The recent legislative sessions have resulted in many bills which impact injured workers. Changes are indicated in bold print:

They include:

1. Ex parte communication (2009): If an appeal is filed to the Board of Industrial Insurance Appeals, the employer will be prohibited from contacting the worker’s doctors or other expert witnesses unless they give the worker or his representative an opportunity to participate in those contacts.

2. Benefits on appeal (2008): If an order is entered which grants benefits such as time loss or treatment to an injured worker, and the employer appeals, the worker will continue to get those benefits in most circumstances. The employer can ask the Board of Industrial Insurance Appeals for a stay order to stop the benefits pending appeal, and the worker must respond to the Board’s notice within 10 days to the employer’s attempt to get a stay order. No new evidence is heard on this motion.

3. Notice to Employers (2007): Workers will now have to provide written notice to their employer within 10 days of receiving treatment for an industrial injury or occupational disease, where their health care provider has filed a claim for benefits with DLI. The Department will create a new form to assist the worker in notifying the employer. (ESSB 5915 amending RCW 51.28.020.) Workers are already required to notify employers, but previously there was neither a deadline, nor an anticipated form. Traditionally, claims have been "filed" only when the worker has gone to a health care provider; it is the provider who "files" the claim with the Department or self-insured employer on forms provided by the Department/Self-Insured Employer.

4. LEP: Changes in how to calculate Loss of Earning Power (LEP) when a claim has been closed, then reopened. The "old wage" is now clarified to be the wage earned in the original claim, not the wage earned at the time of the reopening (supplanting Hubbard vs. DLI). (SSB 5676 amending RCW. 51.32.090.)

5. Sick Leave vs. Time Loss: An injured worker cannot be compelled to exhaust their sick leave, vacation pay or holiday pay before taking time loss if their injury prevents them from working; it is the worker's choice rather than the employer's. (supplanting Carla White vs. DLI; SSB 5676 amending RCW. 51.32.090)

6. Overpayment options for pensioners. A worker who has received previous PPD (permanent partial disability) award in a claim, but who then becomes permanently disabled and is awarded a DLI pension, may now choose how to pay back the PPD: as an overpayment with regular repayments which will impact the monthly payments until the overpayment is repaid, or as a reduction in the pension reserve, which will impact the size of the monthly payments permanently. (SHB 1500 amending RCW 51.32.080)

7. Minimum benefit: The old minimum time loss benefit of $185/month is abolished effective July 1, 2008. (The current statutory time loss formula is set at 60% of the wage at the time of injury, plus 5% for spouse and 2% per dependent., subject to a cap currently set at 120% of the state average monthly wage). (ESB 5675, amending RCW 51.32.050, .060, .090). The new minimum benefit will be 15% of the average monthly wage in the state (set each July by the Commissioner of Employment Security) plus $10 per month if married and $10 per month for each dependent child up to five children.

8. Notice of Representation: The Department must now send written notice to a claimant’s representative (e.g. attorney or union helper) before a determinative order is entered after a claimant so requests, amending the old statute which prevented the Department from sending correspondence or orders to representatives before a determinative order was entered. (SSB 5688 amending RCW 51.04.080)

9. Social Security Offset: DLI claimants normally experience a reduction in their DLI payments when they receive Social Security Disability payments. Traditionally, this has resulted in an increased benefit to the worker because the Social Security payment plus the DLI payment was greater than either benefit alone. However by Federal law, when the worker reached age 62, the proportion of Social Security vs. DLI payments reversed, then switched back to the original payment formula at age 65. This would often result in unanticipated and unavoidable overpayments for the workers, and DLI did not have the power to correct the overpayment if the worker’s claim was closed. HB 1501 permits the Department to correct the overpayment to Social Security even if the DLI claim has been closed, so the worker does not fall into the innocent overpayment trap. (HB 1501 amending RCW 51.32.220)

10. ARNPs & PACs: Short term legislation permitting ARNPs and PACs to treat (but not rate impairment) and to certify time loss has been extended. (HB 1666, 1722)

