Original Notice.

Preproposal statement of inquiry was filed as WSR 99-10-025.

Title of Rule: Industrial insurance, chapter 296-14 WAC.

Purpose: Agency proposes amendatory changes to industrial insurance rules applicable to chapter 296-14 WAC for Workers' Compensation Insurance by the Department of Labor and Industries.

Statutory Authority for Adoption: RCW 51.04.020.

Statute Being Implemented: RCW 51.32.060, [51.32.]090, [51.32.]110, [51.32.]160, [51.32.]210, [51.32.]220, and [51.32.]240.

Summary: The department proposes to amend four rules contained in chapter 296-14 WAC as they relate to closing and reopening of worker injury claims as managed by the state's workers' compensation system into clear rule writing.

Reasons Supporting Proposal: Chapter 51.32 RCW applies to the closing and reopening of workers' compensation injury claims. The proposed rule changes are intended to provide greater clarification and make rules easier to understand and meets the goals for the Executive Order on Regulatory Improvement (97-02) by rewriting rules into a clear rule writing format.

Name of Agency Personnel Responsible for Drafting: Penny Lewis, Tumwater, Washington, 902-4257; Implementation: Doug Connell/Jody Moran, Tumwater, Washington, 902-4209/902-4300; and Enforcement: Jody Moran, Tumwater, Washington, 902-4300.

Name of Proponent: Department of Labor and Industries, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 51.32 RCW applies to the closing and reopening of worker injury claims as managed by the state's workers' compensation system for the Department of Labor and Industries.

These rules as proposed would amend WAC 296-14-100, 296-14-400, 296-14-410, and 296-14-420 to better clarify the intent and make the rules easier to understand the closing and reopening of industrial insurance claims. The proposed rules are necessary to meet the goals for the Executive Order on Regulatory Improvement (97-02) by rewriting rules into a clear rule writing format.

Proposal Changes the Following Existing Rules: The proposed rule changes amends WAC 296-14-100, 296-14-400, 296-14-410, and 296-14-420 to better clarify the intent and make each rule easier to understand as directed in the Executive Order on Regulatory Improvement (97-02).

No small business economic impact statement has been prepared under chapter 19.85 RCW. The rules as proposed do not change the intent of the existing rules, but better clarifies and makes each rule easier to understand as directed in the Executive Order on Regulatory Improvement (97-02). The proposed rule making does not impose more than a minor cost to businesses in an industry.

RCW 34.05.328 does not apply to this rule adoption. The rule does not meet the definition of a "significant legislative rule" as it simply amends the rules into a clear rule writing format.

Hearing Location: Labor and Industries, Auditorium, 7273 Linderson Way S.W., Tumwater, WA, on July 30, at 10 a.m.

Assistance for Persons with Disabilities: Contact Claims Administration, (360) 902-4257, by July 30, 1999, TDD (360) 902-4257.

Submit Written Comments to: Fax (360) 902-5035, by July 30, 1999.

Date of Intended Adoption: August 30, 1999.

June 23, 1999

Gary Moore

Director

OTS-3167.3

AMENDATORY SECTION(Amending Order 86-33, filed 8/28/86)

WAC 296-14-100
Definition of voluntary retirement ((and no longer attached to the work force)).

(1) ((For the purpose of this title a claimant will be deemed to be voluntarily retired and no longer attached to the work force if all of the following conditions are met:

(a) The claimant is no longer receiving income, salary or wages from any gainful employment.

(b) The claimant has provided no evidence, if requested by the department or the self-insurer, of a bona fide attempt to return to gainful employment after retirement.

(2) Payment made by the worker or on his or her behalf in the form of premiums, for the purpose of continuation of life or medical insurance coverage, union dues or similar payments shall not constitute attachment to the work force.

(3) The claimants of new or reopened claims will not be deemed voluntarily retired if the injury or occupational disease was a proximate cause of the decision to retire and sever the attachment to the work force.)) What is voluntarily retired? The worker is considered voluntarily retired if both of the following conditions are met:

(a) The worker is not receiving income, salary or wages from any gainful employment; and

(b) The worker has provided no evidence to show a bonafide attempt to return to work after retirement.

Time-loss compensation is not paid to workers who voluntarily retired from the work force.

(c) Payment of union dues or medical or life insurance premiums does not constitute attachment to the work force.

(2) When is a worker determined not to be voluntarily retired? A worker is not voluntarily retired when the industrial injury or occupational disease is a reason for retirement.

[Statutory Authority: RCW 51.32.060, 51.32.090, 51.32.160, 51.21.220(6) [51.32.220(6)] and 51.32.240 (1), (2) or (3).  86-18-036 (Order 86-33), § 296-14-100, filed 8/28/86.]

