H-1940

AN ACT Relating to return-to-work benefits available prior to a determination of eligibility for vocational rehabilitation services; adding new sections to chapter 51.32 RCW; creating a new section; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that incentives for early intervention will assist employers and workers to take actions that substantially reduce the incidence of long-term disability and economic loss suffered by injured workers, and the economic loss incurred by employers through increasing workers' compensation premiums and costs.

NEW SECTION. Sec. 2. (1) An employer may request early intervention benefits as provided in this section to assist an injured worker to return to work in a modified or a new job with the employer of injury, or to a new job with a new employer, the costs of which the supervisor of industrial insurance or supervisor's designee, in his or her sole discretion, may pay, or direct a self-insurer to pay, if:

(a) The supervisor or supervisor's designee has not made a determination with regard to vocational rehabilitation services for the injured worker under RCW 51.32.095;

(b) The attending doctor has certified that it is more probable than not that the injured worker's disability will last twelve months or more from the date of injury;

(c) The injured worker's disability constitutes a substantial impairment that prevents the injured worker from performing an essential function of the job at injury;

(d) The department has been provided with a job analysis of the proposed job completed by a qualified vocational rehabilitation professional and approved by the attending doctor. The job analysis must meet standards determined by department rule, not to exceed the job analysis requirements of the federal Americans with disabilities act, P.L. 101-336;

(e) The employer providing the proposed job agrees to pay no less than ninety-five percent of the wages of the job at injury and the proposed job is available to the worker for at least twelve consecutive months; and

(f) If benefits are to be provided for returning an injured worker to a new job, the job at injury cannot be modified without undue hardship to the employer of injury.

(2) Except as provided in subsection (3) of this section, for a claim, the total combined costs of early intervention benefits and benefits under RCW 51.32.250 may not exceed five thousand dollars, subject to the following limits:

(a) Costs under this section may be authorized for: (i) The costs of job modification, including workstation improvements and personal accommodation devices; (ii) skill enhancement costs, limited to tuition, books, and fees, to provide the injured worker with skills to meet the requirements of the new job; and (iii) a wage subsidy for the employer of up to thirty percent of the injured worker's wages for a modified job at injury or a new job.

(b) Costs under this section may not exceed two thousand five hundred dollars for any one or a combination of the following:

(i) Specialized professional job modification consultation services to assist with workstation improvements and the selection of personal accommodation devices;

(ii) Skill enhancement costs; and

(iii) Wage subsidy.

(3) An employer may request an exceptional early intervention benefit as provided in this subsection, the costs of which the supervisor or supervisor's designee, in his or her sole discretion, may pay, or direct a self-insurer to pay, up to ten thousand dollars for a claim if the supervisor or designee determines that more probably than not:

(a) The exceptional benefit will enable the injured worker to return to work; and

(b) The injured worker has significant permanent restrictions and marked objective medical findings directly related to the industrial injury which establish that the benefits authorized under subsection (2) of this section will not result in the injured worker's return to work without undue hardship to the employer.

(4) A supervisor's or designee's determination under this section may not be used or received in evidence, obtained in discovery, or otherwise disclosed in a civil or administrative proceeding, other than a proceeding under this title.

(5) If the payment of a wage subsidy pursuant to a schedule authorized under this section is not completed before claim closure, the subsidy may continue to be paid after the claim is closed, consistent with the authorized schedule.

(6) The costs of job modifications, including workstation improvements and personal accommodation devices, and the costs of consultation services shall be charged to the employer's medical aid fund cost experience or shall be paid by the self-insurer, as the case may be. The costs of skill enhancement benefits and wage subsidies shall be charged to the employer's accident fund cost experience or shall be paid by the self-insurer, as the case may be. A self-insurer that has paid benefits authorized under this section may be reimbursed from the second injury fund.

