Dave Kaplan

WSIA Executive Director

March 2009

Oh, where to begin?  There are so many things happening with your Association that it’s near impossible to list them all, but … I’m going to try and hit the high notes, so here goes ….

Legislative Issues

Between the weekly LegLink’s and WSIA President Bill Johnson’s March 2009 column there’s already a lot written about this legislative session.  The one bright note in all of it is that very few workers’ compensation bills were introduced or considered this year.  I guess the budget crisis and unemployment issues kept legislators busy on other issues for a change.  The March 12, 2009 cutoff will whittle the list of bad workers’ compensation bills down even further.  Keep your fingers crossed that the worst of them (SHB 1402 – Prohibiting Ex Parte Contact with Medical Providers) bite the dust.

Amicus Briefs

This has been an extraordinary year and a half for the filing of amicus (friend of the court) briefs.  Since the fall of 2007, WSIA has filed five amicus briefs – two of which have already been successful, and one which was not.  In the fall of 2007 we filed briefs in the Mestrovac and Kustura interpreter cases in the Court of Appeals – our amicus supporting dismissal of the cases was successful, but the cases have been appealed to the Washington Supreme Court.  Also in the fall of 2007 we filed a brief in the Harry v. Buse Timber hearing loss case – unfortunately the Supreme Court came out with a lousy decision on February 26, 2009 (to read this bad decision, and well-spoken dissent, click DECISION and DISSENT.)  In the summer of 2008 we filed an amicus brief in the Magee v. RiteAid case – a case dealing with what constituted the filing of an injury claim, and whether or not the statute of limitations is hard and fast.  With a favorable ruling at the Court of Appeals level, WSIA asked that the Supreme Court not take up this case.  On November 6, 2008 the Supreme Court said it would not grant review, and a positive decision for the employer community was upheld.  In the fall of 2008 we filed an amicus brief in conjunction with the Association of Washington Business in the case of Tobin v. DLI – a case where the Court of Appeals agreed that the portion of a third party recovery that is related to “pain and suffering” should only go to the injured worker, and not to the employer (given that this is an arbitrary, often undesignated amount, and that many employers file third party recovery suits on behalf of their workers, the concerns are great).  Oral arguments will be held on this case in late spring.  And also in the fall of 2008 WSIA filed an amicus brief in the case of Tomlinson v. Puget Sound Freight Lines.  This case had oral arguments back on January 22, 2009, and deals with whether or not arthritis is a permanent partially disabling condition for which there should be an offset against future benefits.  A decision could take 9 to 18 months.

Certification Testing/Continuing Education Work Group

Months ago we told you that a committee would be set up to propose changes to the rules governing the state’s Certified Claims Administrator testing and the Continuing Education Credits process.  The Cert Testing/CEC Work Group had its first meeting back in early December 2008, and has already drafted a set of proposed rule changes for consideration.  The draft rules went out to a Sounding Board on Cert/CEC issues, and will be discussed at the March 12, 2009 Board of Directors meeting.  Next steps will include a quick legal review, and then sitting down with the Department to discuss the potential changes.  If the Department is unwilling to consider these substantive changes, efforts at forcing them to consider rule changes may be addressed.  Watch briefings at WSIA’s conferences, and at the WSIA website as this effort progresses.

First Protest/Appeal of CEC’s for WSIA Courses

On February 11, 2009 we received a letter from the Department of Labor & Industries on behalf of their Continuing Education Committee.  This notification had an exceedingly low number of credits awarded for training programs that, just a year earlier or even months earlier, were awarded far more credit by the same Committee.  In response to this misguided evaluation, WSIA has filed a formal protest of the credits awarded to the Legal Issues Workshop, WWCP Medical Information course, and the Claims Certification Review course to DLI Director Judy Schurke (at her suggestion.)  Judy will be reviewing the courses soon, and then notifying us in writing of her decision.  If we are unable to achieve a satisfactory result from our protest to Judy Schurke, WSIA will appeal this issue to the Board of Industrial Insurance Appeals.

BIIA Employer Representative

As of March 9, 2009, the Governor has yet to appoint someone from the list of three names supplied to her back on December 3, 2008.  That’s over THREE MONTHS without appointing someone to the position that’s been vacant for the FIVE MONTHS since Cal Dickinson passed away on October 3, 2008.  If you do nothing else, please call the Governor’s office at 360-902-4111 and politely request that the Governor appoint the Employer Representative to the Board of Industrial Insurance Appeals, from the list she already has.

Medicare Secondary Payer Reporting

Due to the importance of this topic (any time the Feds are involved in an issue it’s important), WSIA has taken significant steps to bring the membership up to speed on the requirements and timeline for compliance with the reporting of Medicare eligible injured workers to the Centers for Medicare and Medicaid Services.  We have attorney Tom Thorsen coming to speak to the issue at the Annual Conference on Thursday, May 7th.  We have established a separate webpage at the WSIA website for Medicare Reporting information.  And we will be holding a webinar to help educate the membership on what steps need to be taken (you should already be working on this issue!), and when.  Please take advantage of these opportunities and resources, so that you won’t be penalized for non-compliance.  As a reminder … the penalty for non-reporting or late reporting can be up to $1000 per claim per day.  Don’t be penalized!  Learn as much as you can, and take the steps to comply.

Pay During Appeal Webinar

Lastly, I wanted to let you know how overwhelming the response was to the free webinar WSIA put on to bring everyone up to speed on the Pay During Appeal (and apparently protest) issue.  Somewhere between 175 and 200 people took part in this informative webinar.  Thank you for showing an interesting in an issue that is proving to be an administrative and expensive nightmare (as we predicted).  We will continue to bring you updates.  If you have suggestions for other webinar topics, please don’t hesitate to contact myself or WSIA Training Coordinator Bonnie Prater.

Well, that’s enough for now.  Until next time …

Dave Kaplan

WSIA Executive Director

Posted 9 March 2009

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