First Responders are eligible for PTSD workers’ compensation benefits in Washington.

Washington workers’ compensation law recognizes that mental health conditions can arise from exposure to a traumatic events. First Responders in Washington State have always been able to assert a claim for PTSD caused by a specific incident or exposure; so long as the claim met the one year statute of limitations applicable to this type of work injury, First Responders were protected. But what about First Responders who develop PTSD and other mental conditions as a result of facing traumatic exposures over an extended period of time? Legal changes effective in 2018 make it easier for First Responders, who develop mental health conditions over time as a result of repeat exposures throughout their careers, to qualify for claim allowance under Washington’s Industrial Insurance Act.

What changed to make it easier for First Responders to establish a claim for PTSD under Washington’s Industrial Insurance Act?

Unless tied to a specific traumatic exposure within one year of the claim filing, First Responder PTSD claims were often denied on the basis that Washington’s workers’ compensation law excludes mental health conditions connected with ordinary work stress, examples of which include difficulty with a work manager/supervisor, change of hours or work shifts, job transfer, work evaluation and other actions taken in reasonably good faith by the employer.

Which First Responders are eligible for Occupational Disease PTSD claims?

According to the United States First Responders Association, a first responder is “any individual who runs toward an event rather than away.”  A first responder is any person who responds to or is involved in the initial rescue, investigation, reporting and treatment of persons injured in an accident, natural disaster, terrorist act or violent person assault. Examples include but are not limited to: Firefighter; Law Enforcement – State Trooper, Municipal and State Police; Medical professional including nurse, techs, assistants and doctors; EMT (Medic, private or fire fighter); and, Corrections Officers.  Pursuant to RCW 51.08.142, only specifically identified first responders qualify for occupational disease claims for Post-Traumatic Stress Disorder.

Eligible “firefighters” must meet at least one of the definitions set forth in RCW 41.26.030(17)(a)(b)(c) and (h), which include:

  • Any person who is serving on a full time, fully compensated basis as a member of a fire department of an employer and who is serving in a position which requires passing a civil service examination for firefighter, and who is actively employed as such;
  • Anyone who is actively employed as a full time firefighter where the fire department does not have a civil service examination;
  • Supervisory firefighter personnel; and,
  • Any person who is employed on a full-time, fully compensated basis by an employer as an emergency medical technician that meets the requirements of RCW 18.71.200 or 18.73.030(12), and whose duties include providing emergency medical services as defined in RCW 18.73.030.

Eligible “law enforcement officers” is defined by RCW 41.26.030(19)(b), (c), and (e), and includes any person who is commissioned and employed by an employer on a full time, fully compensated basis to enforce the criminal laws of the state of Washington, as well as the following requirements and/or exclusions:

  • “Only those deputy sheriffs, including those serving under a different title pursuant to county charter, who have successfully completed a civil service examination for deputy sheriff or the equivalent position, where a different title is used, and those persons serving in unclassified positions authorized by RCW 41.14.070 except a private secretary will be considered law enforcement officers.” (RCW 41.26.030(19)(b);
  • “Only such full time commissioned law enforcement personnel as have been appointed to offices, positions, or ranks in the police department which have been specifically created or otherwise expressly provided for and designated by city charter provision or by ordinance enacted by the legislative body of the city shall be considered city police officers.” (RCW 41.26.030(19)(c); and,
  • “The term “law enforcement officer” also includes a person employed on or after January 1, 1993, as a public safety officer or director of public safety, so long as the job duties substantially involve only either police or fire duties, or both, and no other duties in a city or town with a population of less than ten thousand. The provisions of this subsection (19)(e) shall not apply to any public safety officer or director of public safety who is receiving a retirement allowance under this chapter as of May 12, 1993.” (RCW 41.26.030(19)(e)).

In summary, for purposes of eligibility to seek workers compensation benefits as a first responder suffering from an occupation disease of PTSD, the worker must be a firefighter, including certain supervisors, or a law enforcement officer, or an emergency medical technician.

PTSD and Suicide Plague First Responders

Even the most qualified and experienced First Responders suffer emotional consequences of a job that requires daily contact with life and death circumstances. “Firefighters and EMTs are statistically more likely to die of self-inflicted injuries than in the line of duty, with 87 line of duty deaths and 108 suicides verified by the Firefighter Behavioral Health Alliance,” as reported by Fire Chief Digital.

A study of fire service ideation of suicide (preoccupation or recurring thoughts of suicide) in a partnership with National Fallen Firefighters Foundation and Florida State University found nearly half of 1,000 fire service respondent’s reported encountering suicidal thoughts at one or more point in their firefighting career, and another 15 percent reported one or more suicide attempts.”

