Happy July 4th 2009!

What is Your Impairment worth?

I received a comment on this from someone and I thought it deserved a posting on this Blog. First any impairment rating may or may not be correct. Any of the parties may be able to dispute the rating or number and this often happens for the claimant. Do not take the first impairment rating as the end of the story. It is often wrong and even a medical opinion you are at maximum medical improvement can be wrong. When you receive a rating consider questioning it (legally this is an involved process and best done by your attorney). In any event let's say that the rating you receive is a high one. Let's also assume you are not permanently and totally disabled (if you might think you are get with an attorney right away). Lastly let's assume it is truly a whole person rating as certain injuries are not. Even then if you receive say a valid 20% whole person impairment rating what is it worth? Believe it or not there are other variables to consider. There is an age variable. There is a variable for your wage. The lower your age the higher the worth of the impairment. The higher your wage the higher the worth of the impairment. These variables make it essential that the calculation be performed on a case by case basis. One person may get $1000 for every one percent whole person and another $4000 for each percent or even more. Colorado also puts limits or caps on how much you can get so there simply is no easy answer here. Finally if the insurer agrees with the rating they will file a Final Admission often seeking to close the case. Please realize you must also consider your future medical needs. Insurers will try to limit all benefits so take any Final Admission as an effort to end your claim or at least greatly restrict it. This means any Final Admission requires a very careful analysis to protect your interests. Do not accept it at face value without doing so. We almost always object to Final Admissions and take timely and appropriate legal action to advance the cause of the claimant.

Burden of Proof on modification

I previously posted on some statutory changes but overlooked one which on a second look seems pretty significant. This is stated effective for claims filed on or after August 5, 2009. SB 09-168 amends Colorado Revised Statutes 8-43-201 on hearings to say that the party seeking to modify an admission or order has the burden of proof when it wants to modify it. The best example of this is that under current law the Respondents can come in at a hearing and assert compensability (that is question coverage even after they admitted the claim). Common sense says fine but it should be their burden to prove it after they admitted the original injury was on the job. Well under the current law it was always the claimants burden when the other side raised this issue. Having the burden could mean that in a close call situation the claimant months later could lose his entire case. You can bet Respondents knew this and used it to their advantage at times. Now the law is that it becomes a Respondent burden. A Judge can now be permitted to question the other side's reasons so claimants have a bit more law on their side now. Click here to see the law changes.

Effective July 1, 2009 Maximum Rates

Just posted over at the Division of Workers Compensation website is a chart that sets forth the top dollars paid out on benefits. For example, the most you can receive in weekly temporary benefits is $807.24 and that only happens if you were making $1210.86 a week in wages or more. Few injured workers ever will be paid at that rate and if not they can be paid 2/3rds of what is determined to be their average weekly wage. Historically you do not pay taxes on the standard workers comp benefits so 2/3rds is close to your take home pay when you cannot return to work. Of course to obtain any benefits they must admit you were hurt on the job and are entitled to temporary total benefits. If your case is contested then as long as it is you are not paid such benefits. Moreover even if you are entitled to temporary benefits they will adjust them if they have you working part time. There are rules on all this but this post just lets you see what the top dollar figures can be. The rates are set each year and made effective every July 1st.

Statutory Law Changes for 2009

Here, from the Division of Workers Compensation website is an overview of recent Colorado legislation that affects injured workers, doctors, insurers and even Pinnacol Assurance (the largest quasi-public/private insurer in workers comp in Colorado. Also if you click here you can read the actual legislative changes. I notice that some of these legislative changes are because of cases that went against claimants. For example there is a change to allow psych impairments so as to get over the first statutory cap (yes there are caps limiting benefits). Another avoids the Division IME being attacked for not contacting the authorized treating physician so long as he has resolved certain differences with other doctors. These items have been ways for claimants not to receive adequate benefits. They allowed the other side to attack the claimants Division IME rating by saying the doctor did not contact some other doctor so his opinion could be overcome as not following the procedure in the AMA Guides. In another case the rating was kept under 25% and did not go higher because a psych rating was not added to make the rating higher. The difference can be many thousands of dollars. In any event the legislative changes are, by and large, helpful to claimants. Also Pinnacol has been in the news recently when it disputed the state effort to use some of its excess reserves towards the state budget. As I noted earlier Pinnacol is a hybrid mix of public and private elements. The state is going to seek more control over Pinnacol and some of this recent legislation seems to be setting up to do that. Lastly one change does seem unusual. An insurer IME must now be audio recorded which suggests that some of these IME's were misrepresenting what the claimant was saying during the examination. Regretably such matters often were so hostile that it led to making it mandatory to record the exam. These law changes are effective on different dates as indicated in the overview.

