Category Archives: Workers Compensation

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Workers Compensation

Proposal for Steady Workers’ Comp Rates for 2021

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

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

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

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

Keeping rates steady and predictable

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

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

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

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

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

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

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

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

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

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

Public hearings planned

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

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

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

People are encouraged to submit comments in writing to:

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

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

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

Recent Posts on Related Topics

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.

 

Future Medical Expenses, Medicare, Workers Compensation

Settling a Workers’ Compensation Claim – Future Medicals and Medicare

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Will Medicare cover my future medical expenses for my workers’ compensation injury if I settle my case? Yes, no, maybe…the answer to this question is always a tricky one. In fact, this is one of the most complex questions that will confront an injured worker at the time of settlement.

Most settlements are final. Once you agree, you may have created a binding contract that will have serious financial repercussions for you and your family. It’s best to be prepared ahead of time so you fully understand the potential impact of a settlement. Settlement agreements cannot be set aside except in very rare circumstances. Before settling your case, you should take a full accounting of your future medical expenses and your insurance coverage. In reviewing your medical needs, do not forget to account for over-the-counter medications. These costs add up quickly over time.

If you are already a Medicare beneficiary, it’s quite likely you will need to set aside a portion of your settlement for future medical expenses. Medicare may refuse to pay for medical coverage relating to your injuries unless you’ve allocated some of the settlement funds for future medicals. Determining how much to set-aside is another complicated question and usually an outside company is hired to help assist with this determination.

Furthermore, injured workers must also take into consideration the fact that there are certain medical expenses that Medicare may not cover. For example, when an injured worker needs someone to take care of them. Medicare will not pay for these services so the injured worker would be forced to pay if she failed to negotiate this amount prior to settlement. Also, even when Medicare does help foot the bill, the injured worker will still likely pay the coinsurance amount (typically 20%). In short, be careful and think about future medical expenses.

Workers Compensation

Intoxication, Work, And Workers’ Compensation Don’t Mix

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.

If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.

This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury.

Now, there are some notable Continue reading Intoxication, Work, And Workers’ Compensation Don’t Mix →

Legislation, Medicare, Workers Compensation

Making A Difference In Washington – The Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Today’s post comes from guest author Catherine Stanton from Pasternack Tilker Ziegler Walsh Stanton & Romano.

In addition to helping our clients receive the benefits they are entitled to through the courts and other adversarial means, we are prooud to work with our elected officials to produce legislation that will benefit working people. A few days ago, a bill we support, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, was formally proposed. We encourage you to call and email your representatives and let them know that you support this law.

The press release with additional background follows:

 

Reps. Reichert and Thompson Introduce Bipartisan Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Washington, D.C. – Today, U.S. Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, H.R. 1982 into the House of Representatives.

The legislation aims to protect injured workers whose workers’ compensation claims overlap with Medicare coverage. Far too often, these claims are subjected to lengthy and cumbersome reviews by the Centers for Medicare and Medicaid Services (CMS) to determine appropriate set-aside amounts to pay for future medical costs in which Medicare may have an interest. The delays associated with this review place unfair burdens upon the injured party.

“This is a common-sense measure to ensure that hard-working Americans are not left in limbo because of inefficient bureaucratic procedures,” said Rep. Reichert. “Injured workers must have the confidence that their heath care claims will be processed in a fair and timely manner. By introducing this bill, Rep. Thompson and I aim to do just that: protect our hard-working citizens by making sure our systems serve them and their families.”

“The last thing injured workers should have to worry about is if needless bureaucracy is going to prevent their medical bills from being paid,” said Thompson. “This bill will make sure hard working families’ medical claims are processed efficiently and quickly, it will reduce bureaucratic headaches for businesses, and it will save taxpayers money. I will continue working with Congressman Reichert to get this bipartisan bill signed into law.”

Background

The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act establishes clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare. It would benefit injured workers, employers and insurers by creating a system of certainty, and allows the settlement process to move forward while eliminating millions of dollars in administrative costs that harm workers, employers and insurers.

The legislation has widespread support from groups such as the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC-Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

health insurance, Workers Compensation

Opioid Use in Worker’s Compensation

click on the map for a larger version

Today’s post comes from guest author Tom Domer from The Domer Law Firm.

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

Workers Compensation

Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers

Today’s post comes from guest author Charlie Domer from The Domer Law Firm.

In Washington State, undocumented workers are allowed to receive workers’ compensation benefits if injured in the course of employment. Many issues unique to this circumstance arise in such claims, including difficulties in documenting date-of-injury wages and job offers made during the course of a claim that require proof of eligibility for legal employment used as a tool by employers to truncate receipt of benefits by workers injured while in their employ.

Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen.  This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.

…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law.

The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do Continue reading Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers →

carpal tunnel, Workers Compensation

Four Things You Should Know About Carpal Tunnel Syndrome

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

Carpal Tunnel Syndrome, also known as CTS, is an uncomfortable and often painful wrist disorder. It is a common injury that can be caused by workplace stress. Here are four things you should know about Carpal Tunnel Syndrome.

