RCW 51.32.240
Erroneous payments
—
Payments induced by willful misrepresentation
—
Adjustment for self-insurer's failure to pay benefits
—
Recoupment of overpayments by self-insurer
—
Penalty
—
Appeal
—
Enforcement of orders.
(1)(a) Whenever any payment of benefits under this title is made because of clerical error, mistake of identity, innocent misrepresentation by or on behalf of the recipient thereof mistakenly acted upon, or any other circumstance of a similar nature, all not induced by willful misrepresentation, the recipient thereof shall repay it and recoupment may be made from any future payments due to the recipient on any claim with the state fund or self-insurer, as the case may be. The department or self-insurer, as the case may be, must make claim for such repayment or recoupment within one year of the making of any such payment or it will be deemed any claim therefor has been waived.
(b) Except as provided in subsections (3), (4), and (5) of this section, the department may only assess an overpayment of benefits because of adjudicator error when the order upon which the overpayment is based is not yet final as provided in RCW 51.52.050
and
51.52.060
. "Adjudicator error" includes the failure to consider information in the claim file, failure to secure adequate information, or an error in judgment.
(c) The director, pursuant to rules adopted in accordance with the procedures provided in the administrative procedure act, chapter
34.05
RCW, may exercise his or her discretion to waive, in whole or in part, the amount of any such timely claim where the recovery would be against equity and good conscience.
(2) Whenever the department or self-insurer fails to pay benefits because of clerical error, mistake of identity, or innocent misrepresentation, all not induced by recipient willful misrepresentation, the recipient may request an adjustment of benefits to be paid from the state fund or by the self-insurer, as the case may be, subject to the following:
(a) The recipient must request an adjustment in benefits within one year from the date of the incorrect payment or it will be deemed any claim therefore has been waived.
(b) The recipient may not seek an adjustment of benefits because of adjudicator error. Adjustments due to adjudicator error are addressed by the filing of a written request for reconsideration with the department of labor and industries or an appeal with the board of industrial insurance appeals within sixty days from the date the order is communicated as provided in RCW 51.52.050
. "Adjudicator error" includes the failure to consider information in the claim file, failure to secure adequate information, or an error in judgment.
(3) Whenever the department issues an order rejecting a claim for benefits paid pursuant to RCW 51.32.190
or
51.32.210, after payment for temporary disability benefits has been paid by a self-insurer pursuant to RCW 51.32.190
(3) or by the department pursuant to RCW 51.32.210, the recipient thereof shall repay such benefits and recoupment may be made from any future payments due to the recipient on any claim with the state fund or self-insurer, as the case may be. The director, under rules adopted in accordance with the procedures provided in the administrative procedure act, chapter
34.05
RCW, may exercise discretion to waive, in whole or in part, the amount of any such payments where the recovery would be against equity and good conscience.
(4) Whenever any payment of benefits under this title has been made pursuant to an adjudication by the department or by order of the board or any court and timely appeal therefrom has been made where the final decision is that any such payment was made pursuant to an erroneous adjudication, the recipient thereof shall repay it and recoupment may be made from any future payments due to the recipient on any claim whether state fund or self-insured.
(a) The director, pursuant to rules adopted in accordance with the procedures provided in the administrative procedure act, chapter
34.05
RCW, may exercise discretion to waive, in whole or in part, the amount of any such payments where the recovery would be against equity and good conscience. However, if the director waives in whole or in part any such payments due a self-insurer, the self-insurer shall be reimbursed the amount waived from the self-insured employer overpayment reimbursement fund.
(b) The department shall collect information regarding self-insured claim overpayments resulting from final decisions of the board and the courts, and recoup such overpayments on behalf of the self-insurer from any open, new, or reopened state fund or self-insured claims. The department shall forward the amounts collected to the self-insurer to whom the payment is owed. The department may provide information as needed to any self-insurers from whom payments may be collected on behalf of the department or another self-insurer. Notwithstanding RCW 51.32.040, any self-insurer requested by the department to forward payments to the department pursuant to this subsection shall pay the department directly. The department shall credit the amounts recovered to the appropriate fund, or forward amounts collected to the appropriate self-insurer, as the case may be.
(c) If a self-insurer is not fully reimbursed within twenty-four months of the first attempt at recovery through the collection process pursuant to this subsection and by means of processes pursuant to subsection (6) of this section, the self-insurer shall be reimbursed for the remainder of the amount due from the self-insured employer overpayment reimbursement fund.