An additional study of First Responders published in the Journal of Emergency Medical Services found that “3,447 (86%) of the 4,022 respondents experienced [Critical Stress], but the shocking discovery was that 1,383 (37%) of the respondents had contemplated suicide and 225 (6.6%) had actually tried to take their own life. These statistics are roughly 10 times greater than the national average for adults in America, according to a study done by the Centers for Disease Control and Prevention in 2012. Even taking into account inherent survey bias, these figures were mind blowing. This information concretely establishes the fact that EMS provider stress is prevalent in our nation and is extreme, to say the least.”

Washington State is taking steps to help our firefighters, paramedics, and police officers suffering from PTSD due to their inherently stressful jobs. More work remains to be done as the new law does not apply to volunteer firefighters, reserve police officers or other professional first responders depending upon their membership in certain state retirement plans.

If you or a loved one is a First Responder suffering from PTSD, please know that there are resources available. The Firefighter Behavioral Health Alliance provides a free resource for Firefighter and EMT Suicide Screening, which includes contact information for the National Suicide Prevention Lifeline (800-273-8255) and the Share the Load Program (888-731-3473).

What is a psychiatric or emotional injury?

A non-physical injury that affects the way a person perceives and/or interacts with themselves, others and the world.

Examples of compensable psychiatric conditions that are connected with physical injury.

Examples of psychiatric or mental health conditions compensable in a personal injury and/or work related injury claim, include depression, anxiety, fear, substance abuse, repressed memory, loss of consortium and Posttraumatic Stress Disorder (PTSD).

What are the causes of psychiatric or emotional injuries that are compensable under Washington law?

  • Car accidents
  • Truck accidents
  • Traumatic events
  • Construction injuries
  • First responder injuries
  • Nursing Homes
  • Hospital and/or Rehab facility injuries
  • Child molestation
  • Sexual abuse
  • Consequence of negligent supervision of a parolee
  • Dog bites
  • Assault by trusted Religious organizations and persons

Can I suffer psychiatric and physical injuries from the same event?

Psychiatric injury can arise directly from exposure to a traumatic event or, over time, as a result of a physical condition and its limitations and symptoms. For example, witnessing the death or injury of another person, or experiencing terror or fear, can give rise to trauma related psychiatric conditions, such as post-traumatic stress disorder and/or anxiety and/or depression. A psychiatric condition can also arise over time; for example, depression and anxiety can develop in individuals who sustain injury, permanent limitations or disability, live with chronic pain and face uncertainty in their employment and familial future as a result. Where the law recognizes a cause of action or disability benefits for injury, any physical or psychiatric condition that arises naturally and proximately out of the event or circumstances at issue, or out of the condition itself, is potentially compensable under the claim.

What if there is no physical injury?  Can I still be compensated if my injury is psychiatric or emotional?

Where physical injury is legally compensable, a claim for emotional and/or psychiatric damage is often included in the claim or lawsuit. In circumstances where no bodily injury occurs, obtaining compensation for emotional distress damages is more difficult. For example, in the event a person intentionally subjects another person to a traumatic event, such as keeping them locked inside a room, Washington recognizes a cause of action for intentional infliction of emotional distress. Similarly, Washington recognizes recovery for emotional distress damages by a family bystander who is injured or killed as a result of another person’s intentional or negligence. Washington law also authorizes recovery for loss of consortium, i.e., loss of love, care, affection, companionship and society based upon injury to a spouse or child.

For injuries that occur at work that are covered under Washington’s Industrial Insurance Act, workers’ compensation benefits are paid for any physical or mental condition reasonably connected to the injury or exposure, unless otherwise excluded. Work-related general stress disorders that arise out of a stressful work environment are not compensable under Washington’s Workers’ Compensation Act. Washington Administrative Code 296-14-300 excludes claims made on the basis of mental disabilities caused by stress that do not fall within occupational disease, including those conditions and disabilities resulting from:

  • Change of employment duties;
  • Conflicts with a supervisor;
  • Actual or perceived threat of loss of a job, demotion, or disciplinary action;
  • Relationships with supervisors, coworkers, or the public;
  • Specific or general job dissatisfaction;
  • Work load pressures;
  • Subjective perceptions of employment conditions or environment;
  • Loss of job or demotion for whatever reason;
  • Fear of exposure to chemicals, radiation biohazards, or other perceived hazards;
  • Objective or subjective stresses of employment;
  • Personnel decisions;
  • Actual, perceived, or anticipated financial reversals or difficulties occurring to the businesses of self-employed individuals or corporate officers.

Who can diagnose psychiatric injuries?

