WSIA

2024 Legislative Session Wraps Up With Few Major Workers' Comp Changes

This year's session of the Washington State Legislature gaveled to a close Thursday evening, after 60-days of fast paced policymaking. While the Legislature in general focused on adopting course corrections in the major state operating, transportation, and capital budgets, and considering what to do with six citizen initiatives on big-ticket subjects, most of the action in the House and Senate Labor Committees veered away from heavy workers' compensation and workplace safety issues.

This was a substantial relief, after 2023 saw a series of controversial, and at times ugly, debates over the imposition of the "duty of good faith and fair dealing," the recording of independent medical examinations, and the dissolution of a decades-old citizen initiative prohibiting regulation of ergonomics exposures in the workplace.

No "Good Faith and Fair Dealing" Expansion

The self-insured community saw a months-long lobbying outreach effort pay off as anticipated bills to expand the "duty of good faith and fair dealing," and its substantial penalties and sanctions, to all self-insured employers and third party administrators (HB 2168/SB 5199) did not move. In fact, although it was touted as a top priority of the union and claimants' bar groups going into January, it never came up for a hearing in either chamber. Depending on the legislative composition next January following this fall's elections, the bill may or may not come roaring back.

Disappointment on IME Recording

While the defeat of a bad faith claims liability expansion is a win, there was a missed opportunity in the effort to follow last year's bill on IME recording with a follow-up effort this year to address separate "co-recorded" examinations by IME providers. The WSIA community needs no reminder how much disruption worker recording has caused in the availability, timeliness, and predictability of IMEs it was thought going into session that the claimants' bar, IME, and employer communities might be able to hammer out an agreement that could get bi-partisan support to allow co-recorded or independent third-party recorded examinations in statute. After some good faith negotiations heading into, and in the early days of, the session, it was evident that there was too much distance between the parties to reach an agreement in statute. Attention now will shift to the Department for hopefully some interim attention and creativity on the issue, as the State Fund is increasingly feeling the same pinch as self-insurers with exam scheduling and cancellation.

Benefit Expansion

The Legislature did tinker around the edges of benefit and coverage issues. HB 1927 passed, which will reduce the current number of days of time loss necessary to pick up benefits for the day of injury and three-day waiting period from 14 days to seven days. Although as noted below, laws generally go into effect 90 days after the end of the legislative session in which they were enacted, this bill contains a provision that it goes into effect July 1, 2025, to give payers time to reprogram systems. It will apply to all claims that RCW 51.32.090 would apply to as of that date. The body also passed HB 2382, which expands workers' comp death benefits for transportation network company drivers (think, e.g., Uber, Lyft) to include the point at which drivers active the platform, in addition to actively pursuing or performing a rideshare.

Coverage Issues

In terms of coverage, the Legislature considered but ultimately did not pass HB 2130, which would have created non-presumptive occupational disease coverage for PTSD for county coroners and their medical investigative staff. While the ultimate reach of this expansion would have been relatively small, the growing frequency and escalating cost of PTSD claims in the State Fund and self-insurance, particularly under the first responders' presumption, has caught the Department's attention, and there may have been a sense of hitting the pause button on what had become over the past several sessions a near-annual tradition of expanding PTSD and other types of presumptive coverage to more and more occupations.

In fact, the PTSD presumptions have become enough of an issue for the Department that in the supplemental state operating budget adopted at the end of session, the Department sought and obtained a $400,000 appropriation of state fund dollars to contract with a third-party vendor to assesses PTSD policies and claims in Washington and other states with the intent to inform the Department on policy and best practices that improve outcomes. The report is due back to the Department and Legislature next summer.

Return to Work Incentives

In return to work issues, the Department requested HB 2127 to increase reimbursement amounts and related incentives in the State Fund's Stay at Work and Preferred Worker programs, as well as add a discretionary basic skills development benefit to the vocational rehabilitation system. It passed easily and goes into effect January 1, 2025. Business groups, led particularly by the Washington Retail Association, tried mightily for a second year to pass SB 5368, which would allow smaller employers to participate in the Stay at Work program by offering appropriate light duty positions in community non-profits if the employer did not itself have suitable light duty positions available. Although it passed the Senate this year nearly unanimously, it died in the House Labor Committee under the foot of the claimants' bar.

Interestingly, the debate over light duty work gave rise to another budget proviso in Labor & Industries' appropriations, this one to provide $200,000 to staff of a "resolution process for complaints regarding light duty work." Under the proviso, the Department is supposed to report back to the Legislature next summer "on outcomes related to this funding and data regarding light duty resolution processes." This will be one to watch, as the majority of complaints about light duty placement appears to be with the claimants' bar.

Workplace Safety

In workplace safety, the two major bills clearing the Legislature this year have been HB 2022, adding the assembly, disassembly and reconfiguration of tower cranes on construction sites to the Industrial Safety and Health Act, and SB 6105, a measure providing a series of safety measures in adult entertainment operations for the protection of workers and detection of issues like human trafficking.