All posts by Kit Case

AMA Guides to Causation, AMA Guides to Impairment, Nebraska, Workers Compensation

Injured workers served poorly with AMA “cookbook” on causation

DON”T GET ON THE AMA CAUSATION GUIDES SHIP!!!

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

My friends and colleagues on the WILG listserv were discussing the AMA Guides to the Evaluation of Disease and Injury Causation, 2nd edition. The consensus was that the new guidebook treats injured workers, to quote the President, very unfairly.

Lawyers in Illinois and Montana have encountered the AMA Causation Guide. I encountered the causation guide in Nebraska this spring/summer in Tapee v. Nestle (available on NWCC Decision and Order Search by clicking here). My experience was that the trial judge was not impressed by the opinions of an examining expert who relied generalizations from studies rather than looking at the particulars of my client’s injury.

A colleague in Montana seemed to have a similar experience.  Another weakness of the AMA Causation Guides is that doesn’t address the fact that states have different standards for medical causation. For example, even if it’s true that occupational causes aren’t a prevailing factor in causing carpal tunnel syndrome, that doesn’t matter in Nebraska because a worker only needs to show that occupational factors were a contributing factor to the injury.

Even among WILG members, the AMA Guide to Causation is still confused with the better known AMA Guides to Permanent Impairment that have been subject to numerous court challenges. The so-called AMA 6th has long been a target of plaintiff’s lawyers because of how it reduces compensation for many types of permanent injuries. When the AMA 6th came out about 10 years ago, plaintiff’s lawyers were good about educating courts about the problems with the AMA 6th.

Nebraska isn’t bound by the AMA Guides to Impairment, but courts often follow them in determining permanent disability for scheduled member impairment. In 2010, one trial judge criticized the AMA 6th in Endorf v. Chief Industries (click here for NWCC Decisions and Orders Search) But the insurance defense bar was relentless in pushing the AMA 6th and it is often used as a basis to pay permanent impairment in Nebraska despite early misgivings by some workers’ compensation judges.

I suspect the insurance defense bar will be as relentless in pushing the AMA Causation Guides. From discussion on the WILG listserv, it appears as if there is a nationwide push to use the AMA Causation Guides. The AMA Impairment Guides are sometimes referred to as a “cookbook”. (Hence the headline and artwork for this post) But at least in Nebraska where the AMA Guides to Impairment are generally just applied to so-called “scheduled members” that are paid on a loss of use basis, I can see why a judge may rely on those guides. (The distinction between scheduled member disability being paid on a loss of use basis and non-scheduled injuries being paid on a loss of earning power basis in Nebraska seems to be largely a judge-made distinction)

But causation would seem to be a different story. Causation would seem to be an issue that Judge’s would still want to decide on an individualized basis rather than deferring to a book. But prolonged use of the AMA Causation Guides may eventually lead to an informal heightening for medical causation standards by workers’ compensation judges. 

Maybe this is burying the lead, but the more acute danger is that stae legislatures will adopt the AMA Guides to Causation like they did with the AMA Guides to Permanent Impairment.

Plaintiff’s lawyers have some studies they can use to the counter the AMA Guides to Causation. The American Academy of Orthopedic Surgeons have compiled studies about carpal tunnel syndrome that would contradict the studies that form the basis of the AMA Causation Guide. Plaintiff’s lawyers may also want to bone up on rules regarding expert testimony. At least in Nebraska, those rules don’t govern admissibility of medical evidence, in workers’ compensation but they can certainly be helpful to a court in weighing medical evidence.  NWCC Rule 10 narrowly defines who can testify by written report in our workers’ compensation court. In my experience, “non-Rule 10 experts” can make good witnesses for the plaintiff on cross-examination.

Lawyers for injured workers need to see recognize the threat posed by the AMA Guides to Causation and make every available factual and legal argument against its application at every opportunity –whether in a courtroom, a legislative committe hearing, at a legal confernece and/or on social media.

 

Worker Training

Maritime Training – Sea School Northwest

Sea School Northwest, located in Aberdeen, WA, offers a new type of education for aspiring mariners that functions as a springboard into the maritime industry.  Sea School Northwest’s curriculum incorporates weekly USCG licensing guidance, hands-on skill development, lessons in maritime systems, industry readings and video content, and professional development round table discussions.