((The director at any time may, upon the workers' application to reopen for aggravation or worsening of condition, provide proper and necessary medical and surgical services as authorized under RCW 51.36.010.  This provision will not apply to total permanent disability cases, as provision of medical treatment in those cases is limited by RCW 51.36.010.

The seven-year reopening time limitation shall run from the date the first claim closure becomes final and shall apply to all claims regardless of the date of injury.  In order for claim closure to become final on claims where closure occurred on or after July 1, 1981, the closure must include documentation of medical recommendation, advice or examination.  Such documentation is not required for closing orders issued prior to July 1, 1981.  First closing orders issued between July 1, 1981, and July 1, 1985, shall for the purposes of this section only, be deemed issued on July 1, 1985.

The director shall, in the exercise of his or her discretion, reopen a claim provided objective evidence of worsening is present and proximately caused by a previously accepted asbestos-related disease.

In order to support a final closure based on medical recommendation or advice the claim file must contain documented information from a doctor, or nurse consultant (departmental) or nurse practitioner supervised by a doctor.  The doctor or nurse practitioner may be in private practice, acting as a member of a consultation group, employed by a firm, corporation, or state agency.

For the purpose of this section, a "doctor" is defined in WAC 296-20-01002.

When a claim has been closed by the department or self-insurer for sixty days or longer, the worker must file a written application to reopen the claim.  An informal written request filed without accompanying medical substantiation of worsening of the condition will constitute a request to reopen, but the time for taking action on the request shall not commence until a formal application is filed with the department or self-insurer as the case may be.

A formal application occurs when the worker and doctor complete and file the application for reopening provided by the department.  Upon receipt of an informal request without accompanying medical substantiation of worsening of the worker's condition, the department or self-insurer shall promptly provide the necessary application to the worker for completion.

If, within seven years from the date the first closing order became final, a formal application to reopen is filed which shows by "sufficient medical verification of such disability related to the accepted condition(s)" that benefits are payable, the department, or the self-insurer, pursuant to RCW 51.32.210 and 51.32.190, respectively shall mail the first payment within fourteen days of receiving the formal application to reopen.  If the application does not contain sufficient medical verification of disability, the fourteen-day period will begin upon receipt of such verification.  If the application to reopen is granted, compensation will be paid pursuant to RCW 51.28.040.  If the application to reopen is denied, the worker shall repay such compensation pursuant to RCW 51.32.240.

Applications for reopenings filed on or after July 1, 1988, must be acted upon by the department within ninety days of receipt of the application by the department or the self-insurer.  The ninety-day limitation shall not apply if the worker files an appeal or request for reconsideration of the department's denial of the reopening application.

The department may, for good cause, extend the period in which the department must act for an additional sixty days.  "Good cause" for such an extension may include, but not be limited to, the following:

(1) Inability to schedule a necessary medical examination within the ninety-day time period;

(2) Failure of the worker to appear for a medical examination;

(3) Lack of clear or convincing evidence to support reopening or denial of the claim without an independent medical examination;

(4) Examination scheduled timely but cannot be conducted and a report received in sufficient time to render a decision prior to the end of the ninety-day time period.

The department shall make a determination regarding "good cause" in a final order as provided in RCW 51.52.050.

The ninety-day limitation will not apply in instances where the previous closing order has not become final.)) (1) Can a worker's closed industrial insurance claim be reopened? Yes, a worker can apply to reopen a closed industrial insurance claim. The worker must provide medical documentation to verify that the condition caused by the industrial injury or occupational disease has become worse since the claim was last closed. A closure becomes final sixty days after the closing order is communicated to all parties unless protested or appealed.

(2) How does a worker request reopening a claim?

(a) The worker initiates a request to reopen the claim to the department or the self-insurer by submitting:

(i) A reopening application form completed by a doctor accompanied by medical findings verifying the condition has worsened; or

(ii) Any written document submitted by the worker indicating their condition has worsened or requests reopening of the claim.

(b) Doctors in Washington state who treat injured workers have copies of the department's claim reopening application form.

(3) What type of medical evidence is needed to reopen a claim?

(a) For all conditions other than mental health conditions, a doctor must submit objective medical findings showing that the condition has worsened. Swelling and X-ray findings are examples of objective evidence. Increased pain alone is not a medical objective finding.

(b) For mental health conditions, subjective complaints or symptoms will be considered.

(4) When will the department make a decision if the claim should be reopened? The department must make a decision on the worker's application within ninety days of receipt of the application. When there is "good cause" the department may take an additional sixty days to decide. The department will notify the worker, the employer, and the doctor if the decision will not be made within the ninety days.

