LABOR AND INDUSTRIES

[Filed May 21, 2019, 12:53 p.m.]

Title of Rule and Other Identifying Information: WAC 296-14-400 Reopenings for benefits, this rule explains the requirements for reopening a workers' compensation claim that has been previously closed.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to amend WAC 296-14-400 Reopenings for benefits, to remove the requirement that applications to reopen a workers' compensation claim must be submitted by a provider in the department's medical provider network (MPN) as a result of the state of Washington court of appeals decision (Ronald V. Ma'ae v. State of Wa Dept of Labor And Industries, 2019 WL 1492822) that found the department cannot prohibit non-MPN providers from submitting reopening applications. This rule amendment allows the department to be in compliance with the court of appeals decision.

The department proposes removing the following language from WAC 296-14-400: For services or provider types where the department has established a provider network, beginning January 1, 2013, medical treatment and documentation for reopening applications must be completed by network providers.

Reasons Supporting Proposal: In 2012, the department amended its rules related to what services for injured workers may be provided by a nonnetwork provider in order to align with the statewide MPN established under RCW 51.36.010, as amended by SSB 5801, chapter 6, Laws of 2011. Recently, the Washington state court of appeals ruled that the requirement in WAC 296-14-400 that a worker submit medical documentation from only a network doctor to reopen a claim for aggravation was outside the statutory authority. Ronald V. Ma'ae v. State of Wa Dept of Labor and Industries, 2019 WL 1492822. The court held the amendment to WAC 296-14-400 to be invalid, and the language of the rule must now be amended to be in compliance with the court's decision.

Statutory Authority for Adoption: RCW 51.36.010, 51.04.020, 51.04.030.

Statute Being Implemented: RCW 51.32.160.

Rule is necessary because of state court decision, Ronald V. Ma'ae v. State of Wa Dept of Labor and Industries, 2019 WL 1492822.

Name of Proponent: Department of labor and industries, governmental.

Name of Agency Personnel Responsible for Drafting: Tanya C. Weber, Tumwater, Washington, 360-902-6818; Implementation and Enforcement: Vickie Kennedy, Tumwater, Washington, 360-902-4997.

This notice meets the following criteria to use the expedited adoption process for these rules:

Content is explicitly and specifically dictated by statute.

Explanation of the Reason the Agency Believes the Expedited Rule-Making Process is Appropriate: The proposed rule change is based on the recent court of appeals decision in Ronald V. Ma'ae v. State of Wa Dept of Labor and Industries that found the department's rule prohibiting non-MPN providers from submitting reopening applications was inconsistent with the statute. This prohibition is currently found in WAC 296-14-400 and is a result of language added during the implementation of MPN rules. The department decided to do expedited rule making to be in compliance with the court of appeals ruling.

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Robert Mayer, Department of Labor and Industries, P.O. Box 44322, Olympia, WA 98504-4322, phone 360-902-5021, fax 360-902-4249, email Robert.mayer@Lni.wa.gov, AND RECEIVED BY July 22, 2019.

AMENDATORY SECTION(Amending WSR 12-06-066, filed 3/6/12, effective 4/6/12)

WAC 296-14-400Reopenings for benefits.

The director at any time may, upon the workers' application to reopen for aggravation or worsening of condition, provide proper and necessary medical and surgical services as authorized under RCW 51.36.010. This provision will not apply to total permanent disability cases, as provision of medical treatment in those cases is limited by RCW 51.36.010.

The seven-year reopening time limitation shall run from the date the first claim closure becomes final and shall apply to all claims regardless of the date of injury. In order for claim closure to become final on claims where closure occurred on or after July 1, 1981, the closure must include documentation of medical recommendation, advice or examination. Such documentation is not required for closing orders 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 director shall, in the exercise of his or her discretion, reopen a claim provided objective evidence of worsening is present and proximately caused by a previously accepted asbestos-related disease.

In order to support a final closure based on medical recommendation or advice the claim file must contain documented information from a doctor, or nurse consultant (departmental) or nurse practitioner. The doctor or nurse practitioner may be in private practice, acting as a member of a consultation group, employed by a firm, corporation, or state agency.

For the purpose of this section, a "doctor" is defined in WAC 296-20-01002.

When a claim has been closed by the department or self-insurer for sixty days or longer, the worker must file a written application to reopen the claim. An informal written request filed without accompanying medical substantiation of worsening of the condition will constitute a request to reopen, but the time for taking action on the request shall not commence until a formal application is filed with the department or self-insurer as the case may be.

A formal application occurs when the worker and doctor complete and file the application for reopening provided by the department. Upon receipt of an informal request without accompanying medical substantiation of worsening of the worker's condition, the department or self-insurer shall promptly provide the necessary application to the worker for completion. ((For services or provider types where the department has established a provider network, beginning January 1, 2013, medical treatment and documentation for reopening applications must be completed by network providers.))

If, within seven years from the date the first closing order became final, a formal application to reopen is filed which shows by "sufficient medical verification of such disability related to the accepted condition(s)" that benefits are payable, the department, or the self-insurer, pursuant to RCW 51.32.210 and 51.32.190, respectively shall mail the first payment within fourteen days of receiving the formal application to reopen. If the application does not contain sufficient medical verification of disability, the fourteen-day period will begin upon receipt of such verification. If the application to reopen is granted, compensation will be paid pursuant to RCW 51.28.040. If the application to reopen is denied, the worker shall repay such compensation pursuant to RCW 51.32.240.

Applications for reopenings filed on or after July 1, 1988, must be acted upon by the department within ninety days of receipt of the application by the department or the self-insurer. The ninety-day limitation shall not apply if the worker files an appeal or request for reconsideration of the department's denial of the reopening application.

The department may, for good cause, extend the period in which the department must act for an additional sixty days. "Good cause" for such an extension may include, but not be limited to, the following:

(1) Inability to schedule a necessary medical examination within the ninety-day time period;

(2) Failure of the worker to appear for a medical examination;

(3) Lack of clear or convincing evidence to support reopening or denial of the claim without an independent medical examination;

(4) Examination scheduled timely but cannot be conducted and a report received in sufficient time to render a decision prior to the end of the ninety-day time period.

The department shall make a determination regarding "good cause" in a final order as provided in RCW 51.52.050.

The ninety-day limitation will not apply in instances where the previous closing order has not become final.