Overpayment Of Unemployment Due To Payment of Workers’ Compensation Benefits – NOW WHAT?!?

Injured workers transition from time loss compensation under their workers’ compensation claim to unemployment compensation when they are released to return to work but do not have a job available to them. In many cases, disputes arise as to whether the release to work and termination of workers’ compensation payments is appropriate. Often, the worker tries to find physically-appropriate work while collecting unemployment compensation during the dispute process but, once their attorney secures payment of back benefits under the workers’ compensation claim, an overpayment of unemployment benefits has occurred due to the overlap between the two systems. When this happens, workers should:

  1. Notify the unemployment insurance system that they are continuing to seek payment from the workers’ compensation system, but that they are involved in an appropriate job search during the dispute process.
  2. Immediately share with the workers’ compensation attorney any notices or orders received from the unemployment insurance system. These are usually NOT mailed to the attorney of record in a workers’ compensation claim and the notices often have limited time periods within to file a protest or request for reconsideration of the determination.
  3. Hold in savings from the workers’ compensation payment the claimed unemployment overpayment amount during the dispute process until a final overpayment notice has been issued, or have the workers’ compensation attorney hold this amount in their trust account. If this is not possible, be prepared to enter into a repayment agreement with the unemployment insurance system once a final overpayment figure has been determined.
  4. Seek assistance from the workers’ compensation attorney to document all attorney fees and costs paid as part of the effort to obtain back benefits under the workers’ compensation claim. Submit this documentation to the unemployment insurance system and request a reduction in the claimed overpayment to take these attorney fees and costs into account.
  5. Continue to send any notices or orders to the workers’ compensation attorney.
  6. Once the overpayment has been repaid, check to see if the receipt of workers’ compensation back benefits changes your tax obligations. In many states, workers’ compensation payments are not taxable income, but unemployment benefits are taxable. If there is a significant payment of back benefits under the workers’ compensation claim, it may be worthwhile to file an amended tax return with the IRS to document the lower taxable income figure.

Can I Move To Another State If I Have A Workers’ Comp Claim?

Question: Can I move to another state even though I have a workers’ compensation claim in Washington State?

Answer: Absolutely!

Many claimants move to other states during the course of their workers’ compensation claims. Here are the top five things to consider when moving to another state:

  1. Tell your workers’ compensation attorney that you are moving, and update your contact information such as telephone number and address. Discuss any changes that may occur in your specific case after your move – changes in claim procedures or benefits, vocational retraining options, etc..
  2. Find a doctor in your new state that handles workers’ compensation claims from Washington. The Department of Labor and Industries offers a searchable list of providers in the United States, Mexico, Canada and other countries. Be sure to ask whether the doctor provides treatment to injured workers when making your appointment.
  3. As there is often confusion at the initial stages of treatment as to why a patient is seeing the doctor, be sure to tell your doctor that you have relocated and that you have an open, ongoing workers’ compensation claim from Washington State for which you need continuing treatment.
  4. Have your Notice of Decision authorizing your claim for medical treatment handy! This is how the doctor knows that he or she is allowed to treat you for your work-related injury. If you do not have a copy of that Notice of Decision or have lost it, ask your workers’ compensation attorney to send you a copy ASAP.
  5. Be proactive. This is your workers’ compensation claim: you have a right to your medical records. Ask for them after each visit! Give your workers’ compensation attorney the doctor’s contact information, including telephone number, fax number, and address. Get in touch with your workers’ compensation attorney if the doctor is having any difficulty getting your medical treatment paid for under your claim.

NIOSH Alerts Home Healthcare Workers About Latex Allergies

latex allergyToday’s post comes to us from our colleague Jon Gelman of New Jersey.

NIOSH (The National Institute for Occupational Health and Safety) has published a booklet to educate Home Healthcare Workers about preventing latex allergies. Latex products are made from natural rubber, and sensitivity can develop after repeated exposure. Limiting exposure to latex can help prevent allergic reactions for both home healthcare workers and their clients.

Once Natural Rubber Latex (NRL) sensitivity occurs, allergic individuals continue to experience symptoms, which have included life-threatening reactions, not only on exposure to NRL in the workplace but also upon receiving or accompanying a family member receiving healthcare services at inpatient as well as office-based settings.

In September of 1997, the Food and Drug Administration (FDA) issued a final rule requiring cautionary statements in the labeling of all medical devices that contain natural rubber likely to come in contact with humans. The rule provides that such products must contain the following cautionary statement in bold print: “Caution: This product contains natural rubber latex which may cause allergic reactions.” Additionally, the FDA issued Continue reading NIOSH Alerts Home Healthcare Workers About Latex Allergies

The RETRO Program: There’s GOLD in Them Thar Hills!