The best expert for legal purposes in matters concerning psychiatric claims or injuries, is a psychiatrist. A psychiatrist is a medical doctor, can prescribe medications and is the most credible professional for purposes of diagnosing mental health conditions and/or injuries, determining the nature and extent of treatment, and providing expert medical opinions in any subsequent legal matter. Other mental health professionals, such as mental health counselors or social workers can still diagnose and provide support in general terms, but ideally in conjunction and cooperation with a psychiatrist.

Do I need a mental health professional to diagnose me?

A general or non-mental health practitioner, nurse practitioner or physician’s assistant can all make initial tentative diagnosis, but ultimately, for their opinion to carry weight with the Department of Labor and Industries, Self-Insured Employers, insurers, and in the legal realm, a mental health professional should also provide an expert medical opinion. Sometimes in the course of treating a condition, it becomes clear to a provider that the patient is becoming depressed or anxious. In that case, it is appropriate to request the provider either refer the patient to a specific mental health care professional or provide a general referral that enables the patient to find their own.

Do I need a doctor? How important is my doctor?

For purposes of asserting a personal injury or workers’ compensation claim, a medical doctor or psychiatrist must diagnose the existence of a medical or psychiatric condition based on a standard referred to as reasonable medical probability. The opinion of the treating medical or psychiatric doctor (also known as the “attending physicians”) is given special weight and consideration under the Industrial Insurance Act and is paramount to the successful management of a workers compensation or personal injury claim. During the course of managing or adjudicating a workers’ compensation or personal injury claim, the injured party or worker is often required to attend an independent medical examination facilitated by the claim manager, self-insured employer, or defense counsel. Under these circumstances, the opinions of a long term medical or psychiatric provider invested in the best care or outcome for the patient client is often viewed as more credible than the opinion of a one-time hired gun paid for by the claim manager, insurance company, or defense attorney.

A medical provider must diagnosis and certify the ongoing symptoms and employment restrictions; hence, it is important to ensure their cooperation and understanding when consulted for evaluation and treatment under the claim.

What is PTSD?

Posttraumatic Stress Disorder (PTSD) is a psychiatric condition occurring in persons who experience or witness a single or multiple traumatic event. The American Psychiatric Association defines Posttraumatic Stress Disorder, formerly known as shell shock, as a disorder that arises in persons who experience or witness a traumatic event such as a natural disaster, serious accident, terrorist act, war/combat, rape, or other violent personal assault. PTSD can affect any ethnicity, nationality, culture, and occur at any age. High risk professions, including law enforcement, first responders, emergency medical personnel, and fire fighters, especially over time and with repeated exposure, are susceptible to a PTSD diagnosis.

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), published by the American Psychiatric Association, is the primary diagnostic tool used by psychiatrists, psychologists and general mental health providers and sets forth the qualifying criteria for mental health conditions, including PTSD.

Who can diagnose PTSD?

The best expert for legal purposes in matters concerning psychiatric claims or injuries, is a psychiatrist. A psychiatrist is a medical doctor, can prescribe medications and is the most credible professional for purposes of diagnosing mental health conditions and/or injuries, determining the nature and extent of treatment, and providing expert medical opinions in any subsequent legal matter. Other mental health professionals, such as mental health counselors or social workers can still diagnose and provide support in general terms, but ideally in conjunction and cooperation with a psychiatrist.

What are the symptoms of PTSD?

The psychological consequences arising from exposure to a traumatic event for most people resolve within a month; a diagnosis of PTSD, however, is warranted when the symptoms last longer than one month, and may persist for many years or permanently. Except in cases where trauma is repressed, most victims develop symptoms within months of the exposure.

Symptoms of PTSD generally fall into four categories:

  • Intrusive thoughts, e.g., involuntary or persistent memories, flashbacks and/or dreams reliving the traumatic event;
  • Reactive symptoms, e.g., irritability, rage or angry outbursts, insomnia, easily startled, hyper-vigilant;
  • Overwhelming negative thoughts and feelings and distortion of a victim’s belief about others and/or self; detachment and lost interest in people and activities enjoyed prior to experiencing the trauma; and,
  • Resistance and avoidance of people, places and things that remind and/or trigger the victim’s memory or experience of the event.

When triggered, a PTSD victim relives the emotional response with the same intensity as experienced initially with the original event.

Does everyone experience PTSD in the same way?

Individuals vary in terms of how they experience and cope with psychiatric conditions arising from trauma. A person can develop an immediate response to a single event, or develop a psychiatric condition, such as PTSD, over time and as a result of repeated exposures to trauma.

Can a person with PTSD repress the memory of a traumatic event?

