All posts by Kit Case

Vocational Retraining

Return to Work – Vocational Services

In Washington State, a worker injured on the job must return to work, or be found able to return to work, before the workers’ compensation claim can be closed. Vocational services may be needed to facilitate a return to work. In rare cases where the worker remains permanently unable to work, a total disability pension may be awarded.

The Department of Labor and Industries (DLI) is not required to find the injured worker a job, but is required to document that the worker has the ability to obtain and maintain employment. DLI is not required to return a worker to their pre-injury earnings, either. Minimum wage or better is all that’s needed to establish employability.

How Vocational Services Work

If an injured worker cannot return to their job of injury, a vocational counselor (VRC) is assigned. The VRC will research options to determine if the worker has the skills and physical ability to perform a modified job with the same employer or, if not, another job within the general labor market. This ability to work assessment follows WAC 296-19A-065 as it’s foundation.

The information provided to workers entering the ability to work assessment phase can be found, here.

If the worker does not possess the skills and abilities to obtain and maintain employment after an injury, vocational retraining services can be provided to return the worker to employability. The claim progresses to a Plan Development phase, during which specific retraining goals are evaluated.

Retraining benefits under a workers’ compensation claim are generally limited to two years and a budget of $18,660.46, total, for tuition and expenses. Time loss compensation continues to be paid under the claim while the worker is participating in retraining.

Possible retraining plans that fall within the time limit and budget and that lead to a job that is medically appropriate and is likely to result in the worker obtaining employment can be on the table.

There Are Options

Once a retraining plan is offered to an injured worker, they have a choice to make – whether to participate in the plan, known as Option 1, or to opt out and pursue other training or schooling on their own – Option 2. The worker can begin the plan and then change their mind, within defined time limits.

DLI has detailed information about training options, here.

How Legal Representation Can Help

We believe that we get the best outcomes when we are involved in a claim early in the return-to-work evaluation process.

There can be disagreements about a worker’s actual physical abilities and stamina, which are both important factors in an accurate determination of their ability to return to full employment. There can be disagreements about the worker’s transferable skills and whether they support their ability to return to work. There also can be disagreements about a worker’s ability to benefit from retraining services.

These and other disagreements over vocational conclusions can lead to disputes, protests, appeals and, sometimes, litigation. Determinations are often reached quickly. The deadline for filing a vocational determination dispute is very short – 15 days. While we are willing to get involved in cases at any stage, it is more difficult to address the many facets of a vocational determination late in the process.

If you have questions about vocational services, feel free to contact us. We would be happy to discuss the specific details of your case with you.

Prior Posts On Topic

Uncategorized

Coast Guard Bulletin – Corona Virus

The United States Coast Guard has issued a Marine Safety Information Bulletin (MSIB) concerning the Novel Coronavirus outbreak. Read the full Coast Guard bulletin, excerpted below, here.

This information is provided as notice of measures being taken to protect us from this virus. It is not intended to stoke fear or spur actions.

This Coronavirus is Different

An outbreak of respiratory illness caused by a novel coronavirus (2019-nCoV) may affect mariners and maritime commerce. 2019-nCoV was first detected in Wuhan, People’s Republic of China and has since spread globally (see https://go.usa.gov/xdbS9). There are several known coronaviruses that infect people, usually causing only mild respiratory symptoms similar to the common cold. However, 2019-nCoV appears capable of causing illness that is more serious. Signs and symptoms include fever, cough, and difficulty breathing.

Maritime Traffic Rules
  • Per 42 CFR 71.21, vessels destined for a U.S. port are required to report to the CDC any sick or deceased crew/passengers during the 15 days prior to arrival at a U.S. port. Guidance to vessels on reporting deaths and illnesses to the CDC can be found here.
  • The Coast Guard will continue to review all “Notice of Arrivals” in accordance with current policies and will communicate any concerns stemming from sick or deceased crew or passengers to their Coast Guard chain of command and the cognizant CDC quarantine station, who will coordinate with local health authorities.
  • Passenger vessels or any vessel carrying passengers that have been to China (excluding Hong Kong and Macau) or embarked passengers who have been in China (excluding Hong Kong and Macau) within the last 14 days will be denied entry into the United States. If all passengers exceed 14 days since being in China (excluding Hong Kong and Macau) and are symptom free, the vessel will be permitted to enter the United States to conduct normal operations. These temporary measures are in place to safeguard the American public.
  • Non-passenger commercial vessels that have been to China (excluding Hong Kong and Macau) or embarked crewmembers who have been in China (excluding Hong Kong and Macau) within the last 14 days, with no sick crewmembers, will be permitted to enter the U.S. and conduct normal operations, with restrictions. Crewmembers on these vessels will be required under COTP authority to remain aboard the vessel except to conduct specific activities directly related to vessel cargo or provisioning operations.

