LAUREL SMITH, P.S. ~ ATTORNEY and COUNSELOR at Law

Workers' Compensation

How do you start a claim?
Your claim is started when you visit a health care provider who files the accident report containing the claim number with the Department of Labor and Industries or the self-insured employer.

Injury or Occupational Disease
Unsure if you have an injury or occupational disease? Consult an attorney. Do not assume you will get correct information from your employer or your health care provider. Workers' compensation is a complex area and beyond the expertise of most employers.

Time Limits
Your claim must be received by the Department within one year of the date of injury, or two years from the date your health care provider sends you written notice that your health condition was caused by occupational exposure (with few exceptions, such as hearing loss).

First Time Loss Payment
The Department of Labor and Industries or self-insured employer must pay time loss compensation (a percentage of wage replacement) within 14 days if your health care provider certifies you are unable to do your job because of the industrial injury or occupational disease.

Light Duty Work
If your health care provider certifies you cannot do your regular work, your employer has the right to offer you a lighter duty job. The job must first be reviewed by the doctor to determine if your injury prevents you from doing the light duty job.

Watch Out
If you refuse light duty without the doctor's support, you may lose your right to time loss compensation.

If you are fired for cause, you may lose your right to time loss.

Wage Orders
If you are eligible for time loss, the Department will issue an order setting their estimate of your wages, like-kind wages, bonuses, second jobs, and employer-provided health care benefits. Your time loss is based on this figure and your family status. If it is incorrect, you must protest the order in writing within 60 days or you will not be able to correct the error.

Knowledge is Power
You have a right to your entire L&I or self-insured file. Access it at the DLI website. If you have a self-insured claim, also request it in writing.

If in doubt, consult with a workers' compensation attorney. Most attorneys provide free legal consultations in workers' compensation. The Department of Labor and Industries and the employers have attorneys; they know the rules. You do not.

Is it Legal to Apply for Social Security Too?
It is legal and appropriate, if you are eligible, to collect both workers' compensation benefits and Social Security benefits.

Will you get a settlement?
That depends on whether you have objective evidence (something a doctor can see, feel or test) of your injury or disease at the conclusion of your claim.

The laws in this area change every year.

Estate Planning and Probate

A will is your plan for who will handle issues arising from your death and who will inherit your property. If you do not make a will, the state has made a default will for you, called the intestacy laws.

A power of attorney appoints someone to take action on your behalf while you are still alive. A variety of powers can be granted to that person, from cashing checks and selling real estate to refusing inheritances, making gifts of your property and changing your own estate plans.
You can grant the power effective immediately on the date you sign the document, or delay its effective date until two doctors certify you cannot manage your own affairs. You can now designate a health care decision maker for your minor children. The point of a power of attorney is to avoid having a court-appointed guardian in the event of your incompetence.

A health care power of attorney appoints someone to make decisions granting or withholding medical care if you are not able to make those decisions. You can now designate who you do not want to get medical information.

A directive to physicians (living will) is a statement of your philosophy about life support.

A community property agreement is a contract between spouses or registered domestic partners which leaves all property to the survivor without a probate, and in some cases converts all property to community property.

A probate is a court-administered procedure to identify the correct will, if any, and the heirs, gather the deceased's property, pay the bills, and distribute the deceased's estate to the appropriate recipients.
Whether a probate is necessary depends on the type (real or personal), nature (joint or sole ownership) and amount of property owned by the deceased at time of death. Community property agreements usually do away with the need for a probate.

Washington is a community property state. This does not mean the surviving spouse or registered domestic partner will necessarily inherit all the property. The state's default will may not be what you want, especially if you have a significant other, a second marriage, special gifts for particular people, a need for tax planning to avoid inheritance taxes, dependents who receive state financial assistance, or disabled children who require special consideration.

What to bring to your lawyer:
  • A list of ALL your children with their complete names.
  • A list of ALL your property, its value and location and whether there are joint owners. Include insurance, investments, retirements, real estate in other states. Make a list of your indebtedness. Your estate plan will only work for you if your attorney has all the information about your property and debts.
  • An idea of who should receive what property.
  • A back-up plan in case one of your heirs dies before you.
  • A person who you want to handle the estate issues upon your death.

Social Security Benefits & Disability

FREQUENTLY ASKED QUESTIONS
  1. What is the difference between Social Security Disability and Supplemental Security (Title XVI) Income benefits?
  1. Social Security Disability (Title II) benefits require a person to meet Social Security's definition of disability and to have earned enough work credits from employment to qualify for disability benefits. The required number of work credits needed depends on your age at the time you became disabled. See the requirements at the Social Security website, http://www.ssa.gov/pubs/10029.html.

    Supplemental Security Income (Title XVI) benefits require a person to meet Social Security's definition of disability (or be blind or over age 65) and to have limited income and resources. Income includes wages, money received from other sources, such as workers' compensation, veterans' benefits, unemployment benefits, friends, and family. Resources include anything that can be converted to cash (including car, bank account, home; some resources are exempt from consideration). Social Security limits resources to $2,000 for an individual and $3,000 for a couple.

  1. Can I apply for both Social Security Disability and Supplemental Security Income benefits?
  1. Yes. It is especially important to apply for both forms of benefits if you are unsure whether you have earned enough work credits to be eligible for Social Security Disability benefits.
  1. Can I apply for Social Security Disability if I am receiving Workers' Compensation benefits?
  1. Absolutely. The Washington State Department of Labor and Industries encourages this.
  1. What is Social Security's definition of "disability?"
  1. An adult (over age 18) is considered disabled when he/she is medically determined to have a physical and/or mental impairment that prevents her/him from engaging in substantial gainful activity and is expected to continue for at least 12 months or will result in death.
  1. What is "substantial gainful activity?"
  1. Substantial gainful activity, or SGA, is work that is done (or intended) for pay or profit and involves significant and productive physical or mental activities.
  1. Do I have to prove that I am disabled?
  1. Yes. A claimant has the burden to prove that he/she is disabled. However, once the person meets his/her burden, the burden shifts to Social Security to demonstrate whether the person has the physical, mental and exertional abilities to perform other work that exists in the national economy.

    This determination is based on a five-step evaluation or process. The claimant must prove eligibility in the first four steps, which are:

    1. Whether the claimant has engaged in substantial gainful employment during the period of disability. If yes, the claimant is not disabled. If no, continue to the next step.

    2. Whether the claimant has a severe impairment. This includes limitations in the claimant's ability to walk, stand, sit, follow instructions, and so on. If the impairment is severe, continue to the third step.

    3. Whether the severe impairment meets or equals an impairment found in Social Security's chart of listed impairments. These listings describe what impairments are so severe that they prevent a claimant from performing any gainful activity. If the claimant meets or exceeds any listed impairments, they are automatically considered disabled. If not, the claimant proceeds to the fourth step.

    4. Whether the claimant's physical or mental limitations prevent him/her from performing past relevant work.

    Once the claimant meets his/her burden to prove the first four steps, it is then Social Security's burden to prove the final, fifth step.

    1. A vocational expert is employed to evaluate whether there is work the claimant can perform that exists in the national labor market.

  1. Do I need a lawyer?
  1. Generally speaking, a claimant does not need legal representation to apply for benefits or to request reconsideration of the initial unfavorable decision. However, if the claimant is denied a second time, it is advisable to obtain legal representation and/or have the claim evaluated by an attorney to determine whether the case has merit to proceed to a hearing before an Administrative Law Judge.