Sometimes a significant emotional or psychiatric trauma is unconsciously blocked or repressed and not remembered by the victim until years after the event occurred. Generally speaking, the repressed trauma is so great that the victim buries the event in their subconscious brain forever or until a triggering event brings those circumstances into their conscious brain. Even though the victim cannot recall the traumatic memory, symptoms related to a PTSD diagnosis may still affect them subconsciously. In this scenario, the trauma remains buried in the victim’s subconscious and can experience and manifest symptoms of a mental condition without understanding the cause thereof.

What is the Statute of Limitations for psychiatric injury claims?

Depending on the legal or other claim, including short and long term disability, social security disability, personal injury or workers compensation claim, the statute of limitations or time period for initiating the action or claim varies. Failure to properly file or initiate a claim within the proper time period, however, can operate as a total bar to recovery. A lawyer can help identify the benefit and legal options available to a person who sustains psychiatric injury at work, including PTSD, as a result of exposure to a single or multiple exposure to trauma.

What if I suffer physical or psychiatric injury while working?

Any injury sustained while working in the course and scope of employment is potential compensable under Washington’s Industrial Insurance Act.  In Washington, a “Worker” (same as “Employee”) as defined by RCW 51.08.180, is subject to the protection of Washington’s Industrial Insurance Act and potentially eligible to receive “workers comp” benefits under the Industrial Insurance Act.

Additionally, to the extent the work injury was caused by the negligence of a third party not employed by the injured worker’s employer, or as a result of faulty equipment or poor equipment design, the worker may also have a personal injury claim against the responsible party. For example, a bank courier driving a delivery route who is injured by a vehicle who fails to observe a red light, can file a workers compensation claim for benefits and recover additional damages from the driver of the vehicle.

What if general work stress causes my psychiatric condition?

Work-related general stress disorders that arise out of a generally stressful work environment are not compensable under Washington’s Workers’ Compensation Act. Washington Administrative Code 296-14-300 excludes claims made on the basis of mental health conditions that arise from general work or job stress related to work responsibilities, supervisors, work hours and shift times or changes thereto, or from dealing with difficult co-workers or an abusive or bad boss or supervisor.

What is the Industrial Insurance Act and how does it protect injured workers?

Washington’s Industrial Insurance Act (Title 51 of the Revised Code of Washington) was enacted in 1911 and compensates a worker for “injury” or “occupational disease” sustained in the course and scope of their employment regardless of fault. Title 51 provides the exclusive remedy for workers who sustain work related injuries and eliminates a private cause of action against the worker’s employer unless the employer deliberately intended the injury specific to that worker. All benefits are determined solely by statute and every body part, including psychiatric, are assigned a monetary value; the actual physical, psychiatric and/or economic impact of injury or disease on the worker is not considered for purposes of determining the nature and extent of the injured worker’s benefits.

Participation in Washington’s IIA is mandatory and an employer cannot avoid coverage by agreement, contact or any other action. RCW 51.12.110.

Who is covered under Washington’s Workers’ Compensation Act?

Any “worker” in the State of Washington who sustains a physical or psychiatric injury or occupational disease in the course and scope of employment, and timely applies to the Department of Labor and Industries, is entitled to workers’ compensation benefits unless subject to a statutory exclusion.

What if I am a federal employee?

A federal employee injured in the course and scope of work is not covered under Washington’s Industrial Insurance Act. An injured Federal employee is covered exclusively under the Federal Employee Compensation Act, for which different claim timing and administrative requirements exist.

What is the definition of “injury” under Washington’s workers’ compensation act?

RCW 51.08.100 defines physical or psychiatric injury as a “sudden and tangible happening of a traumatic nature, producing an immediate result, and occurring from without, and such physical conditions as result therefrom.”

What is the statute of limitations for filing a workers compensation claim for an injury?

An injured worker must file a claim application for injury with the Department of Labor & Industries within one year after the date of injury. RCW 51.28.050. Responsibility for timely filing the claim application rests solely with the injured worker and is not the responsibility of the treating or evaluating doctor or employer representative.

What is the definition of “occupational disease” under Washington’s Industrial Insurance Act?

An “occupational disease” is defined as such disease or infection as arises naturally and proximately out of distinctive conditions of the worker’s employment.” RCW 51.08.140. Examples of this type of condition are asbestos related cancers. In occupational disease claims, entitlement to benefits generally begin on the date the condition requires medical treatment or becomes disabling, whatever occurs first.

Is there a time period or statute of limitations for filing an application for occupational disease under Washington’s Industrial Insurance Act?

A worker suffering from an occupational disease must file a claim application for an occupational disease with the Department of Labor & Industries within two years after the date the worker is provided written notice of the existence of the disease from a physician. RCW 51.28.055. Responsibility for timely filing an occupational disease claim rests solely with the injured worker and is not the responsibility of the treating or evaluating doctor or employer representative.

