Washington Workers’ Compensation

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

SBH Attorney Aaron Bass Testifies in Front of Washington State Senate

Attorney Aaron Bass testified on behalf of Washington Self-Insurers Association in opposition to SHB 2409. The bill not only increases the penalty amounts, it imposes a new vague “fair conduct” standard and includes a “per occurrence” multiplier on self-insurance penalties. Attorney Bass used his time to point out the grossly punitive and concerning language in Section 2 of the proposed bill. The bill would entitle claimants a penalty each time benefits were unreasonably delayed. Rather assessing a penalty of $500 or 25% of the aggregate amount of delayed or unpaid benefits, the proposed bill provides a maximum $1,700 penalty for each act of unreasonable delay. The consequence of a “per occurrence” penalty is catastrophic and extremely punitive. Attorney Bass outlined… Continue reading

Department of Labor & Industries Issues New Checklist for Willful Misrepresentation

The Department of Labor & Industries recently amended the process and published an amended checklist for employers seeking Willful Misrepresentation orders. The Department’s new checklist for reporting Willful Misrepresentation available here. Pursuant to RCW 51.32.240(5), self-insured employers can demand repayment of any benefits induced by willful misrepresentation along with a 50% penalty payable to the Department’s supplemental pension fund so long as the repayment and recoupment of benefits is demanded within three years of the discovery of the worker’s willful misrepresentation. The statute goes on to explain that “willful misrepresentation” includes willful false statements, omissions, or concealment of any material fact. Additionally, Washington Administrative Code 296-14-4121 provides that the term “willful” means a “conscious or deliberate false statement, misrepresentation, omission,… Continue reading

New Washington Law: First Responder Presumption

On June 7, 2018 the First Responder Presumption, House Bill SB 6214 became law and changed the way workers and employers approach mental health claims filed by firefighters and law enforcement officers throughout the state of Washington. Before the First Responder Presumption, all workers, including first responders, were typically prevented from filing a claim for Post-traumatic Stress Disorder (PTSD) as an occupational disease. The new law changes this rule and carves out an exception for first responders. Now, when a firefighter or law enforcement officer files a claim for PTSD, it is presumed to be an occupational disease unless the employer proves otherwise. In other words, the new law shifts the burden of proof to the employer, who is now… Continue reading

Court of Appeals Case Reaffirms Objective Evidence Required For Reopening

In Hendrickson v. Dep’t of Labor & Indus., the Washington Division One Court of Appeals reaffirmed what evidence must support a reopening application. Claimant injured her middle and lower back in October 2007. The Department closed her claim in May 2012 with a category 4 dorso-lumbar impairment award. Just prior to claim closure, claimant complained to Dr. Martin she was “having ongoing pain all over.” In September 2013, claimant filed a reopening application, which the Department denied in February 2014. Claimant appealed. At hearing, claimant’s medical expert, Dr. Martin, testified that claimant’s cervical and lumbar MRI scans taken prior to claim closure and those taken in 2014 “were essentially unchanged” and there were “no objective findings of worsening” in claimant’s… Continue reading