WSR 12-09-056

PERMANENT RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed April 17, 2012, 8:40 a.m. , effective May 21, 2012 ]


Effective Date of Rule: May 21, 2012.

Purpose: The Washington legislature established a new stay-at-work program for the department to administer effective June 15, 2011. The law authorizes reimbursements to employers who provide transitional or light duty work to injured workers unable to return to their regular job because of work restrictions related to their injury. The new law allows L&I to reimburse employers for some costs without negatively impacting their experience rating.

These new rules allow the department to administer the program efficiently and equitably. It ensures the requirements for participating in the program are clear and understandable, and reimbursements are appropriate.

Statutory Authority for Adoption: RCW 51.04.020 and 51.32.090.

Adopted under notice filed as WSR 11-24-061 on December 6, 2011, with supplemental notice filed as WSR 12-04-072 on January 31, 2012.

Changes Other than Editing from Proposed to Adopted Version: The term "job" was replaced by "work" and the "employer of injury" for occupational disease claims was further defined to include having "previously employed the worker." This was done for clarity and did not change the meaning or intent of the proposed rule.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 5, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 5, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 5, Amended 0, Repealed 0.

Date Adopted: April 17, 2012.

Judy Schurke

Director

OTS-4399.3

Chapter 296-16A WAC

STAY-AT-WORK PROGRAM


NEW SECTION
WAC 296-16A-010   What is the stay-at-work program?   The stay-at-work program encourages employers insured with the department to bring their injured workers back to work quickly and safely. If eligible, we will reimburse an employer for up to half the basic gross wages the employer paid to the injured worker during light duty or transitional work, and for the cost of instruction, tools, and clothing the worker needed to perform the approved light duty or transitional work. WAC 296-16A-020 through 296-16A-050 are the rules for employers insured with the department who are requesting stay-at-work reimbursements.

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NEW SECTION
WAC 296-16A-020   I am an employer insured with the department -- How can I qualify for stay-at-work reimbursements?   To qualify for stay-at-work reimbursements:

(1) You must be the "employer at the time of injury" or "employer of injury" on a claim. You are the employer at the time of injury if the worker was injured while working for you. For occupational disease claims, you are the employer if your experience rating has been or will be affected by the claim because you previously employed the worker, or you were the last employer to employ the worker when the claim was filed (even if the claim will not affect your experience rating).

(2) Your worker must be eligible for temporary total disability or temporary partial disability benefits to be eligible; your worker's attending provider must have restricted your worker from performing his or her usual work.

(3) You must give the attending provider and your worker a description of the light duty or transitional work you would like your worker to do, and the attending provider must, in writing, release your worker to do that work.

(4) You must not ask your worker to perform work other than that approved by the attending provider.

(5) You must incur an actual expense before you request reimbursement. We cannot pay you in advance.

(6) We cannot reimburse you for stay-at-work expenses incurred before June 15, 2011.

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NEW SECTION
WAC 296-16A-030   What can I be reimbursed for?   If the attending provider restricts your worker from performing his or her usual work, you may ask the attending provider to release your worker to perform light duty or transitional work for you. If the attending provider does so, you may employ your worker consistent with the attending provider's release. You can then receive reimbursement for some of the costs associated with that employment:

(1) Wages: Fifty percent of basic gross wages you paid your worker, for up to sixty-six days actually worked in a twenty-four month period, up to a maximum of ten thousand dollars total wage reimbursement per claim.

(a) Basic gross wages means the basic hourly wages or salary. Basic gross wages do not include tips, commissions, bonuses, board, housing, fuel, health care, dental care, vision care, per diem, reimbursements for work-related expenses, or any other payments.

(b) A partial day worked counts as one day. Example: Your worker works a four-hour shift. This counts as one day out of the sixty-six.

(c) If your worker's single shift spans two calendar days that shift counts as one day. Example: Your worker's single shift starts at 10:00 p.m., November 14th, and continues until 6:30 a.m., November 15th. This counts as one day out of the sixty-six.

(d) The sixty-six days do not have to be consecutive.

(e) If the light duty or transitional work lasts more than sixty-six days, you may choose which sixty-six days to seek reimbursement for.

(f) You may not be reimbursed more than once for the same days worked. For example, if your worker has two active claims you cannot be reimbursed wage subsidies for the same dates on both claims.

(g) We cannot reimburse you for dates you employed your worker that are more than twenty-four months after the earliest day we have already reimbursed on the claim. Example: The first work date for which you were reimbursed was February 1, 2012. Your twenty-four month eligibility period ends January 31, 2014.

(h) You must submit your request for reimbursement within one year of the date the work was performed.

(2) Training costs you incurred to enable your worker to perform the light duty or transitional work, up to one thousand dollars per claim:

(a) Training expenses include the purchase of books or materials, or payment to someone outside your organization to provide training (tuition or fees).

(b) We will not reimburse you for the value of "in-house" training provided by your organization.

(c) You must submit your request for reimbursement within one year of the date of purchase.

(3) Clothing you provided your worker, necessary to perform the light duty or transitional work, up to four hundred dollars per claim:

(a) If you normally provide such clothing to your workers, we cannot reimburse you.

(b) When the work ends, the clothing belongs to your worker.

(c) You must submit your request for reimbursement within one year of the date of purchase.

(4) Tools and equipment you purchased to enable your worker to perform the light duty or transitional work, up to two thousand five hundred dollars per claim:

(a) If you normally provide such tools and equipment to your workers, we cannot reimburse you.

(b) When the work ends, the tools and equipment belong to the employer.

(c) You must submit your request for reimbursement within one year of the date of purchase.

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NEW SECTION
WAC 296-16A-040   What if my worker has more than one claim or other qualifying employers?   (1) We will reimburse you only once for an incurred expense: If your worker has more than one claim, we will not reimburse you more than once for the same wages paid or training, clothing, or equipment provided.

(2) If we receive valid reimbursement requests from different employers for the same claim, we will pay the requests in the order received by the department up to the per claim limits.

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NEW SECTION
WAC 296-16A-050   How do I apply for reimbursements?   (1) To request reimbursements, fill out the appropriate stay-at-work reimbursement form we will supply you that is available on our web site. One form is for wage reimbursement and there is a separate form for all other reimbursements. Once you have completed the form or forms, mail or fax them to us at the address or fax number provided on the form.

(2) For all stay-at-work reimbursements, in addition to the completed forms, we also need:

(a) Documentation from the attending provider restricting your worker from his or her usual work for the dates you are requesting reimbursement;

(b) A written description of the light duty or transitional work that enables the attending provider to relate the physical activities of the work to your worker's restrictions;

(c) The attending provider's written approval releasing the worker to do that work.

(3) For wage reimbursement, we need documentation such as payroll records and time cards that verify the dates worked and basic gross wages paid.

(4) For tools and equipment, clothing, and training, we need itemized receipts showing your expenses.

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Washington State Code Reviser's Office