By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 32: Reporting a Workers Compensation Claim
This article is the 32nd 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 several weeks and continuing for the next several weeks, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll 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 addressed in detail in our newest book: 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 union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 32nd article in these newsletter series provides a discussion introducing the topic of workers compensation with several other L&I discussion to follow. For more information, 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.
If your members are injured on-the-job, the first step is to seek medical attention, if necessary.[128] Ordinarily, the health care provider who initially treats the on-the-job injury will provide the injured member with the Report of Accident (ROA) form. If not, the form is available online through the Department of Labor & Industries’ website. [129] If the employer is self-insured, however, the injured worker will have to file the claim directly with the employer, or the TPA for the employer.
The ROA initiates the worker’s compensation claim. “Injury” claims must be filed within one year of the date of injury.[130] “Occupational disease” claims 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) [o]f the existence of his or her occupational disease, and (b) that a claim for disability benefits may be filed.” [131]
The deadlines to file injury or occupational disease claims are firm. Worker’s compensation claims will not be considered after the statutory deadline has expired. Make sure your members are aware of the deadlines involved to ensure the ROA is submitted in a timely manner.
After a ROA form has been submitted, the Department or self-insured employer decides whether to allow or deny the injury or occupational disease claim. To be covered under the Act, the “injury” must occur while the worker is acting in the course of employment.” [132] Generally, if the employee is acting at the direction of his or her employer, or in furtherance of the employer’s business, then the work is likely within the course and scope of employment.
Activities that are likely outside the scope of employment include the time an employee spends going to or coming from work; injuries that occurs in a parking lot; significant deviations from the route of travel; [133] and injuries occurring during work-sponsored sporting events. [134] Washington courts have also determined that emotional responses to traumatic events are allowable as industrial injuries under the Act. [135]
In the case of firefighters, certain occupational diseases are presumptively allowed. The value to a claimant of having a disease recognized as “presumptive” is that the burden of proof shifts to the employer to demonstrate that the disease is not work related. “Presumptive” diseases defined in the statute for firefighters include: (a) Respiratory diseases; (b) any heart problems, experienced within seventy-two hours of exposure to smoke, fumes, or toxic substances, or experienced within twenty-four hours of strenuous physical exertion due to firefighting activities; (c) cancer; and (d) infectious diseases (HIV/AIDS, all strains of hepatitis, meningococcal meningitis, or mycobacterium tuberculosis).
The Department or self-insured employer is allowed to rebut the presumptive allowance with evidence of the firefighter’s “use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or nonemployment activities.” [136] The cancer presumption only applies to firefighters who have worked for at least ten years, who were examined upon becoming a firefighter and found to not have cancer, and who only have certain types of cancer, including prostate cancer diagnosed prior to the age of fifty, primary brain cancer, malignant melanoma, leukemia, non-Hodgkin’s lymphoma, bladder cancer, ureter cancer, colorectal cancer, multiple myeloma, testicular cancer, and kidney cancer.
In Gorre v. City of Tacoma, [137] a Tacoma firefighter lieutenant was able to show that his diagnosis of “Valley Fever” and his related respiratory symptoms presumptively qualified as an “occupational disease,” and the lower courts mistakenly placed the burden on him to prove the existence of an occupational disease when in fact, the City had the burden to rebut the statutory presumption.
After a worker’s compensation claim has been allowed, the injured employee will be assigned a claims manager who is the point-of-contact between the Department, or the self-insured employer. The claims manager will handle inquiries from the injured employee and any disputes that arise during the administration of the claim.
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[128] An injured worker’s first medical visit can be with any provider, hospital, or emergency room. However, after the first visit, the injured worker is required to select an attending provider through the Department’s Medical Provider Network.
[129] See Report of Accident Form attached in Appendix ____.
[130] RCW 51.28.050.
[131] RCW 51.28.055.
[132] RCW 51.08.013.
[133] Minor deviations from work are likely still within the scope of employment. See, e.g., In re Thomas Hart, BIIA Dec., 35,767 (1971).
[134] See RCW 51.08.13; Puget Sound Energy, Inc. v. Adamo, 113 Wn. App. 166, 462 P.2d 917 (1969); Gray v. Department of Labor & Indus., 43 Wn.2d 578, 262 P.2d 533 (1953); and In re Christopher Phillips, BIIA Dec., 90 1386 (1991).
[135] Sutherland v. Department of Labor & Indus., 4 Wn. App. 333, 481 P.2d 453 (1971).
[136] RCW 51.32.185.
[137] Gorre v. City of Tacoma 180 Wn. App. 729, 324 P.3d 716 (2014).
