Why Disagree with an L&I Order or Vocational Determination
- L&I claim managers make important decisions about your L&I claim. These decisions are communicated to injured workers as either an Order and Notice or a Vocational Determination.
- They often get it wrong. When L&I makes a wrong decision you can disagree with those decisions and ask and require them to make another decision.
- If you ignore an L&I decision or wait too long, it will become final and binding and you will be stuck with it. There are time deadlines you must comply with to successfully disagree with L&I
- Look to see what you disagree with. Is it an ORDER or a VOCATIONAL DECISION?
- ORDER – see How to Disagree with an L&I Order below
- VOCATIONAL DETERMINATION – see How to Disagree with a Vocational Determination below
How to Disagree with an L&I ORDER
- You know you have an order because it says:
- Order and Notice at the top
- This order gives you a 60 day deadline to disagree
- What to do?
- Read the order
- Note your time deadline (60 days from the receipt )
- Understand what the order says and what it means for you and your claim
- Decide what you are going to do about this order. Accept it or disagree.
- If you are going to disagree, take legal action as appropriate, protest or appeal and don’t miss your time deadline.
- Protest vs Appeal
- You can protest or appeal unfavorable Orders and Decisions.
- A protest is less formal and is sent to your claim manager at L&I.
- An appeal is formal and is sent to the Board of Industrial Insurance Appeals (BIIA).
- A protest, (request for reconsideration) is a written disagreement with an L&I order or letter. It must be in writing.
- There is a time deadline to protest.
- Protests must be sent to L&I in writing within 60 days of when the order was communicated to you. The protest will require L&I to reconsider their decision. The information you put in your written protest must in effect specify that you disagree with the order and are requesting action inconsistent with the decision.
- Miss your 60 day deadline and the order becomes final and binding and you will be stuck with it. This is called Res Judicata.
- If you protest in time, then you get to present more evidence and you should get another decision.
- Here is what is important: Making the protest on time and in writing is most important. After a protest is made you have some time to gather or get information to support the reasoning you put in the protest. Said another way: Protest first and get your information to L&I ASAP.
- Sample Protest Letter:
- I am ______
- My claim number is ________
- I disagree with and protest your order dated _____
- The reason for my disagreement is _____________
- An Appeal is a written disagreement with an L&I order.
- The appeal must be in writing and sent to the Board of Industrial Insurance Appeals within 60 days of when the order was communicated to you.
- This written appeal should comply with the requirements of RCW 51.52.070.
- After you appeal, L&I will be given an opportunity to review your appeal and reconsider their order. If L&I passes on that opportunity then the Board of Industrial Insurance accepts a proper appeal and the litigation process starts.
- Miss your 60 day deadline and you have a problem because the order becomes final, aka Res Judicata. If you appeal in time then you will start into the Board of Industrial Insurance Appeals process.
- Send a written appeal to: BIIA, P.O. Box 42401, Olympia, WA 98504-2401
- You can instead file your appeal online.
- Here is what is important Making the appeal on time is most important. After an appeal is made you have some additional time to gather or get information to support the reasoning you put in the appeal. Said another way: Appeal first and get your information to the Board when you can.
How to Dispute an L&I Vocational Determination
Vocational disputes must:
- Be in writing
- Sent to the director at: Department of Labor and Industries, Vocational Dispute Resolution Office P.O. Box 44880, Olympia, WA 98504-4880
- Sent within 15 calendar days of receipt of a notification letter. The 15 day deadline may be extended by VDRO if good cause is shown. It’s best to dispute on time. If you miss this deadline, consider reconsideration or appeal which have 60 day deadline.
Who is VDRO?
VDRO is the Vocational Dispute Resolution Office. They evaluate disputes and make recommendations to the L&I Director/Supervisor. The Director/Supervisor makes the L&I final decision.
Why would I want to dispute, protest, or appeal? Protect your retraining rights.
Many L&I actions are just plain wrong and they are an abuse of discretion. These decisions can be successfully challenged. To protect your rigts and to prevail, you must show the trier of fact that L&I has abused its discretion. Here are some examples of an abuse of discretion.
- L&I did not follow their own rules
- L&I or their vocational counselors considered the wrong medical in the job analysis or the labor market survey
- L&I did not consider a worsening of a related medical condition after the vocational determination
Time loss during the vocational dispute period
Payment of time loss during vocational disputes is discretionary. That means L&I does not have to pay. They should pay if your facts fit within the following guidelines:
• When the VDRO cannot advise the Director of any decision without requiring the vocational counselor to obtain more information and submit a new report, time loss will be reinstated
• When the VDRO cannot uphold a finding of employability, retroactive time loss will be paid from the date time loss was ended.
L&I will not pay time loss:
- If the vocational determination finds the injured worker employable.
- While a dispute is being reviewed by the VDRO.
VDRO evaluates L&I disputes. Their first decision is to either accept or reject the vocational dispute. WAC 296-19A-470. Accepted review of a dispute is not a win, rather it is only a notice that L&I will review your paperwork. Once a dispute is accepted for review, VDRO makes recommendations for dispute resolution to the Director, who either upholds or overturns the vocational decision. A rejected dispute has been lost. An upheld vocational determination has been lost. An overturned vocational determination has been won. The Director makes his decision using the “discretionary standard”. Unfavorable dispute outcomes can be further challenged with a protest or appeal.
