Updates to Washington’s Workers Compensation Laws August 2019

As school is back in session and the leaves begin to change there are also some important changes to Washington’s workers compensation laws that employers should be aware of. Here is a summary of three recent changes that may affect the way your company approaches a workers’ compensation matter. As always, this general information is not presented as legal advice for a specific current or prospective client. For more information about Washington’s workers compensation laws, please contact your attorney at Wallace, Klor, Mann, Capener & Bishop, P.C.

1. • HB 1909 contemplates $1,000 civil penalties for revealing information regarding a worker’s mental health conditions: The bill’s original sponsors were Representatives Graham, Lovick, Griffey, Davis, MacEwen, and Corry. This recent change concerns the confidentiality of industrial insurance claim records under RCW 51.28.070 (Claim files and records confidential) and expands the code to include additional language that gives the code some teeth if an employer’s authorized representative does not ensure proper care and confidentiality of information as to a worker’s mental health condition/s. The previous version of the code had of course already declared “[i]nformation contained in the claim files and records of injured workers, under the provisions of this title, shall be deemed confidential..” but now, under RCW 51.28.070(3)(b), “[i]f the employer or the employer’s duly authorized representative reveals information in a claim file regarding a mental health condition or treatment to any person other than a duly authorized representative, the employer is subject to a civil penalty of one thousand dollars for each occurrence.” (emphasis added). Therefore, it is critical that employers and their respective third party claim representatives continue to take the upmost care to not disclose any information regarding a worker’s mental health condition/s. The new code section also sets out requirements that the Department investigate complaints and issue a notice of assessment if it determines an authorized representative violated the new section. Here is a pdf version of the session law that shows recent changes underlined: (http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/House/1909-S.SL.pdf )

1. • HB 1913 amended RCW 51.32.185, and concerns the presumption of occupational disease for purposes of workers’ compensation and adds medical conditions to the presumption. Furthermore, the bill and subsequent law extended the presumption to certain publicly employed firefighters, investigators, and law enforcement, addressed qualifying medical examinations, and created an advisory committee. The bill’s numerous sponsors included Representatives Doglio, Sells, Bergquist, Griffey, Peterson, Reeves, Lovick, Stonier, Orwall, Irwin, Appleton, Dolan, Leavitt, Ortiz-Self, Shewmake, Stanford, Valdez, Goodman, Pollet, Macri, Santos, Lekanoff, Ormsby, Tharinger, Young, and Davis. The bill expanded the presumption to include public employee fire investigators in addition to fire fighters. Also, the bill modified the code to expand the presumption to add additional cancers for firefighter plus infectious diseases and respiratory conditions for law enforcement personnel. Here is a pdf version of the session law that shows recent changes underlined: http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/House/1913.SL.pdf

• • As many of you are aware, the new Department rules went into effect on July 1, 2019. One of the potentially helpful new rules promulgated under SB 5474 provides a self-insured employer the option to serve a Department-issued closing order. The original bill was sponsored by Senator Keiser. The new change specifically adds language to RCW 51.52.050(1) that states:

“In the event the department has made an order communicating the closure of a claim of a self-insured employer, the self-insured employer may serve the department order provided the self-insured employer does so using a separate, secure, and verifiable nonelectronic means of delivery and includes the department prescribed notice explaining the contents of the order and any protest or appeal rights.”

Furthermore, the code was modified to allow the timer for appeal of the claim to be started by stating “[t]he service by the self-insured employer is a communication for the purposes of filing an appeal 21 under RCW 51.52.060.” The Department has previously promulgated its prescribed notice as:

“Enclosed, please find a copy of the department order previously mailed to you that closed this claim. If you disagree with this decision you must protest or appeal within 60 days or when you first received the order.”

Here is a pdf version of the session law that shows recent changes underlined: http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/Senate/5474-S.sl.pdf