BILL REQ. #: H-2722.1
State of Washington | 62nd Legislature | 2011 Regular Session |
Prefiled 04/25/11. Read first time 04/26/11. Referred to Committee on Labor & Workforce Development.
AN ACT Relating to workers' compensation reform through authorization of voluntary settlements and creation of a return-to-work subsidy program; reenacting and amending RCW 51.32.090; adding new sections to chapter 51.04 RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 51.04 RCW
to read as follows:
(1)(a) Notwithstanding RCW 51.04.060 or any other provision of this
title, beginning January 1, 2012, the parties to an allowed claim for
benefits may enter into a voluntary settlement agreement as provided in
this section with respect to one or more allowed claims for benefits
under this title. No voluntary settlement agreement may be entered
into by a worker who has received a permanent total disability award
and the award is final and binding. All voluntary settlement
agreements must be approved by the board of industrial insurance
appeals. The voluntary settlement agreement may:
(i) Bind the parties with regard to any or all aspects of an
allowed claim including, but not limited to, monetary payment,
vocational services, and claim closure, but excluding medical benefits;
(ii) Include a structured settlement in which payments are made
pursuant to a payment schedule;
(iii) Not subject any employer who is not a signatory to the
agreement to any responsibility or burden under any claim; and
(iv) Not be submitted to the board under subsection (2) or (3) of
this section within one hundred eighty days of the date the claim is
allowed.
(b) For purposes of this section:
(i) "Parties" means:
(A) For a self-insured claim, the worker and the employer; and
(B) For a state fund claim, the worker, the employer, and the
department. However, a "party" for a state fund claim does not include
an employer whose experience rating would not be affected by a
voluntary settlement agreement or an employer whose account with the
department is closed or inactive.
(ii) "Allowed claim" means a claim for which the determination that
the claim is allowed is final and binding.
(c) For state fund claims, the department shall negotiate the
settlement with the worker. Any voluntary settlement agreement entered
into under this section must be signed by the parties or their
representatives and must clearly state that the parties understand and
agree to the terms of the voluntary settlement agreement. Unless one
of the parties revokes consent to the agreement, as provided in
subsection (5) of this section, the voluntary settlement agreement
becomes final and binding thirty days after approval of the agreement
by the board of industrial insurance appeals.
(d) A voluntary settlement agreement that has become final and
binding as provided in this section is binding on the department and on
all parties to the agreement as to its terms and the injuries and
occupational diseases to which the voluntary settlement applies. A
voluntary settlement agreement that has become final and binding is not
subject to appeal.
(2)(a) If a worker is not represented by an attorney at the time of
signing a voluntary settlement agreement, the parties must forward a
copy of the signed settlement agreement to the board with a request for
a hearing before an industrial appeals judge. The hearing must be
open, under oath, and on the record. Unless one of the parties
requests a later date, the industrial appeals judge must convene the
hearing within fourteen days after receipt of the request for the
limited purpose of receiving the voluntary settlement agreement of the
parties, explaining to the worker the benefits generally available
under this title, and explaining that a voluntary settlement agreement
may alter the benefits payable on a claim. In no event may an
industrial appeals judge render legal advice to any party.
(b) Before recommending approval of the voluntary settlement
agreement, the industrial appeals judge must find that the worker has
an adequate understanding of the settlement proposal and its
consequences to the worker.
(c)(i) The industrial appeals judge may recommend approval of a
settlement agreement only if the judge finds that the settlement is in
the best interest of the worker. When determining whether the
settlement is in the best interest of the worker, the industrial
appeals judge shall consider the following factors, taken as a whole,
with no individual factor being determinative:
(A) The nature and extent of the injuries and disabilities of the
worker;
(B) The age and life expectancy of the injured worker;
(C) Whether the injured worker has any health, disability, or
related insurance;
(D) Any other benefits the injured worker is receiving or is
entitled to receive and the effect a settlement agreement might have on
those benefits;
(E) The marital status of the injured worker; and
(F) The number of dependents of the injured worker.
(ii) At the conclusion of the hearing, the industrial appeals judge
must make a decision whether to recommend that the board approve or
reject the voluntary settlement agreement. The industrial appeals
judge may continue the hearing for up to seven days.
(d) If the industrial appeals judge recommends the voluntary
settlement agreement be approved, the recommendation must be submitted
to the board for final approval.
(3) If a worker is represented by an attorney at the time of
signing a voluntary settlement agreement, the parties may submit the
agreement directly to the board without the hearing described in this
section.
