WSR 98-19-148
PROPOSED RULES
DEPARTMENT OF
LABOR AND INDUSTRIES
[Filed September 23, 1998, 11:50 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 98-15-108.
Title of Rule: WAC 296-15-001 Definitions, 296-15-300 Self insured workers' rights and obligations, 296-15-305 Filing a self insured claim, 296-15-320 After a self insured claim is filed, 296-15-350 Closure of self insured claims, 296-15-380 After a self insured claim is closed, 296-15-390 When a self insured claim is on appeal, and 296-15-395 Third party action on a self insured claim.
Purpose: 1997 legislation required rule revision to eliminate conflicts, and the rules are rewritten per the Governor's Executive Order 97-02.
Statutory Authority for Adoption: RCW 51.32.190(6), 51.32.055 (8)(a), (9)(a).
Statute Being Implemented: Title 51 RCW.
Summary: The rules clarify department procedures to implement the statutes which apply to self insured employers.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Joyce Walker, Program Manager, Olympia, (360) 902-6907.
Name of Proponent: Department of Labor and Industries, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: These rules clarify department procedures to implement the workers' compensation statues which apply to self insured employers. The proposed rules are more easily understandable, and employers, workers, workers' representatives and providers will need less explanation from the department, and the number of phone calls for explanations will be cut, allowing all parties more time to address more urgent issues than procedures.
Proposal Changes the Following Existing Rules: The original rules are being repealed, new rules have been redrafted according to the governor's executive order, and rules to address chapter 416, Laws of 1997 are added.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has considered whether these rules are subject to the Regulatory Fairness Act and has determined they are not because these rules do not impact any small businesses. In order to qualify to self insure, a firm must demonstrate the financial ability to make certain the prompt payment of all foreseeable compensation and assessments required under the law. As such, only large firms are certified. All self insured employers have more than fifty employees (each).
RCW 34.05.328 applies to this rule adoption. In addition to adding new rules to address chapter 416, Laws of 1997, these rules replace WAC 296-15-02606, 296-15-070, 296-15-072, 296-15-100, 296-15-160, 296-15-180, 296-15-190, 296-15-21002, 296-15-230, 296-15-240, 296-15-250, and 296-15-265 which are being repealed. These rules are the primary instruction to self insured employers on the department procedures they need to follow in order to meet statutory requirements for processing industrial insurance claims.
Hearing Location: Department of Labor and Industries Auditorium, 7273 Linderson Way, Olympia, on October 30, 1998, at 9 a.m.
Assistance for Persons with Disabilities: Contact Nancy Mead by October 15, 1998, at (360) 902-6906.
Submit Written Comments to: Fax (360) 902-6900, by October 30, 1998.
Date of Intended Adoption: December 2, 1998.
September 18, 1998
Gary Moore
Director
OTS-2489.1
REPEALER
The following sections of the Washington Administrative Code are repealed:
WAC 296-15-02606 Self-insured employee rights.
WAC 296-15-070 Accident reports and claims procedures.
WAC 296-15-072 Employer claim closures.
WAC 296-15-100 Permanent partial disability awards.
WAC 296-15-160 Order on self-insured claims.
WAC 296-15-180 Examinations for rating disability.
WAC 296-15-190 Notification of rights and obligations.
WAC 296-15-21002 Form--SIF #4--Self-insured employer's notice of denial of claim.
WAC 296-15-230 Third party actions.
WAC 296-15-240 Procedure in cases appealed to the superior court.
WAC 296-15-250 Representation in self-insured appeals.
WAC 296-15-265 Penalties.
OTS-2497.2
NEW SECTION
WAC 296-15-001 Definitions. "Substantially similar" means:
(1) The text of the department's document has not been altered or deleted; and
(2) The self insurer's document has the text:
(a) In the same font size;
(b) With the same emphasis (bolding, italics, underlining, etc.); and
(c) In the same location on the page as the department's document.
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NEW SECTION
WAC 296-15-300 Self insured workers' rights and obligations. How must a self insurer notify its workers of their rights and obligations under the industrial insurance laws?
Self insurers must notify workers of their industrial insurance rights and obligations at the following times:
(1) Within thirty days of hire, provide a form substantially similar to the one page "Workers' Compensation Filing Information" L&I form F207-155-000.
