The following questions are just a sample of the questions we are commonly asked. Please contact our office if you do not find the answer you are looking for, or if you have any additional questions. Our experienced attorneys can answer any questions you may have regarding worker’s compensation, personal injury or Social Security disability (SSD).
Deadlines For Filing A Claim
Can I get treatment for a work injury that occurred a year ago if I did not file a report at the time?
Q: Almost a year ago, I twisted my knee when my foot slipped on a stair at work. I have continued to work since then, but my knee has gotten worse. I did not file an accident report with my employer at the time of my accident because my injury did not seem too bad at the time. What can I do to see about getting treatment for my knee now?
A: A traumatic event occurring in the course of employment, is generally the definition of an industrial injury in the State of Washington. As long as you can show that the injury occurred while at the work site, it should be allowed and recognized by the Department of Labor and Industries. However, there is a time limit for filing claims for industrial injuries. A report of accident must be filed with the Department of Labor and Industries within one year of the date of the accident. It is not necessary that you specifically report it to your employer at the time the event occurred. The one year limit for filing these claims with the Department is strictly upheld by the courts. I would advise you to go see a doctor immediately, have the doctor help you fill out an accident report form and mail it to the Department of Labor and Industries. The longer you wait, the more you risk not getting it filed within one year of the date of accident. If you go beyond one year without filing the accident report, even if you had ten people willing to sign an affidavit that this knee problem started from an injury occurring in the course of your employment, you would be prohibited, by law, from filing such a claim. Learn more about workers’ compensation claims.
Can You Explain Social Security Offset?
Hi, I’m Gracie Ortiz, and I am a paralegal at Calbom and Schwab.
Today I’m here to discuss social security offset. In the state of Washington, if an injured worker is receiving Social Security disability benefits and time
loss or pension benefits under a worker’s compensation claim, typically their benefits will be reduced. When the benefits are reduced, it’s called a social security offset. This amount is calculated by the Department of Labor and Industries using a formula that will determine the maximum amount any injured worker can receive with both benefits combined. The formula is called an ace. The ace is established by taking 80% of one year of the injured worker’s last five years’ highest earnings, or an average of any five years during their lifetime.
The time loss rate is then established by reducing the monthly social security entitlement from the ace. Because it does take some time after the injured worker has started receiving Social Security disability benefits and the social security department is in contact with the department to get the order issued, there is often a period where the injured worker is receiving 100% of both benefits. That entitlement is definitely going to be reduced and there will be an overpayment of benefits.
The department must also not commence the reduction of benefits until 30 days after they have been notified by Social Security that the injured worker is drawing social security benefits.
The overpayment is typically reduced from future time loss and permanent partial disability benefits at a rate of 25% per month. If social security is paying a back period of benefits, where time loss benefits have already been paid, it is typical that Social Security will reduce the social security benefits and LNI will take over the offset from the benefits there forward. Here at Calbom and Schwab, we encourage injured workers who have been off work for a year or believe they will be off work for a year to apply for social security benefits. Your time loss rate may be reduced, but when we take both benefits combined, it is never going to be less than your time loss rate, and may actually be more money in your pocket when you get both benefits combined. Social security also may provide additional benefits such as medical and prescription benefits, which will assist an injured worker in getting unrelated conditions or medical expenses covered. If you receive an order calculating the social security offset and you are concerned with the figures, we would welcome and encourage you to contact our office. And we would be happy to review the figures with you and see if there is some type of assistance we may provide you.
My claim was rejected because because I was described as a “independent contractor”. Why did the Department do this?
Q: I crushed two fingers at work when a paint can fell on them. I filed a claim under the employer I worked for, but received notice that the claim was rejected because I was described as an “independent contractor”. Why did the Department do this?
A: If someone who is injured is acting as an “independent contractor”, they have to maintain coverage for themselves and file the claim under their own business. However, there can be situations where a person, although licensed to do business as a contractor, may hire out to work as an employee. The crucial test is whether or not you brought to the employment anything more than your own personal talents or labor. Learn more about workers’ compensation claims.
When Should You Hire an Attorney?
At what point in time should you hire an attorney? It’s not always
necessary to hire an attorney immediately. Go through treatment, see if
you get better, negotiate with the insurance adjuster, and then give an
attorney a call to discuss. In other cases it’s imperative to get a
lawyer right away; for example a car accident case.
