Workers’ Comp Advisory Committee hears updates on IME recordings, first responder PTSD, and ergonomic rules

The Workers’ Comp Advisory Committee met on December 11, and among the various items discussed, the Department of Labor & Industries (L&I) updated the committee on issues facing cities in the workers compensation realm.

IME Recordings

Last year, the legislature passed HB 1068, which allowed injured workers subject to an independent medical exam (IME) the right to record the examination. Employers and other stakeholders, including AWC, opposed the bill with concerns that it would increase liability for doctors and discourage them from wanting to preform IMEs.

L&I presented data showing that since the law went into effect in July, there was a spike in cancelled IMEs that had a request to record (nearly double the typical cancellation rate). Employer representatives on the committee commented that they believed the spike in cancellations was due to the new law and doctors unwilling to perform IMEs while being recorded, while L&I cited a bump in overall IME requests. Based on the limited data in the last few months, it does appear that IMEs with a request to record have a far higher cancellation rate than those without (50% cancellations vs. 4-8% cancellations). L&I will continue to review the data to better determine what has caused the changes.

One recommendation heard was to amend the law to allow “co-recording” of IME exams – allowing doctors to record the exam themselves while the worker makes their own recording – to help protect IME doctors from liability.

PTSD claims

Since PTSD was added to the list of presumptive occupational diseases for first responders in 2018, there has been a large spike in claims, so much so that they are largely responsible for the double-digit workers’ comp rate increases coming in 2024.

L&I also dove into the background and data surrounding PTSD claims. Both state fund and self-insured employers have seen a rise in presumptive PTSD claims since 2018, peaking in 2021 and 2022. Most claims are being filed by first responders aged 40-49, followed closely by workers aged 50-59. Geographically, the counties with highest number of presumptive claims are Snohomish, Pierce, Thurston, and King counties.

PTSD claims remain a large cost to the state fund (43% of claim costs for 2022 in jobs with the presumption), which drives high workers comp rates for first responders subject to the PTSD presumption. The average cost of a PTSD claim is over $500,000, and many claims will likely become long term pension claims. L&I has hired new PTSD specialty staff and will request resources for a more in-depth study. The advisory committee will also form a PTSD subcommittee, but it likely won’t meet until after the 2024 legislative session.

Ergonomic rules

Finally, L&I presented on risk classes that are eligible for ergonomic rulemaking under last year’s SB 5217.

The presentation highlighted L&I’s new annual report on which risk classes are eligible, likely to become eligible, and low priority for ergonomic rulemaking, and how eligibility is determined. Importantly to cities these risk classes are eligible and considered high priority for ergonomic rulemaking:

• Masonry construction
• Roof work – construction and repair
• County and city firefighters

The list will continue to be updated each year, and new risk classes will be added as the claims data supports their eligibility. Under the statute, L&I can only adopt one ergonomic rule per year and plans to choose the first risk class to regulate in spring 2024.