BILL REQ. #:  S-4625.1 

Read first time 01/25/08.   Referred to Committee on Labor, Commerce, Research & Development.

     AN ACT Relating to worker's compensation reform; amending RCW 51.08.100, 51.08.160, 51.32.020, 51.32.060, 51.32.075, 51.32.100, 51.32.160, and 51.52.120; reenacting and amending RCW 51.32.090; adding a new section to chapter 51.32 RCW; adding a new section to chapter 51.36 RCW; prescribing penalties; and providing an effective date.

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

Sec. 1   RCW 51.08.100 and 1961 c 23 s 51.08.100 are each amended to read as follows:
     "Injury" means a sudden and tangible happening((,)) of a traumatic nature((, producing)) that produces an immediate or prompt result((, and occurring from without, and such physical conditions as result therefrom)). For a worker to receive benefits for an injury under this title, there must be a specific medical diagnosis directly related to the injury that must contribute by a factor of at least fifty percent to the worker's inability to work.

Sec. 2   RCW 51.08.160 and 1977 ex.s. c 350 s 13 are each amended to read as follows:
     "Permanent total disability" means the loss of both legs((,)) or arms, or one leg and one arm, total loss of eyesight, or paralysis ((or other condition)) resulting from a work-related injury or occupational disease and permanently incapacitating the worker from performing ((any work at any gainful occupation)) sedentary work or any other work within a fifty mile radius of the worker's residence.

Sec. 3   RCW 51.32.020 and 1995 c 160 s 2 are each amended to read as follows:
     (1)(a) If injury or death results to a worker from the deliberate intention of the worker himself or herself to produce such injury or death, or while the worker is engaged in the attempt to commit, or the commission of, a felony, neither the worker nor the widow, widower, child, or dependent of the worker shall receive any payment under this title.
     (b) If injury or death results to a worker from the deliberate intention of a beneficiary of that worker to produce the injury or death, or if injury or death results to a worker as a consequence of a beneficiary of that worker engaging in the attempt to commit, or the commission of, a felony, the beneficiary shall not receive any payment under this title.
     (2) An invalid child, while being supported and cared for in a state institution, shall not receive compensation under this chapter.
     (3) No payment shall be made to or for a natural child of a deceased worker and, at the same time, as the stepchild of a deceased worker.
     (4) Except for proper and necessary medical and surgical care directly related to an injury or occupational disease, no payment shall be made under this title to a worker, his or her spouse, or his or her dependents if the worker used false or fraudulently obtained documents to misrepresent his or her identity to obtain employment or his or her ability to legally work in the United States.
     (5) No payment shall be made under this title to a worker, his or her spouse, or his or her dependents if the injury or occupational disease sustained while in the course of employment resulted from a preexisting medical condition such as, but not limited to, epilepsy or diabetes that cause a seizure.
     (6) No payment shall be made under this title to a worker, his or her spouse, or his or her dependents if the worker was under the influence of a controlled substance for which the worker did not have a valid prescription at the time of the injury or occupational disease.
     (7)(a) Except as provided in (b) of this subsection, no payment shall be made under this title to a worker, his or her spouse, or his or her dependents if:
     (i) Under a prior claim, the worker was permanently restricted from returning to the job held at the time of his or her injury or occupational disease by his or her attending physician;
     (ii) The worker received vocational rehabilitation services under the prior claim; and
     (iii) The worker sustained the new injury or occupational disease while performing the job from which he or she was restricted.
     (b) A worker not entitled to payment under (a) of this subsection shall receive proper and necessary medical and surgical care directly related to the new injury or occupational disease.
     (8) No payment shall be made under this title to a worker, his or her spouse, or his or her dependents for pain or other subjective complaints alone, in the absence of objective relevant medical findings.

