yakima County is 27 times that of King County, the state’s largest county, per the Governor’s press release about his visit.

Yakima County Encourages Taking Precautions to Reduce the Spread of the Coronavirus.

Governor Inslee recently announced that he intended to make mask-wearing mandatory in Yakima County to help curb the spread of COVID-19. No word yet as to how Yakima County’s “constitutional sheriff” Robert Udell will enforce a mask-wearing order, which he has previously suggested would violate some inchoate constitutional provision.

In King County, where our firm is located, we have only just entered Phase Two of reopening. Our case numbers have ticked back up a bit in recent days. Steps are being taken here to reinforce the message that precautions still need to be taken as more businesses reopen.

Occupational Disease Claims Explained

An occupational disease claim covers workers who develop a health condition due to exposure to substances, diseases, or injurious conditions on the job. An occupational disease claim can cover a variety of conditions that result from repetitive micro-traumas, such as physical injuries due to overuse, exposures to infectious agents, or exposures to toxic substances.

In order for such a claim to be allowed, the Department of Labor and Industries needs to find that the claimed medical condition resulted from exposure on the job, on a more-probable-than-not basis. In addition, that exposure must be due to “distinctive conditions” of employment. This does not necessarily mean that there is a higher prevalence of an injury or medical condition arising from your type of employment than there is in the general labor market overall, just that some distinctive aspect of your job led to the exposure/overexertion.

As an example, nurses and other medical professionals are exposed to various diseases and infections on a daily basis, in spite of the numerous precautions against infection taken by hospitals and doctors’ offices to prevent the spread of disease. Conversely, many people in all walks of life may be exposed to individuals with transmissible diseases or infections, but in the case of the medical professional, their job distinctly places them in the path of infection as compared to the general public or all employments generally.

Coronavirus, COVID-19 and Workers’ Compensation Claims

Workers with significant exposures on-the-job, or with specific conditions of their employment exposing them to the virus, could file a claim and potentially receive benefits. With exposure to the Coronavirus rather commonplace within our communities, the connection between work exposure and development of COVID-19 must be direct and clear in order for a claim to be allowed. In the case of the Coronavirus, while you do not necessarily need to identify the specific patient or person to whom you were exposed, the ability to show that your job involved exposure to known cases of the virus would probably be required.

Washington State has issued guidance for the Department of Labor and Industries (DLI) that there should be a presumption that the onset of COVID-19 is related to work exposures for some frontline workers, including healthcare workers and medical professionals. If a period of quarantine is medically necessary, the workers’ compensation claim would pay time loss compensation for these workers, even if they are not ill, for up to 14 days.

Other frontline workers, especially those performing essential services in high-risk environments, could also be entitled to benefits under a workers’ compensation claim. For claimants working in jobs not explicitly covered under the presumption of work relatedness, each claim will be reviewed on an individual, case-by-case basis. Specific criteria must be met for a claim to be allowed.

Unfortunately, although DLI’s guidance is great news for frontline healthcare workers, for most other people the guidance incorrectly states the legal standard for allowing an occupational disease claim. For instance, DLI suggests that there must be “an increased risk or greater likelihood of contracting the condition” in the person’s particular employment. The Washington State Supreme Court has rejected the “increased risk” test (elsewhere referred to as the “positional risk” doctrine) in several cases, most recently in Street v. Weyerhaeuser, 189 Wn. 2d 187, 200-01 (2018).

If you believe you have been exposed to the Coronavirus and developed COVID-19 due to an on-the-job exposure, you should contact an attorney. If you have questions about COVID-19 and workers’ compensation, our firm is available to assist you.

Benefits Under a Workers’ Compensation Claim

The benefits available would include time loss compensation for the days the worker is unable to work due to quarantine or illness. The claim would cover the cost of allowed medical treatment. In many cases, if there is no onset of symptoms or recovery from illness happens quickly, there may be relatively little compensation paid under a claim.

In some cases, people face hospitalization and extended periods of recovery. In King County, current data shows that 16.8% of positive cases require hospitalization. The King County daily summary dashboard provides statistics about testing numbers and rates for positive results, hospitalizations and deaths. The graph displays data for the county overall as well as by city. Closer inspection reveals that the rates for positive test results, hospitalizations and deaths are better – and worse – in different parts of the county.

UPDATE: As of today, January 20, 2021, the hospitalization rate in King County is now down to 6.4% of all positive cases. We are thankful for the improvement. – Kit

Medical expenses can quickly add up, and time lost from work may be greater than one would expect.

