L&I Responsible for Post-Pension Medical Treatment When Second Injury Fund Relief Has Been Granted

lee ann loweThe Court of Appeals has determined when Second Injury Fund relief has been granted, the Department, not the employer, is responsible for payment of post-closure medical treatment when the treatment is not solely due to the work injury.

In The Boeing Co. v. Dep’t of Labor and Indus., ___ Wn. App. ___ (March 31, 2014), claimant was found permanently and totally disabled as a result of the combined effects of her industrial exposure and her preexisting condition. The Department awarded pension with Second Injury Fund relief and authorized ongoing medical treatment for claimant’s asthma. The Department, by letter, directed Boeing to pay the entire cost of the ongoing treatment. Boeing appealed. The Board affirmed the Department, but the Superior Court reversed. The Department appealed.

The Court of Appeals rejected the Department’s assertion that the Second Injury Fund statute and the Department’s own regulations made employers responsible for post-closure treatment costs when Second Injury Fund relief had been granted. RCW 51.16.120(1) requires a self-insured employer to pay “only the accident cost which would have resulted solely from the further injury or disease, had there been no preexisting disability.” Here, there was no evidence the need for ongoing treatment was solely due to the industrial injury. Moreover, the Court found the Legislature intended for the Department to pay for post-pension medical treatment from the Second Injury Fund after it grants Second Injury Fund Relief because the employer’s assessments for the Second Injury Fund is based upon an employer’s total claim costs, including treatment costs. To require the employer pay the post-pension medical treatment costs would constitute a double assessment.

The good news is this decision limits self-insured employers’ exposure for post-pension treatment when Second Injury Fund relief has been granted. Unfortunately, it may also affect the Department’s willingness to award Second Injury Fund relief in future cases. Only time will tell.

Please contact me with any questions at: llowe@sbhlegal.com