Most importantly ask – do we need to hire an attorney? If you are unsure
of whether or not to hire somebody, call us today and we’ll give you
the simple answer.
Does the Department of Labor and Industries have the right to have me examined repeatedly by its doctors?
The Department often schedules repeat examinations in what seems like an attempt to avoid making a final decision on a case. There is law that suggests that the Department must have good cause to force a worker to go to repeated examinations. However, at this time, good cause has been interpreted to mean almost any silly reason given by the Department. There is some point where the courts will allow one to say no to more exams, but it would have to be such an abuse of discretion that it would offend almost everyone before a refusal to attend would be supported in court. You can still refuse to go for good cause such as distance to the exam, illness, transportation, or personal knowledge of or past experience with the examiner which causes you to find him or her offensive. Learn more about workers’ compensation claims.
Do I need to see a doctor that my employer chooses?
That’s a very good question. I oftentimes run into individuals who have an on the job injury, and they are directed by their employer to go see a specific doctor. They are told they must go see this doctor. Under the Industrial Insurance Act, that’s wrong.
Once an individual suffers and on the job injury, they can choose whichever doctor they want to see. If you’re an injured worker, you do not have to go see a doctor that your employer wants you to go see. One of the problems is that sometimes doctors, or clinics even, are contracted with employers. And you have to ask yourself as an injured worker, do you want to go see a doctor like that? Do you really think that the doctor, or that clinic, is going to be completely unbiased since they have an economic or financial contract with their employer of injury?
What will happen to my claim if I move out-of-state?
Q: I suffered an injury to my knee while working in Tri-Cities. I have continued to treat with my local doctor and have not been able to return to work. My husband’s employer wants to transfer him to California. What will happen to my claim?
A: The Department of Labor and Industries is more than equipped to handle situations like yours. Often, following an injury here in the State of Washington, an injured worker moves elsewhere. You will not be denied benefits simply because you no longer live here. In fact, recently the Department of Labor and Industries established a unit for handling claims specifically for people who live outside the state. I would suggest you ask your doctor to make arrangements for you to be referred to a physician of his choice in your new location. Should the Department of Labor and Industries deny access to further benefits or terminate your benefits, you will probably need to contact an attorney here in the State of Washington. This is because Worker’s Compensation benefits are different in each state.
I require a special boot to continue working after my injury. My claim has been closed, but I need a replacement boot. What can I do?
Q: I sustained an injury at work when someone drove a forklift into my foot. I now require the use of a special boot to continue driving a truck for my job. The Department of Labor and Industries closed my claim six months ago. My boot has worn out and needs to be replaced. What can I do?
Typically a special boot, if considered a prosthesis, can be paid for by the Department of Labor and Industries without having to apply to reopen the claim, if it is known that it is required due to the industrial injury. You should contact the Department of Labor and Industries. In addition, your question raises another issue, and that is whether or not the forklift driver was working for someone besides your employer. You may have the right to pursue a personal injury claim under what is called a “Third Party Action”. You typically have three years to bring a lawsuit for this type of claim. A third party claim allows you to recover damages for pain and suffering, emotional distress, loss of enjoyment of life, etc. Learn more about workers’ compensation claims.
Can the Department of Labor and Industries deny benefits because of a pre-existing condition?
Q: I recently fell from a ladder, landing on my right shoulder. When the doctor took x-rays, they discovered that I had severe arthritis in the shoulder joint. My doctor says the arthritis probably existed before my accident. Can the Department of Labor and Industries deny benefits to me because of this pre-existing arthritis in the shoulder?
A: Washington courts have, in prior cases, said that if an injury “lights up” or makes active a latent or weakened physical condition, all of the resulting disability is attributable to the injury. What this means is that unless the Department can establish that prior to this industrial injury you were actually having symptoms and disability as a result of the arthritis, then the industrial injury, which has made it symptomatic, is entirely responsible for all treatment and disability that continues thereafter. Learn more about workers’ compensation claims.
What is Permanent Partial Disability?