The BIAW helps employers, not workers, save through RETRO. They also financially backed defeated gubernatorial candidate Dino Rossi.

Earlier this week we shared a post on the RETRO program, and the bureaucratic problems it will create that will be keenly and painfully felt by workers.

The RETRO Program has inserted a profit motive into a system designed to spread claims costs across the state as a whole. This profit motive has created a new industry in our state – the administration and oversight by independent groups of the administration and oversight of claims already performed by the Department of Labor and Industries. These independent groups shave a portion of an employer’s refund as payment of their fees with promises of reduced claims costs and increased rebates in exchange.

Some of these groups advertise their ability to gain rebates of 11%, 15%, 17% from premiums paid by the employer. One – The Building Association of Washington or the BIAW – advertises that it helped their employer clients receive refunds of 51.8% last year. To my eye, that is more than good claims practices. It is robbing the workers and tax payers of this state.

I can assure you that the workers who paid into our state-wide system through payroll deduction did not receive 51.8% refunds.

Our legislature is scrambling through an extended session to craft a budget for the coming biennium, facing the daunting task of cutting programs that provide essential services to the neediest members of our society. The Department of Labor and Industries routinely used excess premiums to invest as a means of lessening the cost of claims for everyone involved. With enormous rebates, though, they are instead running close to the bone.

Most RETRO groups provide review and analysis of workplace conditions and practices in an effort to prevent injury claims in the first place. Some, including the largest RETRO group in the state, the aforementioned BIAW, also take funds from employer rebates and convert them into huge lobbying efforts focused not only on reform of the workers’ compensation system but of the structure of our government overall.

The BIAW was a major financial backer of the defeated gubernatorial candidate in the last race, Dino Rossi, causing Continue reading The RETRO Program: There’s GOLD in Them Thar Hills!

The RETRO Program Is More Dangerous Than It Looks

Should Washington workers be happy about the RETRO program?

In a post from last week we introduced the history of the Workers’ Compensation System and asked the question: Should taxpayer money continue to be used to support the government system that allows these cases to be brought?

A growing number of employers in Washington State are taking part in the RETRO Program, a system within the system, designed with the good intention of incentivizing safer workplaces. Employers that participate in this program pay into the system according to the risk classes of their employees, as usual, but the actual costs of their claims are tracked and compared to the amount of the premiums paid. When the amount paid in claim costs exceeds the premiums paid, the employer is assessed an extra fee. If the claim costs are less than the premiums paid, a refund of the difference is returned to the employer. On the face of it, this seems reasonable, unless we look back to my bridge analogy from last week’s post:

When a bridge is needed in Seattle, those in Yakima don’t want to pay for it, even though our entire highway system supports tourism and commerce throughout the state. So, we have an insufficient tolling system in place based on the concept that only those citizens that drive on the bridge should have to pay for it.

The burden of injury and disability claims is greater on an individual employer than if the responsibility for the costs is shared.

Instead of incentivizing a safe work place we are now incentivizing denials of claims, denial of authorization for medical procedures such as MRI scans, and strict limitations on conservative care such as physical therapy. This creates a dynamic where Claims Managers at the Department of Labor and Industries are pinned between the interests of injured workers seeking benefits and employers counting pennies.

Caught in the middle of the storm, the easy decision for a Claims Manager is to deny benefits and let the issues be sorted out through the appeals process. This leads to delays in treatment, financial hardship and unfair costs to the injured worker, who remains responsible for the cost of attorney fees in litigation, whether they win or lose, when the employers have the ability to deduct the cost of legal fees as a business expense no matter the outcome. The practical effect of this increasing determination to cut every possible cost is that small issues are now routinely raised before the Board of Industrial Insurance Appeals.

We are involved in cases before the Board where the fight is over a few hundred dollars of compensation, or authorization for a procedure or surgery. Do we really want an industrial appeals judge to decide whether a procedure is reasonable and necessary treatment? Especially when there are utilization review processes already in place to monitor the use of those resources and Claims Managers hired to administer the claims, asking workers to bear the burden of an appeal process to get their MRI scan or to keep $300 in time loss compensation paid during the few days between the doctor mailing a release to work to the Department and the Claims Manager reading the note, often when the worker had not been notified of their release, is unreasonable and it is certainly a waste of resources.

More is spent fighting each claim than would be expended simply providing the worker with the benefit. But, providing the benefit comes out of the “claims cost” column, reducing the possible rebate amount, instead of under the “legal fees” tax deduction column.

