Monday, May 4, 2015

Legislative Attacks Against Workers

Earlier this year, ProPublica and NPR teamed up to provide an in-depth series on the state of workers' compensation in our country. Called "Insult to Injury," the series highlighted how legislative attacks that undermined the fundamental protections for injured workers in our workers compensation system have failed to provide them with the care they need and denied them access to their fundamental rights. These attacks have cost workers their homes, their health, their ability to recover from injuries and return to work, and - in too many cases - their lives. They remove incentives for employers to budget for safety and obey workplace safety laws. Finally, they shift the burden of the injuries to the workers and taxpayers through our unraveling social safety net to the tune of tens of billions of dollars a year across our nation.    

Below are highlights from the series and other recent studies that we want to share with you.

Read the whole series here.


This graphic is color-coded to show the best (green) and worst (red) states for workers.
So-called "reforms" have been enacted in 33 states. From limiting compensation to swapping prosthetics for hooks, states have been systematically dismantling workers' rights across the board. What else stands out is that Washington is still one of the best states for workers, despite several attempts in the Senate this session to repeal our rights, including: 
  • Occupational Disease (SB 5509) - Virtually eliminating occupational disease claims by creating new burdens of proof for workers who suffer occupational diseases, and giving new legal arguments to employers that provide them with near immunity for any illnesses or condition that might possibly be partially caused by any non-work factor, or even for claims arising in multiple workplaces over the years, while also dramatically restricting the time frame for filing claims.
  • Wage simplification (SB 5510) - As introduced and moved from committee, this bill would have "simplified" wage benefit calculations by simply lowering the amounts and the percentages of wages that the wage loss is based on. This bill also overturned a unanimous Supreme Court decision requiring that the value of health benefits be recognized and included in those calculations.
  • Overturning Tobin (SB 5508) - Overturning a Supreme Court decision in the Tobin case. The bill would allow employers and the state to confiscate percentages of injured workers' (and their survivors') court awards for pain-and-suffering and loss of consortium claims in wrongful death and other workplace injury cases, even though no benefits were paid for those damages. This also runs afoul of a case in the US Supreme Court, where Justice Scalia said the state does not have a right to take money away for benefits they never paid (Ahlborn.).
  • Group Self-Insurance (SB 5331) - Legalizing the risky practice of multiple employers banding together to self-insure. In other states, such groups have become insolvent and passed major costs onto other employers and/or abandoned injured workers. This also gives employers the ability to handle their own claims with virtually no oversight and where every dollar saved is a dollar in their pocket.
  • Reporting Injuries (SB 5576) - Dramatically shortening the statute of limitations for filing claims and requiring that claims be filed with the employer, which opens the door to intimidation to discourage claims. This could also eliminate claims if the employer filed the notice of claim before the worker, even if the worker is, say, in critical condition or hospitalized.
  • "Three-Way" (SB 5420) - Allowing the private sale of industrial insurance in Washington, a concept overwhelmingly rejected by voters by a 60-40 count in I-1082 in 2010, and that failed in every county and legislative district.
  • Structured Settlements (SB 5513) - Lowering the age limit for lump-sum buyouts from 50 to 18, and eliminating certain protections for workers in the current law.
All of these bills aimed to cut employers' rates by: a) having dramatically fewer injured workers be able to run the gauntlet and access workers comp benefits, and b) cutting the benefits for those who do. 

WSAJ is very proud of our work defending this system over the years and very pleased with the Senators who listened to us and rejected these attacks. This year numerous Republicans joined a unanimous Democratic caucus in rejecting every single one of these draconian measures, and instead created a fairly modest workers' comp package. WSAJ appreciates those Senators of both parties for standing up for injured workers and keeping our system strong.  


Graphic via The Stand
While reduced benefits pile medical bills on injured workers who are unable to return to work, plummeting them into poverty, insurance companies are making record profits. In 2013, insurers had their most profitable year in over a decade. At the same time, employers are paying the lowest rates for workers' comp insurance since the 1970s, and some of the lowest costs are in Washington state. 
Supporting workers is inexpensive for employers, but insurance companies focused on their corporate profits continue to claim that cutting benefits helps small businesses.