  1. Carpal Tunnel Syndrome is caused by repeated stress.
    Carpal Tunnel Syndrome is a Repetitive Stress Injury (RST). It occurs when the same action is repeated many times. When wrists are strained over and over again by actions like typing, the tendons in the wrist can become enlarged. Then the tendons can compress a nerve that runs through a passage in the wrist called the “carpal tunnel.”
  2. Even if your wrists don’t hurt badly, you could still have CTS.
    There are a whole range of symptoms associated with CTS, not just pain. Symptoms of CTS can include numbness or tingling pain in the hand, wrist, and forearm, impaired or lost nerve function, reduced muscle control, and reduced grip strength.
  3. You can receive workers’ compensation for CTS.
    According to Nebraska and Iowa law, workers can receive workers’ compensation from the onset of Carpal Tunnel Syndrome. This compensation includes 100% of all medical expenses that are reasonable and necessary to treat CTS, including both inpatient and outpatient care and prescriptions.
  4. You may be entitled to compensation for permanent damage due to CTS.
    If you experience Continue reading Four Things You Should Know About Carpal Tunnel Syndrome →
workers comp basics, workers comp qanda, Workers Compensation

Consider These Car Accident Tips to Avoid Missteps

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

No one ever intentionally plans to get in a car accident or get hurt at work. But unfortunately bad things sometimes happen in life. And a person’s response to those situations can sometimes affect what happens from a legal perspective. Also remember that if you travel as part of your job, or if traveling is your job, like in the case of truck drivers, vehicle accidents are often covered under workers’ compensation. Here are some recommended tips to avoid potential legal pitfalls later.

What to do when you’ve been in a car accident:

  1. Call the police (or 911 if necessary).
  2. Exchange information with the other driver (name, contact info, driver’s license number, license plate, auto insurance).
  3. Obtain witnesses: Get names and contact info for any witnesses even if the police have already spoken to that person. If possible, obtain written statements from willing witnesses.
  4. Gather evidence: Take pictures or videos of the accident scene, the damage to all vehicles, and any noticeable injuries.
  5. Write notes of the date, time, location, weather, how the accident happened, and any other details that you can remember (speed, traffic signals, turn signals, headlights, brake lights, cell phone usage, etc.).
  6. Go to your doctor: make sure to tell your doctor how you were injured, and be sure to discuss all injuries, even ones that seem insignificant at that time.
  7. Contact your insurance company, and report the accident. Your auto insurance will likely pay for at least some of your medical bills.
  8. Do not give a recorded statement without contacting a lawyer.

You should talk to a lawyer when you’ve been in a car accident IF:

  1. You don’t know what kind of compensation/money you are entitled to
  2. The insurance company is asking you for a recorded statement
  3. The insurance company denies your claim
  4. There is a question of which driver is at fault
  5. The police report is incomplete or inaccurate
  6. The other driver does not have insurance or does not have enough insurance coverage
  7. You have unpaid medical bills
  8. You have permanent disability or constant pain
  9. There are complicated legal or medical issues
  10. You have missed more than a few days of work

Do your best to drive defensively, and safe travels.

Doctors And Medical, government, Workers Compensation

Reversing A Century Of Progress – Are We Back In Upton Sinclair’s Jungle?

Many workers no longer have paid sick days.

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

Health Care Is Just The Beginning

At a time when a flu epidemic is exploding out of control, killing thousands of people, forty-two million Americans have no sick leave. Many of these people are lower paid, often work part time, and continue to work when ill because they can’t stay home to recover without losing their income. I am shocked and dismayed that many hard-working folk are forced to work when sick because staying home is not economically possible. Making matters even worse, these highly vulnerable workers often have no employer-provided health insurance so even serious illnesses go untreated, putting us all at a higher risk for infection from a contagious worker, like a server in a restaurant, for whom taking an unpaid day off is impossible.

…the trend toward low pay, long hours and few benefits is getting stronger.

I fear that if the current trends continue, the lives of the millions of Americans who struggle at low-paying jobs will remain miserable, desperate and be lacking in real hope. It appears that the trend toward low pay, long hours and few benefits is getting stronger. At the turn of the 20th century when Upton Sinclair wrote “The Jungle,” describing immigrants struggling in Chicago, the jobs were more physical, dangerous and just plain disgusting. However, millions of “New Jungle” workers still struggle and suffer today.

Class Warfare

After over 100 years of progress, the American middle and lower classes are under constant attack. The efforts to limit rights of workers are ongoing and supported by big business. Every day I read of measures being introduced in state legislatures to limit access to and decrease the benefits of workers’ compensation. The right to collective bargaining is being attacked as well. Local elections are overrun by anonymous innocent-sounding Super PACs funded by 21st Century versions of robber-barons who are using their wealth and power to squeeze out a few more dollars in profits to add to the tens of billions of dollars already sitting in their bank accounts. These are not job creators, they are their own personal wealth creators. Income equality is at an all-time low in the United States, and the trends are getting worse.

How can this be happening in 21st century America? How can we call ourselves civilized? Can we really allow such maltreatment of workers and disregard public health in what we call an “advanced,” “modern,” and frequently, an “exceptional” county?

A Path Forward

We are not without hope, though. Crusaders like Senator Elizabeth Warren are working hard to reverse the trends and preserve the American Dream for future generations. But our protectors are few. We cannot assume that someone else is looking out for us. We must engage with government at the local, state and federal levels so that the voices of regular working folk are not drowned out by a cabal of rogue billionaires trying to keep score by increasing their own personal fortunes at the expense of working people. I fear that if we sit by passively, our children will all be working in the New Jungle, America will have lost its middle class, and with it, the American Dream will be a distant memory. The time to act is now.