Is there a time period or statute of limitations for filing an application for injury or occupational disease that causes the death of a worker?

A surviving spouse and/or children of an injured worker may be entitled to benefits if the worker’s death results from an injury or occupational disease. RCW 51.32.050. The decedent’s spouse must timely apply for benefits with the Department of Labor & Industries within one year of the date of death for injury (RCW 51.28.050) or two years from the date of death due to occupational disease. RCW 51.28.055. Note: If benefits are payable to a surviving spouse, remarriage will suspend the spouse’s benefit entitlement until that marriage terminates. RCW 51.32.067 and 51.32.072.

What does it mean to become injured in the “course and scope of my employment?”

A person acting at the direction and/or for the benefit or furtherance of the employer’s business at the time of injury is within the course and scope of employment. Injuries incurred commuting to work generally are not considered in the “course” of employment.

What if the injury occurred at work but I caused the injury?

The Industrial Insurance Act mandates compensation to an injured worker even if the worker is responsible for the injury itself. The IIA is an exclusive remedy and compensates workers who sustain injury in the course and scope of their employment, regardless of fault.

What if my employer caused the injury?

Washington’s Industrial Insurance Act provides the exclusive remedy to workers injured in the course and scope of employment, even where the employer is at fault for the injury. The only exception to the exclusive remedy provision is RCW 51.24.020 which provides a private cause of action against an employer who acts deliberately and intentionally to harm a specific employee.

What if the injury occurred at work as a result of a third party’s negligence?

If the injury or condition is caused by the negligence, act or omission of a third party who is not also employed by the injured worker’s employer, the worker can pursue a private cause of action for damages against that third party. RCW 51.24.030. Even where a third party claim exists, the injured worker does not forgo entitlement to benefits under the IIA; however, the Department of Labor & Industries retains a lien against any private recovery to the extent it paid or is entitled also to benefits under the IIA.

How do I begin a workers’ compensation claim?

Claims for traumatic injury or occupational disease are commenced by filing an accident report with the Department of Labor & Industries. Claim forms are available in most physicians’ offices, or can be obtained directly from the employer or Department of Labor & Industries and/or its website. Additionally, every employer subject to the IIA should maintain copies of this form for purposes of initiating the claim process, via their workers compensation, disability or human resources departments. Regardless of whether or not the employer or physician assists in this process or can provide the worker the documents required to initiate the claim, the injured worker is solely responsible for obtaining, completing and timely filing this initial accident report to initiate the claim process and satisfy the statute of limitations.

How do I complete the accident report?

The Report of Industrial Injury or Occupational Disease requires a worker to briefly explain the circumstances giving rise to the injury or occupational disease supportive of the workers’ compensation or personal injury claim and identify the initial medical or other health professionals responsible for diagnosis, treatment and opinions related to the nature and extent of damage, employability and permanent physical or mental limitations and residuals that result therefrom.

The initial doctor who diagnosed or is responsible for treating the worker must also verify and sign the accident report. Many doctors keep the initial accident report required to initiate a claim on file in their office. Alternatively, the employer’s human resource or benefit personnel are able to provide the forms required to start a workers’ compensation claim in the State of Washington. Washington’s Department of Labor & Industries is also a contact for purposes of obtaining the initial form.

The injured worker is ultimately responsible for her own timely claim filing. If a representative on behalf of an employer, guild or union offers assistance, make sure to stay involved on your own behalf to ensure the claim is properly and timely filed. The failure to file a timely workers’ compensation claim form will bar allowance of the claim and is almost always deemed the responsibility of the injured worker or party.

Who makes the decisions and manages my workers compensation claim? State Fund vs. Self-insured

Decisions related to allowance of a workers’ compensation claim and the claimant’s subsequent eligibility for treatment and other benefits under a workers compensation claim are within the discretion of the claim manager assigned to the claim. Decisions about allowance and benefits are generally memorialized in a Washington State Department of Labor & Industries Notice and Order. Most employers qualify as “State Fund” employers, and the injured worker’s claim is managed by the State of Washington’s Department of Labor & Industries.

Some large employers, however, such as Boeing, as well as county and city municipalities (e.g. City of Seattle, City of Bellevue, King County, City of Tacoma, Pierce County) are able to afford the cost of posting an expensive bond and meet the State mandated legal and financial requirements in order to self-insure their own claims. Self-insured employers, manage their own claims internally or hire third party administrators (e.g., Sedgwick, Broadspire, Eberle Vivian) that provide claims management services for the self-insured employer. In this context, the Department of Labor and Industries operates as a third party check and balance on the self-insured employer’s claim management decisions while continuing to issue the final Notice and Order related to determinations under the claim.

What benefits am I entitled to under the claim?