(7)(a) If an employer fails to retain an injured worker who received benefits under this section for at least fifty-two weeks in the new or modified job at ninety-five percent or more of the wages of the job at injury, the employer must repay the benefits paid under this section, unless the failure to retain the worker was for reasons not attributable to the employer. The employer may contest a department order assessing the repayment in the same manner and to the same extent as provided in RCW 51.52.050 and 51.52.060.

(b)(i) If a department's order of repayment under this subsection becomes final under chapter 51.52 RCW, the director or director's designee may file with the clerk in any county within the state a warrant in the amount representing the sum to be repaid plus interest accruing from the date the order became final. The clerk of the court shall be entitled to a filing fee of five dollars, which shall be added to the amount of the warrant. A copy of the warrant shall be mailed to the employer within three days of filing with the clerk.

(ii) The clerk of the county in which the warrant is filed shall immediately designate a superior court cause number for the warrant and the clerk shall cause to be entered in the judgment docket under the superior court cause number assigned to the warrant, the name of the employer named in the warrant, the amount of the repayment plus interest accrued, and the date the warrant was filed. The amount of the warrant as docketed shall become a lien upon the title to and interest in all real and personal property of the employer against whom the warrant is issued, the same as a judgment in a civil case docketed in the office of such clerk. The sheriff shall then proceed in the same manner and with like effect as prescribed by law with respect to execution or other process issued against rights or property upon judgment in the superior court.

(iii) A warrant docketed under this subsection shall be sufficient to support:

(A) The issuance of writs of garnishment in favor of the department in the manner provided by law in the case of judgment, wholly or partially unsatisfied; and

(B) Any action by the department authorized under this title for the collection of payments due to the state fund.

(8) The benefits authorized under this section do not affect:

(a) The vocational rehabilitation and job modification benefits authorized under RCW 51.32.095 and 51.32.250, except as provided in this section; or

(b) The benefits authorized under RCW 51.32.090(3), except that an injured worker may not receive a wage subsidy benefit under this section and benefits under RCW 51.32.090(3) for the same period.

(9) To assist in verifying employer compliance with this section, the department shall enter into an interagency agreement with the employment security department regarding access to employer wage reports.

(10) The benefits provided in this section are available to any otherwise eligible worker who is injured or contracts an occupational disease on or after July 1, 1999, and before July 1, 2002.

(11) As used in this section, "undue hardship" means a job modification requiring significant difficulty or expense, when considered in light of the following factors: (a) The nature and cost of the modification needed; (b) the overall financial resources of the facility or facilities involved in providing the modification, the number of persons employed at the facility, the effect on expenses and resources or the impact otherwise of the modification on the operation of the facility; (c) the overall financial resources of the employer, the overall size of the employer with respect to the number of employees, and the number, type, and location of the employer's facilities; and (d) the type of operation or operations of the employer, including the composition, structure, and functions of the work force of the employer; the geographic separateness, administrative, or fiscal relationship of the facility or facilities to the employer.

NEW SECTION. Sec. 3. Within forty-eight hours after an application for temporary total disability compensation has been received by the department, the department shall notify the employer, claimant, and attending doctor in writing of the availability of early intervention benefits under section 2 of this act. After payment of fourteen consecutive days, and before payment of twenty-one consecutive days, of temporary total disability compensation to a state fund claimant, the department shall contact the employer or the employer's representative and discuss the use of early intervention benefits to achieve an early return to work for the claimant.

NEW SECTION. Sec. 4. Beginning December 1, 2000, the department shall report annually to the workers' compensation advisory committee and the appropriate committees of the legislature on a cost-benefit analysis of the utilization of benefits under section 2 of this act and the effect of the utilization on return-to-work outcomes, long-term wage replacement impacts, and cost experience for employers.

NEW SECTION. Sec. 5. 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.

NEW SECTION. Sec. 6. Sections 2 through 4 of this act are each added to chapter 51.32 RCW.

NEW SECTION. Sec. 7. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1999.