(a) Examples of good cause are:

(i) The need to schedule an independent medical examination due to the lack of clear or convincing medical evidence to support the approval or denial of the reopening application.

(ii) Inability to schedule the independent medical examination within the ninety-day time period.

(iii) Failure of the worker to appear for a medical examination.

(iv) Failure to receive independent medical examination report, even though the exam was scheduled timely.

(b) The department will issue a legal order either granting or denying the request for reopening. The injured worker, employer, and doctor will be sent a copy of this order. If the worker or the employer disagree with the order, they may protest in writing to the department or appeal in writing to the board of industrial insurance appeals. Either of these actions must be accomplished within sixty days from the date the order is communicated.

(5) Are benefits provided while the department is processing the reopening application?

(a) Medical payments for the initial office visit to complete the reopening request and medical examinations or diagnostic tests used to make the determination will be paid, even if the request for reopening is denied.

(b) Provisional time-loss compensation may be paid, if there is sufficient medical evidence that the injured worker is unable to work and the condition preventing the ability to work was previously accepted under this claim.

(c) If a worker is paid provisional time-loss compensation and the request for reopening is denied, the worker must repay the time-loss compensation.

(6) What benefits will a worker receive if the claim is reopened? When a claim is reopened, the worker will be provided benefits as authorized under the Workers' Compensation Act.

(a) The benefits might include:

(i) Medical and surgical services as authorized.

(ii) Time-loss compensation payments may be paid if there is objective medical evidence to verify the worker is unable to work because of the accepted condition(s).

(b) Only the director has the authority to allow disability compensation benefits (such as time-loss compensation) for claims first closed over seven years or ten years for eye injuries.

(c) The provisions of this rule do not apply to total permanent disability cases, as provisions of medical treatment in those cases is limited by RCW 51.36.010.

[Statutory Authority: RCW 51.32.190 and 51.32.210.  90-22-054, § 296-14-400, filed 11/5/90, effective 12/6/90.  Statutory Authority: Chapters 34.04 [34.05], 51.04, 51.32 and 51.36 RCW.  90-04-007, § 296-14-400, filed 1/26/90, effective 2/26/90.  Statutory Authority: Chapters 51.08 and 51.32 RCW.  88-14-011 (Order 88-13), § 296-14-400, filed 6/24/88.]

((In accordance with RCW 51.32.110, workers claiming benefits under this title are required to attend and cooperate at medical examinations and vocational evaluations requested by the department or self-insurer, to refrain from unsanitary or injurious practices which imperil or retard recovery, and to accept medical and surgical treatment reasonably essential for recovery from the industrial injury or occupational disease.

When a worker obstructs or delays recovery from the industrial injury or occupational disease or fails to attend or cooperate, without good cause, at scheduled examinations or evaluations, or engages in unsanitary or injurious practices, or refuses, without good cause, to undergo proper and necessary treatment, the department, or self-insurer upon approval of the department, may reduce, suspend, or deny benefits to the worker.

Actions of a worker's representative that result in refusal, obstruction, delay, or noncooperation will be imputed to the worker.

The department or self-insurer, upon approval of the department, may reduce, suspend, or deny benefits by any of the following means so long as the refusal, obstruction, delay, or noncooperation continues without good cause: Reduce current or future time-loss compensation by the amount of the charge incurred by the department or self-insurer for any examination, evaluation, or treatment which the worker fails to attend; reduce, suspend, or deny time-loss compensation in whole or in part; or suspend or deny medical benefits.

Unless otherwise agreed to by the worker, the department or self-insurer shall mail written notice of any requested examination directly to the worker and to the worker's representative, if any, at least fourteen calendar days prior to the requested examination but not greater than sixty days.  The notice shall state the date, time, and location of the examination.

A worker shall not be deemed to have refused to attend a scheduled examination if:

(1) The department or self-insurer did not mail notice of the examination at least fourteen calendar days prior to the examination;

(2) The worker arrives at the examination location within thirty minutes after the scheduled time of examination; or

(3) The worker leaves the examination location later than one hour after the scheduled time of examination and the worker has not yet been called for the examination.

Prior to the issuance of an order reducing, suspending or denying benefits, the department or self-insurer must request, in writing, from the worker or worker's representative the reason for the refusal, obstruction, delay, or noncooperation.

If the department determines no good cause exists, or if the worker fails to respond to the department's request for the reason for the refusal, obstruction, delay or noncooperation, within thirty days after the letter is issued the department will issue an order reducing, suspending, or denying benefits.)) (1) Can the department or self-insurer reduce, suspend or deny industrial insurance benefits from a worker with a valid open claim? The department or the self insurer, after receiving the department's order, has the authority to reduce, suspend or deny benefits when a worker (or worker's representative) is noncooperative with the management of the claim.