The specific benefits an injured worker is entitled to under the Industrial Insurance Act, assuming the claim is timely and otherwise meets the qualifying criteria for an “injury” or “occupational disease,” are as follows:

Medical Treatment

RCW 51.36.010 authorizes an injured worker to receive proper and necessary medical, surgical, psychiatric, hospital or other reasonable curative treatment as directed by the Medical Aid Rules, Washington Administrative Codes 296-20-010 through 196-20-17004. The Medical Aid Rules are conservative and tend to exclude newer treatment modalities or medicine. Curative treatment is defined as treatment that generally leads to an improvement of the condition or disease. Palliative treatment, despite its potentially supportive nature (such as periodic massage or similar types of treatment) is rarely authorized, except in some cases where the worker and providers assert such treatment is necessary and reasonable and ultimately will enable the worker to become more active by decreasing the level of disability and pain.

All provider fees and costs are reviewed and authorized in accordance with the Medical Aid Rules. Health care providers who treat injured workers must adhere to the Medical Aid Rules in terms of the services they provide and fees charged for such services and may not seek additional payment for such services for the difference between the fee allowed by these rules and the providers’ usual and customary charge. Only if the claim is rejected or denied may the provider seek direct payment from the injured worker.

Time Loss Compensation

An injured worker temporarily unable to return to any type of employment with a reasonable degree of success and continuity as a result of the injury or occupational disease, may qualify for time loss compensation benefits.  RCW 51.32.090. Consideration of the worker’s eligibility for this benefit, is based on their age, education, work history, transferrable skills, and physical and psychiatric restrictions. Practically speaking, if an injured worker is unable to return to the job of injury, time loss benefits are warranted.

The worker’s attending physician or other provider is responsible for certifying on an ongoing basis that the injured worker is unable to work.

RCW 51.32.060 requires calculation of time loss compensation benefits in accordance with the worker’s marital status and number of child dependents at the time of injury as well as their monthly “wages,” including overtime, from all sources of employment performed as of the date of injury, and further factors including medical insurance premiums paid by the employer. Time loss compensation benefits are subject to a maximum (105% of the average state wage as computed under RCW 51.08.018) and minimum amount dependent on the date of injury.

Time loss compensation qualifies as a disability payment and is not subject to federal income tax withholding.

Loss of earning power (LEP)

Pursuant to RCW 51.32.090(3) provides that even if the worker continues to partially work, and as long as the injury or condition is the cause of at least a 5% reduction in earning capacity, the worker is entitled to benefits under the Industrial Insurance Act. Loss of earning power benefits cannot exceed 150% of the average monthly wage; hence loss of earning power benefits in combination with earned wages encourage the injured worker to partially work as soon as possible since the combination of this benefit with earnings exceed the amount an injured worker can receive solely in time loss benefits.

Loss of earning power compensation qualifies as a disability payment and is not subject to federal income tax withholding.

Vocational Retraining

An injured worker unable to return to the job of injury, even when medical fixity occurs, may be eligible for vocational rehabilitation pursuant to RCW 51.32.095. Where the injury or disease will clearly prevent the employee from returning to work at the job of injury, or the worker is out of work for at least 90 consecutive days, a vocational consultant is assigned by the claim manager to conduct an evaluation process. The vocational consultant determines the nature and extent of the worker’s employability, and considers the worker’s age, education, prior vocational services and work history, transferrable skills, pre-existing conditions and all physical and psychiatric restrictions resulting from the industrial injury or occupational disease.

“Employability” is defined as capable of minimum wage work without regard to the actual availability of such jobs, probability of hire or pay differential as compared to the worker’s job of injury.

In the event an injured worker is deemed “employable” or ineligible for vocational retraining services, time loss compensation benefits immediately terminate even in situations where the worker continues to receive medical treatment benefits under the claim.

If eligible for vocational retraining benefits, the injured worker can participate in a vocational retraining plan and RCW 51.32.095(3) authorizes payment of time loss or loss of earning power compensation through completion of the plan up to two years.

The decision to provide vocational retraining benefits on a worker’s behalf is solely within the discretion of the Department of Labor & Industries pursuant to RCW 51.32.095. A worker can dispute a vocational eligibility determination to the Director of the Department within 15 days of receipt of the decision. Regardless of ongoing certification by a medical provider, no time loss or loss of earning power compensation benefits are paid while the dispute is pending. The Director’s determination related to the vocational dispute is considered final. Although an injured worker can appeal the determination, the burden of proof is much more difficult than appeals of other claim matters and requires proof not only that the decision was wrong, but that the Director’s determination is arbitrary and capricious.