Adjuster's Guide in Workers Compensation

If you are interested in what the Division of Workers Compensation says is its guidance for adjuster's handling workers comp claims then click here for the guide. It may provide some insight for all of us. It gives us a basic understanding of the duties of the insurer. Many subjects are discussed and can help explain why a form has been filed and what are some of the deadlines. If the insurer or adjuster is taking some action or filing something you might want to check here for a better understanding of what and why it is taking place. Of course there is also a guide for employees which is also extremely useful in understanding the workers compensation claim process.

A Very Special Story

I debated posting about this because it does not concern workers compensation or Social Security disability. But it does concern disability and how we all can learn how to deal with it. This story concerns how a little boy responded to a disabled child. It just so happens this disabled child is my granddaughter. Her name is Cici and she just turned 18 months old. Several months ago she choked on food and despite heroic efforts it resulted in oxygen deprivation. She came close to dying but after many weeks returned home needing constant care. In an instant lives were changed but through it all hope has remained and progress has been steady. All sorts of problems have to be dealt with and yet against all odds the child and her family have been survivors. What makes it more special is that a little boy named Max and his parents found out about Cici's story. In this link to my daughters blog you can see what Max then did. A disability can happen to any of us at any time. It can happen to those we care about. The effects of a disability are widespread and often very tough to deal with. Yet despite it all there are special people out there, like in Max's story and in Cici's story that inspire us. They are beacons of hope who remind us that how you approach disability is with honesty, compassion and dedication to do all that we can.

The Nelson case allowing a second lump sum

Decided today by the Colorado Court of Appeals is the Nelson case. This is a case where the claimant was permanently and totally disabled. The law allows a claimant to obtain a lump sum. She did in the amount of $26292.00 which was the amount allowed to be lump summed back when the claimant was originally injured. Since that time the statute was changed to allow for up to $60000.00. So later the claimant sought the $60000 less the $26292 she had already received. She lost on this with the reasoning being she was bound by the law in effect when she was injured. The Court however let the claimant obtain more by deciding the lump sum law was procedural. As such it was not impermissively retroactive or trying to wrongly impose a new law on an old case. The decision makes sense. There was no change in the fact that a permanently and totally disabled person was entitled to lump sum or obtain an advance of the biweekly benefits. It just allowed the claimant to obtain a bigger advance. This is simply a math matter that does not really give a claimant more then he or she is due but just allows for a bigger advance of future money that is owing.

Sotomayor Social Security decision

Here is a recent case decided by Supreme Court nominee Sotomayor. It involved a claimant who appealed an unfavorable decision in a mental disability case. The decision was in favor of the claimant and that meant a remand for further development of the case. From what I've read her written decision seems quite logical and sensible.

Memorial Day 2009

Remember all those who died or became disabled for this country. Their sacrifice was real. We are here today free to live and even make our own mistakes because they were there for us.

Pinnacol Assurance to Refund $120 Million

Pinnacol Assurance who is the largest workers comp insurer in the state has determined to provide a sizable refund to its business policyholders. A while ago the state legislators were seeking to use some of the excess funds that Pinnacol had for the state budget. Pinnacol opposed that and now plans to provide refunds of some of that to its policyholders. If you read the article linked here you'll see the story and Pinnacol denies it is doing this to further deter the state from seeking its funds. As I have said before Pinnacol is a hybrid of public-private interests so I would expect the state to stay interested in it. Needless to say the primary reason for this refund is really that Pinnacol is paying out less to claimants in benefits. In effect it is doing quite well which cannot be said for many claimants.

