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Chapter 51.28 RCW

NOTICE AND REPORT OF ACCIDENT — APPLICATION FOR COMPENSATION

RCW Sections

51.28.010Notice of accident -- Notification of worker's rights -- Claim suppression.
51.28.015Injury reporting -- Findings -- Department educational initiative -- Pilot program, employers to assist workers in applying for benefits -- Report.
51.28.020Worker's application for compensation -- Physician to aid in.
51.28.025Duty of employer to report injury or disease -- Contents of report -- Claim suppression -- Penalty.
51.28.030Beneficiaries' application for compensation -- Notification of rights.
51.28.040Application for change in compensation.
51.28.050Time limitation for filing application or enforcing claim for injury.
51.28.055Time limitation for filing claim for occupational disease -- Notice -- Hearing loss claims -- Rules.
51.28.060Proof of dependency.
51.28.070Claim files and records confidential.
51.28.080Determination of compensation for temporary total disability -- Notification of employer.
51.28.090Notification of availability of basic health plan.
51.28.100Physician assistant signatures -- Documents required by the department.


51.28.010
Notice of accident — Notification of worker's rights — Claim suppression.

(1) Whenever any accident occurs to any worker it shall be the duty of such worker or someone in his or her behalf to forthwith report such accident to his or her employer, superintendent, or supervisor in charge of the work, and of the employer to at once report such accident and the injury resulting therefrom to the department pursuant to RCW 51.28.025 where the worker has received treatment from a physician or a licensed advanced registered nurse practitioner, has been hospitalized, disabled from work, or has died as the apparent result of such accident and injury.

     (2) Upon receipt of such notice of accident, the department shall immediately forward to the worker or his or her beneficiaries or dependents notification, in nontechnical language, of their rights under this title. The notice must specify the worker's right to receive health services from a physician or a licensed advanced registered nurse practitioner of the worker's choice under RCW 51.36.010, including chiropractic services under RCW 51.36.015, and must list the types of providers authorized to provide these services.

     (3) Employers shall not engage in claim suppression.

     (4) For the purposes of this section, "claim suppression" means intentionally:

     (a) Inducing employees to fail to report injuries;

     (b) Inducing employees to treat injuries in the course of employment as off-the-job injuries; or

     (c) Acting otherwise to suppress legitimate industrial insurance claims.

     (5) In determining whether an employer has engaged in claim suppression, the department shall consider the employer's history of compliance with industrial insurance reporting requirements, and whether the employer has discouraged employees from reporting injuries or filing claims. The department has the burden of proving claim suppression by a preponderance of the evidence.

     (6) Claim suppression does not include bona fide workplace safety and accident prevention programs or an employer's provision at the worksite of first aid as defined by the department. The department shall adopt rules defining bona fide workplace safety and accident prevention programs and defining first aid.

[2007 c 77 § 1; 2004 c 65 § 3; 2001 c 231 § 1; 1977 ex.s. c 350 § 32; 1975 1st ex.s. c 224 § 4; 1971 ex.s. c 289 § 5; 1961 c 23 § 51.28.010. Prior: 1915 c 188 § 9; 1911 c 74 § 14; RRS § 7689.]

Notes:

     Implementation -- 2007 c 77: "The department of labor and industries shall adopt rules necessary to implement this act." [2007 c 77 § 4.]

     Report to legislature -- Effective date -- Severability -- 2004 c 65: See notes following RCW 51.04.030.

     Effective date -- 2001 c 231: "This act takes effect January 1, 2002." [2001 c 231 § 4.]

     Effective date -- 1975 ex.s. c 224: See note following RCW 51.04.110.

     Effective dates -- Severability -- 1971 ex.s. c 289: See RCW 51.98.060 and 51.98.070.




51.28.015
Injury reporting — Findings — Department educational initiative — Pilot program, employers to assist workers in applying for benefits — Report.

(1) The legislature finds that:

     (a) In 1998, the joint legislative audit and review committee, in its performance audit of the Washington industrial insurance system, reported that one of the most significant causes for delayed benefit payments to workers and lack of employer involvement in claims was the manner in which claims were reported. Under this system of reporting, the worker generally reports the injury to a physician who, in turn, reports the injury to the department.

