Washington State Update: Light Duty Work, End Time Loss Upheld By Courts

By Roofing Contractors Association of Washington.

Many roofing contractors are frustrated by years-long lingering state industrial insurance claims against them by injured workers. 

In a recent court decision that is summarized below, roofing contractors should have hope they can fight these claims in the future.

In December 2018, a major Washington State court decision was issued regarding a worker refusing to perform acceptable light duty work and resulted in the termination of the worker’s time-loss benefits.

Below is a summary of this case.

Disclaimer: The following information is general business information to alert the reader of major business issues in Washington State affecting small businesses and this presentation does not include every requirement of every law, rule, or court decision.   This presentation is not legal advice and should not be used as legal advice and does not assure compliance.  The reader should contact a qualified attorney for legal advice on how to comply with these state laws and rules.

Worker Arron Richardson worked as a carpenter in the construction industry.  In 2014 he injured his back, filed a state Industrial Insurance claim and was awarded time-loss benefits.

In 2015, Richardson receives a letter from the Associated General Contractor (AGC) (that his former construction employer is a member of) offering him light duty work on behalf of his former employer.

The light duty work was in AGC’s Modified Duty Site Resource Center where Richardson would work and prepare to return to work. His former employer and AGC member would pay his carpenter’s wage, notably more than his time-loss earnings, and manage his work at the Center.  Richardson’s work would include a comprehensive review of L&I’s DOSH’s safety regulations pertaining to construction including proper lifting techniques, first aid, and other construction safety regulations with the goal to get him qualified to become a certified flagger and back to work.

Richardson reported to the Modified Duty Site Resource Center as directed and was provided a binder about the structure of the L&I DOSH safety program.  He was directed to read the binder to familiarize him with the safety requirements of the Department.  He “worked” at the Center from 6 am until 2:30 pm and was directed when to take his rest breaks and meal breaks which were documented.

The Modified Duty Site Resource Center was created 23 years ago to help improve worker safety.  It provides safety education to help workers return to construction work.  The Center provides this opportunity because most construction companies do not have light duty work for injured workers available at their companies and also provide this level of safety training.  The Center is operated by Safety Educators, an independent company, and that contracts to AGC to provide access to the Center.  The Center allows injured workers to learn about safe work practices and about required safety information they need to know in order to return to work in the construction industry and work safely.

After the first day, Richardson refused to return to the Modified Duty Site Resource Center.

Since Richardson did not return to work at the Modified Duty Site Resource Center, his former employer notified L&I and L&I terminated Richardson’s time-loss benefits.

Richardson lawyered up and appealed L&I’s time-loss termination decision.

The L&I Administrative Law Judge reversed L&I’s decision to terminate Richardson’s time-loss benefits and reinstated Richardson’s time-loss benefits.

In the following legal challenges that followed, Richardson stated that he saw about a dozen other people at the Center reading from the safety and health binders. Richards also noted that he did not see any signs at the Center with the name of his former employer which became a legal issue during the legal challenges that followed.

Richardson’s former employer appealed to the full Industrial insurance Board of Appeals.   The Board of Appeals affirmed the Department’s order to terminate Richardson’s time-loss benefits.

Richardson then appealed to Superior Court claiming that the work at the Modified Duty Site Resource Center was not real work.  Richardson lost in his Superior Court challenge.

Richardson than appealed to the Washington State Court of Appeals and lost that appeal.

This was a very complex legal battle but with the Court of Appeals decision, much of the legal ground has been plowed for others who follow.   Roofing contractors should seriously consider this approach for any lingering time-loss claims that continue to deal with.

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