Prior Post: COVERAGE CROSSROADS – WHAT TYPE OF CLAIM DO YOU HAVE?

Uncategorized

Our Office is Moving – Upstairs!

We will close Friday & Monday, February 21 and 24, 2020, as our office is moving. We will process mail and checks both days, and will monitor our email and voice mail periodically. We will return to regular business on Tuesday, February 25th.

Our new offices are upstairs in our current building, at 2601 4th Avenue in Suite 700. All phone/fax numbers and email addresses remain the same. Our mailing address, at our Post Office box, also remains the same.

The new space is similar in design to our current offices, but is bigger and gives us room for growth as that occurs. We are upgrading our internet and phone system, as well.

Thank you for your patience during our move. We look forward to sharing our new space with you soon!

Maritime

Fishermen’s Safety Fair, Blessing of the Fleet

Fishermen’s safety is a topic of discussion throughout the country. From captivating tv series to memorial services and everything in between, we all feel a connection to those brave enough to work at sea.

The process of ensuring safety for fishermen begins before the boats leave the dock, with emergency plans and equipment in place. The blessing of the fleet is a nod to the fact that even the best plans and safety equipment are not always good enough to save a life on their own.

Blessing of the Fleet

This year in Seattle the annual Blessing of the Fleet ceremony will be held at 2:00 p.m. on Sunday, March 8th at Fishermen’s Terminal.  Hosted by Ballard First Lutheran Church, family, friends and guests are encouraged to join the ceremony at the Central Plaza at Fishermen’s Terminal.

Fishermen’s Safety Fair

Each year Seattle Fishermen’s Memorial hosts a Fishermen’s Safety Fair to teach fishermen practical skills to save their boats and their lives. This year’s event will be held 9:00 a.m. to 3:00 p.m. Thursday, June 4. The event will be held at Fishermen’s Terminal at Dock 9. For more information please contact: Safety@seattlefishermensmemorial.org.

Seattle Fishermen’s Memorial believes that a significant number of lives can be saved if more fishermen are trained and understand: vessel stability, shipboard fire-fighting, first aid / CPR, and drill instructor certification. In addition, Seattle Fishermen’s Memorial supports the concept of onboard training and vessel emergency team training.

As part of its commitment to promote safer vessels, the Seattle Fishermen’s Memorial Board is making funds available to Washington-based commercial fishing vessel owners and their crew members, and fishermen who are Washington residents. This ongoing program started August 1st, 1995. See their website for a complete list of safety training opportunities.

Read our prior post: PORT 101 TOUR, SHIP CANAL for a glimpse of a behind-the-scenes tour of Seattle’s Fishermen’s Terminal, the Ship Canal, and the Ballard Locks.

Safety Violation

Blasting Violations Result in Loss of License for Contractor

An Idaho-based drilling company lost its license to perform blasting work in Washington due to repeated blasting violations. In the latest incident, in June of 2019, an unsafe blasting operation in Spokane put workers and the public at risk and resulted in citations, fines and loss of licensing.

The Washington Department of Labor & Industries (L&I) cited and fined North Idaho Drilling Inc. of St. Maries, ID for several willful and serious violations for the June 2019 blasting incident. In total, the company faces $92,144 in state penalties.

Rocks blasted nearly 500 feet

A crew from the drilling contractor was performing a blasting operation on North Grant Street in Spokane when the incident happened on June 21, 2019. Because the blast wasn’t planned or conducted properly, it resulted in rocks being thrown as far as 490 feet from the site – more than one-and-a-half football fields – in all directions.

Some of the rocks struck buildings, some fell on the street and some struck vehicles. Though no one was hit, several people ran for cover.