When a claim is closed, even if you’re able to go back to work, or particularly if you’re able to go back to work, but have some limitation, there are benefits called permanent partial disability benefits that are available. If the injury is to your neck, your back, to your lungs, some other conditions, there’s a rating system that are – it’s called a category system of impairment. For the low back, there are eight categories. For the neck, there are six. Each category has specifically designated findings associated with it.
If your doctor, or one of the department’s doctors looks at – does an examination, they will then look at these categories and compare your findings with the categories and try to estimate what category you fit into.
When it comes to parts of the body, such as arms, shoulders, ankles, knees, hips, then the Department of Labor and Industries uses the American Medical Association’s guide for evaluating permanent disability, and will rate according to the criteria in the guide, typically as a percentage of the loss of use of that extremity. So, for instance, if you had a knee surgery, you might be entitled to 20% or 30% permanent partial disability, or the leg, and they would then pay you 20% to 30% of the value assigned for an entire leg. These values are scheduled upwards by statute and by administrative code to establish a value that changes every year, that increases depending on how recent your injury has been.
Obligations of Your Doctor
Does the Department of Labor and Industries have the right to speak directly with my own doctor?
Q: On my last visit with my doctor, I was told that my claims manager in Olympia had called and visited with my doctor about the treatment that I am going through right now. Does the Department of Labor and Industries have the right to speak directly with my own doctor?
A: Because they are deemed to be the “trustee” of the accident fund, the Department of Labor and Industries, by statute, has the right to discuss your treatment, medical history, prognosis, etc., with your physician. By statute, when a person files a worker’s compensation claim, they waive their patient/physician privilege. Up until recently, there was no such waiver in a personal injury setting. There are currently efforts underway by the insurance lobbying interests to change this. Learn more about workers’ compensation claims.
Occupational Disease Claims
My doctor has no idea which of my past jobs caused my hearing loss. What do I do now?
Q: I have worked in numerous mechanic shops over the years. Recently, my hearing has gotten worse. I had my hearing tested and found that I do have hearing loss. However, because all of my jobs have involved loud noises, my doctor has no idea which one caused the hearing loss. What do I do now?
A: Hearing loss claims, if not due to a singular event, such as an explosion, often occur due to repetitive trauma to the ears caused by loud noises occurring day after day. Because of this, it is often difficult to decide or determine when and where the hearing loss first began. Because of this difficulty, the Washington Supreme Court has determined that the employer to be held responsible for the hearing loss claim is the current employer when the condition first becomes disabling or requires medical treatment. This determination applies to all occupational disease claims, including repetitive stress trauma injuries such as carpal tunnel syndrome. Learn more about workers’ compensation claims.
What is Occupational Hearing Loss?
Can I be reimbursed for taking care of a member of my family who was injured on the job?
Q: Are there circumstances under which a person can be reimbursed for taking care of a member of their family who was injured on the job?
A: The law provides for payment of personal care services provided by others to an injured worker. These personal care services have to be prescribed by a physician. The Department is reluctant to pay family members, believing that in many circumstances they are not as capable of providing the necessary services as professionals such as visiting nurses. However, the Department has recently established a set of guidelines for assisting family members, at least in head injury cases, in providing the necessary care. The Department is even willing to provide supervision of the family members by a trained professional to assure quality care is being provided to the disabled worker. This is a wonderful change in the Department policy which should reduce the cost to the Department and provide a loving caretaker for the seriously disabled worker. Learn more about workers’ compensation claims.
Permanent Partial Disability Awards
A panel of doctors have rated my disability as a “category 2”. What does this mean?
Q: I recently went to a panel of doctors, at the request of the Department of Labor and Industries, for an examination. My claims manager tells me that the panel has rated my disability as a “Category 2″. What does this mean?
A: When an injured worker reaches a point where there is no further curative treatment that will benefit them, the Department of Labor and Industries is supposed to try to assess their permanent disability. If they are able to work, a permanent partial disability assessment is made. For injuries to the neck, back, low back, pelvis, lungs, heart, skin and others, the method of evaluating permanent disability is to select a “category” of impairment that most appropriately describes the person’s physical loss. Learn more about workers’ compensation claims.
The Department says that they are not responsible for cosmetic damage. Is this true?