Sea School Northwest grew out of an effort to address the existing challenges in the maritime industry, and guide the professional development of sailors in new and exciting ways. Their initial discoveries revealed the following:

  • In Washington state, the maritime industry is experiencing a growth of 6.4% annually, but the workforce is “greying” and is struggling to recruit workers with entry-level skills.  

  • Currently, there is a homogeneous male-dominated workforce on the commercial side of the industry, with only 2% of the global industry identifying as female. 

  • 49.6% of experienced tall ship sailors are unable to afford the expense of professional licensing that would allow them to be competitive hires in the rest of the industry.

SSNW students take away from the program a real life experience on the water, a clear understanding of the professional path that they hope to pursue, and an USCG Ordinary Seaman Credential to make them competitive entry-level hires.

Contact SSNW for more information on upcoming workforce training opportunities, tuition and the application process.

Photo credit: SSNW

 

Veterans Employment

Washington Companies Honored with Hire-A-Vet Award

Twelve Washington businesses were honored on November 2, 2018 for their efforts to hire and support military veterans in 2018.

Employment Security Department Commissioner Suzi LeVine announced the Hire-A-Vet award winners in support of Gov. Jay Inslee’s Hire-A-Veteran Month proclamation and the upcoming Veterans Day holiday.

“By honoring these exceptional companies, I hope more businesses will take note and make a similar commitment to hiring veterans,” said LeVine. “Veterans are among the best-trained candidates in the job market and make outstanding employees. There’s no better way to say thanks to a veteran than hiring one.” 

Employment Security created the Hire-A-Vet Award as a way to call attention to unemployed veterans in Washington and to recognize companies with a good track record of hiring, retaining and celebrating veterans in their workforce. One business winner is selected from each of the 12 workforce development areas in Washington.

All winners participate in the state’s YesVets program to promote the hiring of veterans.

The 2018 awardees are:

  • Skookum Contract Services (SKS) — This Bremerton facilities management and logistics firm employs 1,300 employees in 11 states, of which a third are veterans. In 2018, the company hired 33 veterans in Washington. Whenever they have a job opening, SKC contacts WorkSource first to check for potential veteran candidates. The company also advertises its jobs on WorkSourceWA.com and takes part in local hiring events.
  • Department of Health (DOH) — This state agency in Olympia hired 21 transitioning veterans in 2018. The department also created a military-to-civilian health professions tool that helps veterans obtain credentials for 35 health professions. Over 400 health credentials have been issued to active, Reserve and National Guard personnel and to more than 2,800 family members since 2013.
  • VT Volant — This aerospace company in Burlington has a long track record of hiring military veterans and has developed a strong partnership with WorkSource to advertise its jobs and recruit veteran talent. The company employs 18 veterans – representing nearly 25 percent of its workforce. VT Volant also has made a serious commitment to hiring and retaining older veterans. The average veteran age when hired is 49 with an average tenure of nine years. It’s most recent veteran hired was 63 and the oldest currently employed veteran is 78 years young.
  • Motor Trucks, Inc. — This diesel repair and truck sales company in Everett employs 32 employees, of which six are veterans — 20 percent of the company’s workforce. In 2018, Motor Trucks added two new veteran employees to its team. The company coordinates all its veteran recruitment through WorkSource and has implemented a culture of “veterans helping other veterans” to support veteran employees. Motor Trucks even provides paid skills training and certifications through journeyman level and offers medical and vacation benefits.
  • Allied Universal Security — This Seattle firm hired a whopping 36 veterans in 2018. Allied Universal Security also worked with WorkSource during the year to help its veteran employees access government assistance for rent, utilities, bus passes and gas cards when needed. The company participated in every WorkSource veteran hiring event this year and even provided coffee and snacks for job seekers.
  • West Sound Workforce — This Gig Harbor-based recruitment firm first reached out to WorkSource in 2016. The first year, the company placed 14 veterans, followed by 24 in 2017 and 20 so far in 2018. West Sound Workforce also helped employ 13 military spouses in 2018.
  • CloudOne — This Vancouver call center brought on a new recruiter in March 2018 with the specific charge to hire more veterans. Since then, the company has increased its veteran workforce to 10 percent with only a 5 percent turnover rate– unheard of in a call center. CloudOne coordinates all of its veteran recruitment though WorkSource and advertises its openings on military job boards and social media sites.
  • Chelan County — Chelan County employs 540 full-time employees, of which 81 are veterans. During the last year, eight veterans were hired, representing 44 percent of all new hires. The county also participated in the annual WorkSource Veterans Hiring Event and the Homeless Veterans Stand-Down in Wenatchee.
  • Yakima Training Center (YTC) — This center has a strong track record of hiring veterans and works directly with WorkSource to recruit talent. YTC employs 144 people, of which 115 are veterans – 80 percent of the company’s workforce. In 2018, the company hired 33 veterans. YTC also serves on the boards of numerous veteran groups and provides volunteers for the annual Central Washington Veteran Stand Down.
  • Columbia Cedar, Inc. — Columbia Cedar in Kettle Falls is the largest private employer in Ferry County. The company employs 170 people, of which 12 are veterans. In 2018, the company made a new commitment to veterans, hiring six veterans and maintaining an 83 percent retention rate with its veteran workforce. Currently, 7 percent of its workers are veterans.
  • Tri-Cities 911 Driving School — This veteran-owned company employs 22 driving instructors, of which 17 are veterans. During the year, the owner interviewed and hired every single veteran referred by WorkSource. The driving school also provides its disabled veteran employees more flexible schedules and work environments. The owner is active in the veteran community and donates his time at prisons to help veterans who need their driver’s licenses reinstated.
  • Dealer Auto Auction (DAA) Northwest — This local business employs 85 full-time employees, of which 21 are veterans. In 2018, the company worked with WorkSource to hire 16 veterans. DAA Northwest also offers volunteer opportunities for staff to help military charitable causes, including hosting a rock & roll concert honoring John Fogerty, a Vietnam-era veteran of the Army Reserve and Combat Vet Fighters.      