L&I has cited this employer at least two other times for similar hazardous situations, so in addition to the large fine, the department revoked North Idaho Drilling’s license to conduct blasting operations in Washington.

“There’s no margin for error with explosives, and this company has repeatedly placed workers and the public at grave risk,” said Anne Soiza, assistant director in charge of L&I’s Division of Occupational Safety and Health (DOSH). “This disregard for safety of the public and workers simply will not be tolerated in Washington.”

Violations were repeated and willful

This recent citation is for 11 blasting violations including three willful/serious and five serious, as well as repeat and willful general violations.

Among other things, the blaster in charge used more explosives than needed, which hurled rocks in all directions from the blast. Also, blast mats were not used properly to contain the explosion. The rocks thrown were large enough to cause serious injuries, permanent disability or death. Some did cause property damage.

The blaster-in-charge stated that he set the blast area at 350 feet, but did not ask property owners in that area for permission as required by code.  Many of their buildings were damaged, showing willful neglect of property rights.

Because this was the third time L&I has cited this employer for creating serious hazards, North Idaho Drillings Inc.’s license has been revoked in Washington. L&I rarely has to cite contractors for blasting violations, so it is notable that this company has been cited multiple times. Normally, L&I citations are for hazards that endanger workers, but in cases like this, danger to the general public is also a factor.

See news coverage of this incident by KREM, here.

See news coverage of a prior North Idaho Drilling incident, which occurred in January of 2019, by KOMO, here.

Read Expert Commentary: Construction Blasting Risk Management for an outline of appropriate procedures to assure safe completion of a blasting project.

See a prior post of ours: HOLDING INDIVIDUALS ACCOUNTABLE FOR WORKPLACE SAFETY VIOLATIONS

Evaluations

Functional Capacities Evaluations Explained

Functional capacities evaluations (FCE’s) are used in many workers’ compensation claims and other legal cases. FCE’s can help determine functional ability, assess client effort, and determine appropriate work restrictions after an injury.

Unfortunately, there is no standardization for this type of examination. Many different systems and processes are used, some resulting in controversy in the overall effectiveness. Too often, the functional capacities evaluations provide inaccurate results. In some cases, this can be damaging to a legal case.

The objective of this article is to explain the functional capacities evaluation process, how the FCE is useful to you, as well as potential pitfalls to avoid.

The Functional Capacities Examination

A FCE can be performed in 4-8 hours, typically at a physical therapy facility where equipment is available for evaluating a variety of physical activities. Often, the examiner will have the patient perform tasks similar to the their job, simulating a day of work. Activities of daily living can also be simulated.

Tasks such as stair and/or ladder climbing, lifting, carrying, pushing and pulling of items at various weights will be tested to tolerance, possibly multiple times. Sitting and standing, crawling, and kneeling may be examined. Hand strength, keyboarding and fine-finger activities are also tested.

Throughout the evaluation process, the examiner will ask how the patient is feeling after each task, testing for whether the task meets or exceeds the limitations of the individual. The goal is to determine maximum abilities that can be sustained over a work day. This includes the ability to perform the tasks, as well as the stamina to do so repetitively.

See a sample functional capacities evaluation report, here.

Tips to Follow for an Accurate FCE

Put Forth a Good Effort

An FCE is typically scheduled to occur on one day, rarely over two days. It likely will not be an accurate reflection of your work ability if you try to breeze through the tests, which can seem simple.

The examiner will be tracking your heart rate, respiratory rate other indications of full effort. They will encourage you to do more, while noting signs of exertion, such as sweating or having you answer questions to see if your sentences are interrupted due to you breathing hard after the exercise.

Increase Activity Levels Prior to the Evaluation

Try to remember that the FCE is meant to test your ability to perform tasks over a full-time work week. In order to gain an accurate assessment, try to be active in the days leading up to your examination. Don’t knock yourself out, but don’t sit on the couch, either.

The day or two before your evaluation, try to perform activities that are similar to those you do at your job. If you spend all day at work on your feet, try going for a nice walk, or do a large grocery shop, on the day prior to the examination. If you sit at a desk all day when working, maybe go to a movie or spend a couple of hours at the library sitting at a desk or table prior to your evaluation.