     (b) The performance audit further reported that adopting a system in which the employee reports to the employer and the employer reports to the department would speed the first payment of benefits to the worker and involve the employer, from the beginning of the claim, in assisting in the management of the claim, including returning the worker to work.

     (c) The performance audit also recognized that there would be instances in which workers would be reluctant to report injuries to employers and that, therefore, the system of physician reporting should be retained as an alternative, and employer reporting should be tested on a widespread basis.

     (2) The department of labor and industries shall develop and implement an initiative to:

     (a) Encourage the reporting of industrial injuries and occupational diseases by the worker to his or her employer and by the employer to the department;

     (b) Encourage the employer to provide assistance to the worker in completing the application for compensation; and

     (c) Educate workers and employers about the benefits and importance of prompt reporting of injuries and diseases.

     (3)(a) By January 1, 2007, the department shall develop and begin a pilot program to allow employers to assist workers in completing an application for benefits. This pilot program does not replace the current method for reporting as provided in RCW
51.28.020.

     (b) The department shall develop requirements or rules for employers who participate in the pilot program, including provisions to ensure prompt reporting of the claim and communicating a worker's rights and responsibilities under the pilot program. The pilot program shall include the voluntary participation of employers that represent a cross-section of industries, geographic areas, union and nonunion workers, large and small businesses, and other criteria established by the department with input of business and labor leaders.

     (c) During the pilot period, the department shall consider steps to address the unique needs and issues of small employers.

     (d) The number of participating employers must not be more than five hundred during the first year of the pilot program. This number may be increased to seven hundred fifty during the second year of the pilot program.

     (e) The pilot program expires July 1, 2009.

     (4) On December 1, 2007, and December 1, 2008, the department of labor and industries shall report to the appropriate committees of the legislature the findings of a study of:

     (a) Claims that are not reported promptly, including but not limited to a review of the circumstances of such claims, the type of injuries involved in such claims, and the reasons for the failure to report such claims promptly;

     (b) The effect of the educational initiative required under subsection (2) of this section on whether the number of claims reported to employers increased, whether there was a reduction in delays in benefit payments, and whether there was an improvement in employer involvement in assisting with claims management and an increase in appropriate return-to-work and better outcomes for injured workers and employers;

     (c) The results of the efforts of the centers of occupational health education in early reporting and early notification of employers, and the general lessons that can be drawn from these results for the larger workers' compensation program; and

     (d) The results of the pilot program for workers to begin the process of applying for compensation through the employer and whether additional statutory changes are required or recommended to implement this process for all employers and workers.

[2006 c 254 § 1; 2005 c 108 § 1.]




51.28.020
Worker's application for compensation — Physician to aid in.

(1)(a) Where a worker is entitled to compensation under this title he or she shall file with the department or his or her self-insured employer, as the case may be, his or her application for such, together with the certificate of the physician or licensed advanced registered nurse practitioner who attended him or her. An application form developed by the department shall include a notice specifying the worker's right to receive health services from a physician or licensed advanced registered nurse practitioner of the worker's choice under RCW 51.36.010, including chiropractic services under RCW 51.36.015, and listing the types of providers authorized to provide these services.

     (b) The physician or licensed advanced registered nurse practitioner who attended the injured worker shall inform the injured worker of his or her rights under this title and lend all necessary assistance in making this application for compensation and such proof of other matters as required by the rules of the department without charge to the worker. The department shall provide physicians with a manual which outlines the procedures to be followed in applications for compensation involving occupational diseases, and which describes claimants' rights and responsibilities related to occupational disease claims.

     (2) If the application required by this section is:

     (a) Filed on behalf of the worker by the physician who attended the worker, the physician may transmit the application to the department electronically using facsimile mail;

     (b) Made to the department and the employer has not received a copy of the application, the department shall immediately send a copy of the application to the employer; or

     (c) Made to a self-insured employer, the employer shall forthwith send a copy of the application to the department.

[2005 c 108 § 3; (2005 c 108 § 2 expired June 30, 2007); 2004 c 65 § 4; 2001 c 231 § 2; 1984 c 159 § 3; 1977 ex.s. c 350 § 33; 1971 ex.s. c 289 § 38; 1961 c 23 § 51.28.020. Prior: 1927 c 310 § 6, part; 1921 c 182 § 7, part; 1911 c 74 § 12, part; RRS § 7686, part.]

