Date of Adoption: August 30, 1999.

Purpose: Agency proposes amendatory changes to industrial insurance rules applicable to the closing and reopening of worker injury claims as contained in chapter 296-14 WAC for workers' compensation insurance by the Department of Labor and Industries.

Citation of Existing Rules Affected by this Order: Amending chapter 296-14 WAC.

Statutory Authority for Adoption: RCW 51.04.020.

Adopted under notice filed as WSR 99-13-201 on June 23, 1999.

Changes Other than Editing from Proposed to Adopted Version: Oral testimony received at the public hearing recommended that the department withdraw the proposed amendments to WAC 296-14-400 and 296-14-420 regarding the reopening of a closed claim and payment of benefits to allow additional rule refinements prior to permanently adopting. As a result, the two rules as proposed are being withdrawn.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 2, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 2, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

August 30, 1999

Gary Moore

Director

OTS-3167.4

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 proximate cause for the 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.]

((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? 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 reasonably 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 the reason(s) 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 charge incurred by the department or self-insurer for any 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.]

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