(2) What does noncooperative mean? Noncooperation is behavior by the worker (or worker's representative) which obstructs and/or delays the department or self-insurer from reaching a timely resolution of the claim.

(a) Noncooperation can include any one of the following:

(i) Not attending or cooperating with medical examinations or vocational evaluations requested by the department or self-insurer.

(ii) Failure to keep scheduled appointments or evaluations with attending physician or vocational counselor.

(iii) Engaging in unsanitary or harmful actions that jeopardize or slow recovery.

(iv) Not accepting medical and/or surgical treatment that is considered reasonable and essential for recovery from the industrial injury or occupational disease.

(3) Are there ever exceptions to attending a scheduled examination or vocational evaluation? The worker will not be considered uncooperative if refusal to attend a scheduled examination is for any one of the following reasons:

(a) The department or self-insurer did not mail notice to the worker and designated representative at least fourteen but no more than sixty days prior to the examination. The notice must contain the date, time and location of the examination.

(b) If the worker is thirty or less minutes late for the appointment.

(c) If the worker has not been examined or evaluated and leaves after waiting for more than one hour after the scheduled time.

(4) What actions are taken before reducing, suspending or denying industrial insurance benefits?

(a) The department or self insurer must first send a letter to the worker (or the worker's representative) advising that benefits may be suspended and asking for an explanation for the noncooperation, obstruction and/or delay of the management of the claim.

(b) The worker has thirty days to respond in writing to the letter. This written response should include every reason the worker has for not cooperating with the department or self insurer.

(5) What are the actions the department can take if a worker (or a worker's representative) is determined to be noncooperative? If the worker does not respond in thirty days to the letter asking for justification for not cooperating or it is determined there is no good cause the department or self insurer, after receiving the department's order, may take the following action:

(a) Reduce current or future time-loss compensation by the amount of the cost of the examination, evaluation, or treatment that the worker failed to attend.

(b) Reduce, suspend or deny all or part of the time-loss benefits.

(c) Suspend or deny medical benefits.

[Statutory Authority: RCW 51.32.110 and 51.32.190(6).  90-19-028, § 296-14-410, filed 9/12/90, effective 10/13/90.]

(1) ((Whenever an application for benefits is filed where there is a substantial question whether benefits shall be paid pursuant to the reopening of an accepted claim or allowed as a claim for a new injury or occupational disease, the department shall make a determination in a single order.  Where one of the claims is with a self-insured employer and another is with a state fund employer, such determination shall be made jointly by the program managers for claims administration and self insurance, or their respective designees.

(2) Pending entry of the order, benefits shall be paid promptly by the entity which would be responsible if the claim were determined to be a new injury or occupational disease.

(3) The department is required to act under this rule only if:

(a) There is substantial evidence that the worker will be determined to be entitled to benefits on one of the claims; and

(b) There is uncertainty regarding which of the entities is responsible.

(4) Time-loss compensation shall be paid at the lesser of the two entitlements that may apply to the claim until responsibility has been determined between state fund and self-insured employer, two self-insured employers, or two state fund employers.

(5) If, upon final determination of the responsible insurer, the entity that paid benefits under subsection (2) of this section is determined not to be responsible for payment of benefits, such entity shall be reimbursed by the responsible entity for all amounts paid.)) Does the worker receive industrial insurance benefits if there is a previous claim, and more than one possible responsible insurer? Yes. If there is substantial evidence that the worker will be entitled to benefits, then the insurer who would be charged if it were a new injury or occupational disease would pay the benefits while a decision on the issue is pending.

(2) If there is more than one rate of possible time-loss compensation while the issues are pending decision, which rate is paid? The worker is paid at the lowest rate of entitlement during this time frame. The amount of benefits will be adjusted once the correct rate is determined.

(3) How does the department determine whether a state fund or self-insured employer is responsible for the claim?

(a) If there is a question of whether a state fund or a self-insured employer is responsible, the matter will be decided by the claims administration program manager and the self-insurance program manager or their designees.

(b) When the decision is made, the department issues a legal order.

(4) What happens if the wrong insurer pays benefits while the department is making the determination? The insurer determined responsible for the claim must repay the insurer who incorrectly paid benefits while this issue was being decided.

[Statutory Authority: Chapters 51.04, 51.08, 51.12, 51.24 and 51.32 RCW and 117 Wn.2d 122 and 121 Wn.2d 304.  93-23-060, § 296-14-420, filed 11/15/93, effective 1/1/94.  Statutory Authority: RCW 51.32.110 and 51.32.190(6).  90-19-028, § 296-14-420, filed 9/12/90, effective 10/13/90.]

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