(4) Upon receiving the voluntary settlement agreement, the board
shall approve the agreement within thirty working days of receipt
unless it finds that the parties have not entered into the agreement
knowingly and willingly. If the board approves the agreement, it shall
provide notice to the department of the binding terms of the agreement
and provide for placement of the agreement in the applicable claim
files.
(5) A party may revoke consent to the voluntary settlement
agreement by providing written notice to the other parties and the
board within thirty days after the date the agreement is approved by
the board.
(6) To the extent the worker is found to be entitled to benefits
while a voluntary settlement agreement is being negotiated, or during
the revocation period of an agreement, the benefits must continue until
the agreement becomes final.
(7) Existing law as set forth in RCW 51.52.120 and the principles
and factors therein apply to attorney fees, including the limits on
fees, for an attorney representing a worker who enters a voluntary
settlement agreement.
(8) The board of industrial insurance appeals shall adopt rules to
implement this section.
NEW SECTION. Sec. 2 A new section is added to chapter 51.04 RCW
to read as follows:
The department must maintain copies of all voluntary settlement
agreements entered into between the parties under section 1 of this act
and develop processes under RCW 51.28.070 to furnish copies of such
agreements to any party contemplating any subsequent voluntary
settlement agreement with the worker on any claim. The department
shall also furnish claims histories that include all prior permanent
disability awards received by the worker on any claims by body part and
category or percentage rating, as applicable. Copies of such
agreements and claims histories shall be furnished within ten working
days of a written request. An employer may not consider a prior
settlement agreement or claims history when making a decision about
hiring or the terms or conditions of employment.
NEW SECTION. Sec. 3 A new section is added to chapter 51.04 RCW
to read as follows:
If a worker has received a prior award of, or entered into a
voluntary settlement for, total or partial permanent disability
benefits, it shall be conclusively presumed that the medical condition
causing the prior permanent disability exists and is disabling at the
time of any subsequent industrial injury or occupational disease.
Except in the case of total permanent disability, the accumulation of
all permanent disability awards issued with respect to any one part of
the body in favor of the worker may not exceed one hundred percent over
the worker's lifetime. When entering into a voluntary settlement
agreement under this chapter, the department or self-insured employer
may exclude amounts paid to settle claims for prior portions of a
worker's permanent total or partial disability.
NEW SECTION. Sec. 4 A new section is added to chapter 51.04 RCW
to read as follows:
The joint legislative audit and review committee shall contract for
an independent study of voluntary settlement agreements approved by the
board of industrial insurance appeals under section 1 of this act. The
study must be performed by a researcher that has experience in workers'
compensation systems. The study must evaluate settlement agreements of
state fund and self-insured claims, provide information on the impact
of settlement agreements to the state fund and to self-insured
employers, and evaluate the outcomes of workers who have settled their
claims. The joint legislative audit and review committee shall analyze
the study and make recommendations to the appropriate committees of the
legislature by November 1, 2015, regarding voluntary settlement
agreements. In implementing this section, the joint legislative audit
and review committee shall seek input from the department of labor and
industries, the board of industrial insurance appeals, and the workers'
compensation advisory committee.
Sec. 5 RCW 51.32.090 and 2007 c 284 s 3 and 2007 c 190 s 1 are
each reenacted and amended to read as follows:
(1) When the total disability is only temporary, the schedule of
payments contained in RCW 51.32.060 (1) and (2) shall apply, so long as
the total disability continues.
(2) Any compensation payable under this section for children not in
the custody of the injured worker as of the date of injury shall be
payable only to such person as actually is providing the support for
such child or children pursuant to the order of a court of record
providing for support of such child or children.
(3)(a) As soon as recovery is so complete that the present earning
power of the worker, at any kind of work, is restored to that existing
at the time of the occurrence of the injury, the payments shall cease.
If and so long as the present earning power is only partially restored,
the payments shall:
(i) For claims for injuries that occurred before May 7, 1993,
continue in the proportion which the new earning power shall bear to
the old; or
(ii) For claims for injuries occurring on or after May 7, 1993,
equal eighty percent of the actual difference between the worker's
present wages and earning power at the time of injury, but: (A) The
total of these payments and the worker's present wages may not exceed
one hundred fifty percent of the average monthly wage in the state as
computed under RCW 51.08.018; (B) the payments may not exceed one
hundred percent of the entitlement as computed under subsection (1) of
this section; and (C) the payments may not be less than the worker
would have received if (a)(i) of this subsection had been applicable to
the worker's claim.
(b) No compensation shall be payable under this subsection (3)
unless the loss of earning power shall exceed five percent.