(2) When a worker files a claim, provide the following information in writing:
(a) The current edition of the department's pamphlet "Employees of Self Insured Businesses Guide to Industrial Insurance Benefits" L&I pamphlet P207-085-000 or this same information in substantially similar format; and
(b) The name, address, and phone number of the person or organization handling the worker's claim.
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NEW SECTION
WAC 296-15-305 Filing a self insured claim. (1) What form is used to report a self insured worker's industrial injury or occupational illness?
The reporting form for a self insured worker's industrial injury or occupational illness is the Self Insurer Accident Report (SIF-2) L&I form F207-002-000. Self insurers must obtain these forms from the department and must report their workers' industrial injuries and illnesses to the department with SIF-2s. The department tracks the claim numbers assigned to self insurers.
When notified of injury or illness, the self insurer must provide the worker with this prenumbered form and assistance in filing a claim. The self insurer must provide the worker the designated copy of the completed SIF-2 (which includes an explanation of the worker's rights and responsibilities) within five working days of completion.
(2) What form does a doctor use to report a self insured worker's industrial accident or occupational illness?
Physicians should report a self insured claim with a Physician's Initial Report (PIR) L&I form F207-028-000 when a self insured worker has an industrial injury or is notified of an occupational illness. Replacements are acceptable.
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NEW SECTION
WAC 296-15-320 After a self insured claim is filed. (1) What must a self insurer do when beginning time loss (TL) benefits on a claim?
When beginning time loss payments, a self insurer must:
| Send to the worker | Send to the department | The department will | |
| At the same time as the first TL payment. | A complete and accurate SIF-51 and SIF-5A2. | ||
| Within 5 working days of first TL payment. | Copies of the SIF-2, SIF-5, and SIF-5A. | Allow the claim unless a request for interlocutory order (see subsection (2)) or denial (see subsection (3)) has been received. |
1 The SIF-5 is the Self Insurer's Report on Occupational Injury or Disease. Use a form substantially similar to L&I form F207-005-000.
2 The SIF-5A is the Time Loss Calculation Rate. Use a form substantially similar to L&I form F207-156-000.
(2) How must a self insurer request an interlocutory1 order?
When requesting an interlocutory order from the department, a self insurer must:
| Send to the worker | Send to the department | The department will | And the self insurer pays | |
| Within 602 days of claim filing. | A complete and accurate SIF-5 and SIF-5A if TL was paid. | Copies of the SIF-2, SIF-5 (with the interlocutory order box checked), SIF-5A, and all medical and other pertinent information and a reasonable explanation why an investigation is needed. | If it agrees, issue an interlocutory order. | Provisional TL if the worker is eligible and other benefits as entitled. Ongoing medical treatment and vocational services are not payable unless the claim is allowed. |
| If it disagrees, issue an allowance order if the facts show the claim should be allowed. | TL if the worker is eligible, and other entitled benefits. |
1 An interlocutory order places a claim in provisional status while the self insurer investigates the validity of the claim.
2 When not specified, time is in calendar days.
(3) How must a self insurer request claim denial from the department?
When requesting claim denial from the department, a self insurer must:
| Send to the worker | Send to the department | The department will | And the self insurer pays | |
| Within 60 days of claim filing. | SIF-4..* Copy to the attending or treating physician |
SIF-4 and all medical and other pertinent information supporting denial. | If it agrees, issue a denial order. The denial order will restate the self insurer's right to request reimbursement of provisional TL from the worker. |
For all medical evaluations and diagnostic studies used to make the determination. |
| If it finds insufficient information to make a decision, issue an interlocutory order and direct the employer to obtain the necessary information. | Provisional TL if the worker is eligible and
other benefits as entitled. Ongoing medical treatment and vocational services are not payable unless the claim is allowed. |
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| If it disagrees, issue an allowance order if the facts show the claim should be allowed. |
TL if the worker is eligible and other entitled benefits. |
.* The SIF-4 is the Self Insured Employer's Notice of Denial of Claim. Use a form substantially similar to L&I form F207-163-000.
(4) What if a self insurer does not request allowance, denial, or an interlocutory order for a claim within sixty days?
If a self insurer does not request allowance, denial, or an interlocutory order within sixty days, the department will intervene and adjudicate the claim. The department may obtain additional medical information to make the determination. The claim remains in provisional status until the department makes the determination.
The exception to this requirement is the allowance of medical only claims. Self insurers are not required to request allowance for medical only claims.