Permanent Impairment After COVID-19

In most cases, there are no lasting effects that remain after recovery from COVID-19. However, it is now becoming clear that there can be permanent effects from COVID-19 in some cases, even for people who recover without the need for hospitalization.

If there is permanent residual impairment after COVID-19, an allowed workers’ compensation claim would provide a monetary impairment award once the claim closes. The most common reported permanent effects are connected to impaired lung function. There are also reports of stroke, kidney, liver and heart conditions that remain after recovery from COVID-19.

Impairment awards paid at claim closure are based on ratings of permanent impairment made by a physician. For injury to internal organs, the State uses a category system for rating impairment. Each category relates to a set of symptoms present, with higher categories compensating for higher levels of impairment due to greater loss of function.

In the rare case where death results, the worker’s family could receive a burial benefit and compensation for the loss of life due to the work exposure and illness.

Filing a Claim for COVID-19

For those that are diagnosed with COVID-19 that were significantly exposed to the Coronavirus on-the-job, 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 and Resources

DLI has a page of information and links to resources dedicated to answering questions about COVID-19 and workers’ compensation. This includes questions raised by employers and businesses, injured workers whose non-COVID claims have been impacted by the social changes brought on by the virus, as well as workers who believe they have developed COVID-19 through work exposure.

The Washington Department of Health has a COVID-19 Information Line: 1-800-525-0127. Phone lines are staffed from 6 am – 10 pm. Interpreter services are available in multiple languages.

Our intent in sharing this information is not to spur a flood of baseless claim filing. The truth is that exposure to the Coronavirus on the job could have a significant impact on a worker and their family. In those rare circumstances where the facts line up to support allowance of a claim, the benefits available under a workers’ compensation claim could help to alleviate this impact.

If you have questions about COVID-19 and workers’ compensation, or if 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.

Prior Posts on Related Topics

Coronavirus

CARES Act Stimulus Payments

April 2, 2020 Brian M. Wright

Congress passed a law, HR 748, known as the Coronavirus Aid, Relief, and Economic Security Act or the CARES Act, on March 27, 2020. The CARES Act, among other things, grants an automatic tax rebate to most people. Section 2201 of HR 748 details payments to individuals.

What Are the Stimulus Payments?

The CARES Act refers to these payments as tax rebates. The Treasury Department calls them Economic Impact Payments, as does the IRS. I call them stimulus payments, as do many media sources.

They are essentially an automatic tax rebate which is paid irrespective of whether a person actually paid taxes. There are three stated disqualified classes: nonresident aliens, dependents, and trusts/estates. This leaves a broad range of people that potentially will receive the payments in the near future.

Who Will Get a Payment? Who May Not?

Social Security recipients will automatically receive the stimulus payments. For others, the IRS advises people who receive disability benefits but do not ordinarily file taxes to file a special return.

However, for those individuals whose only source of income in both 2018 and 2019 were time loss or workers’ compensation pension benefits – which are non-taxable benefits – the CARES Act does not clearly state whether those individuals are eligible to receive the tax rebate payment.

Should I File a Tax Return?

We believe there is no downside or risk for individuals who receive only workers’ compensation benefits to file a special tax return. If you have questions about how to characterize or claim your benefits on a special tax return, we suggest you contact a tax professional.

How Much Can I Expect to Receive?

The amount is subject to adjustment upward or downward depending on filing status, income, and number of dependents. For most people, the calculation of, and eligibility for, these payments will be based on their 2019 or 2018 tax returns.

Where Can I Get More Information?

The IRS has provided some guidance on it’s coronavirus website, with the clear instruction to not call the IRS but to check back frequently for updates. I will be paying attention to IRS rulemaking in the next several weeks. You should also periodically check in on the IRS website for further information.

I have reached out to house members and senators for Washington State for clarification. I am closely monitoring the rule making process. We will do our best to keep you informed on any changes.

Legal Update – Intentional Tasing in the WA State Patrol

December 21, 2015 Brian M. Wright

Michelbrink v. Wash. State Patrol, ___ P.3d ___, No. 44035-1-II (Nov. 24, 2015)

WA Court of Appeals, Division Two

Ridin’ the lightning. The Washington State Patrol requires any trooper who carries a taser to take a “taser training course,” during which the trooper gets shot with the taser and shocked for “one to five seconds.” Mr. Michelbrink was tased, but unfortunately the shock caused a compression fracture in his vertebrae and a bulging disc. He sued the Washington State Patrol alleging an intentional injury as an exception to employer immunity under the Washington Industrial Insurance Act, RCW 51.04.010 & 51.24.030. In a published decision in 2014, the court of appeals held that factual disputes prevented the superior court from granting the State Patrol’s summary judgment motion, thus submitting the question to the jury. However, the Supreme Court granted review and remanded the case to the court of appeals for reconsideration in light of its opinion in Walston v. Boeing, 181 Wn. 2d 391 (2014).

