Tuesday, September 30, 2014
On September 30th, 2014 the Colorado Supreme Court held oral arguments on the Coats case. This case involved the termination of an employee after a random drug test for having the presence of marijuana in their body. It was consumed off work and yet the employer had a no tolerance policy. The lower court dismissed the wrongful termination case even though the employee argued he was disabled and it was medically prescribed marijuana. I reported on this in an earlier post. Todays oral arguments were quite interesting even if the discussion seemed to center on technical points. The Denver Post has an article on it which it posted today. You can read the article which also has a link to the oral arguments. By clicking there you can at least for a while see a video of the arguments. A big part of the case is that while Colorado has a law permitting medical use of marijuana the federal law makes it illegal. Mr Coats was asserting he was doing something lawfully permitted off work premises so the termination was wrong by Colorado law. The employer also argued so the outcome is uncertain. In any event a decision can be expected which I will await. In the meantime the case has been interesting to follow. While not a workers comp case this case has an effect in workers compensation cases. Perhaps an injured worker will be prescribed marijuana or perhaps such a worker will be terminated after his work injury if he is tested for marijuana in his system. Employers may seek to terminate and stop temporary benefits in such a case. I guess we shall see what recourse the employee may have. Given also that recreational use of marijuana is permitted now in Colorado what about these no tolerance policies? The court may address this or may simply choose to avoid the issue on some technicality. Time will tell.
Saturday, September 06, 2014
Every month there is an update on the latest ICAP (Industrial Claim Appeals Panel) cases. These are not court appeal cases but rather are the next step to appeal after a hearing decision a party does not agree with. There are many such appeals monthly and from themhere. There are 12 cases shown along with one court case of interest to the reviewer. These cases remind us of what is going on at recent hearings. Some of these cases may even be appealed further. Many may not be appealed. Many of us in this area enjoy getting these cases and the review which comes with them. For a list of several months of these cases you can click here. If you work in this field or even if you just wish to know what is happening in this area it is useful to have this resource. Attorneys even obtain continuing legal education credit for following this monthly program.
Tuesday, July 29, 2014
Back in April 2013 the Colorado Court of Appeals issued the Coats case. It is not a workers compensation case but instead is a wrongful termination case. Still it will impact workers compensation. It is now on further appeal to the Colorado Supreme Court with oral arguments set for later this year with a decision to follow most likely in 2015. What makes it interesting and controversial is that it concerns marijuana. A worker washere. Given the legalization of marijuana so its use is permitted, even recreational use, will employers be allowed to terminate you even where you use it after hours with no impact on your employee performance? All I can say is stay tuned for the answer come 2015. By the way LexisNexis asked for my comments on the case so they are included in the article.
Wednesday, June 18, 2014
The Division of Workers Compensation issued a new newsletter, Issue 38. This issue is quite unique. It really provides a
Monday, May 12, 2014
On May 8th, 2014 the Colorado Court of Appeals issued a decision involving a firefighter here.
Monday, April 07, 2014
The latest list of attorneys who handle workers comp matters has been put out by the Bar Association. By no means is this an exclusive list. There are attorneys not on the list who have experience handling workers compensation cases. But the list does contain helpful names of experienced attorneys in various communities. This field is highly complex and where possible an injured worker should obtain legal representation. Waiting on this could be damaging to your case. It is the preference with most experienced attorneys to become involved early on in the case. But if that did not happen then consider acting now to find an attorney. The sooner the better. There are no guarantees in any case. What can seem to be clear and simple may deteriorate in a heartbeat. A claim can be contested or in conflict at any time. Moreover it can take planning and effort to maximize the claim. You can bet the adjustor has access to an attorney at all times. After years practicing in this field even though I am now retired I truly believe a claimant should try to obtain an experienced attorney as soon as possible. Not doing so likely means the loss of thousands or even the loss of the claim. Even a nice adjustor has a duty to his or her employer, the insurance company. They want to minimize benefits. In any event this list is one resource for those seeking an attorney.