(5) Must a self insurer submit an SIF-5 each time the department requests one?
A self insurer must submit a complete and accurate SIF-5 within ten working days of receipt of a written request from the department.
(6) What must a self insurer do when the department requests information on a claim by certified mail?
A self insurer must submit all information in its possession concerning the claim within ten working days of receipt of the department's request by certified mail.
(7) How long does a self insurer have to provide a copy of the claim file to the worker or worker's representative?
A self insurer must provide a copy of the claim file within fifteen days of receiving a written request from the worker or worker's representative. Unless the worker or representative requests a particular portion of the file, the self insurer must provide a copy of the entire file.
(8) When may a self insurer charge a worker or his/her representative for a copy of the claim file?
A self insurer must provide the first copy of a claim file free of charge. Upon receipt of a subsequent written request, the self insurer must provide material added after the previous request free of charge. The self insurer may charge the worker or any representative a reasonable fee for any material previously supplied.
(9) What must a self insurer do when it terminates time loss because it has found the worker ineligible for vocational services?
Within five working days of time loss termination, a self insurer must notify the department it has found the worker ineligible for vocational services. Use an Employability Assessment Report (EAR) substantially similar to L&I form F207-121-000.
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NEW SECTION
WAC 296-15-350 Closure of self insured claims. (1) Who closes self insured claims?
The department has the authority to close all self insured claims. Self insurers have the authority to close certain claims.
Within two years of claim closure, the department may require a self insurer to pay additional benefits on a claim the self insurer closed if the self insurer:
(a) Made an error in benefits paid; or
(b) Violated the conditions of claim closure.
(2) What claims may a self insurer close?
| A self insurer may close | If the | With time loss? | Other requirements? | With PPD? | If a previous determinative order was issued? | |
| Medical only (MO) claims | Claim was filed on or after 07/26/81 | Without | None. | Without1 | May not be closed by the employer. | |
| Time loss (TL) claims | Injury/illness occurred on or after 07/01/86 | With | 1. 2. |
Not if the department issued an order resolving
a dispute; and Only if the worker returned to work with the employer of record at the same job or at a job with comparable wages and benefits.2 |
Without1 | May be closed by the employer if the order did not resolve a dispute |
| Permanent partial disability (PPD) claims | Injury/illness occurred on or after 08/01/97 | With or without | 1. 2.
3. |
Not if the department issued an order resolving
a dispute; and Only if the worker returned to work with the employer of record at the same job or at a job with comparable wages and benefits;2 and
Only if the closing medical report was sent to the attending or treating doctor and 143 days allowed for response. |
With | May be closed by the employer if the order did not resolve a dispute. |
1 A self insurer may not close a claim with PPD if the injury or illness occurred before 08/01/97.
2 Comparable means the wages and benefits are at least ninety-five percent of the wages and benefits received by the worker at the time of injury.
3 When not specified, time is in calendar days.
(3) When a self insurer is closing a PPD claim, what must it do with the closing medical report?
When a self insurer is closing a PPD claim, it must send the closing medical report to the attending or treating doctor, and the doctor must be allowed fourteen days to respond. When the attending or treating doctor responds:
| Within 14 days | And the doctor agrees with | And the doctor disagrees with | Then the self insurer | ||
| Within | Fixed and stable and PPD rating | may | Close the claim. | ||
| Does not respond | may | Close the claim | |||
| Within or before the order is issued | Fixed and stable | must |
1. 2. |
Obtain a supplemental medical opinion from the
department's approved examiner's list; or Forward the claim to department for closure. The department may require additional medical examinations. |
|
| Within or before the order issued | Fixed and stable | PPD rating | must |
1. 2. |
Obtain a supplemental medical opinion from the
department's approved examiner's list; or Forward the claim to department for closure. The department may require additional medical examinations. |
| Not within, after the order is issued, but before the order is final | Fixed and stable and/or PPD rating | must | Forward the claim including the doctor's response to the department as a protest within five working days of receipt. |
(4) What must a self insurer do with a closing medical report, regardless of who is closing the claim?
A self insurer must send the closing medical report to the attending or treating physician. If the physician responds that he/she does not concur with the results, the self insurer must:
(a) Obtain a supplemental medical opinion from the department's approved examiner's list in order to do the closing action itself; or
(b) Forward the claim to department for closure. The department may require additional medical examinations.