On rehearing, the court of appeals again denied summary judgment to the State Patrol, but retracted its previous holding that the “deliberate intent” exception should be liberally construed. The court of appeals noted that under Walston and other supreme court decisions the deliberate intent exception is to be construed “narrowly.” Nonetheless, the court of appeals still found that there were issues of fact to be determined by a jury. Chiefly, “an issue of material fact exists as to whether ‘temporary pain, minor skin irritation, temporary blisters, and redness or minor bleeding if the Taser probes punctured the skin’ was certain to occur from Taser exposure.” The deliberate intent exception requires that the employer have “actual knowledge than an injury was certain to occur,” but need not have knowledge that the claimant/plaintiff’s specific injury was certain to occur.

It will be interesting to see the results of the jury trial.

Photo credit: Forbes.com

Asbestos

Take-home Asbestos Exposure Causes Mesothelioma Decades Later

May 18, 2015 Brian M. Wright

Today’s guest post was co-authored by my wife, Kaitlin Wright, Associate Attorney with Bergman Draper Ladenburg Hart. – – BMW

Take-home asbestos exposure through laundering contaminated clothing causes mesothelioma decades later.

Thomas H. Hart, III

Kaitlin T. Wright

There are few things in life that seem as mundane and benign as the simple act of doing household chores like laundry. Yet this routine chore, done for her husband, was the source of Barbara Brandes’ unwitting exposure to asbestos that ultimately caused her death decades later.

From 1971 until 1975, Barbara Brandes’ husband Ray worked as an operator at the newly-constructed Atlantic Richfield Company (ARCO) Cherry Point oil refinery in Ferndale, Washington. Defendant Brand Insulations contracted to perform the insulation work during the construction of the ARCO refinery in 1971 and 1972. At a time when there could be little doubt that the world knew asbestos was dangerous and carcinogenic—after the enactment of the Occupational Safety and Health Act and the genesis of the environmental revolution it epitomized—Brand used asbestos insulation in its work at the Cherry Point refinery without warning workers or taking any precautions to reduce hazardous asbestos exposures generated by Brand’s insulation work.

During the early 1970s, Brand insulators worked on-site at the Cherry Point refinery fabricating and installing insulation in the areas where Ray Brandes worked as an operator. The dust generated by Brand’s insulation activities contaminated Ray’s clothing with asbestos fiber. He was also exposed to asbestos when he and other ARCO employees removed the insulation materials Brand had installed when performing repairs to equipment and pipe.

At the end of each shift Ray worked at the Cherry Point refinery, he would return home in the clothes he had worn to work. Barbara would launder that clothing several times a week. When she shook the clothes out before putting them into the washer, asbestos fiber was released and dispersed into the air, exposing Barbara to invisible, imperceptible carcinogenic dust.

More than 40 years after Ray left the ARCO refinery, Barbara was diagnosed in June of 2014 with malignant pleural mesothelioma, a terminal cancer of the lining of the lung. At the time of her diagnosis, Barbara was advised by her physicians that her life expectancy was likely one year. Barbara succumbed to her mesothelioma on April 19, 2015, the evening before closing arguments in her trial against Brand Insulations.

The case was tried over two weeks in April in King County Superior Court before Judge William Downing. Plaintiffs were represented by Tom Hart and Kaitlin Wright of Bergman Draper Ladenburg Hart, PLLC. Brand Insulations, Inc. was represented by David Shaw and Malika Johnson of Williams, Kastner & Gibbs, PLLC. Barbara was 80 years old at the time of trial. The jury found that Brand was negligent, and that Brand’s negligence was a proximate cause of Barbara’s mesothelioma. The verdict included non-economic damages in the amount of $3,500,000.

Discovery Hurdles

One of the challenges in this case was locating witnesses capable of testifying to Ray Brandes’ employment and exposures at the Cherry Point refinery. Due to health issues, Ray was unable to testify or to recall the names of his coworkers so that they could be contacted and interviewed. An ad placed in The Bellingham Herald led to identification of Ray’s former coworkers, some of whom remembered working with him at the refinery back in the 1970s. An ARCO employee who responded to the ad testified at trial, and was one of the most compelling witnesses in the case as he was able to provide direct testimony regarding the work practices and exposures Ray Brandes experienced while Brand was working in his vicinity.