Try to make sure that the examiner is able to determine what your condition would be like on Friday afternoon back on the job, after working all week. You don’t want to have their report reflect your ability on Monday morning after resting up all weekend.

Answer Questions Honestly and Thoroughly

The functional capacities evaluation takes place over the course of a day. The examiner’s report will be a better assessment of your abilities if you are forthright with your answers. If the examiner asks if you feel pain or some other sensation, this is not the time to exaggerate nor to minimize your symptoms.

Acting tough or pushing through pain may result in your exertion scores being high – you’re putting forth great effort! – but, if the results of this exertion are not accurately documented, you may be found able to perform at a level that is not realistic.

Over-stating your response to an activity also leads to a poor FCE result. If the examiner feels that you are capable of doing more than your test results reflect, or that you are complaining of difficulties out of proportion to your apparent levels of stress, this can be noted in the final report.

It may be helpful to let the examiner know the type of symptoms you generally experience, how long they last and what steps you take to reduce or alleviate those symptoms. This kind of openness and honesty will let the examiner know that you are in tune with your situation and are focused on improving your condition.

Usefulness of an FCE

An accurate functional capacity evaluation can be very useful to you in your claim or legal case. It can ensure appropriate treatment, vocational services and impairment awards are provided under your claim.

Medical Uses for a FCE

Your doctor may use the results to support that work restrictions are needed, or that a course of work conditioning treatment is needed to improve strength and stamina. An FCE can also help show that a certain rating of permanent impairment is appropriate.

The medical information within the final report, including symptoms present due to exertion and activity, allow your doctor to opine on your current condition and whether your condition could be improved with additional treatment.

Vocational Uses for a FCE

When a vocational counselor is assigned to a claim or case, they must make a determination of your ability to work. Typically, they will determine if you are able to return to work at your regular job, or a modified version of your job, with the same employer.

If not, they will look at your physical abilities together with your skills and education to determine if you could work in some other type of work. If you have transferable skills to another line of work, they will document the availability of these potential jobs and the willingness of employers to hire someone with your work restrictions.

Ultimately, the vocational counselor will write a report detailing your ability to obtain and maintain employment. The report will indicate whether you can return to work with your current skills and abilities, based on the functional capacity evaluation, or whether retraining services are needed.

Do you Need Legal Help?

You do not necessarily need legal advice when facing a FCE. If you have any concerns, questions, or if your instincts tell you that something doesn’t feel right, then talking with an attorney may be appropriate. Many firms, like ours, offer free consultations. Why not get answers to your questions before your evaluation?

See this prior post:

HOW CORPORATE MONEY POISONS “INDEPENDENT” MEDICAL EVALUATIONS

Worker Safety

Rotten Roof Injures Roofer in Fall Incident

Roofer Falls 20 Feet through Rotten Roof

SUMMARY

A 39-year-old roofer was severely injured when he fell 20 feet through a rotten roof. He had 22 years of experience in the roofing industry and had been with his employer, a roofing contractor, for a year.

The injured roofer was a member of a four-person crew that had been tearing-off and replacing the flat (low pitch) roof of a manufacturing storage facility for a month. On the day of the incident, they were working to remove three layers of roofing materials to check for spots of rotten roof.

Warning lines were set up near the roof’s edges and a safety monitor was used. Workers were not required to use personal fall protection while inside the warning lines. Outside of the warning lines, they were required to use a personal fall arrest system consisting of a full body harness with ropes tied-off to anchor points. Most of the visible rotten roof was in the area outside of the warning lines.

The roofer was inside the warning lines near the roof ridge using a shovel to scrape off shingles and insulation. As he stepped backward, a patch of rotten roof gave way and he fell through, landing 20 feet below on wood flooring. He was severely injured and suffered numerous fractures and internal injuries.

Investigators found that a worker had previously placed an orange cone to mark a rotten spot near where the roofer broke through the roof. The spot he fell through was three feet away from the cone and under three layers of roofing material so he was not able to recognize it was rotten. Workers had also been walking across the roof in the area for several weeks. At the time of the incident, the safety monitor was on the other side of the roof ridge throwing debris into a truck below. After the incident, the employer required workers to use a personal fall arrest system at all times.