11. Firefighter presumption: Firefighters were granted a presumption that heart problems which start within 72 hours of toxic exposure or 24 hours of strenuous physical exertions in firefighting activities are occupational diseases, adding to the statutory list granting prima facie acceptance of other health conditions. (ESHB 1833 amending 51.32.185)

12. Time Loss Calculation/Hour Banks: SHB 1244 codifies case law (Granger vs. DLI), making it clear the workers who build eligibility for medical benefits in hour banks are entitled to have the employer's portion of that payment added to their base wage for calculation of time loss, even where the worker is not yet eligible to draw on banked benefits. (Amending RCW 51.08.178)

13. Claim Suppression: The DLI may penalize employers who engage in claims suppression. The new legislation defines "claims suppression" as inducing a worker to fail to report on-the-job injuries, or to treat them as off-the-job injuries, or "acting otherwise" to suppress legitimate industrial insurance claims. Bona fide workplace safety, accident prevention programs and worksite first aid are not considered "claims suppression" activities. Penalties include monetary penalties ($250-$2500 payable to the pension fund, not the worker). A finding of claims suppression can result in loss of self-insured certification by a self-insured employer and in being barred from participation in a retrospective rating program by state fund retro employers. After a finding of claim suppression, the Department may elect to extend the usual one year statute of limitations for a worker to file a claim for injury (two years for most occupational diseases). Traditionally, Labor and Industries claims have been deemed initiated when an injured worker seeks medical treatment from a medical provider, and the provider files the claim with either the Department of Labor and Industries or the self-insured employer. Although RCW 51.28.010 requires the worker to report the accident to his employer, and requires the employer to report to the Department if the worker has received medical treatment, neither of these actions is enough to "file" an industrial insurance claim. (SHB 5443, amending RCW 51.28.010, .025 and .050). The Department will develop WACs to further address claim suppression.

14. Commercial divers harvesting geoducks (HB 1949) and certain youth soccer referees (HB 1457) are now provided DLI protection.

15. Initial prescriptions: Initial prescriptions for L&I claims will now be paid for by the Department even if the claim is later disallowed. (EHB2105 amending 51.36.010)

16. Ombudsman for Self Insured Employer claims: The Office of Ombudsman has been established to assist those who work for self Insured employers. The office is open and can be reached at (888) 317-0493. The Ombudsman will be authorized to act as an advocate (but not a legal representative) for injured workers of self-insured employers (one third of all workers in the state), as well as to "identify, investigate and facilitate resolution of industrial insurance complaints" from those workers. The Department will be obligated to respond to Ombudsman complaints. Employers will be obligated to display a poster explaining the availability of the Ombudsman plus the toll-free number. Disclosures made to the Ombudsman are privileged, and those who speak to the Ombudsman have whistle blower protection. The Ombudsman will be appointed for a six-year term by the Governor and report to the Director of the Department. (SSB 5053: New section RCW 51.14)

17. Medical Advisory Committee and Chiropractic Advisory Committee: The Medical Advisory Committee shall advise the DLI on treatment, practice guidelines, coverage decisions and technology assessments as well as evidence-based medicine. Twelve of the 14 members must be selected by the Director of DLI from certain medical specialties. The Chiropractic Advisory Committee shall comprise nine members appointed by the Director of DLI. Like the Medical Advisory Committee, the Chiropractic Advisory Committee must coordinate its work with the state health technology assessment program (which studies medical technology) and the state prescription drug program. (ESSB 5290 amending RCW 51.36)

18. Disability definition: The Legislature redefined "disability," reinstating older decisional law which had been recently overruled by the State Supreme Court in the McClarty decision. RCW 40.60.040, the Washington Law Against Discrimination, now defines "disability" as a sensory, mental or physical impairment that is medically cognizable or diagnosable, exists as a record or history or is perceived to exist, whether temporary or permanent, and whether or not it limits the ability to work generally or at a particular job. The definition is further detailed. (SSB 5340)