Liability Issues

In pretrial motions practice, the trial court granted summary judgment dismissing Plaintiff’s common law product liability claim against Brand, leaving negligence as the sole theory of liability for trial. Plaintiffs presented evidence that Brand had won the insulation subcontract with the general contractor for construction of the Cherry Point facility by coming in with the lowest lump-sum bid for the job. Brand contracted to perform “installation of thermal insulation of columns, heat exchangers, vessels, reformers, tanks, and piping in the various refinery units” at Cherry Point, procuring and installing all insulation materials on equipment and on the miles of piping required to be insulated throughout the refinery.

Brand offered testimony from Michael McGinnis, the project engineer who coordinated the Cherry Point job on behalf of Brand. Mr. McGinnis testified that he was just 21 years old when he traveled from Chicago to Ferndale to oversee the job, and conceded that he was equipped only with a high school education and on-the-job experience gained from his work as an apprentice insulator for Brand. On cross-examination by Mr. Hart, Mr. McGinnis acknowledged that the Cherry Point project was Brand’s largest dollar-value job in the company’s history by orders of magnitude. Mr. Hart also elicited from Mr. McGinnis on cross-examination the concession that no one at Brand had reviewed then-applicable Washington regulations identifying asbestos as a hazardous dust and requiring industrial hygiene controls to reduce exposures, nor did Brand make any effort to comply with those regulations.

Plaintiffs offered testimony from workers at the Cherry Point refinery who explained that the work of Brand insulators in the various refinery units manipulating, cutting, sawing, and installing asbestos insulation products generated considerable dust. Additional witnesses explained that ARCO had initially requested an asbestos-free refinery, but the asbestos-free insulation failed, so Brand reverted to asbestos-containing insulation materials part-way through their work at Cherry Point. Under cross-examination by Mr. Hart, Mr. McGinnis conceded that Brand nonetheless never warned workers that they were using asbestos or took any measures to reduce asbestos exposures to bystanders like Ray Brandes.

Brand argued that it did not or could not have known of a risk of take-home asbestos exposure from the insulation work it performed at Cherry Point resulting in mesothelioma among family members of ARCO operators like Ray Brandes. Plaintiff’s expert pathologist Dr. Andrew Churg testified that Mrs. Brandes had malignant mesothelioma of the pleura or lining of the lung, and that her mesothelioma was caused by washing her husband’s asbestos-contaminated work clothing. Plaintiff’s expert industrial hygienist, John Templin, CIH, testified to the industrial hygiene measures and engineering controls available to Brand in the 1971-75 timeframe to protect against Ray and Barbara Brandes’ significant asbestos exposures resulting from Brand’s insulation work. Plaintiffs also called Dr. Barry Castleman who testified regarding the extensive body of scientific and medical literature published throughout the decades leading up to Barbara’s exposures in the early 1970s, which confirmed that asbestos exposure could cause fatal disease, including mesothelioma, and detailed methods of avoiding dangerous exposures to bystanders and family members of exposed workers. Brand called Francis Weir, Ph. D., and Joseph Holtshouser who testified regarding toxicology and industrial hygiene principles. Dr. Weir testified during cross-examination by Mr. Hart that other West Coast insulation contractors were researching the hazards of asbestos by the time Brand began its work at Cherry Point. Mr. Holtshouser testified to the dose reconstruction of Barbara’s asbestos exposures he had performed and opined that her exposures were minimal and insignificant.

Damages

Prior to her diagnosis, Barbara had undergone many rounds of chemotherapy in an attempt to slow the progression of her cancer and prolong her life. She was not a candidate for surgical resection of her tumor, nor was radiation therapy recommended. Barbara bravely pursued as aggressive a chemotherapy regimen as her body could tolerate and her oncologist would recommend. She had more than one bout with pneumonia and experienced many other side-effects from the chemotherapy. Plaintiffs elected to forego pursuit of economic damages related to Barbara’s medical treatment, and instead simply asked the jury to decide Barbara’s non-economic damages for her injuries, disability, inconvenience, loss of enjoyment of life, and pain and suffering.

