Washington Workers’ Compensation

Ninth Circuit Court of Appeals Upholds Hanford Presumption Law

On August 19, 2020, the Ninth Circuit issued an opinion finding Washington was not in violation of federal law when it implemented HB 1723, also known as the “Hanford Presumption”. HB 1723 was signed into law in March 2018 and created a presumption that certain illness or conditions diagnosed in workers within the 560 square mile Hanford site was a compensable occupational disease. HB 1723 was designed to create a presumption for workers that chemical and radiological exposures at Hanford are the proximate cause of many respiratory illnesses, multiple types of cancer, and certain neurological and cardiac diseases. The presumption applies to any worker, including contractors or subcontractors, who work on the Hanford site for as little as… Continue reading

Washington Self-Insured Employers Face Increased Penalty Amounts Starting September 1

Self-insured employers in Washington should be aware that penalty amounts increase on September 1, 2020, as a result of HB 2409, passed earlier this year. The changes apply to several categories of penalties that the Department of Labor & Industries can impose, including penalties under RCW 51.48.017 for “unreasonably delaying or refusing to pay benefits” under a claim. Previously, penalties under this statute were capped at $500 or 25 percent of the benefits delayed, whichever is greater. Starting September 1, this amount increases to the greater of $1,000 or 25 percent. The new penalty amounts apply to new requests submitted on or after September 1, regardless of when the contended delay in benefits occurred. The penalty amount for a… Continue reading

Wage Calculation of H-2A Visa Workers in Washington

The United States H-2A visa program allows employers to bring foreign nationals into the country to fill temporary agricultural positions. Due to labor shortages, it has become common for employers in Washington to hire temporary agricultural workers through the H-2A visa program. Wage calculation in workers compensation cases involving H-2A workers has become a frequent issue. The rate of time loss benefits a worker is due depends in large part on their gross monthly wages at the time of injury (or manifestation of occupational diseases. RCW 51.08.178 dictates how wages are calculated based on the workers employment pattern. Workers with a regular and continuous employment pattern fall under RCW 51.08.178(1) (“Subsection 1”). Under Subsection 1, wage calculations generally involve averaging… Continue reading

Washington State Announces 2020 COLA Increase; Affects Temporary Disability Payments Starting July 1st

Under RCW 51.32.075 temporary disability benefits are recalculated July 1st of each year to reflect changes in the states average wage. According to the Washington State Employment Security Department, the statewide average wage for 2019 was $69,700. This represents a 6.7% increase from 2018 average wage of $65,301; the largest increase since 1999. The Department of Labor and Industries has provided updated information on how to apply the COLA here. Please note the COLA does not apply to temporary disability payments until the second July after the date of injury, unless a worker’s temporary disability rate is set at the minimum or maximum temporary disability rate. Have questions about this year’s COLA increase? Feel free to contact me at 503-595-6110 or dwhite@sbhlegal.com.

Back to Basics: While easy to overlook during the COVID-19 pandemic, double checking details in Washington Claims is still as important as ever

As the impacts of COVID-19 continue to occur and affect people and businesses, it is easy to get swept up in the breadth of complexities this pandemic has created. While businesses grapple with safety, financial, and personnel issues and decisions, day-to-day business details can get lost in the shuffle. Among these details, important items such as workers’ compensation time loss benefits and the proper calculation of amounts due to injured workers are certainly easily placed on the back burner or perhaps overlooked entirely. While it is understandable that issues such as worker safety and social distancing concerns, furloughs, and remote workers may take precedence right now, improper or simply incorrect time loss calculations in a Department of Labor & Industries… Continue reading

Course of Employment in Washington: What Factors are Considered When an Employee is Injured While Working from Home?

As the State of Washington slowly implements its four-phase recovery plan, many employees continue to work remotely from home in various capacities due to the social distancing requirements brought on by COVID-19. As employees continue to work from home, many employers are faced with new claims involving injuries sustained away from the employer’s premises. These unique claims can make it difficult for employers and third-party administrators to assess what constitutes a compensable injury or occupational disease. In Washington, workers acting in the “course of employment” are covered by the Industrial Insurance Act. Generally speaking, acting in the course of employment means the employee is acting at his or her employer’s direction or furthering the employer’s business. This is broad definition… Continue reading

Adjusting to the New Normal – Washington Claims Processing and COVID-19

As the impact of COVID-19 continues to reverberate through Washington, it has created numerous challenges for employers and claims managers who are working hard to process claims properly and as efficiently as possible. Within this ever-evolving situation in mind, this post discusses some of the common issues that have arisen to date and offers suggestions for how to navigate claims processing. Treatment Plans and Time Loss Certification With treating providers cancelling or postponing many non-emergency appointments, it has made it challenging for workers to submit proper time loss certification in a timely manner. To address this issue, Department’s Guidelines suggest workers schedule appointments via video or telephone to document ongoing eligibility for treatment and/or time loss benefits. For claims managers,… Continue reading

L&I Offers Some Guidance on Active Retraining Plans through Office Careers as Moratorium On New Plans Remains in Place

In early March, the Washington Department of Labor of Industries announced a moratorium on approval of new vocational plans that include retraining by Office Careers. The move by L&I followed a three-part investigative series aired by King 5 which was highly critical of the Renton-based school, contending it did not provide adequate training to injured workers to prepare them to re-enter the workforce. The King 5 series spurred an investigation by the Washington Workforce Board, but even before the series aired, L&I had started its own audit of Office Careers. As an unaccredited school approved by L&I to offer vocational retraining, Office Careers has been a frequent target of plaintiff’s attorneys. However, its basic office skills classes, in areas such… Continue reading

Washington: COVID 19 and Voluntary Termination/Unemployment Benefits

Workers’ Compensation Is time loss due if a worker performing modified duty takes a voluntary layoff in the context of COVID-19? According to RCW 51.32.090(4), if a worker is performing modified duty and that modified duty “comes to an end”, before his or her recovery is sufficient to permit a return to the job of injury or other available work offered by the employer of injury, time loss should be reinstated. The COVID-19 pandemic has led to many layoffs and company closures. If a worker performing modified duty loses his or her job due to a company shut down or involuntary layoff due to lack of business, the modified duty will have come to an end under RCW 51.32.090(4). Therefore,… Continue reading

Washington – COVID-19 Incident Reports, Workers’ Comp, Wage and Leave Issues

Krishna Balasubramani | Sather Byerly and Holloway, Oregon and Washington Employment Law, Workers Compensation, Longshore, and OSHA Defense AttorneysWith the recent news of Coronavirus (COVID-19) in Washington, we want to ensure everyone understands the guidelines for incident reports, workers’ compensation claims, and other employment-related concerns. We have created a Q&A to cover many questions Washington employers may have on this confusing and pressing issue.   When should an OSHA Injury and Illness incident report be filed? If an employer is aware of an exposure or an employee reports an exposure to a virus, this should be documented as a work incident. While the common cold and flu is exempt from OSHA recordkeeping requirements, COVID-19 is a recordable illness. OSHA COVID-19 Standards Employers should file an incident report if either: An employee has tested positive for COVID-19; or The… Continue reading