LeVine encourages interested businesses to contact WorkSource for help hiring veterans. Employment Security has staff at centers who are specifically assigned to help veterans find jobs and to connect businesses with veteran talent. The department has provided these services to veterans since 1933.

WorkSource helps place some 14,000 veterans into jobs each year. Currently, more than 560,000 veterans live in Washington.

WorkSource is a partnership of state, local and non-profit agencies that work together to deliver employment and training services to Washington businesses and job seekers.

Other help for veterans and incentives for employers

Photo by Steve took it on Foter.com / CC BY-NC-SA

Worker Safety

Vancouver, WA Firm Handed Large Fine forTrenching, Excavation Violations

Washington’s Department of Labor & Industries has fined a Vancouver, WA  construction company that specializes in excavation and trenching $126,400 for multiple safety violations.

Colf Construction was a subcontractor on the 10th Street Bridge project in Ridgefield, WA when the Division of Occupational Safety and Health (DOSH) opened the inspection March 20, 2018. DOSH conducted eight site visits during the inspection, which closed Aug. 30, and found trenching violations during five of those visits. DOSH cited the company for six willful and serious violations.

The violations included not ensuring workers were protected from cave-ins, not performing daily excavation inspections, not removing workers from hazardous areas, employees working under suspended load, no safe access or exit available from excavations, and lack of fall protection.

“Trenching and excavation incidents can happen suddenly, and cave-ins are often deadly,” said Anne Soiza, L&I’s assistant director for the Division of Occupational Safety and Health. “This employer knew the dangers and had been warned before. Every employer that does trenching and excavation needs to know there are many complex deadly hazards that must be taken seriously and controlled.  These hazards are a focus for the department and nationwide due to their high rate of worker fatalities.”

Cave-ins pose the greatest risk to workers performing excavation and trenching work, and even a four-foot deep trench can present life-threatening hazards. One cubic yard of soil can weigh as much as a car, and cave-ins can happen much too fast for a worker to respond. In this case not only were the workers not protected from this hazard, there were also no easy entry and exit paths from the trenches.

The employer had 15 business days to appeal the citations.