Because Barbara passed away on the eve of closing arguments and submission of the case to the jury, Plaintiffs faced the prospect of quickly converting Barbara’s personal injury action to a survivorship action to allow the case to proceed. This was successfully accomplished and the jury was instructed as to the fact of Barbara’s passing, the change in the case caption, and that future non-economic damages were no longer to be considered in assessing Plaintiff’s damages. In closing, Ms. Wright and Mr. Hart brought together the story of Brand undercutting local insulation companies to win the Cherry Point contract, and Brand’s concomitant sacrifice of safety to maximize profit in the largest job it had ever undertaken. The jury was unanimous in its finding of Brand’s negligence.

Barbara is survived by her eight children and many grandchildren, great-grandchildren, and a great-great-grandchild. While Barbara’s deteriorating health prevented her from being present in the courtroom every day, her daughter Ramona Brandes attended trial and was able to observe her mother’s engrossment in the case even as she approached the end of her life. Ramona explained: “My tales of the trial in her last days were one of the things she sparked on, wanting to hear every last detail. She passed away the day before closing arguments, but I know her verdict is something she would have been so thrilled about because her win will help other families like ours fighting for their own justice.”

Thomas H. Hart, III, Partner – Bergman Draper Ladenburg Hart, PLLC

Tom Hart was a pioneer in asbestos litigation in the United States and continues work on behalf of injured shipyard workers, former Navy personnel, pipe fitters, carpenters and others ravaged by asbestos disease. Since 1980, Tom has successfully represented asbestos victims in over 40 States and Territories. Tom has won verdicts and settlements totaling hundreds of millions of dollars for his clients and their families. In 1986, Tom filed and served as Lead Counsel in the first Nation-wide Class Action Settlement for asbestos victims.

Kaitlin T. Wright, Associate – Bergman Draper Ladenburg Hart, PLLC

Kaitlin Wright joined Bergman Draper Ladenburg Hart as an associate in 2013 after graduating from Seattle University School of Law, magna cum laude. Prior to joining Bergman Draper Ladenburg Hart, Kaitlin externed with the Honorable Stephen J. Dwyer at the Washington Court of Appeals in Seattle. Kaitlin also worked during law school as a Rule 9 legal intern with the Snohomish County Prosecutor’s Office in Everett. In her two years at Bergman Draper Ladenburg Hart, Kaitlin has represented mesothelioma victims in litigation in Washington and Oregon and has tried cases to verdict in both states.

Photo credit: Tabsinthe / Hampton Patio / CC BY

Workers' Compensation

How Attorney Fees Work in Washington Workers’ Compensation Cases

April 10, 2014 Brian M. Wright

Frequently, Causey Law Firm gets calls from individuals whose cases have been appealed from the Department of Labor & Industries to the Board of Industrial Insurance Appeals. Most often those individuals have already spoken with one or more attorneys who has declined to take their case. Undoubtedly this is a scenario faced by most—if not all—workers’ compensation practitioners at one time or another. In many such instances, the unfortunate reality is that the costs of litigating the individual’s case far outweigh the potential monetary benefit. Welcome to the world of contingent fees.

A contingent fee is a “fee charged for a lawyer’s services only if the lawsuit is successful or is favorably settled out of court . . . . Contingent fees are usually calculated as a percentage of the client’s net recovery.” Black’s Law Dictionary 338 (2004). Put somewhat less artfully: your attorney doesn’t get paid until and unless you do. The underlying purpose of contingent fee billing is ostensibly beneficial to poor or disadvantaged individuals: it provides an incentive for an attorney to take on a case where a person cannot afford that attorney’s hourly fee. But there is a downside as well.

Where monetary benefits are not at issue, there is little—if any—incentive for an attorney to take on a case. This frequently arises in the context of Washington State workers’ compensation cases where coverage of medical treatment is at issue. For instance, the Department of Labor & Industries may deny coverage of a surgical procedure under the person’s workers’ compensation claim. It might also deny coverage of a certain medication or device, or of a condition in its entirety. In those cases, it could cost $5,000 or more to present a case at the Board of Industrial Insurance Appeals. If there are no concurrent or resultant monetary benefits to the injured worker at stake, the attorney does not get paid. While we attorneys certainly do take on these cases from time to time, it would be unsustainable to take on every such case.

There are other models. For instance, under the Longshore and Harbor Workers Compensation Act (LHWCA), the attorney is paid an hourly fee for any services provided to an injured worker when the employer or its insurance carrier disputes the injured worker’s entitlement to benefits—whether monetary, medical/surgical, or otherwise. The fee is payable to the injured worker’s attorney by the employer’s insurance carrier. This has two significant effects. First, it ensures that there is an incentive for attorneys to take on cases where there are non-monetary issues at stake, such as entitlement to additional treatment or coverage of a disputed medical condition. Second, it allows the worker, in cases involving monetary compensation, to keep the full value of his or her disability compensation.