Saturday, March 15, 2014
The Apex case was just published on March 13, 2014. It actually was originally decided in January but the court decided to publish it now. When published the case applies to all not just the parties. It can be cited as precedent in legal research. The case involves worsening. The claimant sustained a shoulder injury. Initially he was given no work restrictions but he was also terminated from his job. Apparently for pain he had taken a pain pill from his brother. Unfortunately his employer had a no tolerance policy and when discovered it resulted in his termination. Several days later he returned to the authorized physician who noted his pain and took him off work. Thereafter the claimant sought temporary benefits and asserted his condition had worsened enough to be entitled to temporary benefits. With his termination for cause he had to show a worsening to receive such benefits. So the case involved the issue of worsening. Now most of us would believe that going from a work status to a no work status is a worsening. However the court concluded that this fact alone does not establish a worsening. The court indicated the physician had not documented a worsening. Of course being now unable to work seems to be a worsening. Functionally going from work to no work is significant to me but that is just my view. Whether this case will be appealed further I do not know but as of now the rule is that increased work restrictions alone are not sufficient to establish a worsening. Read the case for the perspective of the court.
Saturday, February 15, 2014
I really like that the Division has a page devoted to video presentations which discuss recent cases. This has been done monthly for quite a while. Many attorneys enjoy the monthly live presentation but these cases are then posted on a web page so anyone can read and listen to a review about the cases. Not every case is reviewed just those deemed significant but I have found this process to be very educational. In any event to gain some insight about what issues are being heard anyone can access this page and listen to the monthly presentation. Often these cases contain cutting edge issues in the workers comp field in Colorado. After all a case may be quite complex and listening to a review or analysis gives you a good sense or perspective about the case.
Tuesday, February 04, 2014
This week the Colorado Supreme Court in Rodriguez affirmed the lower court decision that the claimant had a compensable work injury. I reported the earlier decision by the lower court on August 20, 2012. In this case the claimant had an unexplained fall at work. But then the insurer admitted coverage and only later sought to amend or change that to a denial. The lower court held that the burden to prove it was not caused by work activities was on the insurer and when all they could show was that it was unexplained then they failed to carry their burden. The insurer appealed and this week the Supreme Court issued its decision. What impresses me most about the case is that the court actually had different reasoning then the lower court. It essentially concluded that an unexplained fall at work is compensable in all circumstances. It decided an unexplained fall is not caused by an employment related risk (like a slippery fall or dangerous condition) and it is not a personal or idiopathic risk (caused by personal health issues). It then carved out a new risk, a neutral risk. Quoting from the decision: "Because Rodriguez’s fall would not have occurred but for the fact that the conditions and obligations of her employment -- namely, walking to her office during her work day -- placed her on the stairs where she fell, her injury “arose out of” employment and is compensable." For claimants this is a great decision. We were always worried that falls without any explanation might be tough to attribute to work activities. Now falls shall be compensable unless they are because of personal health factors under this "but for" test. At least that's my view of the case. There was a dissent who said the majority by its decision significantly expands the scope of workers compensation coverage in Colorado. To me I like the decision. The insurance side will always try to attribute injuries to unrelated things if it can. Claimants might then have to try obtain evidence to support them. But insurers have the resources to obtain medical experts and a claimant may not consider that a fair fight. In any event this case is very interesting to read as it discusses several types of injuries. It is an exciting case in the field.
Wednesday, January 08, 2014
The Colorado Division of Workers Compensation has issued a new newsletter, issue number 37. A newsletter is an informal way of providing insight as to what is happening at the Division. This latest newsletter contains an interview with Chief Administrative Law Judge Goldstein. It provides his history and experiences. In addition the newsletter gives us other news such as the addresses for prehearings and the Office of Administrative Courts. It also discusses some changes in the Division IME (DIME) law. I enjoy the newsletters and expect that many others do too. Reading about the people involved with workers compensation and getting insight on changes as they come along are both informative and enjoyable. I would love to see these newsletters issued with regularity.
Tuesday, January 07, 2014
It is being reported there is interest by labor in some workers comp reforms. Articles on this appear here and there. Over the years my experience with reforms has been to see a reduction in benefits disguised as reform. This has led to lower workers compensation premiums for employers. I've always wondered why employers can select the treating doctors.
