The following article, co-authorized with attorney Deborah Niedermeyer, is forthcoming by American Immigration Lawyers Association…
In Washington State, immigrants have workers comp. rights
Washington’s worker’s compensation laws are all structured around a singular purpose, to provide sure and certain relief to those who are injured on the job. There’s a common misconception that one’s immigration status or documentation can prevent them from filing a worker’s compensation claim, but it isn’t true. I have represented clients who were paid under the table in cash and clients whose work permits expired. The only thing that mattered to the State of Washington was that each of them had been injured on the job. So the only thing you need to consider when deciding whether or not to file a claim is, “Was I injured on the job?” If the answer is yes, report it to your employer, seek out medical treatment, and most importantly, know your rights. Below is an introductory guide to help make sure you protect yourself, and get all the benefits you are entitled to.
Worker’s Compensation is a “no-fault” system.
Often injured worker are reluctant to file a claim because they think “it’s not my employer’s fault” or “it was my fault,” but worker’s compensation is a no-fault system. In other words, it doesn’t matter who caused the injury or who is responsible for it. All that matters is if the injury was related to your work. Was it the result of an incident that happened while you were performing your work duties (known as an “industrial injury”)? Or is it a condition or disease that was caused or accelerated by the unique conditions of your work (known as an occupational disease)? Even if the injury was the result of your own negligence, you have the right to file a worker’s compensation claim.
Conditions can be caused or aggravated by your work.
Employers fight hard to get all of a worker’s injuries labeled as pre-existing and thus, not compensable under the worker’s compensation system. Conditions like arthritis and degenerative disc disease are common in workers who suffer from work-related injuries and are, by definition, always preexisting. But that does not mean that they shouldn’t be covered under your worker’s compensation claim.
By law, you have the right to file a worker’s compensation claim for all conditions that were caused or aggravated by your industrial injury. Conditions like arthritis, while generally preexisting, are often not symptomatic until they are aggravated by a work injury. There are two ways to get a preexisting condition added on to your worker’s compensation claim. First, by showing that it was never symptomatic before your injury, and that it became symptomatic immediately after your injury. And second, by showing that, even if it was symptomatic before the injury, the symptoms suddenly increased after your work injury. In either circumstance, if you can prove that your symptoms were increased because of your work you have the right to be compensated under the worker’s compensation system.
You can choose your doctor.
Employer’s frequently tell injured workers that they have to go to a certain doctor or hospital. Not only is that false, but the doctors chosen by employers tend to be those who limit or deny benefits to injured workers. The doctor you treat with can have a substantial impact on the care and benefits you receive so it is important to choose the right one. The only restriction is that the doctor must be certified by the Washington Department of Labor and Industries which oversees the worker’s compensation system. If you already have a primary care physician, that’s a good place to start. If not, ask around to find out about doctor’s your friends and family have used. And if you find yourself not getting along with your doctor, know that you have the right to request a new doctor at any time.
There are five common types of benefits.
Many benefits are available to injured workers, most of which fall into five categories. Depending on the extent of your injuries, you may be entitled to some or all of these.
1) Medical Treatment
This is by far the most common benefit. Proper and necessary medical care will be provided for your job related injury or disease, including necessary prescription medications. Medical care will be provided until your condition has reached what is known as “maximum medical improvement” or MMI. MMI does not mean that you are fully healed but rather that doctors can’t provide any further curative treatment. As part of your treatment the employer may periodically request an evaluation by medical examiners of their choosing (called an independent medical exam or an IME). You have the right to have a witness observe the IME and to have your treating doctor review and comment on the IME doctor’s report.
2) Wage Replacement
Whether you are totally unable to work, or only able to work on a limited basis, you are entitled to wage replacement benefits. Time loss is a non-taxable, partial wage replacement benefit paid while you are totally unable to work. Your time loss compensation rate is 60% of your monthly wage, with additional amounts if you are married or have children. Your monthly wage includes wages you were receiving from all employment at the time of injury as well as the employer’s cost of your health care benefits, housing, tips, fuel, and other similar considerations. Loss of Earning Power benefits are similar to time loss, but only come up if you have returned to work at a lower rate of pay. If your new work pays more than 5% less than your job of injury, you can be compensated for 80% of the difference.
3) Vocational Benefits
In order for your claim to close, you have to be found able to return to work on a permanent basis. Depending on the extent of your injuries, this may mean you simply return to the job you were doing before, or it may mean you require vocational services. Vocational services can include a broad spectrum of benefits. It begins with a vocational counselor being assigned to you. The vocational counselor will review the facts of your case and determine what is needed for you to return to work. In some cases, a vocational counselor will work with your employer to find accommodations for your disability. In more extreme cases you can be paid to go back to school for up to two years to be retrained for a new career. At a minimum, vocational counselors can build a strong résumé for you and put you in touch with people who can help you find work.
4) Permanent Partial Disability (PPD)
After you have been treated and returned to work, the extent of any permanent partial impairment will be determined and your claim will be closed. Partial disability awards are based solely on physical limitations so lost wage earning capacity and pain and suffering are not considered. A percentage of impairment will be obtained from your attending physician or a medical examiner selected by the employer. Your impairment rating will be converted to a monetary award and will be paid to you at the time your claim is closed. If you would like to know what monetary award you can expect from your injury this PPD Calculator provided by Palace Law can help.
5) Pension
Pensions only come up in the most extreme of worker’s compensation cases. In order to be eligible for a pension, you must have medical and vocational examinations which determine that you are unable to obtain or maintain continuous gainful employment. The inability to work must be based, in part, on your industrial injury, but your age, education, transferable work skills, and pre-existing medical conditions are also considered in determining your eligibility for a pension.. If you are found to be permanently unable to work, you will be paid a monthly pension benefit for life at the same rate as your time loss benefits.
Deadlines are very important.
The worker’s compensation system involves a lot of deadlines both for filing your claim and for contesting adverse or incorrect decisions. It is important to be aware of and keep track of these deadlines. Missing even a simple one makes adverse and incorrect decisions almost impossible to correct. This can result in you being denied treatment or underpaid for the life of your claim.
For industrial injuries, you must file a claim within one (1) year of the injury. For occupational diseases, you must file a claim within two (2) years of discovering that you have a work related disease. Once you have filed a claim, the Department of Labor and Industries will issue formal orders from time to time. If you disagree with any of these, they must be responded to within sixty (60) days. For vocational determinations (regarding your ability to work) the deadline is only fifteen (15) days. Be sure you are reading all of your mail carefully and responding in a timely manner. Sooner is always better.
Know your rights.
For those unfortunate enough to be injured at work, having knowledge of the system is essential. The Department of Labor and Industries oversees every worker’s compensation claim and they have policies and procedures in place designed to reduce costs and deny benefits whenever possible. But if you’ve been injured at work you have rights and the more you know about those rights, the more power you have to ensure you get the benefits you are entitled to. So take a moment to empower yourself, read through our Resources page or, if you still have questions, feel free to contact an attorney at Palace Law. We help injured workers from all over Washington and the United States get the benefits they are entitled to.
Video: An immigrant’s right to worker’s comp.
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