Washington State should seriously consider the idea of providing for an hourly attorney fee in so-called medical only cases. This is not a new idea. Draft bills have floated around for years. But the issue ought to be seriously reconsidered in light of the increased litigation that has resulted directly from the legislature’s adoption of laws allowing increased employer participation in the system through so-called “retro groups.” These groups aggressively fight workers’ compensation claims and allowance of treatment under those claims. They are incentivized to do so through refunds of their workers’ compensation premiums. Why shouldn’t injured workers’ and their attorneys have an incentive to pursue entitlement to medical treatment which would help them get back to work?

Photo credit: quaziefoto / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Healthcare

The Washington Health Care Authority: We’re Doing it Wrong

Aside September 26, 2013 Brian M. Wright

+++ Looking at the Cost of Healthcare

While Congress, specifically the House of Representatives, continue to wrangle over funding the Patient Protection and Affordable Care Act (“Obamacare,” to use the pejorative), we here in the “Soviet of Washington”[1] have been quietly taking our own steps towards controlling health care costs. One such step was the establishment of the Washington Health Care Authority (HCA) in 2006. The stated purpose of the HCA is to ensure that the “most comprehensive health care options” are available through state-funded health care plans while “minimizing the financial burden which health care poses on the state.” RCW 41.05.006. The HCA selects different medical technologies for review by the Health Technology Clinical Committee (HTCC)—a panel of physicians and other health care professionals who determine whether those technologies will be covered by state-funded insurance programs.

This complete and utter lack of oversight is troubling…

Sounds like a laudable goal, doesn’t it? Unfortunately, in practice, the committee operates as an unaccountable cabal whose coverage decisions are not subject to any substantive review. When the legislature passed the bill creating the HCA and HTCC, it included a provision for appealing the HTCC’s coverage determinations. But Governor Gregoire vetoed that provision, ostensibly on the belief that other portions of the bill provided sufficient opportunity for review of HTCC coverage decisions. However, as the court of appeals has noted, “there is no statutory procedure for substantively challenging HTCC determinations.” Joy v. Dep’t of Labor & Indus.

This complete and utter lack of oversight is troubling because the HTCC often makes decisions at odds not only with the medical community, but also most other insurance companies.

Recently, the non-partisan Center for Public Integrity ran a story lauding the Washington HCA for “making the tough choice” to implement cost-cutting measures.[2] According to the story, “the Health Technology Assessment . . . reviewed three common, expensive and controversial treatments for chronic back pain: spinal injections, spinal stimulation, a transcutaneous electrical nerve stimulation.” That sentence needs a bit of unpacking. First of all, while relatively common, spinal injections are actually fairly inexpensive and generally considered conservative care. Conversely, while spinal stimulation is expensive, it is comparatively uncommon. But at its essence, the statement from this story is that these treatments are controversial. But are they? Let’s focus first on spinal cord stimulation, for which the HTCC denied coverage on the grounds that it is not safe, medically effective, or cost-effective.

When the HTCC proposes a rule on the coverage or non-coverage of a given health technology, it submits that rule for public comment before publishing the final rule. When it published its findings to the public on spinal cord stimulation, medical practitioners from across the country submitted voluminous literature in support of coverage of spinal cord stimulation—not one medical provider commented that spinal cord stimulation was ineffective or unsafe. One commenter noted that spinal cord stimulation had been used safely and effectively since 1967 to treat intractable back pain without the use of addictive narcotics. The same commenter pointed out that Washington would be the only state to deny coverage of spinal cord stimulation, and that the vast majority of private insurers also cover the procedure.

So why did Washington State decide not to cover spinal cord stimulation? According to the Center for Public Integrity, Josiah Morse, director of the Health Technology Assessment Program, says that the committee “downplays the role of cost in its decisions.” “[I]n most cases there isn’t enough research on the cost-effectiveness of medical technologies, so the committee makes most of its decisions based on safety and effectiveness.” But if no medical professional commented that spinal cord stimulation was unsafe or ineffective, why would the HTCC deny coverage?

