By MALLORY GRUBEN
Vancouver firefighter Erik Becker should have qualified for worker’s compensation after doctors removed a tumor from his lungs — a cancer that the law recognizes is caused by his job. Yet the City of Vancouver, his self-insured employer, denied the claim.
The third party administrator hired by the city to handle the claim justified the denial with an erroneous citation of state law, a medical recommendation from a doctor who never examined Becker, and clever phrasing.
The administrator, Eberle Vivian, said the claim was being denied because he had “cancer in lung tissue, not lung cancer,” Becker told Washington lawmakers in February. Becker was testifying in support of two bills that would impose a duty of good faith and fair dealing on self-insured employers and the third party administrators they employ. The bills — House Bill 1521 and Senate Bill 5524 — also increase fines for rule violations.
“So now I’m going to have to fight over wordplay and semantics, when I should be fighting the disease and focusing on recovery,” Becker told legislators.
Vancouver firefighters have become the public face of the bills, and four members of their union, International Association of Fire Fighters Local 452, testified in support. But the measures would help thousands of workers — anyone who works for cities, counties, big box stores, large manufacturers and other employers that opt out of the state’s worker’s comp program and instead self-insure for workers compensation. That includes employees with Boeing, Amazon, Cisco and Wal-Mart.
Local 452 political director Kevin Hart says firefighters are a good example of what’s wrong with the state’s self-insurance program because they often file workers comp claims for more expensive medical cases, including cancer and post traumatic stress disorder. And that’s where the biggest snags seem to exist for workers in the self-insured system.
“Generally speaking on small orthopedic claims, small knee injuries, maybe a back strain, those actually run fairly smoothly,” Hart told the Labor Press. “But then you get into the more expensive claims. … They often litigate them to the full extent. In doing so, a lot of times, the members go without benefits for several years.”
It’s an effective tactic for an employer wanting to save money, Hart said, because workers eventually run out of cash to pay attorneys to fight the denials, and decide to settle for less than what they are owed. Considering that many of these injuries are career-ending — and that Local 452 members at fire districts that use the state worker’s comp fund don’t face the same denials — the system simply isn’t fair, he said.
The Washington Self-Insurers Association (WSIA) opposes the bill’s “good faith and fair dealing” language. Bernadette Pratt, a Tacoma attorney and member of the association, said the “good faith” wording would only lead to more litigation because it assumes there is a “perfect, immutable, unassailable truth” about the benefits a worker is entitled to.
“There is not,” Pratt told legislators. “Sometimes there is a disagreement among the doctors, the vocational experts, the workers, the department and the employers regarding what benefits are actually due. There is no Magic 8 Ball to tell us the answer.”
A 2020 state law mandates that third party administrators take classes, pass exams and hold special licenses to manage claims, and sets a $1,000 minimum fine for employers that unreasonably delay benefits. Those specifics replaced the bill’s original language — requiring good faith and fair dealing by third party workers comp administrators.
WSIA director Kris Tefft told lawmakers they should focus on getting the department of Labor and Industries to get the word out on existing laws.
Doug Palmer, a Vancouver-based injured worker trial attorney who helped write the 2020 bill, said opponents like Tefft are telling “two truths and a lie.” The 2020 bill did replace the general good faith requirement with specific regulations and create tools workers could use to fight denials. But the specificity of those rules limits their power, so employers and third party administrators have not “fundamentally changed” how they act, Palmer said.
“All (the rules) do is help minimize the most egregious of claims management mistakes and increase the penalties if they still happen,” he said.
Palmer backs the good faith language, along with Washington State Council of Fire Fighters, Teamsters Local 117, and the Washington State Labor Council, AFL-CIO.
SB 5524 failed to pass out of the Senate before the March 8 house-of-origin cutoff, but HB 1521 passed the House 69-27. It has now been assigned to the Washington Senate Labor and Commerce Committee, which held a hearing March 14.