(d) For purposes of this subsection, "recipient" does not include health service providers whose treatment or services were authorized by the department or self-insurer.
(e) The department or self-insurer shall first attempt recovery of overpayments for health services from any entity that provided health insurance to the worker to the extent that the health insurance entity would have provided health insurance benefits but for workers' compensation coverage.
(5)(a) Whenever any payment of benefits under this title has been induced by willful misrepresentation the recipient thereof shall repay any such payment together with a penalty of fifty percent of the total of any such payments and the amount of such total sum may be recouped from any future payments due to the recipient on any claim with the state fund or self-insurer against whom the willful misrepresentation was committed, as the case may be, and the amount of such penalty shall be placed in the supplemental pension fund. Such repayment or recoupment must be demanded or ordered within three years of the discovery of the willful misrepresentation.
(b) For purposes of this subsection (5), it is willful misrepresentation for a person to obtain payments or other benefits under this title in an amount greater than that to which the person otherwise would be entitled. Willful misrepresentation includes:
(i) Willful false statement; or
(ii) Willful misrepresentation, omission, or concealment of any material fact.
(c) For purposes of this subsection (5), "willful" means a conscious or deliberate false statement, misrepresentation, omission, or concealment of a material fact with the specific intent of obtaining, continuing, or increasing benefits under this title.
(d) For purposes of this subsection (5), failure to disclose a work-type activity must be willful in order for a misrepresentation to have occurred.
(e) For purposes of this subsection (5), a material fact is one which would result in additional, increased, or continued benefits, including but not limited to facts about physical restrictions, or work-type activities which either result in wages or income or would be reasonably expected to do so. Wages or income include the receipt of any goods or services. For a work-type activity to be reasonably expected to result in wages or income, a pattern of repeated activity must exist. For those activities that would reasonably be expected to result in wages or produce income, but for which actual wage or income information cannot be reasonably determined, the department shall impute wages pursuant to RCW 51.08.178
(4).
(6) The worker, beneficiary, or other person affected thereby shall have the right to contest an order assessing an overpayment pursuant to this section in the same manner and to the same extent as provided under RCW 51.52.050
and
51.52.060
. In the event such an order becomes final under chapter
51.52
RCW and notwithstanding the provisions of subsections (1) through (5) of this section, the director, director's designee, or self-insurer may file with the clerk in any county within the state a warrant in the amount of the sum representing the unpaid overpayment and/or penalty plus interest accruing from the date the order became final. The clerk of the county in which the warrant is filed shall immediately designate a superior court cause number for such warrant and the clerk shall cause to be entered in the judgment docket under the superior court cause number assigned to the warrant, the name of the worker, beneficiary, or other person mentioned in the warrant, the amount of the unpaid overpayment and/or penalty plus interest accrued, and the date the warrant was filed. The amount of the warrant as docketed shall become a lien upon the title to and interest in all real and personal property of the worker, beneficiary, or other person against whom the warrant is issued, the same as a judgment in a civil case docketed in the office of such clerk. The sheriff shall then proceed in the same manner and with like effect as prescribed by law with respect to execution or other process issued against rights or property upon judgment in the superior court. Such warrant so docketed shall be sufficient to support the issuance of writs of garnishment in favor of the department or self-insurer in the manner provided by law in the case of judgment, wholly or partially unsatisfied. The clerk of the court shall be entitled to a filing fee under RCW 36.18.012
(10), which shall be added to the amount of the warrant. A copy of such warrant shall be mailed to the worker, beneficiary, or other person within three days of filing with the clerk.