Consider another HTCC coverage decision—in 2011, it decided that femoroacetabular impingement (FAI) surgery was not covered. FAI is a condition involving the cartilage of the hip socket. It is extremely painful and, if left untreated, can result in the need for an early hip replacement. FAI surgery is the only solution for moderate to severe cases. The HTCC again requested public comments and again received overwhelming support for coverage of FAI surgery. In fact, the only comment not urging coverage came from Josiah Morse, who urged his own committee “to bullet, bold or otherwise call out the last sentence that no cost, cost-effectiveness data were found.” It seems inappropriate for Mr. Morse to emphasize a lack of data to his own committee as a reason to deny coverage of the surgery—especially when it is his committee that is entrusted to gather the data in the first place.

The Washington Health Care Authority must be held accountable to the people of Washington State. Skyrocketing costs are obviously of great concern to anyone interested in healthcare reform, but costs alone cannot be the sole, or even dominant, ground upon which to base a healthcare benefit coverage determination. I, for one, am not comfortable living in a world where decisions about whether or not my insurance company will cover an expensive, life-saving or –altering procedure are based predominantly on the cost of the procedure.

[1] A quote attributed to Postmaster General James Farley in 1937.

[2] Joe Eaton, The Other Washington Could Hold the Key to Medicare’s Cost Crisis, The Center for Public Integrity (July 29, 2013).

Photo credit: Truthout.org / Foter / CC BY-NC-SA

Crime Victims

The Demise of the Crime Victims Compensation Program: the Impact of the Recession on Victims of Criminal Acts

January 3, 2013 Brian M. Wright

Washington State has, since 1973, provided financial assistance to the innocent victims of criminal acts. Beginning in 2010, however, the state legislature initiated a draconian curtailment of the benefits available to victims such that the program is but a shadow of its former self. With all the tragedies in the news as of late, it would be wise to pause and consider our duty as a society to provide for the victims of criminal acts. Because once the media frenzy is over and the memory of such events is but a distant spark in our collective consciousness, those victims will be all but forgotten—though they and their families will live with the tragedy and bear its consequences for the rest of their lives.

With all the tragedies in the news as of late, it would be wise to pause and consider our duty as a society to provide for the victims of criminal acts.

The crime victim compensation movement grew out of the work of British prison reformer Margery Fry. In a 1957 article published in The Observer, Ms. Fry advocated for financial reimbursement to crime victims from the state; her vision was borne out of a deep sympathy for humanity as well as the notion that providing for victims of criminal acts would reduce the retributive aspect of the criminal justice system (thereby increasing the rehabilitative function).[1] The program she envisioned was to be patterned upon extant workers’ compensation programs.[2]

The first country to pass a crime victim compensation law was New Zealand in 1963 followed closely by Great Britain. California was the first state to implement a crime victim compensation program in 1965, and by 1972 ten states in total had passed such an act. In 1973, Washington State passed “AN ACTRelating to special proceedings; providing benefits to victims of crime”—colloquially known as the Crime Victims Compensation Act.[3] The 1973 Act provided explicitly that victims of criminal acts would be provided the same benefits afforded to injured workers under the Industrial Insurance Act.[4] Consequently, the legislature entrusted the Department of Labor & Industries with management of all crime victims’ claims.

The Crime Victims Compensation Program (CVCP) is funded through a combination of federal grants and state money. Prior to 2010, the CVCP was funded through appropriations by the Department of Labor & Industries. In 2010, however, L&I reported that it had “exhausted” its current appropriation for the CVCP and requested legislation creating a new, separate crime victims compensation account.[5]

When the Washington State Legislature passed the requested law in 2010, it effectively severed funding of the CVCP from the L&I funds. The intent was to create a separate, untouchable fund. But bad drafting meant that an assumed source of revenue for the crime victims compensation account—a percentage of superior court-imposed criminal fines—never materialized, leaving a $670,000 hole in an annual budget of $2.7 million.[6] Unfortunately, in addition to severing the CVCP’s source of revenue, the legislature also drastically reduced the benefits available to crime victims. The legislature imposed an arbitrary cap of $50,000 on all claims and limited the amount of permanent partial disability benefits payable to $7,000.

Finally, in 2011 the legislature delivered the coup de grâce.[7] In addition to completely severing all references to the Industrial Insurance Act from the CVCA, the legislature completely eliminated future permanent partial disability payments and limited wage replacement benefits to $15,000.[8]

In an era in which a single surgical procedure can easily run into the six-figure range, and serious injuries can result in the inability to work for years if not permanently, the arbitrary cap and drastic curtailment of compensation for victims of criminal acts is unconscionable. The costs associated with such injuries undoubtedly fall upon society’s shoulders, whether through increased use of other public benefits (unemployment, Medicare, welfare), or, worse yet, bankruptcy. According to a 2007 study by researchers at Harvard, outstanding medical bills account for an astounding 62.1% of all personal bankruptcy filings in the United States.[9] By failing to provide for the victims of criminal acts, the legislature is simply foisting the cost of uncompensated injuries back upon the public.