Here in Washington, we do not allow private insurers to sell insurance and loot hundreds of millions of dollars in profits. Instead, we reinvest this money in our insurance funds. Using investment returns, we maximize financial stability, keep premiums lower for employers, and keep benefits fairly strong and accessible for injured workers. Washington is also the only state in the nation where workers pay a share of the premium, further lowering employer costs, and creating ownership and partnership in our workers' comp system. While we are far from perfect, this study shows Washington does have a better way. It also serves as a warning of why we don't want to start down that other road.


Photo via GeekWire

Workers compensation is often referred to as an "historic grand bargain" in which workers gave up their right to sue their employer for the "sure and certain" relief of workers' compensation. Employers received immunity from lawsuits in exchange for providing more limited but certain support for workers injured on the job. The ProPublica studies referenced in this edition shows how that promise is being unraveled. Now, not satisfied with tearing down the "sure and certain" relief in so many states around the union, a group of employers has banded together and seeks to totally renege on the historic bargain altogether.

Mother Jones details the lobbying efforts emerging to tear down the workers' comp system and replace it with employer-provided "benefit programs." The catch? The employers write the rules, pick the doctors, handle the disputes, determine the scope of coverage (or lack there of), and construct the whole system in their own interests, not their workers'. Two states have already enacted this travesty, and the results are horrid for workers.

The big question for Washingtonians is why Nordstrom is joining this sordid effort and disreputable group.  A generation ago, Nordstrom was the gold standard for customer service and was highly desired and rated as an employer. What changed? These efforts show this may not be our parents' Nordstrom. We hope they don't join Washington Mutual as a local company that has built good will for generations, only to suck it away for short-term profits. 

Please, say it ain't so.   

ProPublica's ground-breaking study shines light on what we already hold to be true: that denying benefits to workers helps no one but insurance companies. Protecting our workers has been a foundation of our country since the Industrial Age, and we will work to keep it that way.

**Thank you to the Washington State Association for Justice for permission to reprint this article.

Tuesday, October 28, 2014

I want to take a moment to share my recommendations with you on very important contests on your ballot for the Supreme Court.

Election statistics show that over 20% of voters skip the judicial races on their ballots. As someone who works in our courtrooms every day, I know it is critical to have the right men and women leading our judicial system. It is vitally important to our system that we elect highly qualified people to our courts. This year the answers are very clear. These are the candidates I support.

Supreme Court, Pos. 1 – Mary Yu

Appointed to the Supreme Court by Governor Inslee in May to replace retiring Justice Jim Johnson, Justice Yu has shown herself to be dedicated to improving access to justice and protecting individual rights for all. She served for 14 years as a highly respected Superior Court judge, where she was known for treating every case and every litigant with respect and fairness, and  understanding that each decision a judge makes impacts someone’s life while paying careful attention to the law. Justice Yu received the highest possible rating - Exceptionally Well Qualified - from all six bar associations that rated her. She is running unopposed.

Supreme Court, Pos. 3 – Mary Fairhurst

Justice Fairhurst has served on our Supreme Court with distinction for 12 years. As a Justice, she is a champion of fairness and judicial independence. During her tenure, she’s worked to improve access to justice, and make the court more efficient and transparent. Justice Fairhurst is endorsed by over 100 current and retired judges, political and civic leaders, business and labor, law enforcement, firefighters, teachers, Democrats, Independents, Republicans and many more. She is running unopposed.

 Supreme Court, Pos. 4 – Charles W. Johnson

Justice Charles Johnson has a 24-year record that shows a commitment to our rights and freedoms. He has been a strong supporter individual privacy and holding government accountable. All of the bar associations have rated Justice Johnson "exceptionally well qualified." His proven experience, fairness and impartiality are reflected by the diversity of organizations supporting him, including: State Council of Fire Fighters; State Patrol Troopers; King, Pierce, and Snohomish County Democrats; Mainstream Republicans; State Labor Council; State Association of Realtors; Aerospace Machinists 751; Federation of State Employees; and other groups and individuals statewide. Justice Johnson is being challenged by Eddie Yoon, who has been teaching outside of the country for about 15 years. This is a clear choice.