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.

For a copy of the citations, contact Frank Ameduri of Public Affairs at 360-902-5413.

Photo by satguru on Foter.com / CC BY

Uncategorized

Washington Healthplanfinder Offers In-Person Assistance Sites For 2018 Open Enrollment

 Note: Keep in mind when applying for health insurance that workers’ compensation payments are NOT taxable income and should NOT be included in your household income figure. – kc

The Washington Health Benefit Exchange today announced locations of 10 full-service enrollment centers that will offer in-person assistance to customers signing up for health and dental coverage through Washington Healthplanfinder during the upcoming open enrollment period, Nov. 1-Dec. 15.

Along with four sites returning from last year, six new in-person assistance locations are set to be introduced in areas including Seattle, Tacoma, Bellingham, Yakima, Kennewick and Wenatchee. Each storefront will be staffed with trained navigators or brokers ready to guide residents through the enrollment process.

“Navigators and brokers provide an invaluable service to consumers who rely on in-person help to understand and select health insurance coverage,” said Pam MacEwan, CEO of the Washington Health Benefit Exchange. “With our open enrollment period shortened to six weeks this year, it is especially important consumers visit a nearby enrollment center or connect with a member of our statewide network of brokers and navigators beginning on Nov. 1.”

Addresses and contact information for all 2018 enrollment centers

The sites selected reside in counties with some of the highest uninsured rates in Washington state:

Enrollment Center Site (County)

Uninsured Population*

Seattle (King) – New Location
Federal Way (King)

93,817

Tacoma (Pierce) – New Location

39,450

Yakima (Yakima) – New Location

24,776

Spokane (Spokane)

22,921

Vancouver (Clark)

21,261

Bellingham (Whatcom) – New Location

12,137

Kennewick (Benton) – New Location

11,739

Olympia (Thurston)

10,859

Wenatchee (Chelan) – New Location

5,011

 *Estimates for under-65 population, based on adjusted 2016 American Community Survey data

Each enrollment center is hosting regular hours of operation throughout the open enrollment period and will offer extended availability leading up to the Dec. 15 deadline to sign up for coverage. Resources available at each site include computer work stations for customers to compare their health plan options through Washington Healthplanfinder and educational materials explaining important health insurance terms.

Navigators and brokers are now also trained to assist Compact of Free Association (COFA) islanders who sign up for health insurance coverage during open enrollment. Beginning in 2019, residents who qualify for COFA Islander Health Care may have their monthly premiums and out-of-pocket costs paid for by the Washington State Health Care Authority.

All residents are encouraged to schedule an appointment to meet with a navigator or broker in their area beginning on Nov. 1. Connecting with in-person help is easiest through the WAPlanfinder mobile app that uses a customer’s current location to provide contact information for and detailed directions to the nearest navigators and brokers.

In-person help can also be found by clicking the “Customer Support” link on www.wahealthplanfinder.org. Additional over-the-phone assistance is available by calling the Washington Healthplanfinder Customer Support Center at 1-855-923-4633.

 

Uncategorized

Washington Healthplanfinder Will Start Open Enrollment Nov. 1

Note: Keep in mind when applying for health insurance that workers’ compensation payments are NOT taxable income and should NOT be included in your household income figure. – kc

Shortened, six-week open enrollment period begins at 8 a.m. November 1st and extends through December 15th

The Washington Health Benefit Exchange today confirmed the resources and assistance options available statewide to residents using Washington Healthplanfinder to sign up for health and dental coverage during the open enrollment period that begins at 8 a.m., Nov. 1st.

Different from previous open enrollment periods, residents have until Dec. 15 – six weeks total – to sign up for health and dental insurance through Washington Healthplanfinder that covers themselves and their family during the upcoming year.

“The window for residents to shop and sign up for health and dental insurance is shorter this year. The start of open enrollment should signal all customers to begin evaluating their options as quickly as possible in order to choose their 2019 coverage before the open enrollment period ends on Dec. 15.” – Pam MacEwan, CEO of the Washington Health Benefit Exchange

Customers accessing Washington Healthplanfinder during open enrollment will be greeted with a more streamlined method for taking action related to their health insurance, including finding financial help. Determining eligibility for free or low-cost coverage offered exclusively through Washington Healthplanfinder is a primary response customers may now select from a redesigned homepage that asks visitors “What would you like to do today?”

