Time Loss is an L&I Benefit

Time loss is wage replacement money paid every two weeks to injured workers while they are not working.

Time Loss Rules – To get time loss you must:

  • have an open L&I claim and
  • be certified as unable to work by your doctor. The doctor can use an Activity Prescription Form which they need to send to L&I
  • not be working, and verify this by completing a Work Status Form and sending it to L&I
  • because of a medical condition caused by your injury

Time loss rate:

Time loss rate is determined by a mathematical formula:

  • WAGES X FAMILY STATUS PERCENTAGE = TIME LOSS RATE

Wages include 

  • your date of injury wage
  • contractual bonus paid in the 12 months prior to injury
  • wages from a second job, if any
  • reported tips
  • board, housing, fuel, or other consideration of like nature,
  • the employers cost of health care insurance, if any, you may have lost since the injury

Family status % is determined by who is in your immediate family

  • Single = 60%
  • Married = 65% more
  • Children = 2% more each up to 5 children, paid to the parent with legal custody
  • Child’s 2% only continues to age 18 or 23 if in school full time

Maximum Time Loss Rate

The above % of wages figures are limited for high income earners. There is a dollar maximum per month, which is set for your claim as of your date of injury. For new claims, this maximum changes yearly. For details see https://www.lni.wa.gov/insurance/_docs/MaxTimeLossRates.pdf

Minimum Time Loss Rate

The % of wages figures don’t apply to persons who earn very low wages. Their time loss rates are set at: https://www.lni.wa.gov/insurance/_docs/MinTimeLossRates.pdf

To Get a Fair Time Loss Rate

Be sure you pay attention to the L&I order setting your wage rate. Make no mistake about this: the wage rate set in that order, once it becomes final, is the wage rate you will be stuck with, for the life of your claim. If it isn’t right, then timely protest the order in writing and insist the claims manager get it right.

Continue to protest or appeal as necessary. If L&I doesn’t get it right, then get a lawyer, before it’s too late.

L&I Time Loss Cut Off?

L&I time loss gets cut off for a number of reasons:

  • Return to work
  • Vocational services end and the injured worker is found employable
  • Doctor fails to certify time loss
  • Employer offers a job within the medical restrictions
  • IME doctor or the attending physician says worker can return to work
  • Self Insured makes a mistake, or is unreasonable
  • L&I makes a mistake, or is unreasonable

What to do when time loss ends.

Protest or appeal timely any decision you think is wrong.

Figure out why time loss ended and solve the problem.

Unable to work?

If you may never be able to return to work, learn about an L&I pension. It could change your life.

Past Due Time Loss

When L&I or the Self Insured employer does not pay your time loss, this unpaid time loss becomes past due time loss. It is easy to become discouraged when your time loss is not paid. Someday your claim situation may turn around. The issue will then become, will your past due time loss be paid? Your past due time loss is more likely to be paid if you continue to mind the time loss rules, while you are waiting for your claim to turn around.

If you have turned your claim situation around and L&I will still not pay your past due time loss, get legal advice. Don’t let L&i shortchange you. Keeping your time loss going can be a difficult matter, especially with self-insured employers and claims managers who use IME’s to cutoff your time loss. They do this to save money. The money they are saving is your money. If they steal your time loss money and you let them get away with it, then they win and you lose. Don’t let that happen. Make them pay your time loss when you can not work.

FAQ’s about L&I Time Loss

What can I do while on time loss?

You can go about your daily activities within the limits and restrictions outlined by your doctor.  You should honestly and accurately communicate to your doctor the activities that you do. Get your doctors OK to perform these activities especially if they will help you return to normal function. You should be receiving medical treatment and attending medical appointments while on time loss. Use this time to focus on  your recovery.

What should I not do while on time loss?