(c) The prior closure of the claim or the receipt of permanent
partial disability benefits shall not affect the rate at which loss of
earning power benefits are calculated upon reopening the claim.
(4)(a) ((Whenever)) The legislature finds that long-term disability
and the cost of injuries is significantly reduced when injured workers
remain at work following their injury. To encourage employers at the
time of injury to provide light duty or transitional work for their
workers, wage subsidies and other incentives are made available to
employers insured with the department.
(b) The employer of injury ((requests that)) may provide light duty
or transitional work to a worker who is entitled to temporary total
disability under this chapter ((be certified by a physician or licensed
advanced registered nurse practitioner as able to perform available
work other than his or her usual work,)). The employer or the
department shall obtain from the physician or licensed advanced
registered nurse practitioner a statement confirming the light duty or
transitional work is consistent with the worker's medical restrictions
related to the injury. This statement should be obtained before the
start of the light duty or transitional work unless the worker has
already returned to work with the employer of injury in which case the
statement may be obtained following the start date of the job. The
employer shall furnish to the physician or licensed advanced registered
nurse practitioner, with a copy to the worker, a statement describing
the work ((available)) with the employer of injury in terms that will
enable the physician or licensed advanced registered nurse practitioner
to relate the physical activities of the job to the worker's
disability. The physician or licensed advanced registered nurse
practitioner shall ((then determine)) confirm whether the worker is
physically able to perform the work described. The worker's temporary
total disability payments shall ((continue until the worker is released
by his or her physician or licensed advanced registered nurse
practitioner for the work, and begins the work with the employer of
injury. If)) stop effective the date the light duty or transitional
job starts. Temporary total disability payments shall resume if the
work ((thereafter)) comes to an end before the worker's recovery is
sufficient in the judgment of his or her physician or licensed advanced
registered nurse practitioner to permit him or her to return to his or
her usual job, or to perform other available work offered by the
employer of injury((, the worker's temporary total disability payments
shall be resumed)). Should the available work described, once
undertaken by the worker, impede his or her recovery to the extent that
in the judgment of his or her physician or licensed advanced registered
nurse practitioner he or she should not continue to work, the worker's
temporary total disability payments shall be resumed when the worker
ceases such work at the direction of the physician or licensed advanced
registered nurse practitioner.
(((b))) (c) To further encourage employers to maintain the
employment of their injured workers, an employer insured with the
department and that offers work to a worker pursuant to this subsection
(4) shall be eligible for reimbursement of the injured worker's wages
for light duty or transitional work equal to fifty percent of the
basic, gross wages paid for that work, for a maximum of sixty-six work
days within a consecutive twenty-four month period. In no event may
the wage subsidies paid to an employer on a claim exceed ten thousand
dollars. Wage subsidies shall be calculated using the worker's basic
hourly wages or basic salary, and no subsidy shall be paid for any
other form of compensation or payment to the worker such as tips,
commissions, bonuses, board, housing, fuel, health care, dental care,
vision care, per diem, reimbursements for work-related expenses, or any
other payments. An employer may not, under any circumstances, receive
a wage subsidy for a day in which the worker did not actually perform
any work, regardless of whether or not the employer paid the worker
wages for that day.
(d) If an employer offers a worker work pursuant to this subsection
(4) and the worker must be provided with training or instruction to be
qualified to perform the offered work, the employer shall be eligible
for a reimbursement from the department for any tuition, books, fees,
and materials required for that training or instruction, up to a
maximum of one thousand dollars. Reimbursing an employer for the costs
of such training or instruction does not constitute a determination by
the department that the worker is eligible for vocational services
authorized by RCW 51.32.095 and 51.32.099.
(e) If an employer offers a worker work pursuant to this subsection
(4), and the employer provides the worker with clothing that is
necessary to allow the worker to perform the offered work, the employer
shall be eligible for reimbursement for such clothing from the
department, up to a maximum of four hundred dollars: PROVIDED,
HOWEVER, That an employer shall not receive reimbursement for any
clothing it provided to the worker that it normally provides to its
workers. The clothing purchased for the worker shall become the
worker's property once the work comes to an end.
(f) If an employer offers a worker work pursuant to this subsection
(4) and the worker must be provided with tools or equipment to perform
the offered work, the employer shall be eligible for a reimbursement
from the department for such tools and equipment and related costs as
determined by department rule, up to a maximum of two thousand five
hundred dollars. An employer shall not be reimbursed for any tools or
equipment purchased prior to offering the work to the worker pursuant
to this subsection (4). An employer shall not be reimbursed for any
tools or equipment that it normally provides to its workers. The tools
and equipment shall be the property of the employer.