Another effect of this new dynamic is that physicians are fleeing workers’ compensation claims like rats from the sinking ship. Doctors and clinics that are already working under the administrative burden of a plethora of insurance systems – – federal, state and corporate-run – – all with differing requirements and payment schedules, now find their every recommendation questioned and scrutinized, with payment delayed or denied. If an appeal process is followed, the doctors are asked to take time out of their packed schedules to write reports or testify at hearing or by deposition to justify their opinions, actions and recommendations. Patients have limited access to care or become frustrated when their doctors refuse to participate in the processing of their claims.

For more on the RETRO program, check in for part 3 of this series later this week.


Workers’ Compensation: Are We Our Brother’s Keeper? Should We Be?

For over 100 years, the Workers’ Compensation system has protected workers in Washington State.

Just over 100 years ago, Washington State put into place our workers’ compensation system, providing the structure under which workers and businesses across the entire state pay into a fund to provide medical care, wage replacement, vocational retraining, total disability and death benefits to those workers injured, disabled or killed in the course of their employment. In exchange for their participation, businesses are provided immunity from lawsuit, even in cases of negligence. Workers are covered, even if they are at fault, if they are injured on the job.

“The common law system governing the remedy of workers against employers for injuries received in employment is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the worker and that little only at large expense to the public. The remedy of the worker has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage worker. The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this title provided.” – RCW 51.04.010

The system has evolved over the decades to address changes in the workplace and in the economy. A balance has been sought between encouraging businesses to locate here, remaining profitable while maintaining safe workplaces, and providing the care and assistance to those workers injured or disabled on the job to reach a maximum level of medical improvement and return to gainful employment in a physically-appropriate job.

The majority of injury claims are handled by the Washington State Department of Labor and Industries, a state agency with no profit motive that is assigned the task to carefully administer the provisions of the program, directed by statute to be construed “to the benefit of the injured worker.”

Claimants, employers and providers are all parties to each claim, with the ability to protest or dispute an unfavorable determination made by the Department. If any party remains aggrieved, an appeal to the State’s Board of Industrial Insurance Appeals or beyond can be pursued. This system is not perfect, but it has worked well for many decades, allowing Washington to boast of relatively high benefit levels but as one of the lowest-cost systems in the country.

Shared Burden Versus Individual Cost Accounting

Washington is one of very few states where workers share the cost of the industrial insurance system, paying 50% of the medical aid premiums through payroll deduction. Premiums are set by risk class so that higher-risk jobs are charged higher premiums than the proverbial desk job. Everyone pays something into the system.

We all share the cost of caring for our injured brethren, be they male or female. The benefit reaped by those not injured is that their co-workers, family members, neighbors – their fellow citizens – who have the misfortune of becoming injured or disabled, have some income and medical care during their recovery. Some measure of belt-tightening may be required, but families of injured workers do not become instantly destitute.

Over the past thirty years or so, there has been a shift in thinking about the shared burdens, not just in Washington but across the country and within our national psyche. We don’t want to take care of others anymore. When a bridge is needed in Seattle, those in Yakima don’t want to pay for it, even though our entire highway system supports tourism and commerce throughout the state. So, we have an insufficient tolling system in place based on the concept that only those citizens that drive on the bridge should have to pay for it. This same attitude has now infected our industrial insurance system.

Should the overall citizenship be responsible for caring for it’s injured members? To what extent? For more in this issue, check back later this week with part 2 of this series. 


An Ad Campaign That Warms the Heart

General Electric is running a series of advertisements that portray their employees, working in several industries, celebrating the impact of their work on our communities as well as on individuals.

In one spot, workers who build jet engines explain the precision of their work and are shown watching a plane take off using a set of engines they built, with smiles on every face.

In another, workers in a plant that builds medical scanning machines are visited by a bus load of cancer survivors whose treatment included scans by the devices. In a third spot, workers who build engine turbines are toasted at their local watering hole because, without them, there wouldn’t be cold beer (Bud, specifically).

It’s more than just television, it’s Social Networking

General Electric has launched a website which encourages individuals to participate in its “Celebrate and Power What Works” campaign. Visitors are able to upload photos and vote on their favorites, hooking into Facebook and entering to win prizes. For every action taken on the site – – upload or like a photo, or like GE on Facebook – – GE will donate $1 towards a non-profit group supporting workers, with a new non-profit recipient each week, giving up to $10,000 to each group. Past groups that benefited from this campaign include: Veterans Green Jobs, College for Every Student, Hire Heroes USA, and the Network for Teaching Entrepreneurship. In order to participate, you have to log in using your Facebook or Twitter account, so I skipped this step.