Protest or Appeal
An injured worker can also protest or appeal an unfavorable vocational determination. This can be done either instead of disputing or after a failed dispute. A protest is made in writing to L&I. An appeal is made in writing to the Board of Industrial Insurance Appeals (BIIA). There are time deadlines. Don’t miss them.
Can I Do It Myself?
It is possible to DIY and disagree with a vocational decision. Whether or not you should DIY depends on your situation.
These legal matters are complex. They can be easy or they can be hard. The facts matter. The opinions of the experts matter. The law is consistent, however it is the application of your facts and expert opinion to the law, and how it is presented that determines if you will be successful.
The reason vocational challenges may seem complex is because they are complex. When you are deciding what to do about an unfavorable decision consider giving us a call. We are L&I lawyers. We are happy to answer our questions and give you a free strategy session. You can still DIY after you talk with me.
Disclaimer The information here and throughout this website is made available to you as a public service to help with access to justice. I present it here because I believe you have a right to know important legal information. This legal information is not a substitute for legal advice. Legal advice is what lawyers do when they apply your facts to the law. I recommend you consult with a lawyer about your case and get legal advice. Do not miss your time deadlines.
The Law is Complex.
- The reason vocational challenges may seem complex is because they are complex.
- Disagreeing with any L&I order or vocational decision is a legal process
- You should consult with an L&I lawyer if you have questions.
Time Deadlines If You are Going to Disagree With an L&I Decision
- Do it in time – Don’t miss a deadline.
- Protest an order – 60 days after communication of the order to you
- Appeal an order – 60 days after communication of the order to you
- Protest or Appeal of a Letter – anytime if no time frame is indicated in the letter
- Dispute of a Vocational Decision to VRDO – 15 calendar days after receipt of notification letter.
- can be extended for good cause
- can protest or appeal within 60 days if you miss your dispute deadline
Who is the BOIIA?
They are the Board of Industrial Insurance Appeals. They hear evidence and decide L&I cases. They can decide if you protested or appealed in a timely fashion.
What is Res Judicata?
Res Judicata is a principle of finality. Said another way, once a matter is finally decided then it cannot be decided again.
This principle applies to L&I orders. When an L&I order is first issued, it is not final because you have 60 days to protest or appeal. If you or someone does not either protest or appeal, then 60 days after that order is communicated to you it becomes a final order. That final order is then res judicata and so it cannot be changed. Don’t miss your deadline to protest or appeal unfavorable orders and determinations.
L&I orders should, and almost always do, contain this language:
“THIS ORDER BECOMES FINAL 60 DAYS FROM THE DATE IT IS COMMUNICATED TO YOU UNLESS YOU DO ONE OF THE FOLLOWING: FILE A WRITTEN REQUEST FOR RECONSIDERATION WITH THE DEPARTMENT OR FILE A WRITTEN APPEAL WITH THE BOARD OF INDUSTRIAL INSURANCE APPEALS. IF YOU FILE FOR RECONSIDERATION, YOU SHOULD INCLUDE REASONS YOU BELIEVE THIS DECISION IS WRONG AND SEND IT TO: DEPARTMENT OF LABOR AND INDUSTRIES, PO BOX 44291, OLYMPIA, WA 98504-4291. WE WILL REVIEW YOUR REQUEST AND ISSUE A NEW ORDER. IF YOU FILE AN APPEAL, SEND IT TO: BOARD OF INDUSTRIAL INSURANCE APPEALS, PO BOX 42401, OLYMPIA WA 98504-2401 OR SUBMIT IT ON AN ELECTRONIC FORM FOUND AT HTTP://WWW.BIIA.WA.GOV/.”
This language means what it says. It creates a deadline. If you miss your 60 day deadline to protest or appeal in writing then the order becomes final and binding and is res judicata.
Exceptions to Res Judicata
There are a few exceptions to this principle of finality:
a) the order does not contain the necessary language
b) the order was not communicated to you
c) the order is the result of a clerical error
d) the order is the result of mistake of identity
e) the order is the result of innocent misrepresentation
If you have an exception to res judicata, contact a lawyer.
- The information here and throughout this website is made available to you as a public service. I present it here because I believe in access to justice and that you have a right to know important legal information.
- This legal information is not a substitute for legal advice.
- Legal advice is what lawyers do when they apply your facts to the law.
- I recommend you consult with a lawyer about your case. Do not miss your time deadlines.
How to Access L&I Law
How to Get a Copy of Your L&I Claim File
- To get a copy of your claim file, you can register to view your claim on My L&I
How to Get L&I Benefit Information
DIY – Can You Do It Yourself ?
- That depends. Each persons case is different.
- Cases can be simple or complex; easy or hard.
- The law is no different for you the injured worker than it is for me the attorney.
- However, it is the development and presentation of your facts and your case that determines how successful you will be if you DIY.
- It’s better to try than to give up.
- It’s evan better to request a free consultation from an L&I lawyer so you can talk strategy, and get it right.