Permanent Partial Disability Award (PPD)

Assuming allowed condition(s) are medically fixed and stable and the worker is determined capable of gainful employment, either with or without vocational retraining, the Industrial Insurance Act will compensate the worker in the event they sustain a permanent loss of function as a result of that condition. Objective medical findings, related solely to loss of body function, must support the worker’s permanent partial disability determination. Two types of awards of this nature exist:

  • “Specified Disabilities,” set forth in RCW 51.32.080(1), compensate the worker for body parts subject to amputation (i.e., extremities) and are expressed as a percentage compared to the amputation value of that extremity or 100 percent; and,
  • “Unspecified Disabilities,” set forth in Washington Administrative Codes 296-20-200 through 296-20-680, e.g. spine, lungs, internal organs and psychiatric disorders, that compensate the worker based on the percentage of loss as compared to total body impairment. Total body impairment is set by statute and periodically increases.

All permanent partial disability awards are based upon the benefit schedule in effect as of the date of injury. So long as a worker has reached medical fixity and is capable of gainful employment, payment of the PPD award is the last step in the claim process and accompanies the Department’s closing order related to the claim.

Total Permanent Disability Award (also known as “Pension Benefits”)

An injured worker who cannot return to any gainful employment as defined by RCW 51.08.160, qualifies for pension benefits, paid on a monthly basis. This statute defines permanent total disability as the “loss of both legs, and arms, or one leg and one arm, total loss of eyesight, paralysis or other condition permanently incapacitating the worker from performing any work at any gainful occupation.” Gainful employment means able to reliably and continuously perform work given the worker’s age, education, prior work history and physical restrictions. The benefits a totally and permanently disabled worker receives are the same monthly benefits as those paid for time loss benefits. The difference is duration. In most instances total permanent disability benefits are paid through the remainder of the claimant’s life.

Receipt of social security disability benefits offset benefits received under Washington’s Workers Compensation Act.

When can the Department of Labor & Industries close my claim?

Once a work related condition or disease reaches medical fixity and the worker is determined employable as defined by the Washington’s Workers’ Compensation Act (capable of continuous minimum wage employment on a reasonably continuous basis), the claim can properly close regardless of the worker’s actual employment status; in other words, claim closure is appropriate even if the worker does not have an actual job at the time of closure. As long as the worker is deemed able to work full time at minimum wage work, closure is appropriate.

Can my claim close if I’m considered employable but don’t have a job?

Yes. Washington workers’ compensation law allows a worker’s claim to close whether the claimant is employed or not; the law requires only that a worker is determined capable of obtaining and performing gainful employment, defined as continuous minimum wage employment. A worker is not compensated for permanent lost earning capacity if unable to return to the job of injury or earn what the worker was capable of earning prior to the injury. As long as the worker is capable of performing gainful employment, and regardless of whether the claimant is actually employed, the claim can properly close.

Can my claim close if I’m working but earning less than when I was injured?

Yes. A worker is not compensated for permanent lost earning capacity if unable to return to the job of injury or earn what the worker was capable of earning prior to the injury. As long as the worker is capable of performing gainful employment, and regardless of whether the claimant is actually employed, the claim can properly close.

What compensation does an injured worker receive for pain and suffering under Washington’s Workers’ Compensation Act?

Unfortunately, workers compensation in Washington does not compensate an injured worker for any past, present or future pain and suffering related to the injury or occupational disease. However, if the industrially related condition or disease gives rise to a psychiatric condition and subsequent loss of psychiatric function, the worker may be entitled to a permanent partial disability rating and award for that condition.

What compensation do I receive if I can’t return to work I was performing at the time I was injured?

Washington’s Workers’ Compensation Act only compensates an injured worker by paying time loss or loss of earning power compensation through the date of claim closure even where the claimant is unemployed when the claim closes. The Workers’ Compensation Act only requires a determination that the injured worker is capable of gainful reasonable (minimum wage) employment.

What compensation am I entitled to if I’m employable at a lower wage or salary than I received at the time of my injury?

Washington’s Workers’ Compensation Act does not compensate an injured worker in any way for lost earning capacity once the claim legally closes. In other words, the claimant’s lost future earnings as a result of a change in job and/or decrease in status and pay is not compensable under Washington worker’s compensation law.

What if I had an allowed claim that closed years ago but my condition has worsened?

After claim closure, a worker’s industrially related condition or occupational disease may objectively worsen or become aggravated and require further treatment. In that event, the worker can file an application with the Department of Labor and Industries to reopen the original claim and provide medical proof of worsening between the dates the claim first closed and the application to reopen. Medical proof of objective worsening is required and subjective findings (the worker’s pain and other complaints) are irrelevant to this determination.

How many times can I reopen my claim if I meet the criteria for reopening?