(g) An employer may offer work to a worker pursuant to this
subsection (4) more than once, but in no event may the employer receive
wage subsidies for more than sixty-six days of work in a consecutive
twenty-four month period under one claim. An employer may continue to
offer work pursuant to this subsection (4) after the worker has
performed sixty-six days of work, but the employer shall not be
eligible to receive wage subsidies for such work.
(h) An employer shall not receive any wage subsidies or
reimbursement of any expenses pursuant to this subsection (4) unless
the employer has completed and submitted the reimbursement request on
forms developed by the department, along with all related information
required by department rules. No wage subsidy or reimbursement shall
be paid to an employer who fails to submit a form for such payment
within one year of the date the work was performed. In no event shall
an employer receive wage subsidy payments or reimbursements of any
expenses pursuant to this subsection (4) unless the worker's physician
or licensed advanced registered nurse practitioner has restricted him
or her from performing his or her usual work and the worker's physician
or licensed advanced registered nurse practitioner has released him or
her to perform the work offered.
(i) Payments made under (b) through (g) of this subsection are
subject to penalties under RCW 51.32.240(5) in cases where the funds
were obtained through willful misrepresentation.
(j) Once the worker returns to work under the terms of this
subsection (4), he or she shall not be assigned by the employer to work
other than the available work described without the ((worker's written
consent, or without prior review and)) approval ((by)) of the worker's
physician or licensed advanced registered nurse practitioner. An
employer who directs a claimant to perform work other than that
approved by the attending physician and without the approval of the
worker's physician or licensed advanced registered nurse practitioner
shall not receive any wage subsidy or other reimbursements for such
work.
(((c))) (k) If the worker returns to work under this subsection
(4), any employee health and welfare benefits that the worker was
receiving at the time of injury shall continue or be resumed at the
level provided at the time of injury. Such benefits shall not be
continued or resumed if to do so is inconsistent with the terms of the
benefit program, or with the terms of the collective bargaining
agreement currently in force.
(((d))) (l) In the event of any dispute as to the validity of the
work offered or as to the worker's ability to perform the available
work offered by the employer, the department shall make the final
determination pursuant to an order that contains the notice required by
RCW 51.52.060 and that is subject to appeal subject to RCW 51.52.050.
(5) An employer's experience rating shall not be affected by the
employer's request for or receipt of wage subsidies.
(6) The department shall create a Washington stay-at-work account
which shall be funded by assessments of employers insured through the
state fund for the costs of the payments authorized by subsection (4)
of this section and for the cost of creating a reserve for anticipated
liabilities. Employers may collect up to one-half the fund assessment
from workers.
(7) No worker shall receive compensation for or during the day on
which injury was received or the three days following the same, unless
his or her disability shall continue for a period of fourteen
consecutive calendar days from date of injury: PROVIDED, That attempts
to return to work in the first fourteen days following the injury shall
not serve to break the continuity of the period of disability if the
disability continues fourteen days after the injury occurs.
(((6))) (8) Should a worker suffer a temporary total disability and
should his or her employer at the time of the injury continue to pay
him or her the wages which he or she was earning at the time of such
injury, such injured worker shall not receive any payment provided in
subsection (1) of this section during the period his or her employer
shall so pay such wages: PROVIDED, That holiday pay, vacation pay,
sick leave, or other similar benefits shall not be deemed to be
payments by the employer for the purposes of this subsection.
(((7))) (9) In no event shall the monthly payments provided in this
section:
(a) Exceed the applicable percentage of the average monthly wage in
the state as computed under the provisions of RCW 51.08.018 as follows:
AFTER | PERCENTAGE | ||
June 30, 1993 | 105% | ||
June 30, 1994 | 110% | ||
June 30, 1995 | 115% | ||
June 30, 1996 | 120% |
NEW SECTION. Sec. 6 The department of labor and industries shall
contract for an independent study of the return-to-work provisions
under RCW 51.32.090. The study must be performed by a researcher that
has experience in workers' compensation systems. When selecting the
independent researcher, the department shall consult with the workers'
compensation advisory committee. The study must evaluate the quality
and effectiveness of the return-to-work program and whether the program
is being utilized by employers, and evaluate the outcomes of workers
participating in the program. The study must be submitted to the
appropriate committees of the legislature by December 2016.
NEW SECTION. Sec. 7 The department of labor and industries may
adopt rules to implement this act.
NEW SECTION. Sec. 8 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.