It goes without saying that Washington State—and the rest of the country—faced a dire fiscal shortfall in 2010. Washington’s response, like that of the rest of the country, was unfortunately myopic, cutting funds to schools, universities, parks, and crime victims. We still face an uncertain future and an impending fiscal “cliff.” The question really is how much further Washington (and the rest of the country) is willing to cut into its social safety net. Next time you think about reduction of benefits to crime victims, think about Sandy Hook. Think about Clackamas Town Center. Or Virginia Tech, Columbine, etc. Unfortunately, the list goes on and on. Think about those events because it is those victims whom these types of budget cuts harm. The budget should not be balanced on the backs of victims of criminal acts. It is fiscally and morally irresponsible. We owe it to ourselves to provide for the most vulnerable members of society.

Photo credit: zenobia_joy / Foter / CC BY-NC

[1] See Various, Compensation for Victims of Criminal Violence: A Round Table, 8 J. Pub. L. 191 (1959).

[2] Frank Weed, Certainty of Justice: Reform of the Crime Victim Movement 4 (1995).

[3] Laws of 1973, ch. 122.

[4] Id. § 1.

[5] Laws of 2010, ch. 122 §§ 3-7.

[6] See Fiscal Note accompanying SSB 5691, Laws of 2011, ch. 346.

[7] Laws of 2011, ch. 346.

[8] Curiously the legislature also removed acts of terrorism from the list of criminal acts for which an individual is entitled to compensation under the CVCA. During debates in committee, when asked why this provision was inserted into the bill, L&I’s delegate did not know.

[9] Himmelstein et al., Medical Bankruptcy in the United States, 2007: Results of a National Study, 122 Am. J. Med. 741 (2009).

DLI

Out-of-State Work-Related Injuries: What You Need to Know

December 3, 2012 Brian M. Wright

Bedford, TX Construction Site

If you are a Washington resident working for an employer who operates in Washington and you are injured in another state, you probably have a Washington State workers’ compensation claim. Additionally, you might have a valid claim in the other state, as well. If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.

If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.

In Washington, we have agreements with other states that provide which state’s workers’ compensation laws apply when an employer takes its employees out of state. Those agreements apply to the workers of one state working temporarily in the other state. Washington currently has such agreements with Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. If you are a Washington worker sent temporarily by your employer to one of those states and you are injured there, Washington is likely the only state in which you can file a workers’ compensation claim. Conversely, if you are an employee based out of one of the states with which Washington has an agreement and you are injured while working temporarily in Washington, your home state is likely the only state in which you can file a claim.

But what happens if you are not simply temporarily working in one of the states with which Washington has an agreement? What if you spend a significant amount of time in both, or even other, states? What if your employer is based in one state and you are based in another? Or better yet, what if you are injured in a state with which Washington has no agreement? In all of the above scenarios, you may have the ability to file your claim in multiple states. Generally, you will have the option of filing in:

1) the state in which you were injured;

2) the state in which you primarily worked; and

3) the state in which you entered into your employment contract.

Yes, and. The United States Supreme Court, in a case that settled the law once and for all back in 1980, decided that filing multiple workers’ compensation claims in multiple states does not violate the Constitution so long as each state’s system is credited for the benefits paid by the other states’ systems. In other words, you cannot be compensated twice for the same injury, but you can elect to file in multiple states in order to maximize the benefits that each state provides. Washington State, by law, explicitly allows you to file multiple claims in multiple states.

With an option of two or more states that might provide coverage, you may wish to select the state with the benefit program that better suits your financial situation and your needs.

It is important to know your rights when you are injured on the job out of state, because the decision as to where to file your claim will have a direct impact on you and your family. Each state has a unique workers’ compensation system with a full spectrum of benefits, compensation rates, etc… With an option of two or more states that might provide coverage, you may wish to select the state with the benefit program that better suits your financial situation and your needs.

If you have been injured out-of-state, or while traveling in service of your employer, it is important to contact a workers’ compensation professional to assess your options.

Photo credit: nffcnnr / Foter / CC BY-NC-SA

Washington Workers' Advisor

All posts by Brian M. Wright