Sec. 4   RCW 51.32.060 and 2007 c 284 s 2 are each amended to read as follows:
     (1) When the supervisor of industrial insurance ((shall)) determines that the worker's permanent total disability results from the injury, the worker shall receive monthly during the period of such disability, but not to exceed one hundred four weeks, the following compensation:
     (a) If married at the time of injury, sixty-five percent of his or her wages.
     (b) If married with one child at the time of injury, sixty-seven percent of his or her wages.
     (c) If married with two children at the time of injury, sixty-nine percent of his or her wages.
     (d) If married with three children at the time of injury, seventy-one percent of his or her wages.
     (e) If married with four children at the time of injury, seventy-three percent of his or her wages.
     (f) If married with five or more children at the time of injury, seventy-five percent of his or her wages.
     (g) If unmarried at the time of the injury, sixty percent of his or her wages.
     (h) If unmarried with one child at the time of injury, sixty-two percent of his or her wages.
     (i) If unmarried with two children at the time of injury, sixty-four percent of his or her wages.
     (j) If unmarried with three children at the time of injury, sixty-six percent of his or her wages.
     (k) If unmarried with four children at the time of injury, sixty-eight percent of his or her wages.
     (l) If unmarried with five or more children at the time of injury, seventy percent of his or her wages.
     (2) For any period of time where both husband and wife are entitled to compensation as temporarily or totally disabled workers, only that spouse having the higher wages of the two shall be entitled to claim their child or children for compensation purposes.
     (3) In case of permanent total disability, if the character of the injury is such as to render the worker so physically helpless as to require the hiring of the services of an attendant, the department shall make monthly payments to such attendant for such services as long as such requirement continues, but such payments shall not obtain or be operative while the worker is receiving care under or pursuant to the provisions of chapter 51.36 RCW and RCW 51.04.105.
     (4) Should any further accident result in the permanent total disability of an injured worker, he or she shall receive the pension to which he or she would be entitled, notwithstanding the payment of a lump sum for his or her prior injury.
     (5) 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:

Sec. 5   RCW 51.32.075 and 1988 c 161 s 7 are each amended to read as follows:
     The compensation or death benefits payable pursuant to the provisions of this chapter for temporary total disability, permanent total disability, or death arising out of injuries or occupational diseases shall be adjusted as follows:
     (1) On July 1, 1982, there shall be an adjustment for those whose right to compensation was established on or after July 1, 1971, and before July 1, 1982. The adjustment shall be determined by multiplying the amount of compensation to which they are entitled by a fraction, the denominator of which shall be the average monthly wage in the state under RCW 51.08.018 for the fiscal year in which such person's right to compensation was established, and the numerator of which shall be the average monthly wage in the state under RCW 51.08.018 on July 1, 1982.
     (2) In addition to the adjustment established by subsection (1) of this section, there shall be another adjustment on July 1, 1983, for those whose right to compensation was established on or after July 1, 1971, and before July 1983, which shall be determined by multiplying the amount of compensation to which they are entitled by a fraction, the denominator of which shall be the average monthly wage in the state under RCW 51.08.018 for the fiscal year in which such person's right to compensation was established, and the numerator of which shall be the average monthly wage in the state under RCW 51.08.018 on July 1, 1983.
     (3) In addition to the adjustments under subsections (1) and (2) of this section, further adjustments shall be made beginning on July 1, 1984, and on each July 1st thereafter for those whose right to compensation was established on or after July 1, 1971. The adjustment shall be determined by multiplying the amount of compensation to which they are entitled by a fraction, the denominator of which shall be the average monthly wage in the state under RCW 51.08.018 for the fiscal year in which such person's right to compensation was established, and the numerator of which shall be the average monthly wage in the state under RCW 51.08.018 on July 1st of the year in which the adjustment is being made. The department or self-insurer shall adjust the resulting compensation rate to the nearest whole cent, not to exceed the average monthly wage in the state as computed under RCW 51.08.018.
     (4) For any awards made under RCW 51.32.060 on or after July 1, 2009, the benefits shall cease when the worker reaches the age of seventy-five if the worker is receiving retirement benefits from social security, an employer-sponsored pension plan, or any other retirement plan.

Sec. 6   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, but in no event for longer than one hundred four weeks.
     (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) No compensation shall be payable under this subsection for longer than one hundred four weeks.
     (d) 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 employer of injury requests that 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 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 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 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.
     (b) 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 the worker's physician or licensed advanced registered nurse practitioner.
     (c) 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) In the event of any dispute as to the worker's ability to perform the available work offered by the employer, the department shall make the final determination.
     (5) 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) 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) 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:

Sec. 7   RCW 51.32.100 and 1977 ex.s. c 350 s 49 are each amended to read as follows:
     If it is determined that an injured worker had, at the time of his or her injury, ((a preexisting disease and that such disease delays or prevents complete recovery from such injury, it shall be ascertained, as nearly as possible, the period over which the injury would have caused disability were it not for the diseased condition and the extent of permanent partial disability which the injury would have caused were it not for the disease, and compensation shall be awarded only therefor)) a preexisting medical or health condition, only the treatment directly related to the work-related injury or illness is compensable under this title. Any treatment related to the preexisting medical or health condition is not compensable under this title.

