Washington Significant Vocational Board Decisions
Two significant decisions regarding the vocational process were recently determined by the Board of Industrial Insurance Appeals. In re Michael Killpatrick BIIA Dec., 21 13384 (2023) clarified what qualifies as good cause for an interruption of a vocational plan. Mr. Killpatrick was in the process of going through vocational retraining when he was diagnosed with prostate cancer, a condition unrelated to his industrial injury. He withdrew from his vocational retraining due to undergoing prostate cancer treatment and feeling overwhelmed with his cancer diagnosis. Claimant was unable to complete his vocational retraining in the two-year period. The Department suspended his time-loss compensation for non-cooperation under the plan. The Board found there was plan interruption, but that Mr. Killpatrick’s cancer diagnosis and treatment constituted good cause for the interruption. Therefore, the Department order was reversed and remanded to reinstate Mr. Killpatrick’s entitlement to time-loss compensation.
In re Killpatrick shows the liberal application of good cause as claimant’s stress regarding his cancer diagnosis as well as cancer treatment unrelated to his industrial injury was considered good cause to not complete his vocational retraining. In previous decisions, the good cause was more narrowly construed and was based on conditions accepted under the claim, however, under Killpatrick non claim conditions are now also good cause for not completing vocational retraining. This situation makes an argument for recommending Option 2 to a claimant if it is unlikely that they will be able to complete vocational retraining in the 2-year period. Option 2 is when instead of completing vocational retraining with a vocational counselor, the claimant is rewarded a lump sum payment equal to 9 months of time-loss.
Employers should also remember that if a claimant takes Option 1 and participates in vocational retraining, they can switch to Option 2 after starting the Option 1 retraining plan up to 15 days after the end of the first academic quarter or three month of retraining to make the Option 2 selection. In Killpatrick, Mr. Killpatrick withdrew from his first quarter of classes and would have qualified for switching to Option 2 which would have saved the employer from paying for the failed vocational retraining plan. However, it is ultimately up to the claimant to decide whether to elect to take Option 2, but it remains a good option to recommend if it becomes evident claimant will not be able to follow through with retraining.
Another recent decision that is important to keep in mind as independent medical examinations (IMEs) are harder to obtain thanks to the new IME rules is In re Bryan Wickstrom, BIIA Dec., 21 11055 (2023). Which is a recent Board decision that determined functional capacity exams (FCEs) do not fall under the scope of the IME rules. Under RCW 51.36.070 there are specific reasons a claimant can be expected to appear for an IME and how often. However, in In re Bryan Wickstrom, the Board reiterated their opinion from In re Jeremy D. Kidder that a FCE is not a “medical examination” subject to the provisions of RCW 51.36.070 and is instead a vocational evaluation. Therefore, the limited number of examinations allowed under RCW 51.36.070 does not apply to FCEs.
This decision is significant for employers because IMEs have been limited due to the new recording rules, reasonably convenient location rule, and limitations on how often and for what reason IMEs are allowed. FCEs are generally not regarded as highly as an IME because they rely on subjective effort by the claimant instead of objective medical findings. However, allowing multiple FCEs, especially if performed by a medical doctor, could generate positive evidence regarding the claimant’s ability to return to the workforce.
If you have any questions about these decision or other Washington workers’ compensation questions, please contact me at or 503-776-5416.
Posted by Sara Densmore.