RECOMMENDATIONS

FACE investigators concluded that, to help prevent similar occurrences, employers should:
• Erect guardrails around rotten roof areas to prevent access.
• Place a cover of standard strength and construction over localized rotten roof areas. (A sheet of
plywood would have covered the rotted deck area in this case.)
• Use scaffolds and/or elevating work platforms to access the underside of a roof to remove rotted deck when site conditions allow their use.

REQUIREMENTS

• Employers must ensure that all surfaces on which employees will be working or walking on are structurally sound and will support them safely prior to allowing employees to work or walking on them. See WAC 296-155-24605(1)
• Ensure that the appropriate fall protection system is provided, installed, and implemented when employees are exposed to fall hazards of 10 feet or more to the ground or lower level while engaging in roofing work on a low-pitched roof. See WAC 296-155-24611(1)(a)
• Prior to permitting employees to start demolition operations, you must make an engineering survey, by a competent person, of the structure to determine structural integrity and possibility of unplanned collapse of any portion of the structure. See WAC 296-155-775(1)

MORE INFORMATION

Read the full FACE Construction Injury Narrative report for this incident. For a slideshow version, intended for educational purposes, click here.

This narrative is an alert about the serious traumatic injury of a worker and is based on preliminary data ONLY and does not represent final determinations regarding the nature of the incident or the cause of the injury. Developed by the WA State Fatality Assessment and Control Evaluation (FACE) Program and the Division of Occupational Safety and Health (DOSH), WA State Dept. of Labor & Industries. The FACE Program is supported in part by a grant from the National Institute for Occupational Safety and Health (NIOSH grant# 5U60OH008487). For more information visit the FACE website.

Read prior posts about roofing accidents:
WHY DO ROOFERS FALL FROM ROOFS? IS IT JUST BECAUSE OF GRAVITY?
MUKILTEO, WA COMPANY FINED $645,000+ FOR EXPOSING ROOFERS TO FALL HAZARDS
Safety Violation

Roofing Company Fined for Putting Workers at Risk

Snohomish, WA roofing company fined nearly $375,000 for putting workers at risk.

A Snohomish roofing company fined by the state for multiple worker safety hazards and their violations at three different job sites is facing large fines.

After receiving calls from concerned neighbors, the Department of Labor & Industries (L&I) opened inspections into Allways Roofing in connection with work at three homes in Woodinville and Arlington.

L&I investigators found multiple serious hazards at each location. As a result, L&I cited Allways for several violations and fined the company $374,400.

Fall protection, unsafe ladder use and other safety violations

In Woodinville, L&I cited Allways for three willful violations. Five workers, including a foreman, were working on a steep-pitched roof without proper fall protection; workers were using a 24-foot extension ladder without extending it to a proper height above the roofline; and the employer did not have a fall protection plan onsite and workers were not trained on the plan. Those, plus four other serious violations and one repeat-general violation, add up to $191,700 in penalties.

For the Arlington worksites, L&I cited Allways for three willful violations, two serious and one repeat-general, for essentially the same hazards found in Woodinville. Those violations add up to $182,700 in penalties.

Repeat violator now in severe violator program

L&I has cited Allways Roofing seven other times in Washington since 2012. Those citations included 11 repeat-serious and eight serious violations for hazardous conditions. In those cases, Allways was fined $112,000.

“Falls from roofs, ladders and other elevated worksites are the leading cause of preventable workplace fatalities and immediate hospitalizations in our state,” said Anne Soiza, assistant director in charge of L&I’s Division of Occupational Safety and Health (DOSH). “This company has repeatedly exposed its workers to harm and ignored the minimum rules known to prevent fatalities. We hope this level of accountability will motivate permanent safety improvements in their operations.”

In 2018, 15 Washington workers died from falls. Six of those were from ladders; all but one were from elevation, such as from a roof. More construction workers die from falls each year than workers in any other industry. Many more workers are seriously injured from falls annually.

A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition. A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or intentional disregard of a hazard or rule — essentially meaning the employer knew of the hazard and intentionally put workers at risk anyway.

The company is now in the Severe Violator Program due to its inspection history. Among other things, that means the company can be subject to more inspections until it can demonstrate its ability to follow these rules and keep its workers safe.