Q: I sustained severe burns to my face and neck when a chemical splashed on me at work. I am now done with treatment. The Department closed my claim because they say I am not entitled to permanent partial disability because they are not responsible for cosmetic damage. Is this true?
A: Under Washington’s Industrial Insurance Act, permanent partial disability is deemed to be a loss of bodily function. Purely cosmetic changes are not compensable. However, if you have sustained significant damage to your skin and require occasional, if not intermittent, uses of creams and ointments to help keep the scar tissue softened, or if you have to avoid exposure to sunlight or wind because it will cause drying, cracking or bleeding of the skin, there is likely a loss of bodily function that should be compensated. You can start by having your treating cosmetologist review the Washington Administrative Code as it applies to permanent skin impairment, or you can consult with an attorney who handles industrial insurance claims. Learn more about workers’ compensation claims.
I am done with my treatment, but I am not able to do all the tasks I could previously do at work. What happens next?
Q: I sustained a severe burn on my hand at work. I was able to return to work, but I am not able to do all the things I could previously do. I am done with my treatment. What happens next?
A: Once treatment has achieved a point where nothing more can be done to cure the problem, the Department of Labor and Industries is supposed to attempt to assess the permanent partial disability that may exist, if any. An injury to your hand may involve loss of use of the hand itself due to decreased range of motion of fingers, depending on the amount of scar tissue that you have. Additionally, there are disability benefits available for impairment of the skin itself. These are described under “categories”. Learn more about workers’ compensation claims.
I have sustained an on-the-job injury to my fingers. How is the Department supposed to rate disability?
Q: My left hand was crushed when a pallet fell on it at work. Treatment is concluded, and the Department recently issued an order closing my claim and paying me a percentage of impairment for the two fingers that had to be amputated. The rating appears to be small. How are they supposed to rate disability?
A: When an injury is limited to the fingers, the hand, or the arm, the American Medical Association has a guide that is published to assist in evaluating the permanent partial disability. The rating is made in terms of “amputation value”. This means the value in relationship to the overall loss of function of the part of the body affected. Learn more about workers’ compensation claims.
Reopening a Closed Claim
My claim is closed, but I’m developing arthritis in my left hip. Can I reopen my Labor and Industries claim even though the left hip was not originally injured?
Q: My claim was closed, but my doctor discovered that I am developing arthritis in my left hip. Can I reopen my Labor and Industries claim even though the left hip was not originally injured?
A: It is not uncommon for injuries in one part of the body to leave an individual with permanent disability such that it changes the way they walk, the way they reach, the way they stand, etc. The way we physically compensate for a permanent injury or disability sometimes causes us to overuse other parts of our body. Under the Worker’s Compensation system, if compensation for permanent impairment of one part of the body leads to the development of symptoms in other parts of the body, you should have a right to reopen the claim for the new condition. It is largely a medical question as to what brought about the arthritis in your left hip. If your doctor believes that it is related to the change in gait, stance or weight bearing, then you should file a reopening application. Learn more about what to do if the reopening application is denied.
My claim was closed, but I have recently developed arthritis. My doctor says that there is not much treatment can be done. What should I do?
Q: I have a previous knee injury claim for an on-the-job injury which was closed several years ago. My knee has become stiff due to arthritis that has developed. My doctor indicates that there is not much that can be done in the way of treatment. What should I do?
A: Even though your doctor is not currently recommending further medical treatment, if your industrially related knee condition has worsened objectively, you should be entitled to have your claim reopened and have a re-evaluation of the permanent partial disability decision made. As the law now stands, an individual has seven years from the date that the claim is first “finally closed” to reopen the claim. If you wait beyond seven years from the first final closure of your claim, you may lose the right to reopen the claim. Learn more about workers’ compensation claims.
The Department paid for my treatment for three years. Recently, injury symptoms have reappeared. Can I ask the Department of Labor and Industries to pay for any further treatment of my knee injury?
Q: I injured my knee at work. The Department of Labor and Industries paid for my treatment for three years. I then moved to Pennsylvania and continued treatment, but paid for it myself. I have now moved back to Washington, but have never heard anything else from the Department regarding my claim. Recently, my knee has begun swelling and popping when I walk. Can I ask the Department of Labor and Industries to pay for any further treatment of my knee injury?