(5) When a self insurer is closing a claim, what written notice must it provide to the worker and attending or treating doctor?
At claim closure, a self insurer must send the closing order to the worker and attending or treating doctor.
(a) For a MO claim, use a Self Insurer's Claim Closure Order and notice substantially similar to F207-020-111.
(b) For a TL claim, use a Self Insured Employers' Time Loss Claim Closure Order and Notice substantially similar to F207-070-000 and a complete and accurate SIF-5 substantially similar to L&I form F207-005-000.
(c) For a PPD claim:
(i) When no TL or loss of earning power (LOEP) was paid, use a form substantially similar to L&I form F207-165-000 (MO with PPD) and a complete and accurate SIF-5.
(ii) When TL or LOEP was paid, use a form substantially similar to L&I form F207-164-000 (TL with PPD) closure and a complete and accurate SIF-5.
(6) When a self insurer is closing a claim, what information must it submit to the department?
A self insurer must submit to the department:
(a) MO claim closures by the end of the month following closure. These may be transferred electronically or reported by paper.
(i) Closures transferred electronically must be in the department's format.
(ii) Closures submitted in paper must include the SIF-2 L&I form F207-002-000 showing the date of closure and any vocational services provided.
(b) TL and PPD claim closures at the time of closure. Include copies of each of the following:
(i) SIF-2 if not previously submitted.
(ii) Closure order.
Note: If no one protests the self insurer's closure order, it will become final and binding in sixty days, just like a department order.
(iii) A PPD Payment Schedule substantially similar to L&I form F207-162-000, if necessary.
(A) A payment schedule is required when the amount of the award is more than three times the state's average monthly wage at the date of injury. At initial/down payment, send copies to the worker and the department.
(B) The first payment of the PPD award must be paid within five working days of claim closure. Continuing payments must be paid according to the established payment schedule.
(iv) A complete and accurate SIF-5 (with the Rehabilitation Outcome Report (ROR) portion completed if vocational services were provided) showing all requirements for closure have been met, any TL or LOEP paid, period of payment, and total amount paid.
(7) When the department is closing a claim, what must the self insurer submit when requesting claim closure?
When a self insurer is asking the department to close the claim, it must submit:
(a) A complete and accurate SIF-5 (with the ROR portion completed if vocational services were provided); and
(b) All medical and other pertinent information (not previously submitted to the department).
(8) When the department has closed a PPD claim, when must the self insurer create a payment schedule?
When the department has closed a PPD claim, the self insurer must create a PPD Payment Schedule substantially similar to L&I form F207-162-000 when the amount of the award is more than three times the state's average monthly wage at the date of injury. At initial/down payment, send copies to the worker and the department.
(9) When the department has closed a PPD claim, when must the self insurer make the first payment of the award?
When the department has closed a PPD claim, the self insurer must make the first payment of the award without delay. Continuing payments must be paid according to the established payment schedule.
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NEW SECTION
WAC 296-15-380 After a self insured claim is closed. (1) When must a self insurer submit a worker's written protest or appeal to the department?
A self insurer must submit a written protest or appeal by a worker to the department within five working days of receipt. The date the protest or appeal is received by the self insurer is considered the date the protest or appeal is received by the department.
(2) When must a self insurer forward an application to reopen a claim to the department?
A self insurer must forward an application to reopen a claim to the department within five working days of receipt.
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NEW SECTION
WAC 296-15-390 When a self insured claim is on appeal. (1) How may department orders be defended in self insured appeals?
The department may ask the office of the attorney general to represent department orders appealed to the board of industrial insurance appeals.
(2) What must a self insurer send to the department when any party appeals a claim to superior or appellate court?
When any party appeals a claim to superior or appellate court, the self insurer must promptly send to the department copies of the notice of appeal, judgment, and all other relevant information.
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NEW SECTION
WAC 296-15-395 Third party action on a self insured claim. What must a self insurer send to the department when there is a third party action?
When there is a third party action, in addition to fulfilling the statutory requirements, the self insurer must send the department copies of:
| When | What | |
| Upon notification | Written indication of the worker's election. | |
| After recovery of damages | 1. 2. 3. |
Signed settlement agreement or court order; and
Total amount of attorney fees and costs; and Total amount of benefits paid, including TL, PPD, and medical, excluding payments for IMEs. |
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