BILL REQ. #: S-0900.1
State of Washington | 63rd Legislature | 2013 Regular Session |
READ FIRST TIME 01/29/13.
AN ACT Relating to amending provisions governing structured settlements by removing age barriers and clarifying legislative intent; amending RCW 51.04.063; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 51.04.063 and 2011 1st sp.s. c 37 s 302 are each
amended to read as follows:
(1) Notwithstanding RCW 51.04.060 or any other provision of this
title, ((beginning on January 1, 2012,)) an injured worker ((who is at
least fifty-five years of age on or after January 1, 2012, fifty-three
years of age on or after January 1, 2015, or fifty years of age on or
after January 1, 2016,)) may choose from the following: (a) To
continue to receive all benefits for which they are eligible under this
title, (b) to participate in vocational training if eligible, or (c) to
initiate and agree to a resolution of their claim with a structured
settlement.
(2)(a) As provided in this section, the parties to an allowed claim
may initiate and agree to resolve a claim with a structured settlement
for all benefits other than medical. Parties as defined in (b) of this
subsection may only initiate claim resolution structured settlements if
at least one hundred eighty days have passed since the claim was
received by the department or self-insurer and the order allowing the
claim is final and binding. All requirements of this title regarding
entitlement to and payment of benefits will apply during this period.
All claim resolution structured settlement agreements must be approved
by the board of industrial insurance appeals.
(b) For purposes of this section, "parties" means:
(i) For a state fund claim, the worker, the employer, and the
department. The employer will not be a party if the costs of the claim
or claims are no longer included in the calculation of the employer's
experience factor used to determine premiums, if they cannot be
located, are no longer in business, or they fail to respond or decline
to participate after timely notice of the claim resolution settlement
process provided by the board and the department.
(ii) For a self-insured claim, the worker and the employer.
(c) The claim resolution structured settlement agreements shall:
(i) Bind the parties with regard to all aspects of a claim except
medical benefits unless revoked by one of the parties as provided in
subsection (6) of this section;
(ii) Provide a periodic payment schedule to the worker equal to at
least twenty-five percent but not more than one hundred fifty percent
of the average monthly wage in the state pursuant to RCW 51.08.018,
except for the initial payment which may be up to six times the average
monthly wage in the state pursuant to RCW 51.08.018;
(iii) Not set aside or reverse an allowance order;
(iv) Not subject any employer who is not a signatory to the
agreement to any responsibility or burden under any claim; and
(v) Not subject any funds covered under this title to any
responsibility or burden without prior approval from the director or
designee.
(d) For state fund claims, the department shall negotiate the claim
resolution structured settlement agreement with the worker or their
representative and with the employer or employers and their
representative or representatives.
(e) For self-insured claims, the self-insured employer shall
negotiate the agreement with the worker or their representative.
Workers of self-insured employers who are unrepresented may request
that the office of the ombudsman for self-insured injured workers
provide assistance or be present during negotiations.
(f) Terms of the agreement may include the parties' agreement that
the claim shall remain open for future necessary medical or surgical
treatment related to the injury where there is a reasonable expectation
such treatment is necessary. The parties may also agree that specific
future treatment shall be provided without the application required in
RCW 51.32.160.
(g) Any claim resolution structured settlement agreement entered
into under this section must be in writing and signed by the parties or
their representatives and must clearly state that the parties
understand and agree to the terms of the agreement.
(h) If a worker is not represented by an attorney at the time of
signing a claim resolution structured settlement agreement, the parties
must forward a copy of the signed agreement to the board with a request
for a conference with an industrial appeals judge. The industrial
appeals judge must schedule a conference with all parties within
fourteen days for the purpose of (i) reviewing the terms of the
proposed settlement agreement by the parties; and (ii) ensuring the
worker has an understanding of the benefits generally available under
this title and that a claim resolution structured settlement agreement
may alter the benefits payable on the claim or claims. The judge may
schedule the initial conference for a later date with the consent of
the parties.
(i) Before approving the agreement, the industrial appeals judge
shall ensure the worker has an adequate understanding of the agreement
and its consequences to the worker.