Washington Healthplanfinder also remains the only place Washingtonians can compare health plans offered in their county before connecting with coverage that best meets their needs. Smart Planfinder, the consumer decision-support tool introduced in 2017, offers the most advanced method for choosing health insurance. By inputting provider preferences, prescription drug requirements and cost considerations, Smart Planfinder can identify “Smart Choice” plans that more effectively meet projected medical needs.

In-person support may be accessed through Washington Healthplanfinder’sextensive network of trained navigators and brokers. Available at designated enrollment centers and other locations based throughout the state, navigators and brokers offer expert in-person assistance to any individual who needs help enrolling in 2019 health and dental plans.

Linking up with a nearby navigator or broker is easiest through the WAPlanfinder mobile app. By identifying a customer’s current location, WAPlanfinder provides contact information for and directions to the closest in-person help in their neighborhood. The app also directly connects customers with answers to frequently asked questions and allows for coverage-related documents to be uploaded quickly and securely.

As is the case every open enrollment period, customers may access over-the-phone assistance by calling Washington Healthplanfinder’s toll-free Customer Support Center (1-855-923-4633). Throughout the open enrollment period, the Customer Support Center will be available during weekdays from 7:30 a.m. to 8 p.m. and on Saturdays from 10 a.m. to 2:30 p.m. Additional hours of availability will be extended at peak sign-up times during open enrollment.  

Special sign-up events are also expected to be held leading up to the Dec. 15 deadline for 2019 coverage. Locations and other information for those events can be found by visiting the #GetCoveredWA hub located at www.wahbexchange.org.  

Reminders: Enrollment is offered year-round to individuals and families through Washington Apple Health (Medicaid). Customers enrolled in Apple Health will receive a notice of 60 days before the month they enrolled in or renewed their coverage last year.

About Washington Healthplanfinder

Washington Healthplanfinder is an online marketplace for individuals and families in Washington to compare and enroll in health insurance coverage and gain access to tax credits, reduced cost sharing and public programs such as Medicaid. The next open enrollment period for Washington Healthplanfinder begins on Nov. 1.

About Washington Apple Health

In Washington, Medicaid is called Washington Apple Health. Free or low-cost coverage is available year-round for those who qualify. Since the Affordable Care Act launched in October 2013, more people have access to preventive care, like cancer screenings, treatment for diabetes and high blood pressure, and many other health care services they need to stay healthy. Apple Health clients enroll and renew online using Washington Healthplanfinder. Apple Health is administered by the Washington State Health Care Authority: www.hca.wa.gov.

Photo on Foter.com

Workers' Compensation Coverage

WA State DLI Proposes Significant Drop in Workers’ Comp Rates for 2019

The price of workers’ compensation insurance in Washington will likely drop significantly in 2019. The state Department of Labor & Industries (L&I) proposed a 5 percent decrease in the average premium employers pay for the coverage.

If approved, the rate decrease would be the largest drop since 2007. The lower rate would mean employers would pay an average of about $58 less a year per employee for workers’ compensation coverage. Employees would pay about $6 less a year for their share of the cost.

The proposed decrease would mean Washington workers and employers, as a group, pay $136 million less in premiums.  

The public will have an opportunity to provide input about the rate proposal before a final decision is made in December.  

L&I Director Joel Sacks says decreases in work-related injuries, along with L&I initiatives to improve outcomes for injured workers and reduce costs, have made the system healthier and are contributing to the proposed decrease. 

“We’ve seen a big drop in injuries at work in our state since 2012. And that’s great news because preventing injuries and making workplaces safe is our number one goal,” said Sacks. “Along with that, we’re doing a better job helping injured workers heal and return to work. That’s good for workers and employers, and helps us lower the cost of workers’ compensation coverage.”  

One example of an effort that’s helping workers and employers is L&I’s Stay at Work Program. It pays for some of the costs for employers to keep injured workers in light-duty jobs until they fully recover. Since 2012, the program has provided $72 million to employers, which has helped provide 27,000 workers with light-duty jobs while they heal.