 Supreme Court, Pos. 7 – Debra L. Stephens

Our other contested race is this one. Justice Stephens is the easy and overwhelming choice. Since her appointment in 2008, Justice Stephens has been dedicated to serving the people of our state and upholding the rule of law. As a longtime constitutional law professor, she respects legal traditions, and works every day to maintain the independence of our judiciary. She is widely regarded as one of the brightest legal minds our court has seen in recent times, and is supported by prominent leaders in government, education, and business; law enforcement, firefighters, labor unions, judges, and lawyers. Justice Stephens is rated “exceptionally well qualified,” by all of the statewide bar organizations. Her opponent, John Scannell, is disbarred for unethical conduct, and is considered ineligible to serve.  We cannot embarrass the process and allow him to somehow make a good showing.

 I hope you have found this information helpful. I believe strongly that every client who walks in our door seeking a chance for justice through the courts should have a fair shot. We depend on these public servants to make sure our rights are protected. The outcome of this election will have a huge impact on our civil justice system. I am confident that these candidates will fight to protect all of our rights.

 Feel free to share this with family and friends. Regardless of your views on these races, please vote by November 4th.  It is important to have your voice heard in our electoral process.

Please contact me if you have any further questions. If you need more information, you can view the voters’ guide produced by the Secretary of State online here.

Thank you for your consideration and for participating in our democratic process.


Sincerely yours,

Kim Putnam, Wayne Lieb, and  Kathryn Potvin

Wednesday, June 11, 2014


Your life was disrupted by an industrial injury.  Your disability was so significant you couldn't go back to your usual line of work.  L&I approved a plan for you to be retrained in a new career but something goes wrong and the plan fails.  Now what? 
As long as you did not do something knowingly or intentionally to cause the plan to fail, your financial benefits should not be suspended or discontinued.
RCW 51.32.099 allows L&I or a self insured employer to suspend your benefits if the retraining plan is interrupted as a result of the worker's actions.  "Interruption" means the plan is disrupted to the extend the employability goal is no longer attainable. 
Some situations are by definition outside the control of the worker.  These include: 
  • closure of the school,
  • death in the worker's immediate family, and
  • documented changes in the worker's accepted medical conditions that prevent participation in the plan. 
Some situations are automatically deemed the worker's fault.  This includes failing to comply with the L&I "accountability agreement.  Before a retraining plan begins, a worker is required to sign an "accountability agreement."   A current copy of the L&I agreement is found here. Generally speaking, the worker agrees to abide by the school's attendance and performance policies, notify the vocational counselor of any absences, promptly notify the vocational counselor of any academic or other difficulties with the program, work with instructors and the vocational counselor if you need academic help, and return the vocational rehabilitation counselor's phone calls within 48 hours. 
If the worker misses too many classes, performs poorly in classes, fails to communicate with instructors or the vocational counselor, or otherwise breaches the accountability agreement then the worker may be accused of noncooperative behavior.  The worker is given 30 days to provide a letter that explains their behavior.  Benefits could be suspended unless you can show good cause for the noncooperative behavior.   
By definition, noncooperation is behavior that obstructs or delays the administration of the claim.  The behavior is deliberate and calculated to obstruct.  Behavior that is not designed or intended to obstruct or delay is not noncooperation.  When the worker is not "noncooperative", suspension of benefits is not appropriate.  In re Ramona Nuno, BIIA Dec. 12,19101 (2014)
If a worker's behavior is noncooperative, the worker must then show "good cause" for the behavior.  Whether the worker's excuse constitutes good cause is often a question of fact for a Judge. 

907 Legion Way SE, Olympia, WA 98501
Phone:  (360) 754-7707; Toll Free:  (800) 225-4529

 Putnam Lieb Potvin is a law firm servicing Western Washington in the fields of workers' compensation, car accidents, dangerous products, and slip and falls.