(j) The industrial appeals judge may approve a claim resolution
structured settlement agreement only if the judge finds that the
agreement is in the best interest of the worker. When determining
whether the agreement 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:
(i) The nature and extent of the injuries and disabilities of the
worker;
(ii) The age and life expectancy of the injured worker;
(iii) Other benefits the injured worker is receiving or is entitled
to receive and the effect a claim resolution structured settlement
agreement might have on those benefits; and
(iv) The marital or domestic partnership status of the injured
worker.
(k) Within seven days after the conference, the industrial appeals
judge shall issue an order allowing or rejecting the claim resolution
structured settlement agreement. There is no appeal from the
industrial appeals judge's decision.
(l) If the industrial appeals judge issues an order allowing the
claim resolution structured settlement agreement, the order must be
submitted to the board.
(3) Upon receiving the agreement, the board shall approve it within
thirty working days of receipt unless it finds that:
(a) The parties have not entered into the agreement knowingly and
willingly;
(b) The agreement does not meet the requirements of a claim
resolution structured settlement agreement;
(c) The agreement is the result of a material misrepresentation of
law or fact;
(d) The agreement is the result of harassment or coercion; or
(e) The agreement is unreasonable as a matter of law.
(4) If a worker is represented by an attorney at the time of
signing a claim resolution structured settlement agreement, the parties
shall submit the agreement directly to the board without the conference
described in this section. The requirements of a claim resolution
structured settlement agreement for the purposes of subsection (3) of
this section do not include the determination under subsection (2)(j)
of this section if a worker is represented by an attorney at the time
of signing a claim resolution structured settlement agreement.
(5) If the board approves the agreement, it shall provide notice to
all parties. The department shall place the agreement in the
applicable claim file or files.
(6) A party may revoke consent to the claim resolution structured
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.
(7) To the extent the worker is entitled to any benefits while a
claim resolution structured settlement agreement is being negotiated or
during the revocation period of an agreement, the benefits must be paid
pursuant to the requirements of this title until the agreement becomes
final.
(8) A claim resolution structured settlement agreement that meets
the conditions in this section and that has become final and binding as
provided in this section is binding on all parties to the agreement as
to its terms and the injuries and occupational diseases to which the
agreement applies. A claim resolution structured settlement agreement
that has become final and binding is not subject to appeal.
(9) All payments made to a worker pursuant to a final claim
resolution structured settlement agreement must be reported to the
department as claims costs pursuant to this title. If a self-insured
employer contracts with a third-party administrator for claim services
and the payment of benefits under this title, the third-party
administrator shall also disburse the structured settlement payments
pursuant to the agreement.
(10) Claims closed pursuant to a claim resolution structured
settlement agreement can be reopened pursuant to RCW 51.32.160 for
medical treatment only. Further temporary total, temporary partial,
permanent partial, or permanent total benefits are not payable under
the same claim or claims for which a claim resolution structured
settlement agreement has been approved by the board and has become
final.
(11) Parties aggrieved by the failure of any other party to comply
with the terms of a claim resolution structured settlement agreement
have one year from the date of failure to comply to petition to the
board. If the board determines that a party has failed to comply with
an agreement, they will order compliance and will impose a penalty
payable to the aggrieved party of up to twenty-five percent of the
monetary amount unpaid at the time the petition for noncompliance was
filed. The board will also decide on any disputes as to attorneys'
fees for services related to claim resolution structured settlement
agreements.
(12) Parties and their representatives may not use settlement
offers or the claim resolution structured settlement agreement process
to harass or coerce any party. If the department determines that an
employer has engaged in a pattern of harassment or coercion, the
employer may be subject to penalty or corrective action, and may be
removed from the retrospective rating program or be decertified from
self-insurance under RCW 51.14.030.
NEW SECTION. Sec. 2 The amendment to RCW 51.04.063(4) by this
act is an explicit restatement of the legislature's original intent
that a finding under RCW 51.04.063(2)(j) is required only when the
worker is not represented by an attorney at the time of signing a claim
resolution structured settlement agreement. Because this provision is
a clarification of the legislature's original intent, it applies
retroactively.