Navigating suspension of benefits and claim closure for Washington claims
There are several reasons why a self-insured employer may move the Department of Labor & Industries to suspend an injured worker’s benefits under the claim. RCW 51.32.110 and WAC 296-14-410 provide guidance for when it is appropriate to request suspension of benefits. These reasons include when an injured worker refuses to attend or fails to cooperate with a medical examination scheduled by the employer, refuses to keep scheduling appointments with the attending provider or vocational counselor, engages in unsanitary or injurious practices that delay the recovery process, refuses to undergo medical or surgical treatment found reasonably essential to recover, or when an injured worker refuses to attend or does not cooperate with vocational rehabilitation.
Prior to requesting a Suspension Order from the Department, the employer must first send a noncooperation letter (also called a “good-cause letter”) to the injured worker. The letter must include an explanation of the problem including the specific actions expected of the worker, request the worker to provide a good cause explanation for the noncooperation, provide notice that benefits can be suspended as a result of the noncooperation, and reference RCW 51.32.110 and WAC 296-14-410. The injured worker then has 30 days from the date of the letter to provide an explanation for his or her noncooperation. If the injured worker does not respond to the letter within 30 days or fails to provide a good cause explanation, then the employer can request an Order from the Department suspending the injured worker’s benefits under the claim. The request to the Department should include a copy of the noncooperation letter, the injured worker’s response, a completed copy of the Department’s Suspension Request Coversheet, and any additional information outlining the employer’s attempts to avoid noncooperation (e.g., notice of an upcoming independent medical examination).
Determining when an injured worker’s explanation constitutes “good cause” is not always black and white. The factors used to determine whether a worker had good cause to refuse to undergo examination include the worker’s physical capacities, sophistication, circumstances of employment, family responsibilities, proven ability or inability to travel, medical treatment and other relevant concerns, including the expectation of a fair and independent medical examination balanced against the need to resolve conflicting medical documentation, the location of willing and qualified physician, the length of time before a physician is available to perform an examination, and the comparative expense of such. In re Bob Edwards, BIIA Dec., 90 6072 (1992). More recently, the Board found that an injured worker’s cancer diagnosis provided good cause for interrupting his vocational plan under RCW 51.32.096(5)(c). In re Michael Killpatrick, BIIA Dec., 21 13384 (2023). While the parameters are not always clear, the rule of thumb is to use common sense.
If the Department issues an Order suspending benefits, the injured worker will have 60 days from the date of receiving the Order to file a protest or an appeal before the decision becomes final and binding. Once the Suspension Order is final and binding, the employer does not owe benefits under the claim until the injured worker cooperates with the requested action; however, some injured workers may continue refusing to cooperate with the claim administration process even after benefits are suspended. This can frustrate employers trying to fully resolve the claim. Per the Department’s Claim Adjudication Guidelines, employers can submit a Claim Closure Request Form to close the claim once a Suspension Order becomes final and binding. The closure request should include an explanation that the injured worker remains uncooperative despite the suspension of benefits.
If the Suspension Order is based on the injured worker’s failure to attend an IME, the Department may still request evidence supporting claim closure. In this scenario, I recommend scheduling a telephone conference with the attending provider to obtain evidence that the injured worker reached maximum medical improvement, is capable of returning to work without restrictions, and to rate impairment. Alternatively, if the attending provider will not provide evidence to support closure, I recommend scheduling a record review. A record review doctor will not be as persuasive as an attending provider if claimant files an appeal to the Board down the road; however, the doctor’s report will be sufficient evidence for the Department to close the claim. Of important note, suspension of benefits is lifted once claim closure becomes final and binding. This means an injured worker can receive benefits if he or she successfully reopens the claim. As such, employers should handle reopening applications like they normally would.
If you have any questions about suspending an injured worker’s benefits or moving for claim closure, please feel free to contact me at (503) 412-3105 or .
Posted by Omeed Ghaffari.