  • Do not work while you collect time loss
  • Do not tell your doctor that you cannot do something  if you are doing that same thing
  • Do not perform activities that look like work, especially in your front yard where you are in full view of L&I investigators. L&I spies on some injured workers
  • Do not post anything on social media which in any way contradicts what you are saying to L&I and your doctor. L&I investigators read the social media posts of injured workers every day. If they see you living an active life when you say you cannot work, then you have made a problem for yourself. They will charge you with fraud if you collect time loss and work or obviously can work.
  • Do not miss your medical appointments
  • Do not engage in sports or other activities if they are inconsistent with your medical restrictions

Who pays the time loss?

The Department of Labor and Industries makes the time loss payment to  injured workers on State Fund Claims.

If you work for a Self Insured employer, your employer pays your time loss.  The self insured employer may have a Third Party Administrator (TPA) as their claims managers and issue time loss payments through that TPA.

How long do claims managers have to start paying time loss?

The first time-loss compensation payment must be mailed within 14 calendar days.

The 14-day clock begins the day after the receipt of either the Report of Industrial Injury form or the worker’s application for benefits, or

The 14-day clock begins to run the day after the department receives either contention or certification from your doctor that time-loss compensation benefits are payable.

What if the self insurer or L&I won’t pay time loss or pays time loss late?

Self insured employers can be penalized for late or for missing time loss payments. You can request penalty from the Self Insured Section of the Department of Labor and Industries. The law assesses a penalty of the greater of $500 or 25% of the amount due. Payment is to the injured worker. 

For claims managed by the Department of Labor and Industries there is no penalty however you can request to speak to the unit supervisor and ask them to intervene.

How do I get a penalty for late time loss payments?

You can request a penalty on a self insured claim by writing to the Self Insured Section of the Department of Labor and Industries. The director of L&I is required to issue an order within 30 days of your request.

Who do I complain to if my time loss rate is not correct?

Contact your claims manager to advise that your time loss rate is not correct. If an order has been issued setting your time loss rate, you must properly submit a timely WRITTEN protest or appeal that order. Provide the claims manager with your pay information if your employer is not responding to requests for wage information. See Time Loss Rate above for information on how to get a fair time loss rate.

What is provisional time loss?

Provisional time loss is time loss paid while the claim is under investigation. It is different in character then time loss. Provisional time loss comes with strings attached. If your L&I claim is later denied with a final order you must pay back all the provisional time loss you received.  L&I does not always initiate provisional time loss while they are waiting to make a decision on allowing or denying your claim.  They do have to pay it, so if you deserve it and want it, then request to your claims manager that L&I pay provisional time loss. If they won’t pay your provisional time loss, appeal any order or letter of denial. If that doesn’t work, talk to a lawyer.

What does the law say about time loss?

Time loss statutes are   RCW 51.32.010 , RCW 51.32.080, RCW 51.08.178

Are time loss orders important?

  • Yes they are. Pay attention to all L&I orders, including time loss orders
  • An order is a legal communication from L&I. Your benefits are affected by these orders. Pay attention to when you get the order and the amount of time you have to protest. It is written at the bottom of the order.
  • If an order is unfavorable then protest or appeal in writing, or get a lawyer to do it for you, and do it before it’s too late.
  • The first time loss order you receive is the most important, because it sets your wage rate which determines your time loss rate. Be sure you pay attention to the L&I order setting your wage rate.  This may be the most important order on your claim. Make no mistake about this: the wage rate set in that order, once it becomes final, is the wage rate you will have  for the life of your claim. If it isn’t right, then do something about it. Protest the order in writing . You can protest in writing first, and get them the evidence later. Insist the claims manager get it right. Continue to protest or appeal as necessary. If L&I doesn’t get it right, then get a lawyer, before it’s too late.

Why does time loss end?

L&I time loss gets cut off for a number of reasons:

  • Return to work
  • Vocational services end and the injured worker is found employable
  • Doctor fails to certify time loss
  • Employer offers a job within the medical restrictions
  • IME doctor or the attending physician says worker can return to work
  • Self Insured makes a mistake, or is unreasonable
  • L&I makes a mistake or is unreasonable

What to do when time loss ends before it should?