Allways Roofing has 15 days from the date of the citations 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.

For a copy of the citations, contact L&I Public Affairs, (360) 902-5413.

Prior post about unsafe conditions by another roofing company: OLYMPIA, WA ROOFING COMPANY CITED 7TH TIME FOR SAFETY VIOLATIONS

Layoff or Closure

Seattle Times Closing North Creek Facility

The Seattle Times,  the Pulitzer Prize-winning newspaper, is closing its North Creek Facility in Bothell, WA. The Seattle Times closing of this facility has led to a reported layoff of 42 employees, as noted in a recent Worker Adjustment and Retraining Notification (WARN) filing with Washington State.

Expected beginning date of separations is March 2, 2020. Staff from the local rapid response team and WorkSource center will perform outreach to employees of the organization to ease the transition.

Production activities at the North Creek Plant in Bothell included newsprint roll storage and conveyance, printing, packaging, and truck loading. Printing operations previously performed at the site have moved to another Seattle Times-owned facility in Kent, WA.

The Seattle Times North Creek Facility property is listed for sale, with an asking price of $45,000,000. As of this writing, the property is listed as Pending on the Windermere Commercial Real Estate site. It is not yet known the amount of the actual sale.

In a detailed article from April, 2019 by Seattle Times real estate reporter Mike Rosenberg, The Seatte Times explained that proceeds from this sale would be put towards funding news operations, as well as paying down debt at the Bothell, WA facility and funding pension obligations.

Photo credit: Mike Siegel / The Seattle Times

Prior post about Snohomish County layoffs: MCKESSON CLOSING EVERETT SHOP IN JUNE

Employer Fraud

Back Wages Owed by Construction Company

Construction company must pay nearly $100,000 in back wages, and over $28,000 in fines.

The owner of a Maple Valley construction company must pay several employees nearly $100,000 in back wages for work on a Tacoma public housing project.

The state Department of Labor & Industries (L&I) cited Alejandro Sandoval for not paying the required wages and failure to file payroll records. He faces being barred from bidding on any future public projects until the workers are paid.

Sandoval has appealed the L&I citation. Late last month, the Office of Administrative Hearings scheduled the appeal for Aug. 10-14, 2020.

Sandoval Construction was hired to perform wall and roof framing and other carpentry work on the Valhalla Apartment Project for the City of Tacoma in 2017. In all, 25 workers are owed a little more than $92,500 in back wages because the company didn’t pay the required rate of $40.66 per hour for residential carpenters. The company also owes $28,500 in fines.

“This company has an established history of not paying workers what they’re owed,” said Jim Christensen, L&I’s Prevailing Wage Program manager. “We had to take this action after years of educating the company about their requirements under state law.”

A history of problems

After a 2016 investigation, Sandoval pleaded guilty last year to false reporting and first-degree theft in a separate construction case. He owed a dozen workers more than $25,000 in unpaid wages involving framing of residential projects in Seattle and King County. Under separate civil proceedings, he also owed at least $197,000 in unpaid workers’ compensation insurance premiums, interest and penalties. As a result of plea agreements signed earlier this year, the company repaid the wages and is on a plan to repay $35,000 in premiums by June 2020.

Details of recent investigation

The recent investigation started in January 2018. L&I found Sandoval filed paperwork that stated only nine workers were employed on the project, and that Sandoval did not file other required payroll records. The 25 workers are owed between $20 and $9,500 each, depending on how long they worked on the project.

“Sandoval deliberately tried to circumvent record-keeping rules and cut corners in paying his workers,” Christensen said. “He issued checks that bounced, also leaving employees faced with paying bank fees.”

The Valhalla Apartment Project, on Martin Luther King Jr. Way in the Hilltop Neighborhood, includes retail space. RAFN Company was the prime contractor.

The state’s prevailing wage law is triggered when construction projects use public funds. The law covers workers on schools, roads, and other types of public projects. L&I enforces the law, which protects workers from substandard earnings and preserves local wage standards. The law also ensures contractors have a level playing field when bidding on public projects.

Prior post: BELLEVUE, WA FIRM BARRED FROM PUBLIC PROJECTS; FAILED TO PAY $140,000 TO WORKERS