The director, director's designee, or self-insurer may issue to any person, firm, corporation, municipal corporation, political subdivision of the state, public corporation, or agency of the state, a notice to withhold and deliver property of any kind if there is reason to believe that there is in the possession of such person, firm, corporation, municipal corporation, political subdivision of the state, public corporation, or agency of the state, property that is due, owing, or belonging to any worker, beneficiary, or other person upon whom a warrant has been served for payments due the department or self-insurer. The notice and order to withhold and deliver shall be served by a method for which receipt can be confirmed or tracked accompanied by an affidavit of service by mailing or served by the sheriff of the county, or by the sheriff's deputy, or by any authorized representative of the director, director's designee, or self-insurer. Any person, firm, corporation, municipal corporation, political subdivision of the state, public corporation, or agency of the state upon whom service has been made shall answer the notice within twenty days exclusive of the day of service, under oath and in writing, and shall make true answers to the matters inquired or in the notice and order to withhold and deliver. In the event there is in the possession of the party named and served with such notice and order, any property that may be subject to the claim of the department or self-insurer, such property shall be delivered forthwith to the director, the director's authorized representative, or self-insurer upon demand. If the party served and named in the notice and order fails to answer the notice and order within the time prescribed in this section, the court may, after the time to answer such order has expired, render judgment by default against the party named in the notice for the full amount, plus costs, claimed by the director, director's designee, or self-insurer in the notice. In the event that a notice to withhold and deliver is served upon an employer and the property found to be subject thereto is wages, the employer may assert in the answer all exemptions provided for by chapter
6.27
RCW to which the wage earner may be entitled.
This subsection shall only apply to orders assessing an overpayment which are issued on or after July 28, 1991: PROVIDED, That this subsection shall apply retroactively to all orders assessing an overpayment resulting from fraud, civil or criminal.
(7) Orders assessing an overpayment which are issued on or after July 28, 1991, shall include a conspicuous notice of the collection methods available to the department or self-insurer.
[
2011 c 290 s 6
;
2008 c 280 s 2
;
2004 c 243 s 7
;
2001 c 146 s 10
. Prior:
1999 c 396 s 1
;
1999 c 119 s 1
;
1991 c 88 s 1
;
1986 c 54 s 1
;
1975 1st ex.s. c 224 s 13
.]
NOTES:
Effective date
—
2008 c 280:
"Section 2 of this act takes effect January 1, 2009." [
2008 c 280 s 6
.]
Application
—
2008 c 280:
See note following RCW 51.52.050
.
Application
—
2004 c 243 s 7:
"Section 7 of this act applies to willful misrepresentation determinations issued on or after July 1, 2004." [
2004 c 243 s 9
.]
Adoption of rules
—
2004 c 243:
See note following RCW 51.08.177
.
Effective date
—
1975 1st ex.s. c 224:
See note following RCW 51.04.110
.
RCW 51.32.242
Self-insured employer overpayment reimbursement fund
—
Withholding from worker earnings
—
Use of funds
—
Exception.
(1) Except as provided in subsection (2) of this section, each self-insured employer shall retain from the earnings of each of its workers that amount as shall be fixed from time to time by the director, the basis for measuring said amount to be determined by the director. These moneys shall only be retained from employees and remitted to the department in such manner and at such intervals as the department directs and shall be placed in the self-insured employer overpayment reimbursement fund. The moneys so collected shall be used exclusively for reimbursement to the self-insurance reserve fund and to self-insured employers for benefits overpaid during the pendency of board or court appeals in which the self-insured employer prevails and has not recovered, and shall be no more than necessary to make such payments on a current basis.
(2) None of the amount assessed for the employer overpayment reimbursement fund under this section may be retained from the earnings of workers covered under RCW 51.16.210
.
[
2023 c 110 s 5
;
2008 c 280 s 3
.]
NOTES:
Effective date
—
2023 c 110 ss 1 and 4-13:
See note following RCW 51.44.155
.
Application
—
2008 c 280:
See note following RCW 51.52.050
.
RCW 51.32.250
Payment of job modification costs.
Modification of the injured worker's previous job or modification of a new job is recognized as a desirable method of returning the injured worker to gainful employment. In order to assist employers in meeting the costs of job modification, and to encourage employers to modify jobs to accommodate retaining or hiring workers with disabilities resulting from work-related injury, the supervisor or the supervisor's designee, in his or her discretion, may pay job modification costs in an amount not to exceed $10,000 per worker per job modification. This payment is intended to be a cooperative participation with the employer and funds shall be taken from the appropriate account within the second injury fund.
The benefits provided for in this section are available to any otherwise eligible worker regardless of the date of industrial injury.
[
2024 c 90 s 4
;
1988 c 161 s 10
;
1983 c 70 s 3
;
1982 c 63 s 13
.]
NOTES:
Effective date
—
2024 c 90:
See note following RCW 51.32.090
.
Severability
—
1983 c 70:
See note following RCW 51.32.095
.