Tuesday, December 17, 2013
We have learned of two new prehearing judges that will be coming on board in early 2014. Barbara Henk will be active as of February 1, 2014 and Patricia Clisham as of March 1, 2014. They are both highly experienced and well respected in the workers compensation community. They have bothOAC. Prehearing judges are quite important in the workers compensation system. They handle prehearings on various preliminary matters. They address motions when brought to them. They are also involved in settlement conferences. I recall many a conference where the claimant took the position he was totally and permanently disabled and the other side was certain he was employable. The attorneys can do a lot of talking but the input of the judge was often critical in moving the parties to a reasonable compromise. The judge might educate the claimant to the risks of a hearing and appeals but also educate the other side on the merits of the permanent total claim which could mean a very high monetary risk to the other side. Settlements are often smart resolutions of cases. Hearings may be necessary at times but most cases can be settled with solid effort by the parties and the aid of the prehearing judge at a settlement conference. The new judges should be helpful in this area. They bring a wealth of talent and wisdom from their experiences. So I can only say that they are good additions to the process.
Saturday, November 30, 2013
If you are able then get yourself an experienced workers comp attorney in your work injury case. Perhaps you know someone or can obtain a referral. If you are unsure and want someplace where you have the names of experienced attorneys then check out the list maintained by the Colorado Bar Association. Now just being on a list does not mean the attorney is right for you. Not every case is winnable or means high benefits but your odds improve with an experienced attorney. Usually an experienced attorney will maximize your benefits and protect your interests. And it is important to obtain an attorney as early as possible in your claim. Things do happen as you go through a claim. There may be issues to resolve and plans to be looked at far sooner then the end of your case. Your case may be contested or your treatment may be disputed or even denied. The math relating to your benefits may need to be reviewed. An experienced attorney will prefer to be involved every step of the way. He or she will advise you and analyze every detail that is deemed important. He or she should be available to you to discuss matters especially when you have worries. The fact you believe you are being treated fine by the insurer or your employer does not alter this. They shall have an attorney to represent them and advise them. Their attorney shall seek to minimize benefits being paid. Often they dispute prolonged treatment and claims of extensive disability. The adjustor is not your friend. They have a job to do and having your own attorney is simply for your own protection. Many claimants have serious disabilities which they will carry with them the rest of their lives. In any event you can see the list of experienced attorneys as a tool to assist you as you search for someone to represent you. The list is updated though not often enough. Still it contains some very good attorneys.
Tuesday, October 15, 2013
The Division has posted a link to the video replays of case reviews presented once a month to interested attorneys. I would say that posting it as available to the public means you can view the video of the month and even read the cases. While video replays along with all of the actual cases can be quite useful. Many attorneys attend or listen to them to stay updated on the latest issues being decided. In any event the Division on its page sets forth for all to see and hear several months of the video replays of important cases. Often it is fascinating to listen to the review by Judge Eley. Workers compensation can seem like a dull subject but it is filled with interesting people and cases. I like to see what arguments are being presented by Respondents in these cases when they appeal. I enjoy novel arguments no matter who makes them though I consider myself decisively on the claimants side.
Wednesday, September 04, 2013
Perhaps once a year I discuss workers compensation attorneys. I've said in the past that advertising is out there but not necessarily the way to find an attorney. I'm retired so I have no ax to grind. I believe in advertising as a means for an attorney to get his name out there and for a claimant to know there are attorneys out there. In that sense advertising is a good thing. However attorney advertising is so frequent that it can make you think that the guy is a superman. And some advertising can make it seem simple to make a potful of money and benefits. Just get this guy and your worries are over! Well it's just not realistic to find superman in an ad. I'm not saying that competent attorneys do not advertise or that advertising is wrong...it's not. But when your health, finances and future may be at stake as they can be in workers comp then you should proceed with caution to find your attorney. Nowadays you can search online along with watching TV commercials to find an attorney. You may have friends or relatives who have used someone in the field. Another resource may be at the Division website. The point is to explore your options as much as you can. You can even make an appointment with more then one attorney. It is your case and your decision so use common sense. And by the way if your attorney is not working out for you then you are not necessarily stuck with him. However being upset with an attorney for telling you the truth is not the best way to switch attorneys. The law is not always favorable. If you are unable to get answers and your calls are ignored that failure to communicate is a sign of a problem. In seeking an attorney be smart about it. While you may need proceed with speed you still have options. If you are interested in someone do more research. Have a sit down and then get a second opinion. There truly are some very capable attorneys out there in this field. Some of them may also handle other matters such as Social Security disability. And best wishes to you!