Notes:

     Effective date -- 2005 c 108 § 3: "Section 3 of this act takes effect June 30, 2007." [2005 c 108 § 6.]

     Expiration date -- 2005 c 108 § 2: "Section 2 of this act expires June 30, 2007." [2005 c 108 § 5.]

     Report to legislature -- Effective date -- Severability -- 2004 c 65: See notes following RCW 51.04.030.

     Effective date -- 2001 c 231: See note following RCW 51.28.010.

     Effective dates -- Severability -- 1971 ex.s. c 289: See RCW 51.98.060 and 51.98.070.




51.28.025
Duty of employer to report injury or disease — Contents of report — Claim suppression — Penalty.

(1) Whenever an employer has notice or knowledge of an injury or occupational disease sustained by any worker in his or her employment who has received treatment from a physician or a licensed advanced registered nurse practitioner, has been hospitalized, disabled from work or has died as the apparent result of such injury or occupational disease, the employer shall immediately report the same to the department on forms prescribed by it. The report shall include:

     (a) The name, address, and business of the employer;

     (b) The name, address, and occupation of the worker;

     (c) The date, time, cause, and nature of the injury or occupational disease;

     (d) Whether the injury or occupational disease arose in the course of the injured worker's employment;

     (e) All available information pertaining to the nature of the injury or occupational disease including but not limited to any visible signs, any complaints of the worker, any time lost from work, and the observable effect on the worker's bodily functions, so far as is known; and

     (f) Such other pertinent information as the department may prescribe by regulation.

     (2) The employer shall not engage in claim suppression. An employer found to have engaged in claim suppression shall be subject to a penalty of at least two hundred fifty dollars, not to exceed two thousand five hundred dollars, for each offense. The penalty shall be payable to the supplemental pension fund. The department shall adopt rules establishing the amount of penalties, taking into account the size of the employer and whether there are prior findings of claim suppression. When a determination of claim suppression has been made, the employer shall be prohibited from any current or future participation in a retrospective rating program. If self-insured, the director shall withdraw certification as provided in RCW
51.14.080.

     (3) When a determination of claim suppression is made and the penalty is assessed, the department shall serve the employer and any affected retrospective rating group with a determination as provided in RCW 51.52.050. The determination may be protested to the department or appealed to the board of industrial insurance appeals. Once the order is final, the amount due shall be collected in accordance with the provisions of RCW 51.48.140 and 51.48.150.

     (4) The director, or the director's designee, shall investigate reports or complaints that an employer has engaged in claim suppression as prohibited in RCW 51.28.010(3). The complaints or allegations must be received in writing, and must include the name or names of the individuals or organizations submitting the complaint. In cases where the department can show probable cause, the director may subpoena records from the employer, medical providers, and any other entity that the director believes may have relevant information. The director's investigative and subpoena authority in this subsection is limited solely to investigations into allegations of claim suppression or where the director has probable cause that claim suppression might have occurred.

     (5) If the director determines that an employer has engaged in claim suppression and, as a result, the worker has not filed a claim for industrial insurance benefits as prescribed by law, then the director in his or her sole discretion may waive the time limits for filing a claim provided in RCW 51.28.050, if the complaint or allegation of claim suppression is received within two years of the worker's accident or exposure. For the director to exercise this discretion, the claim must be filed with the department within ninety days of the date the determination of claim suppression is issued.

     (6) For the purposes of this section, "claim suppression" has the same meaning as in RCW 51.28.010(4).

[2007 c 77 § 2; 2004 c 65 § 5; 1987 c 185 § 32; 1985 c 347 § 1; 1975 1st ex.s. c 224 § 5; 1971 ex.s. c 289 § 39.]

Notes:

     Implementation -- 2007 c 77: See note following RCW 51.28.010.

     Report to legislature -- Effective date -- Severability -- 2004 c 65: See notes following RCW 51.04.030.

     Intent -- Severability -- 1987 c 185: See notes following RCW 51.12.130.

