By: Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 39: Restoration to Work following Recovery under Workers Compensation
This article is the 39th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the past several weeks and continuing for the next several weeks, we are publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We will cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering are also addressed in detail in a book that we recently published: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety unions and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 39th article in these newsletter series provides a discussion introducing the topic of how state workers compensation “time loss” benefits are coordinated with LEOFF II supplement benefits. For more information on this, visit our Premium Website. On the website, you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
Situations arise where an injured member had an open and allowed worker’s compensation claim, receives treatment, ultimately recovers to the point of being able to return to work, the claim is closed, and then months, or years, later suffers an aggravation relating to the same initial injury. When this occurs, the injured member and his or her medical provider must submit a written application to reopen the prior claim.
The application must be submitted within 7 years from the date of the “first closure” of the claim.[1] Once the application is received, the Department has 90 days to act upon receipt of the written application to respond, or the application is deemed granted.[2] The Department or self-insured employer may extend the 90-day deadline for “good cause.”[3]
In order to establish an aggravation, the worker must demonstrate, with medical testimony, a causal relationship between the injury and the subsequent disability,[4] “objective findings” that an aggravation of the injury resulted in increased disability,[5] the increased aggravation must have occurred between the respective terminal dates of the aggravation;[6] and the disability on the date of the order under appeal must be greater than the Department found it to be.[7] There are various types of aggravation cases, but most often they involve a worsening of a condition that is causally related to the worker’s injury or occupational disease.
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[1] RCW 51.32.160. Technically, the first closing order is not final until 60 days have lapsed from the receipt of the order. Therefore, an injured worker may technically have 7 years plus 60 + days to file a reopening application.
[2] Id.
[3] Id.
[4] Cyr v. Dept. of Labor & Indus., 47 Wn.2d 92 (1955).
[5] Moses v. Dept. of Labor & Indus., 44 Wn.2d 511 (1954).
[6] The “terminal dates” are fairly complex, but generally the first terminal date is the last final order that previously closed the claim or denied the previous application to reopen, and the second terminal date is the date of the Department order under appeal. See WSAJ Worker’s Compensation Deskbook.
[7] Hyde v. Department of Labor & Indus., 46 Wn.2d 31 (1955).
**Visit our Premium Website for more information on Workers Compensation. **