L&I has also established opioid prescription guidelines which have resulted in a 90 percent reduction in the number of workers receiving opioids at 6-12 weeks after injury. And the agency has been providing vocational support and assistance earlier in injury claims, which has helped reduce long-term disability. In the last five years, these and other improvements have resulted in a more than $2 billion reduction in projected long-term costs for the workers’ compensation system.  

Helping workers recover and keeping the workers’ compensation system healthy

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. The premiums also provide a safety net by ensuring reserves are available to cover the unexpected, like a natural disaster or downturn in the economy.

Each fall, L&I determines the proposed rate for the following year by looking closely at several factors, including expected workers’ compensation payouts, the size of the contingency reserve, wage inflation and other financial indicators.

A 2.5 percent decrease last year, along with some small increases in workers’ compensation premiums since 2014, have kept rates steady and predictable, making it easier for employers to budget for workers’ compensation costs while also building and maintaining an adequate reserve fund for the workers’ compensation system.

Public hearings planned for October

The agency will hold three public hearings where people can learn about and comment on the proposed 2019 rates. The hearings are scheduled for: 

  • Tumwater, Oct. 30, 9 a.m., Dept. of Labor & Industries Headquarters
  • Tukwila, Oct. 30, 1 p.m., Dept. of Labor & Industries Tukwila Office
  • Spokane Valley, Oct. 31, 9 a.m., Spokane CenterPlace 

People can also comment in writing to Jo Anne Attwood, administrative regulations analyst, P. O. Box 41448, Olympia, WA 98504-4148; or email joanne.attwood@Lni.wa.gov. All comments must be received by 5 p.m. Nov. 2, 2018.

More information about the proposal is available at www.Lni.wa.gov/Rates. Final rates will be adopted by early December and go into effect Jan. 1, 2019.

Photo on Foter.com

Election 2018

WA State Voter Registration Deadline: October 29

The deadline for online and mail-in voter registration has passed, but voters can still register in-person to be able to vote in the election on November 6th. 

  • FIND your county elections department’s location, office hours and contact information.
  • Go in-person – – ASAP! – –  and REGISTER to vote.
  • Then, VOTE!!!

Your fellow citizens will thank you.

 

Photo by Chris Piascik on Foter.com / CC BY-NC-ND

Attorney Profile

Causey Wright Team Profile: Brian Wright

Brian Wright  |  MANAGING ATTORNEY, OWNER

Brian grew up in the greater Seattle area and worked various jobs in the construction industry until he returned to school, earning degrees in Japanese Studies and Political Science from the University of Washington. He obtained his law degree, cum laude, from Seattle University School of Law, and served on the editorial board of the Seattle University Law Review. Brian is licensed to practice before the Washington State Supreme Court, United States District Court for the Western District of Washington, and the United States Court of Appeals for the Ninth Circuit.

Brian represents injured and disabled workers with workers’ compensation claims before the Washington State Department of Labor & Industries and those covered by the federal Longshore and Harbor Workers Compensation Act which includes waterfront workers, overseas defense contractors (Defense Base Act), and domestic non-appropriated fund employees at U.S. military installations (Nonappropriated Fund Instrumentalities Act).

Brian also collaborates with other law firms filing lawsuits in Washington State on behalf of victims of asbestos-related diseases, and he litigates the occasional Jones Act/maritime case.

In addition to his busy litigation practice, Brian is active with several organizations which help preserve the rights of injured workers. He is an Eagle member of the Washington State Association for Justice (WSAJ), and for 2017-2018 he served as the Chair of its Workers’ Compensation Section. Brian is also a member of the Workers’ Injury Law & Advocacy Group(WILG), a national non-profit organization dedicated to representing the interests of injured workers and their families. He has written and filed “friend of the court” briefs in Washington State on behalf of WILG in significant workers’ compensation cases.

Brian has been named to the Super Lawyers list of Rising Stars, 2016 – 2018 as a “Top Rated Workers’ Compensation Attorney in Seattle“.  Brian has a rating of “10.0 Superb” by Avvo. He was also named a Rising Star by WILG in 2014.