     Effective date -- 1975 1st ex.s. c 224: See note following RCW 51.04.110.

     Effective dates -- Severability -- 1971 ex.s. c 289: See RCW 51.98.060 and 51.98.070.




51.28.030
Beneficiaries' application for compensation — Notification of rights.

Where death results from injury the parties entitled to compensation under this title, or someone in their behalf, shall make application for the same to the department or self-insurer as the case may be, which application must be accompanied with proof of death and proof of relationship showing the parties to be entitled to compensation under this title, certificates of attending physician or licensed advanced registered nurse practitioner, if any, and such proof as required by the rules of the department.

     Upon receipt of notice of accident under RCW
51.28.010, the director shall immediately forward to the party or parties required to make application for compensation under this section, notification, in nontechnical language, of their rights under this title.

[2004 c 65 § 6; 1972 ex.s. c 43 § 17; 1971 ex.s. c 289 § 6; 1961 c 23 § 51.28.030. Prior: 1927 c 310 § 6, part; 1921 c 182 § 7, part; 1911 c 74 § 12, part; RRS § 7686, part.]

Notes:

     Report to legislature -- Effective date -- Severability -- 2004 c 65: See notes following RCW 51.04.030.




51.28.040
Application for change in compensation.

If change of circumstances warrants an increase or rearrangement of compensation, like application shall be made therefor. Where the application has been granted, compensation and other benefits if in order shall be allowed for periods of time up to sixty days prior to the receipt of such application.

[1977 ex.s. c 199 § 1; 1961 c 23 § 51.28.040. Prior: 1927 c 310 § 6, part; 1921 c 182 § 7, part; 1911 c 74 § 12, part; RRS § 7686, part.]




51.28.050
Time limitation for filing application or enforcing claim for injury.

No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the rights of dependents or beneficiaries accrued, except as provided in RCW 51.28.055 and 51.28.025(5).

[2007 c 77 § 3; 1984 c 159 § 1; 1961 c 23 § 51.28.050. Prior: 1927 c 310 § 6, part; 1921 c 182 § 7, part; 1911 c 74 § 12, part; RRS § 7686, part.]

Notes:

     Implementation -- 2007 c 77: See note following RCW 51.28.010.




51.28.055
Time limitation for filing claim for occupational disease — Notice — Hearing loss claims — Rules.

(1) Except as provided in subsection (2) of this section for claims filed for occupational hearing loss, claims for occupational disease or infection to be valid and compensable must be filed within two years following the date the worker had written notice from a physician or a licensed advanced registered nurse practitioner: (a) Of the existence of his or her occupational disease, and (b) that a claim for disability benefits may be filed. The notice shall also contain a statement that the worker has two years from the date of the notice to file a claim. The physician or licensed advanced registered nurse practitioner shall file the notice with the department. The department shall send a copy to the worker and to the self-insurer if the worker's employer is self-insured. However, a claim is valid if it is filed within two years from the date of death of the worker suffering from an occupational disease.

     (2)(a) Except as provided in (b) of this subsection, to be valid and compensable, claims for hearing loss due to occupational noise exposure must be filed within two years of the date of the worker's last injurious exposure to occupational noise in employment covered under this title or within one year of September 10, 2003, whichever is later.

     (b) A claim for hearing loss due to occupational noise exposure that is not timely filed under (a) of this subsection can only be allowed for medical aid benefits under chapter
51.36 RCW.

     (3) The department may adopt rules to implement this section.

[2004 c 65 § 7; 2003 2nd sp.s. c 2 § 1; 1984 c 159 § 2; 1977 ex.s. c 350 § 34; 1961 c 23 § 51.28.055. Prior: 1959 c 308 § 18; prior: 1957 c 70 § 16, part; 1951 c 236 § 1, part.]

Notes:

     Report to legislature -- Effective date -- Severability -- 2004 c 65: See notes following RCW 51.04.030.




51.28.060
Proof of dependency.

A dependent shall at all times furnish the department with proof satisfactory to the director of the nature, amount, and extent of the contribution made by the deceased worker.

     Proof of dependency by any beneficiary residing without the United States shall be made before the nearest United States consul or consular agency, under the seal of such consul or consular agent, and the department may cause any payments to which such beneficiary is entitled to be transmitted to the beneficiary through the nearest United States consul or consular agent.