  • Protest or appeal timely any decision you think is wrong
  • Figure out why time loss ended and solve the problem. If you don’t know why time loss ended, review your file online and talk to the claims manager
  • See L&I time loss cut off above (on this webpage).
  • If the employer has made a job offer, be sure that job offer complies with the Time loss and Job Offers issues covered by INTERIM POLICY 5-15.
  • If the self insurer unreasonably delays or refuses to pay benefits as they become due, ask for a penalty. RCW 51.48.017 and WAC 296-15-266
  • If you can’t do it yourself then talk to an attorney

How to keep time loss going

  • See your doctor
    • communicate your work situation
    • make sure he or she tells L&I in writing that you cannot work
  • Communicate with your claims manager
    • Help get information to them
    • Make it easy for them to pay you

 Should I apply for Social Security Disability (SSD) while I am on time loss

If you are eligible for SSD you may wish to do this. It may be to your benefit to collect under both systems at the same time. If you are or if you are likely to be off work for one year, apply early for SSD.  See Apply for SSD When You Have an Open L&I Claim. 

What About Partial Wage Loss Replacement?

If you have returned to work for less pay then your job of injury pay then you may be entitled to Loss of Earning Power (LEP).

LEP – Loss of earning power is partial time loss. It is also called temporary partial disability

LEP is authorized by statute. It can be found at  RCW 51.32.090(3)

Who Gets LEP?

A worker is eligible for LEP when:

  1. The L&I claim is still open and
  2. The worker has returned to the work force and is receiving wages and
  3. The workers wages are now less than 95% of the wages they earned at the time of injury and
  4. Medical opinion certifies that the loss of earning power is due to the injury or occupational disease

Apply for LEP by using the Application for LEP Compensation

Other situations where worker may be entitled to LEP

  1. Returns to work at a lower wage.
  2. Has more than one job at the time of injury and is restricted from performing one of the jobs even if it is not the job of injury.
  3. Returns to work but is unable to work at the premium or higher rates they normally work.
  4. Returns to work at regular wage but less hours, this includes workers that return to full time, i.e. 40 hours per week, but prior to their injury or occupational disease were regularly working overtime

How to Calculate LEP.

  • There are two ways to calculate LEP
    • Method-A also know as the new method, can be used on claims with a date of injury on or after May 7, 1993. Use whichever method is higher with some exceptions for high wage earners (see statute). Most all LEP claims are calculated using method-A. The calculation is 80% of the difference between the wage of injury and the loss of earning power wages. It looks like this:
      • Wage of injury minus wage during LEP period equals the difference
      • Difference times .8 equals benefit amount
    • Method-B also known as the old method, is used on all claims with a date of injury prior to May 7, 1993. The method-B; benefit is determined by multiplying the LEP percentage by the time loss rate. Method-B is rarely used.
  • LEP Calculations can be tricky. The LEP calculator, on online interactive page, can be used to simplify the process  In a  simple case four separate numbers are necessary to do the calculations:
  1. Wages on the date of injury, updated with increases to what that job would pay as of the dates being calculated
  2. Current Wages
  3. Time Loss Rate
  4. State’s average wage x 1.5

LEP calculations can be complex:

  • if the worker had multiple jobs on the date of injury
  • if overtime was part of the date of injury job
  • if health care benefits or employer contributions have been discontinued
  • if it is claimed light duty has been refused
  • if L&I insists on enforcing their incorrect “medical fixity” or “objective findings” requirements
  • if dependents are involved and are under the custody of another person

Further details of LEP Calculations can be found here LEP Claims Guidelines.

When Do LEP Payments End?

LEP payments end when your L&I claim closes, or if the loss of earnings ends.

Whats Next?

L&I Benefit Information with Links
L&I Attorney
Pension
Contact Us

 

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