An injured worker may apply to reopen their claim for treatment only as many times as necessary.  RCW 51.32.160. However, for purposes of retaining eligibility for other benefits such as time loss, loss of earning power, vocational retraining, increased permanent partial disability or total permanent disability benefits, the worker must apply to reopen within a seven year period, commencing from the first date the claim closed.

How do I provide proof of objective worsening for purposes of reopening a claim for psychiatric injury?

Because of the nature of psychiatric conditions, providing objective evidence of worsening is required if the original allowed condition was psychiatric in nature. A psychiatrist must still provide a medical opinion supportive of worsening; however, the worker’s subjective complaints can form the basis of the provider’s opinion that a worsening since claim closure occurred.

When should I get a lawyer?

To ensure that your rights are protected, as soon as you realize that you’ve suffered a psychiatric disorder because of an incident or combination thereof, you should contact a lawyer.

If your PTSD or psychiatric diagnosis prevents you from returning to your job of injury or gainful continuous employment, you immediately need an attorney because your self-insured employer will fight you tooth-and-nail in order to avoid the economic impact your claim has on their future industrial insurance premiums.

Why do I need a lawyer?

In addition to ensuring you are informed and maximize your recovery of workers’ compensation benefits under the claim, a lawyer can appeal and litigate any adverse determinations before the Board of Industrial Insurance Appeals and through superior and appellate court appeals.

How is a workers’ compensation lawyer paid?

A first responder lawyer who represents an injured worker related to their workers compensation claim, is paid a percentage of the recovered and/or ongoing benefits under the claim. In the event no recovery is made, the lawyer is not paid a fee for services. The statutory limitation for attorney fees in connection with workers’ compensation claims in Washington State, is thirty percent (30%) of the benefits paid under the claim, excluding for medical or psychiatric treatment.

What is the connection between social security disability and workers compensation benefits?

Social security is a federal system of benefits that compensates qualifying persons who are unable to work for at least one year as a result of the disabling effects of a medical or psychiatric condition. Workers’ compensation requires a connection between the condition and work. Social security does not require a connection between the medical or mental health condition and work exposure or injury; the claimant is entitled to benefits as long as the condition is disabling and prevents the claimant from working.

What is the connection between short and long term disability and workers comp?

Short and long term disability benefits are contractual in nature and are connected to an employee’s benefit package with the employer. Short and long term disability policies exist to insure an employee for a portion of their wages and sometimes retraining costs incurred as a result of the employee becoming disabled as defined under the policy. Sometimes the employer assumes all or part of the premium cost on behalf of the employee; sometimes, the employee covers the premium cost alone.

A disabling condition under a private short or long term disability plan does not need to arise from or connect to the workers employment, or from someone’s negligent misconduct. Hence, a workers’ compensation injury can qualify as a disabling condition under a long or short term disability policy; but the reverse is not necessarily the case.

How do I know if I have a Long Term Disability (LTD) policy?

Ask your human resource director or office to assist you in identifying all sources of benefits that may apply in the event of an injury or disability that prevents you from working.

What role does a collective bargaining agreement play in a workers compensation claim?

A collective bargaining agreement is a contract between and employer and its union/guild member workers, that governs the terms and conditions of a worker’s employment and work circumstances.

I am a member of a guild or union, what role can they play in helping me in this process?

Generally fire fighter and law enforcement personnel are represented by a union, commonly referred to as a guild. The guild negotiates a collective bargaining agreement or contract to govern the terms, conditions and other employment circumstances of its members’ employment with various employers. A guild also assists members in their initiation of a grievance claim against an employer who subsequently violates the provisions of the agreement.

Guilds and unions can assist its members in accessing information about their employment benefits, collective bargaining agreement (or obtain a copy), workers’ compensation, long and/or short disability benefits and the application process, and other medical leave options you may have as a member of their organization and employed subject to a collective bargaining agreement between the employer and its employees.

What role does the Family Medical Leave Act play, if any?

The Family Medical Leave Act is a Federal Statute that requires qualifying employers to provide twelve weeks of leave to a worker who becomes a new parent, suffers from a significant health condition or is connected with certain loved ones who do. During this time, the employer must continue to pay benefits it is otherwise legally or contractually obligated to pay, e.g., health insurance contributions and allow the worker to return to the same or substantially the same position, and retain the status, pay and authority of the position during that twelve week period of time. Exceptions to this rule exist, but generally only where implementing the rule works undue hardship on the employer. A qualifying employee can take 12 weeks of leave consecutively or intermittently.

A medical provider must diagnosis and certify the ongoing symptoms and employment restrictions; hence, it is important to ensure the cooperation and understanding of any health care provider consulted for evaluation and treatment under the claim.


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