[2013 c 125 § 5; 1977 ex.s. c 350 § 35; 1961 c 23 §51.28.060 . Prior: 1957 c 70 § 25; prior: (i) 1939 c 41 § 2, part; 1929 c 132 § 1, part; 1927 c 310 § 2, part; 1921 c 182 § 2, part; 1919 c 131 § 2, part; 1917 c 120 § 1, part; 1911 c 74 § 3, part; RRS § 7675, part. (ii) 1947 c 56 § 1, part; 1927 c 310 § 7, part; 1923 c 136 § 4, part; 1921 c 182 § 6, part; 1919 c 131 § 6, part; 1911 c 74 § 10, part; Rem. Supp. 1947 § 7684, part.]




51.28.070
Claim files and records confidential.

Information contained in the claim files and records of injured workers, under the provisions of this title, shall be deemed confidential and shall not be open to public inspection (other than to public employees in the performance of their official duties), but representatives of a claimant, be it an individual or an organization, may review a claim file or receive specific information therefrom upon the presentation of the signed authorization of the claimant. A claimant may review his or her claim file if the director determines, pursuant to criteria adopted by rule, that the review is in the claimant's interest. Employers or their duly authorized representatives may review any files of their own injured workers in connection with any pending claims. Physicians treating or examining workers claiming benefits under this title, or physicians giving medical advice to the department regarding any claim may, at the discretion of the department, inspect the claim files and records of injured workers, and other persons may make such inspection, at the department's discretion, when such persons are rendering assistance to the department at any stage of the proceedings on any matter pertaining to the administration of this title.

[1990 c 209 § 2; 1977 ex.s. c 350 § 36; 1975 1st ex.s. c 224 § 6; 1961 c 23 § 51.28.070. Prior: 1957 c 70 § 51.]

Notes:

     Effective date -- 1975 1st ex.s. c 224: See note following RCW 51.04.110.




51.28.080
Determination of compensation for temporary total disability — Notification of employer.

(1) An employer shall be promptly notified by the department when:

     (a) The department has received an application for compensation under this title. If the employer is a state fund employer, the department shall instruct the employer to submit a report of accident form and provide a telephone number for assistance in the reporting process; and

     (b) It has determined that a worker of that employer is entitled to compensation under RCW
51.32.090.

     (2) Notification shall include, in nontechnical language, an explanation of the employer's rights under this title.

[2005 c 108 § 4; 1985 c 338 § 2.]




51.28.090
Notification of availability of basic health plan.

The director shall notify persons receiving time-loss payments under this chapter of the availability of basic health care coverage to qualified enrollees under chapter 70.47 RCW, unless the Washington basic health plan administrator has notified the director of closure of enrollment in the plan. The director shall maintain supplies of Washington basic health plan enrollment application forms in all field service offices where the plan is available, which shall be provided in reasonably necessary quantities by the administrator for the use of persons wishing to apply for enrollment in the Washington basic health plan.

[1987 1st ex.s. c 5 § 17.]

Notes:

     Severability -- 1987 1st ex.s. c 5: See note following RCW 70.47.901.




51.28.100
Physician assistant signatures — Documents required by the department.

The department shall accept the signature of a physician assistant on any certificate, card, form, or other documentation required by the department that the physician assistant's supervising physician or physicians may sign, provided that it is within the physician assistant's scope of practice, and is consistent with the terms of the physician assistant's practice arrangement plan as required by chapters 18.57A and 18.71A RCW. Consistent with the terms of this section, the authority of a physician assistant to sign such certificates, cards, forms, or other documentation includes, but is not limited to, the execution of the certificate required in RCW 51.28.020. A physician assistant may not rate a worker's permanent partial disability under RCW 51.32.055.

[2007 c 263 § 1.]

Notes:

     Report to legislature -- 2007 c 263: "By December 1, 2008, the department of labor and industries shall report to the legislature on implementation of this act, including but not limited to the effects of this act on injured worker outcomes, claim costs, and disputed claims." [2007 c 263 § 2.]

     Effective date -- 2007 c 263: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2007." [2007 c 263 § 3.]