Sec. 8   RCW 51.32.160 and 1995 c 253 s 2 are each amended to read as follows:
     (1)(a) Except as provided in section 9 of this act, if aggravation, diminution, or termination of disability takes place, the director or his or her designee may, ((upon the application of the beneficiary, made within seven years from the date the first closing order becomes final, or at any time upon his or her own motion,)) readjust the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment((: PROVIDED, That)). The director may, upon application of the worker made ((at any time, provide proper and)) within seven years from the date of claim closure, authorize necessary medical and surgical services ((as authorized under RCW 51.36.010)) as may be needed unless the claim was closed under section 9 of this act. Under no circumstances shall a worker who is requesting a claim be reopened for further medical or surgical treatment be entitled to time-loss compensation from the accident fund. The department shall promptly mail a copy of the application to the employer at the employer's last known address as shown by the records of the department.
     (b) "Closing order" as used in this section means an order based on factors which include medical recommendation, advice, or examination.
     (c) Applications for benefits where the claim has been closed without medical recommendation, advice, or examination are not subject to the seven year limitation of this section. The preceding sentence shall not apply to any closing order issued prior to July 1, 1981. First closing orders issued between July 1, 1981, and July 1, 1985, shall, for the purposes of this section only, be deemed issued on July 1, 1985. The time limitation of this section shall be ten years in claims involving loss of vision or function of the eyes.
     (d) If an order denying an application to reopen filed on or after July 1, 1988, is not issued within ninety days of receipt of such application by the self-insured employer or the department, such application shall be deemed granted. However, for good cause, the department may extend the time for making the final determination on the application for an additional sixty days.
     (2) If a worker receiving a pension for total disability returns to gainful employment for wages, the director may suspend or terminate the rate of compensation established for the disability without producing medical evidence that shows that a diminution of the disability has occurred.
     (3) No act done or ordered to be done by the director, or the department prior to the signing and filing in the matter of a written order for such readjustment shall be grounds for such readjustment.

NEW SECTION.  Sec. 9   A new section is added to chapter 51.32 RCW to read as follows:
     The department or a self-insurer may offer the worker, or the worker's beneficiary if the worker is deceased, a lump sum settlement to close a claim that has been allowed. A settlement offer accepted by the worker or his or her beneficiary shall discharge the employer of record from any further obligation concerning the claim and release the state and self-insurer from further benefit obligations. A claim that has been closed under this section shall not be reopened for additional compensation under this title.

NEW SECTION.  Sec. 10   A new section is added to chapter 51.36 RCW to read as follows:
     When a worker has submitted to a medical examination at the request of the director or the self-insurer to resolve a medical issue, the director or self-insurer shall give the findings of such examination greater weight than the findings of the worker's attending physician.

Sec. 11   RCW 51.52.120 and 2007 c 490 s 3 are each amended to read as follows:
     (1) It shall be unlawful for an attorney engaged in the representation of any worker or beneficiary to charge ((for services in the department any fee in excess of a reasonable fee, of not more than thirty percent of the increase in the award secured by the attorney's services. Such reasonable fee shall be fixed by the director or the director's designee for services performed by an attorney for such worker or beneficiary, if written application therefor is made by the attorney, worker, or beneficiary within one year from the date the final decision and order of the department is communicated to the party making the application)) an amount in excess of twenty percent for the first five thousand dollars of benefits awarded, fifteen percent for the next five thousand dollars of benefits awarded, and ten percent for the balance of any benefits awarded. For purposes of this subsection, "benefits awarded" means the increase in the award secured by the attorney's services.
     (2) If, on appeal to the board, the order, decision, or award of the department is reversed or modified and additional relief is granted to a worker or beneficiary, or in cases where a party other than the worker or beneficiary is the appealing party and the worker's or beneficiary's right to relief is sustained by the board, the board shall fix a reasonable fee for the services of his or her attorney in proceedings before the board if written application therefor is made by the attorney, worker, or beneficiary within one year from the date the final decision and order of the board is communicated to the party making the application. In fixing the amount of such attorney's fee, the board shall take into consideration the fee allowed, if any, by the director, for services before the department, and the board may review the fee fixed by the director. Any attorney's fee set by the department or the board may be reviewed by the superior court upon application of such attorney, worker, or beneficiary. The department or self-insured employer, as the case may be, shall be served a copy of the application and shall be entitled to appear and take part in the proceedings. Where the board, pursuant to this section, fixes the attorney's fee, it shall be unlawful for an attorney to charge or receive any fee for services before the board in excess of that fee fixed by the board.
     (3) In an appeal to the board involving the presumption established under RCW 51.32.185, the attorney's fee shall be payable as set forth under ((RCW 51.32.185)) subsection (1) of this section.
     (4) Any person who violates this section is guilty of a misdemeanor and shall be subject to a civil penalty of up to ten thousand dollars.

NEW SECTION.  Sec. 12   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. 13   This act takes effect July 1, 2008.