Effective dates
—
Implementation
—
1982 c 63:
See note following RCW 51.32.095
.
RCW 51.32.260
Compensation for loss or damage to personal effects.
Workers otherwise entitled to compensation under this title may also claim compensation for loss of or damage to the worker's personal clothing, footwear or protective equipment resulting from the industrial accident or incurred in the course of emergency medical treatment for injuries.
[
1983 c 111 s 1
.]
RCW 51.32.300
State employee vocational rehabilitation coordinator.
The director shall appoint a state employee vocational rehabilitation coordinator who shall provide technical assistance and coordination of claims management to state agencies and institutions of higher education under the state return-to-work programs created by RCW 41.06.490
and *
28B.16.300
.
[
1990 c 204 s 5
.]
NOTES:
*Reviser's note:
RCW 28B.16.300
was repealed by 1993 c 281 s 68, effective July 1, 1993.
Findings
—
Purpose
—
1990 c 204:
See note following RCW 51.44.170
.
RCW 51.32.350
Chemically related illness
—
Criteria and procedures for claims
—
Claims management.
(1) By July 1, 1994, the department shall establish interim criteria and procedures for management of claims involving chemically related illness to ensure consistency and fairness in the adjudication of these claims. The criteria and procedures shall apply to employees covered by the state fund and employees of self-insured employers. The department shall adopt final criteria and procedures by December 31, 1994, and report the criteria and procedures as required under section 5, chapter 265, Laws of 1994.
(2) The special procedures developed by the department shall include procedures to determine which claims involving chemically related illness require expert management. The department shall assign claims managers with special training or expertise to manage these claims.
[
1994 c 265 s 1
.]
RCW 51.32.360
Chemically related illness
—
Centers for research and clinical assessment.
The department shall work with the department of health to establish one or more centers for research and clinical assessment of chemically related illness.
[
1994 c 265 s 3
.]
RCW 51.32.370
Chemically related illness
—
Research projects
—
Implementation plan
—
Funding
—
Deductions from employees' pay.
(1) The department shall conduct research on chemically related illnesses, which shall include contracting with recognized medical research institutions. The department shall develop an implementation plan for research based on sound scientific research criteria, such as double blind studies, and shall include adequate provisions for peer review, and submit the plan to the worker's [workers'] compensation advisory committee for review and approval. Following approval of the plan, all specific proposals for projects under the plan shall be submitted for review to a scientific advisory committee, established to provide scientific oversight of research projects, and to the workers' compensation advisory committee. The department shall include a research project that encourages regional cooperation in addressing chemically related illness.
(2) Expenditures for research projects shall be within legislative appropriations from the medical aid fund, with self-insured employers and the state fund each paying a pro rata share, based on the number of worker hours, of the authorized expenditures. For the purposes of this subsection only, self-insured employers may deduct from the pay of each of their employees one-half of the share charged to the employer for the expenditures from the medical aid fund.
[
1994 c 265 s 4
.]
RCW 51.32.380
Injured offenders
—
Benefits sent in the care of the department of corrections
—
Exception
—
Liability.
If the department of labor and industries has received notice that an injured worker entitled to benefits payable under this chapter is in the custody of the department of corrections pursuant to a conviction and sentence, the department shall send all such benefits to the worker in care of the department of corrections, except those benefits payable to a beneficiary as provided in RCW 51.32.040
(3)(c) and (4). Failure of the department to send such benefits to the department of corrections shall not result in liability to any party for either department.
[
2003 c 379 s 26
.]
NOTES:
Severability
—
Effective dates
—
2003 c 379:
See notes following RCW 9.94A.728
.
Intent
—
Purpose
—
2003 c 379 ss 13-27:
See note following RCW 9.94A.760
.
RCW 51.32.390
Health care employees
—
Presumption of occupational disease for infectious or contagious diseases which are the subject of a public health emergency
—
Rebuttal
—
Limitations
—
Costs.
(1) For health care employees who are covered under this title, there exists a prima facie presumption that any infectious or contagious diseases which are the subject of a public health emergency are occupational diseases under RCW 51.08.140
during a public health emergency.
(2) The health care employee must provide verification, as required by the department by rule, to the department or the self-insurer that the employee is in quarantine or has contracted the disease after exposure to the infectious or contagious disease that is the subject of the public health emergency.