A: If you never received any written notice of claim closure from the Department of Labor and Industries, all you have to do is see a doctor and if they recommend further treatment, the Department should have to pay for that continued treatment. If the Department, while you were in Pennsylvania, attempted to close the claim but you never received any written notice of that closure, the claim is still “open”. The Department of Labor and Industries has the obligation to “communicate” the order to the injured worker. Learn more about workers’ compensation claims.
Statute of Limitations
How long do I have to file a claim after being injured in a retail store?
Q: When a person sustains an injury by falling in a retail store, how long does that person have to file a claim against the business? Does the time limit start to run when the medical treatment has been completed, or as soon as the accident happens?
A: When dealing with issues of fault arising out of acts of negligence, the time limit for commencing a law suit extends for three years from the date of the accident in Washington State. There is a shorter time limit when the incident producing injury is an intentional act. When the person who has sustained the injury is a minor, the three year statute of limitations does not begin to run until that person reaches the age of 18, and would expire on their 21st birthday. Often, when dealing with incidents of negligence in a retail establishment, it is extremely important to determine the detailed condition that led up to the injury. It is important to be able to contact and interview eye witnesses and to be able to go and inspect the premises before the conditions may be changed. Such investigative efforts often require the assistance of an attorney. Learn more about workers’ compensation claims.
Third Party Recovery
What will I owe the Department if I bring a lawsuit against another party who injured me while I was in the course of employment?
Q: If I bring a lawsuit against another party who injured me while I was in the course of employment, what, if anything, is owed to the Department of Labor and Industries as a result of benefits paid by the Department?
A: The Department of Labor and Industries is entitled by law to be reimbursed for all benefits paid to any injured worker when that injured worker obtains a recovery from a third party or non-employee who is responsible for the on-the-job injury. However, the law does provide an incentive to the injured worker to pursue litigation which would result in reimbursement to the Department of Labor Industries. That is, even in cases where the injured worker was at fault with a resulting deficiency recovery or a recovery less than the amount of money paid out by the Department of Labor and Industries, the injured worker is assured a percentage of that recovery. The bottom line is that the statue or law concerning what is labeled as third party recovery is written to assure some recovery by the injured worker, despite the lien or interest by the Department of Labor and Industries, as long as there is a party at fault other than the employer or co-worker employed by the injured worker’s employer. Learn more about workers’ compensation claims.
Will my worker’s compensation benefits be stopped if I have an attorney make a claim against the person who injured me while I was on the job?
Q: Will my worker’s compensation benefits be stopped if I have an attorney make a claim against the person who injured me while I was on the job?
A: No. You may receive worker’s compensation benefits while seeking a recovery from the non-employee, who is often referred to as a third party. This will not stop, delay or otherwise interfere with your current receipt of L&I benefits. When the third party claim is settled or a judgment is obtained, you may experience an interruption or stoppage of your benefits if the third party recovery is greater than the costs, the attorney fees, the 25% of the balance paid to you regardless of the amount of the recovery, and the L&I lien. However, in those cases where you are left with funds above and beyond all claims against your recovery and above the first 25% paid to you, you merely substitute those funds recovered from the third party for your L&I benefits. If the surplus funds (funds paid to you after the 25% and after payment of all litigation expenses and the Department lien) are consumed at a rate similar to the L&I benefits, then when those funds are exhausted, you will again receive L&I benefits unless the third party recovery is greater than those benefits paid by the state.
Time Loss Benefits
Are time loss benefits under the Industrial Insurance Act/Worker’s Compensation Act different for seasonal workers versus non-seasonal workers?
Q: Are time loss benefits under the Industrial Insurance Act/Worker’s Compensation Act different for seasonal workers versus non-seasonal workers?
A: Yes. In brief, seasonal workers have their time loss paid based on their average monthly earnings over a 12-month period before the industrial injury. Non-seasonal workers have their time loss benefits paid based on their rate of pay at the time of injury, regardless of their earnings history. However, if the Department of Labor and Industries labels you as a seasonal worker, you should not accept that classification without having it reviewed by an attorney. Current Department policy conflicts tremendously with the current status of court decisions on what constitutes seasonal versus non-seasonal or full-time work. For example, the Department often labels a farm worker who is employed nine to ten months out of the year as seasonal, while a construction worker employed nine to ten months out of the year will be labeled as non-seasonal, the latter receiving a greater time loss rate merely because of the way the Department treats farm workers as a whole. Be aware that the number of months worked in a year may not be indicative of whether a worker is seasonal or non-seasonal. There are many other facts that need to be considered, so you should always consult a person experienced in this area to review your time loss rate after the Department has made its final determination as to your time loss rate. Learn more about workers’ compensation claims.
