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. 

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