Tag Archives: Disability

System Shutdown

WRITTEN BY RICH BYERS | JULY 2015

Growing up the only child of parents who never graduated high school, both spending nearly three decades as custodians for state colleges, I may have read an article like this one and thought that people are just whiners. On the backs of my parents I had food and clothes, a warm place to live and even got to do some extra-curricular activities like Little League. It was certainly not free of financial struggles, but in one way it was idyllic; through the efforts of my parents “I had it better than they did.”

I put myself through private college and then law school, mostly holding fast to that blue-collar-conservative ideology of working for what you get and not expecting anything more (even studying corporate law) until one day I got a call from my dad. His career had just ended.

He had been an often-promoted and exemplary employee for the State of Washington for over 30 years, a Vietnam-era veteran, and a great role model for me – teaching me that you get what you work for, and that’s that. Then, after over thirty years of heavy labor work, he was injured and his doctor told him he couldn’t return.

He suffered through physical pain, depression, a loss of identity as a contributing member of society, and the realization that a decades-long chapter of his life was now over – one which he hadn’t planned on ending so abruptly. To make things worse, this man who had never had a major claim for worker’s compensation was being met at every turn with a vicious fight from the Department of Labor and Industries. Not the American dream we like to imagine.

I changed the course of my study and my life and became a worker’s compensation attorney. I see everyday the degradation of our system of benefits for injured workers, and articles like this one only ring home the truth – we are experiencing a massive reduction in benefits and a general shift in thinking for workplace injuries. Bottom-line thinking is leaving injured workers – the vast majority of whom only want to return to work as soon as possible – often fighting for years just to receive treatment while their doctors are left grasping at straws to figure out why the very treatment that could get them back to work is being withheld.

This problem is multi-faceted like any other, but the shift of medical decision making from doctors to insurers is inexcusably running afoul of the intent of our Industrial Insurance Act. An injured worker’s sole source of remedy is L&I, to take the power away from doctors and place it in the hands of retro groups and employers who only care about their insurance rates is bordering on the criminal.

My dad’s experience changed my life. How has your life been touched by our failing worker’s comp system?

Blast from the past

Are you experiencing aggravation from a pre-existing injury (aka “lighting up)?

Unless you’re under 25 years old (and maybe still then) you probably have some old injury or complaint from your past. If you’re lucky, the sore neck from that fender bender, or injured knee from a brutal high school soccer game years ago, or other accident – will not come back to bother you.

Unfortunately, people with pre-existing injuries have to work just like the rest of us, and all too often, a workplace injury or repeated exposure can aggravate those injuries. Insurance companies (like the Department of L&I) often try to point the finger at old injuries to avoid coverage.

Here’s what you need to remember if that happens to you in an L&I claim: If an injury or repetitive use of a joint aggravates, lights up, or makes active a latent or quiescent infirmity or weakened physical condition, then the resulting disability is to be attributed to the injury, and not to the preexisting physical condition. More simply stated, if your workplace injury, occupational exposure, or repetitive joint use at work makes an old condition worse, the Industrial Insurance Act likely affords you L&I coverage.

If you’re having trouble getting treatment or L&I claim allowance because you have had some previous injury, call Carlisle & Byers for a free consultation.

 

 

Quiz: industrial injury vs. occupational disease – what’s the difference?

Say you’re having back pain. Would that be considered an industrial injury or occupational disease?

Let’s start with injury – RCW 51.08.100 says “injury” means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom. Confused yet? In sum, an injury is what results when something sudden happens and you have symptoms immediately or shortly thereafter, i.e. a fall from a ladder, broken bone, etc.

How is injury different than occupational disease? RCW 51.08.140 says “occupational disease” means such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title. This one is a little easier to read, but still not abundantly clear. In basic terms, an occupational disease happens over time from continuous exposure in the workplace, i.e. repetitive motion leading to joint damage, asbestosis, carpal tunnel, etc.

So, whether you’ve been injured or are suffering from symptoms related to exposure at work, go see your doctor, then call Carlisle & Byers for a free consultation.

Regular time loss checks are key

Being on time loss or “total temporary disability” payments is stressful enough because it’s less than you made while you were working. Having the Department withhold your check because your paperwork isn’t current makes it worse.