The Department reduced my benefits because my oldest son turned 18. Can they do that?
Q: I have been receiving time loss benefits for ten years. Last month the Department reduced my benefits because my oldest son turned 18. Can they do that?
A: The short answer is yes, they can. However, it is important to know whether or not your son, although 18, is still attending school full-time. If your son has not yet graduated, or has gone from high school to college and is attending college full time, you can have that reduced benefit reinstated. A dependent child who continues to be enrolled in school full-time can still qualify you for their assigned percentage (2% of wages at the time of injury) until they reach the age of 21. A statement from the registrar of the college or school he is attending confirming enrollment should be sufficient. If you have any further questions, feel free to call an attorney who handles worker’s compensation claims.
What if I am approved for time loss benefits, but the benefits I receive are a lot less than what I was making at the time I was injured?
Q: I was recently hurt on the job and have filed a claim with the Department of Labor and Industries. I am still awaiting their letter to tell me whether or not the claim is going to be allowed. Currently, I am not able to work. What should I do now? What if I am approved for time loss benefits, but the benefits I receive are a lot less than what I was making at the time I was injured?
A: If an industrial injury or occupational disease prevents you from returning to any work for which you are qualified, you should be entitled to what is called “time loss” benefits. Certification as to whether or not you are able to return to work is usually provided by your attending physician. Time loss benefits represent a percentage of your wages at the time of injury. Wages at the time of injury are generally calculated by taking an hourly wage multiplied by the number of hours typically worked per day. The percentage is determined by whether you are single, married, or how many children you have. It can vary between sixty and seventy-five percent. Learn more about workers’ compensation claims.
Will my time loss benefits stop if I take a part-time job?
Q: I injured my back while lifting at work and was unable to continue working. After treating with a chiropractor, my back has improved. My employer has offered me a part-time, light duty position. However, because it is light duty, it does not pay much. Will my time loss benefits stop if I take the part-time job?
A: Time loss is only payable when a worker is “off work” due to an industrial injury and continues to receive treatment for his industrially related condition or is participating in vocational services. However, there are other benefits that you may not be aware of. There is a benefit called “Loss of Earning Power” or LEP. These benefits are paid once a month instead of twice a month like your time loss. They are calculated after you submit to the Department your pay stubs for the entire month. Learn more about workers’ compensation claims.
The Department of Labor and Industries will no longer going to pay my time loss benefits because they claim that I am retired. Can they do that?
Q: Because of an injury to my shoulder, I have been receiving time loss compensation from the Department of Labor and Industries for over a year. I had reconstructive surgery for the shoulder, but was still unable to return to work.
A: By statute, if an individual was “voluntarily retired” and “is no longer attached to the work force”, he is not entitled to benefits paid by the Department of Labor and Industries. If you can establish though that your decision to stop working, or your decision to apply for any type of retirement benefits, was due at least in part to the effects of the industrially related disability, you have not “voluntarily retired”. The Department’s interpretation of these situations is often difficult to deal with. Learn more about workers’ compensation claims.
L&I or Workers' Compensation Claim
Closing an L&I or Workers’ Compensation Claim
Ultimately every claim comes to a close. A claim is closed when your medical condition is likely to not benefit from any treatment that is considered to be necessary and proper.
Necessary and proper treatment is that treatment which is considered to be either curative, rehabilitative, or diagnostic. Once your medical provider determines that you are not likely to benefit from such treatment or it is determined by a group of examiners for either the Department of Labor & Industries or a self-insured employer, then your claim may be closed.
The closure of your claim does not necessarily mean that you are back to where you were before you first opened your claim. It simply means that there has been a determination that you are not likely to benefit from further necessary and proper medical care. At this point, it will be determined whether or not you are entitled to an award for either permanent partial disability or perhaps even pension benefits.