May 14, 2009 The Ruff case on conflict of interest

Just decided today is the Ruff case. Back on July 25, 2008 I posted an earlier Court of Appeals case we'll call Benuishis. It appears that this latest case totally disagrees with the earlier division of the same Court. The Colorado Court of Appeals has over 20 judges and more then one division to handle the many cases that are appealed. Both cases involved a Division Independent Medical Examination. It is quite obvious there is now a conflict in divisions of the court which usually means the Supreme Court will have to resolve matters. In the meantime here is the situation: If a DIME physician may have a conflict of interest because he or she receives much income from a party (like Pinnacol Assurance which uses some doctors quite a bit) then the administrative law judge at the hearing may have to consider if there is a sufficient appearance of a conflict of interest to remove the doctor as a DIME. What is not clear is what is the appearance of a conflict. Benuishis says receiving a lot of income from a party like Pinnacol is not by itself the appearance of a conflict and Ruff says it can be. Personally I agree with Ruff. I just do not like close financial relationships with insurers to be disregarded. If anything frequent use of a doctor or paying that doctor many times over may well taint that doctor or make his use as a DIME questionable. As medical professionals they may not see it that way but we're talking about an appearance of a conflict. Sometimes it is not an actual conflict of interest but the appearance of one that is so disturbing. The Colorado workers compensation system set up the DIME process with the intention of really trying to make it totally independent. We honor that intent by excluding all who might make it appear suspicious. That's why Caesar divorced his wife.

The President and Healthcare Reform

If you click on this link you will be taken to an official site maintained by President Obama supporters that gives you a chance to push for healthcare reform. The current healthcare system is simply terrible. It is not because we lack quality healthcare. Instead we have a system where too many are uninsured or underinsured. We have a system where healthcare costs are rising too fast. We have a system where life and death decisions are made yet we are all mired in a complex maze of paperwork, rules and confusion. One of my clients once said that in her country you are taken care of from cradle to grave. Not here. Change will be difficult. It will require compromise but we must start before we lose control over it. If you are injured at work you usually have one form of insurance coverage. If you get sick at home another. If you are poor there is still another form of coverage. If you are in an auto accident perhaps still another. If on medicare still another. And on and on. Claims may be promptly resolved or take years to resolve. The effort to reform this requires the support of many of us. Please take the time to check into this. This is an issue that will not go away and doing nothing is not a solution.

IME's and the doctor patient relationship

An IME or Independent Medical Examination is not a simple concept in Colorado. First, there is the Division Independent Medical Examination that is a very special exam permitted by workers compensation statute. Unless otherwise agreed the Division provides three doctors and the list is narrowed down to one who performs an exam and issues a report as required by the statute. It can often be very independent and may help provide more treatment or a higher permanent injury rating for the claimant then that provided by the doctor/clinic designated by the employer. In other words it often is a very effective tool to use to obtain more benefits for a claimant. There is an expense but it is almost always worth it provided it is set up properly. Second, there is the insurance IME where the insurance handpicks a doctor to examine the claimant and issue a report. That is far less likely to benefit the claimant and may even harm his interests. Such an IME may have no duty to the claimant as a doctor and even his report goes to the insurer. Some might call him a "hired gun" who helps the insurer. That may not be so but it does depend on who the doctor is and his history or repute in this area. Attorneys in the field do usually know that history or repute. Normally an insurer IME is to be viewed with suspicion but I do admit that some are quite decent. Also there are the claimant IME's where the claimant's counsel also wants the claimant examined by a doctor he trusts.
Aside from the different types of IME's I can say that in Colorado the insurer IME will seldom have any liability to a claimant. He may devastate the claimant's claim with his views but his duty is primarily to the insurer not the claimant. He may say the claimant doesn't need the surgery or has no case and he may even testify at a hearing to this effect in a contested case. One Colorado case on this is Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). But a recent Arizona case I received makes a point of saying, that at least in Arizona, there can be liability. That case involved a workers comp claimant that delayed his surgery in part because of an insurer IME and that was the wrong thing to do. I then looked into Colorado caselaw and I don't see Colorado always giving 100% immunity to the insurer IME. Anyone looking into this may not only want to review Colorado caselaw but perhaps also look elsewhere for insight. The Arizona case gives us a clue that perhaps the insurer IME is not as safe from a malpractice claim as has been thought.

Social Security Administration number of employees

Over the past ten years the Social Security Administration really has not grown. In fact it has less employees now then in 1998. Given that there are more claims and more people retiring or disabled now then ten years ago you have to wonder how they can stay ahead of the situation. Well...they cannot. Delays are routine in the processing of claims/hearings and benefits but with less employees now it is difficult to catch up. Even after a hearing it can take weeks for the decision and still more weeks for the first check to be sent.