Once your doctor certifies that you are presently medically unable to work, he or she will submit an activity prescription form. The rest is up to you, but it’s pretty easy.

1) Fill out the “Affidavit of Time Loss” form your claim manager sent you, and return it to the Department.
2) Fill out each and every “Worker Verification” form your claim manager sends you and return the forms to the Department. They will likely come approximately once a month.

Although they look like bland, meaningless forms, if you fail to do either of these things, your claim manager will stop paying you time loss.

The forms can be downloaded from the Department’s website.

But I Told the Department that this Decision is Wrong…

I hear this at almost every new client interview – “I told my claim manager that this is not right, and they know it!” I leaf through their paperwork and see that there has never been anything sent to the Department. I then have the very uncomfortable job of telling them that the decision is final and binding because they did not put their protest in writing.

What is final and binding? It means that the Department has made a decision and enough time has passed that you can no longer protest, appeal, or change the outcome in any way.

If you disagree with a decision or order made by the Department, put it in writing and send it in. You only have a certain amount of time to submit a protest so do not hesitate.

Sending in a handwritten note saying “you’re wrong about the thing you said on May 25th, 2014” may not get the claim manager to change his or her mind, but it does mean that the order will not become final and binding without the Department taking further action.

The strongest protest is accompanied by your doctor’s note, but this can sometimes be difficult as doctors don’t always make notes at the exact time they meet with you, and unfortunately the medical note doesn’t always match the conversation.

If you have a question on an order you received, need to protest a claim manager’s decision, or need help figuring out the next step on your claim and you would like a free consultation with a dedicated worker’s compensation attorney, contact Carlisle & Byers for a time to meet.

Beware That Light Duty Job Offer

After an L&I claim, your employer may offer to bring you back to work, with consent from your doctor, for a “light duty” or “transitional” job. This offer may be legitimate. Maybe your boss really wants to help you get back on your feet and will work with your doctor to spend time and resources to help you recover… or maybe you need to take a second look at that job offer.

The Washington State Department of Labor and Industries is very proud of their Stay At Work Program, putting out press releases about the benefits and cost savings. There’s even a nice little page on the State’s website: http://www.lni.wa.gov/main/stayatwork/

At a glance, it’s a nice picture – give businesses a financial incentive to create light duty work while employees recover from injuries suffered on the job. What this cute little portrait leaves out is the built-in incentive for employers to discriminate against injured workers and force them to quit in order to get the claim off of their books.

But wait! – you say, if the doctor has to approve, how can this be bad? It’s pretty clever, actually. The employer creates an overly simple job they don’t need, knowing it won’t last. The doctor will approve because the light duty job is too good to be true. The injured worker goes back to work and is given tasks like doing book reports on how to be safer in the workplace, or organizing files on a computer only to watch the whole system be purged because it is too old. Just think of Milton working in the basement in the movie Office Space.

1 milton

I’ve had clients who were 20-year construction workers with no office or clerical skills be offered administrative work. I’ve had lead servers be told they can be prep cooks, without any experience, even though they had to remain seated in ergonomic chairs, and couldn’t use their wrists for repetitive tasks (one employer made a worker take their breaks sitting in that chair, in front of customers).

What happens to that construction-worker-turned-receptionist? They become the laughing stock of the workplace. I’ve seen injured workers with extensive injuries and whose doctors are requesting extensive surgeries be shamed into quitting after being called lazy fakers and liars. Perhaps worse, a worker can be given a joke job where they receive absolutely no training and then be fired, only to be denied vocational services by the State because they now have “new transferable skills.”

The bottom line: this program is a bribe for employers to bring back injured workers before they’ve had a chance to recover with fairytale jobs that any doctor will approve, so the state can save money on time loss. Once these workers are brought back and told to stare at the wall all day, or do things they have no experience doing, they get ridiculed, shamed, and ultimately quit, leaving them jobless and still suffering from their injuries and unable to perform in the competitive workplace. But hey, if it saves employers and the State money on time loss and treatment (the benefits guaranteed to injured workers under the Industrial Insurance Act) it’s gotta be good, right?

Don’t get shoved out of treatment by the system you’ve been paying into your entire working career. If you feel like you’ve been forced back to work in a sham temporary, transitional or light duty job, don’t quit (the state can cut you off immediately)! Call for help.