(3) This presumption of occupational disease may be rebutted by clear and convincing evidence that:
(a) The exposure to the infectious or contagious disease which is the subject of the public health emergency occurred from other employment or nonemployment activities; or
(b) The employee was working from the employee's home or other location not under the employer's control, on leave from the employee's employment, or some combination thereof, for the period of quarantine outlined for the disease immediately prior to the employee's date of disease contraction or period of incapacity resulting from exposure to the disease which is the subject of the public health emergency.
(4)(a) RCW 51.32.090
(7) does not apply to an occupational disease under this section except that no worker shall receive compensation for or during the day on which the occupational disease was contracted. For the purposes of this subsection (4), the day on which the occupational disease was contracted is whichever date occurs first of the following:
(i) The date that the worker first missed work due to symptoms of the infectious or contagious disease;
(ii) The date the worker was quarantined by a medical provider or public health official; or
(iii) The date the worker received a positive test result confirming contraction of the infectious or contagious disease.
(b) If leave or similar benefits are paid to the worker as part of a federal or state program for these employees during the public health emergency, total temporary disability benefits are not payable for the same period of time covered by this federal or state program.
(5) Costs of claims allowed under this section shall not affect the experience rating of employers insured by the state fund. When calculating assessments due to the department for which total claim costs are the basis, self-insured employers and self-insurance hospital groups formed under RCW 51.14.150
and
51.14.160
may deduct the cost of payments made under this section from the total of all claim costs reported.
(6) For purposes of this section:
(a) "Health care employee" means an employee of any health care facility or other organization that provides emergency or medical services who has or likely has had direct contact with any person who has been exposed to or tested positive for any infectious or contagious diseases which are the subject of a public health emergency.
(b) "Health care facility" has the same meaning as in RCW 9A.50.010
.
(c) "Public health emergency" means a declaration or order that covers the jurisdiction where the employee was working on the date of exposure concerning any dangerous, contagious, or infectious diseases, including a pandemic, and is issued as follows:
(i) The president of the United States has declared a national or regional emergency; or
(ii) The governor of Washington declared a state of emergency under RCW 43.06.010
(12).
(7) The presumption in subsection (1) of this section takes effect on the day the national, regional, or state emergency is declared and continues until this declaration is revoked.
(8) The provisions of RCW 51.28.055
concerning time limits for filing claims for occupational disease apply to claims covered under this section.
[
2021 c 251 s 6
.]
NOTES:
Effective date
—
2021 c 251:
See note following RCW 50.04.294
.
RCW 51.32.395
Direct care registered nurses
—
Presumption of occupational disease for posttraumatic stress disorder.
(1) In the case of direct care registered nurses covered under this title who are employed on a fully compensated basis, there exists a prima facie presumption that posttraumatic stress disorder is an occupational disease under RCW 51.08.140
. This section applies only to a direct care registered nurse who has posttraumatic stress disorder that develops or manifests itself after the individual has been employed on a fully compensated basis as a direct care registered nurse in Washington state for at least 90 consecutive days.
(2) The presumption may be rebutted by a preponderance of the evidence.
(3) The presumption extends to a claimant following termination of employment for a period of three calendar months for each year the claimant was a direct care registered nurse employed on a fully compensated basis, but may not extend more than 60 months following the last date of employment.
(4)(a) When a determination involving the presumption established under this section is appealed to the board of industrial insurance appeals and the final decision allows the claim for benefits, the board of industrial insurance appeals shall order that all reasonable costs of the appeal, including attorneys' fees and witness fees, be paid to the claimant or his or her beneficiary by the opposing party.
(b) When determination involving the presumption established under this section is appealed to any court and the final decision allows the claim for benefits, the court shall order that all reasonable costs of the appeal, including attorneys' fees and witness fees, be paid to the claimant or his or her beneficiary by the opposing party.
(c) When reasonable costs of the appeal must be paid by the department under this section in a state fund case, the costs shall be paid from the accident fund and charged to the costs of the claim.
(5) For purposes of this section, "direct care registered nurse" means an individual licensed as a nurse under chapter
18.79
RCW who provides direct care to patients.
[
2023 c 370 s 2
.]
NOTES:
Effective date
—
2023 c 370:
"This act takes effect January 1, 2024." [
2023 c 370 s 3
.]