The message: real workers make an impact on all of our lives every day.

The company’s primary message, of course, is that General Electric has an impact on our lives every day, that GE is a leader in technology on multiple fronts. But, every time I see the ads, I am more focused on the pride on the workers’ faces and the message that the work they do matters. Everyone wants their work to matter but, in many cases, blue-collar workers are portrayed in an unflattering manner.
If our manufacturing economy is to prosper, we need to respect and appreciate the workers in that sector. Young people need to be shown that skilled labor is a valued and important facet of the workforce. GE has accomplished this in their latest ad campaign and created a way for individuals, in their own small way, to take action that matters, too.

Watch Out On Social Media: Your Facebook Profile Can Impact Your Disability Benefits

When applying for disability benefits, keep in mind that decision-makers at administrative agencies, insurance carriers or their representatives may look up information about you on the internet and/or they may call you and hear your voice mail recording.

By applying for benefits, you are stating that you are sick/injured and are unable to work or only able to perform part-time or intermittent work. Information available on the internet or your voice mail recording that appears to contradict your application for benefits can result in your being turned down for those benefits. This could be information about your professional or personal accomplishments, a home-based business, or even volunteer activities, which may be no longer current or may not accurately reflect your level of functioning since you applied for benefits. THUS, WE ADVISE OUR CLIENTS TO REMOVE SUCH OUT-DATED INFORMATION FROM THEIR FACEBOOK PAGE, TWITTER PAGE, VOICE MAIL, ETC…

With regard to Facebook and similar social networking sites in particular, pay attention to your privacy settings for both written information and photos. Also, keep in mind that not all of one’s friends and acquaintances may be equally supportive of the notion that one is applying for benefits, especially those who are not entirely familiar with the medical problem or problems that are preventing you from working. We suggest that you think twice before sharing information about your medical condition, application for benefits and/or appeal status in such an internet forum.

Voting Has Never Been This Important To Workers

  • VoteI do not usually get on any political band wagons, but I feel compelled to reach out this election cycle to point out an issue on the ballot that I feel strongly about – Initiative 1082, the workers’ compensation initiative.  I have spent the last 24 years of my professional career in the area of workers’ compensation law.  It is a shame that this area of law, and this system, which is so little known and little understood by the general public  has made its way to the ballot via I-1082.  I fear that most voters, reading the plain language of the initiative, will unknowingly vote yes using what seems to be common sense to allow private insurance companies to start selling workers’ compensation insurance directly to employers in the State of Washington.  Competition is a good thing, right? Doesn’t sound like a big deal.

    One local business owner wrote an e-mail this morning saying that this initiative would raise his expenses by $13,000+ – in the first 18 months!

    I have always adhered to the sage wisdom that if you don’t know anything, or enough, about the implications of an initiative, it is always best to vote NO.  With I-1082 that is even more the case, because the implications are significant, and the devil is in the details of the 10 pages setting up this new system that you will not be reading on your ballot.  Here’s a few details for you–in Washington State, all workers have historically paid a percentage of industrial insurance premiums, sharing this expense with their employers.  Thus, we are all stakeholders in this system, and I think that’s a good thing.  This initiative will place the entire financial burden of industrial insurance premiums on employers.  So, this is not good news for business, who will see their costs rise significantly and immediately.  One local business owner wrote an e-mail this morning saying that this initiative would raise his expenses by $13,000+ – in the first 18 months!  Continue reading Voting Has Never Been This Important To Workers

I-1082: The Wrong Solution For Washington’s Workers’ Compensation System

No on 1082Almost one hundred years ago, Washington was one of the first states to enact the oldest social insurance program in our country – workers’ compensation.  It was part of a social compact between business and labor in which employees traded their right to sue in tort for their injuries for a more timely, but lower benefit, no-fault system to cover their injuries.  Only in the U.S. – among virtually all industrialized democracies with workers’ compensation systems – is the private, for-profit insurance industry permitted to underwrite these legislatively mandated programs and have any role in this social contract.  Our state has operated without the intrusion of the for-profit industry for its entire existence, and despite its faults and shortcomings, Washington’s system is viewed among the states as one of the most highly efficient and productive,  The proponents of I-1082 have simply not made a case for the so-called “reform” they claim privatizing our system will bring.  Reject this initiative – it is the wrong solution for our state.

Reject this initiative – it is the wrong solution for our state.

As we struggle to come out of the “Great Recession,” Washington voters face real issues, many created by our slumping economy.  Continue reading I-1082: The Wrong Solution For Washington’s Workers’ Compensation System

Published by Causey Wright