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!
Friday, August 23, 2013
In a recent case the Colorado Court of Appeals decided in the Winter case to
Monday, July 29, 2013
At the local level Colorado posts perhaps all of the decisions by its administrative judges. The decisions for May 2013 are posted here. I went through these decisions and you can too. What I noticed is that many of them concern either compensability (coverage) or medical issues. Claimants often lost at these hearings. My view is that the claimant in such matters will often need a medical expert or two to help with his or her case. Insurers have ready access to known doctors who tend to support the insurer side of things. In a tough case my experience has been that Respondents will spend thousands to win. Winning means the claimant loses...either he loses it all or he loses on an issue that is quite important like his need for surgery. These experts are very good at justifying their position and at knocking down the medical opinions of others more supportive of the claimant. Did you get hurt at work? Nah it was preexisting. Or it could not have happened with the claimants work activities. Need surgery...well not really. The other sides medical experts are clever and often sway the judge. A claimant may not have the ability to hire his own experts to fight back. If left to the existing medical reports issued by the treating doctors who are often selected by the insurer a claimant may not have a chance. My point is that to have a fair fight a claimant may need expert help. The system does not pay for that or even have a fund to assist claimants. Over the years I've seen this problem increase. In any event reading the decisions makes you aware of the problem. It can also make you aware of the doctors involved in workers compensation cases from treating doctors to experts. For insight I'd encourage you to read the cases. Common sense may tell you that work activities caused or aggravated your condition but the insurer may have evidence that threatens your case. It can come in the form of a doctor or two who are hired to dispute your claim. So be ready because at a hearing you should expect significant opposition.
Friday, July 05, 2013
Every so often I get a comment from someone who wonders if the Colorado material posted here applies to other states. It is important to loudly say...no! While there are similarities between many states a workers compensation system is unique to each state. Colorado's system is a creature of state statutes and case law. It does not apply in any other state. Perhaps each state learns from the others or case law from one state may be an influence in a case in a different state. But the law in Colorado really depends on Colorado statutes and cases. The exception would be in federal cases involving federal employees. For those cases there is federal law. So if Colorado law applies to you then this blog and its references may be helpful in understanding things. But if you are in another state and its law applies then looking here may be of little benefit. Every state has its own laws in this field so for advice consult an attorney in your area. This blog makes for interesting reading but I must say it pertains only to Colorado. It also represents my views and my slant on the field. Legal advice should come from your attorney.
Thursday, July 04, 2013
On July 3, 2013 the Colorado Court of Appeals issued a decision I call Zukowski. It is a case that concerns the statutory presumption that certain diseases arise from firefighting duties. The statute shifts the burden to Respondents to overcome the presumption or else the disease will be considered covered under workers compensation. The problem for firefighters is that they do not keep track of all their exposures to toxic chemicals or factors that can cause job related diseases. To improve that situation the statute was passed. However since then there have been efforts to defend against such a presumption. This blog has previously noted this (see the Littleton case entry in this blog for November 3, 2012). In the Zukowski case the firefighter had a melanoma which led to a claim. Respondents lost the hearing and the appeal to the next level but appealed further and the court reversed the prior rulings. In other words the firefighter lost the case barring further appeal. At the hearing the Respondents produced evidence through two physicians. Essentially they concluded that there were greater risk factors for the development of the melanoma from non work factors. The court ruled that the evidence was enough to overcome the statutory presumption and that the hearing judge interpreted the statute too heavily against the Respondents. It was error to require that the statutory presumption can only be overcome by proving the disease was caused by something else unrelated to the job. The court viewed such a standard as akin to saying strict liability applies against the Respondents. My concern is that the evidence was really indicating that non work factors were the greater risk factors then the job exposure to the development of the melanoma. I would say that this defense could well impair the statute's intent. Respondents can use this approach forcing the firefighter to again try to show his melanoma came from work and that could be difficult. My concern is that risk factors or the increased risk do not show what caused the disease and the statute sought to indicate it would presume the cause came from work activities and exposures. In any event the case is required reading in any firefighter case.
Thursday, June 20, 2013
The Division has just issued a new newsletter. It reviews the latest legislation on Colorado workers compensation law. The changes in the DIME
Monday, June 10, 2013
Colorado posted an update for recent workers comp legislation at the Division website. With respect to the specific statutory legislation that was also posted by the Division. You are encouraged to read the updates. I shall not discuss all of them but one is significant regarding a DIME (Division Independent Medical Examination). It used to be the insurer had 30 days from the mailing of the DIME report to accept it and admit based on it or to apply for a hearing. The time frame is reduced to 20 days but it is from when the Division issues a Notice of Receipt of the report. Another new provision provides that the insurer must pay for reasonable and necessary medical expenses when the claim is later found compensable. I'd say that means they will pay if they contest the claim but it goes against them. Perhaps that will help when you seek treatment on a contested case if you later have it determined to be compensable. Previously if you sought treatment even if you won at hearing they'd say they did not owe for any treatment up to then because it was unauthorized. Also another new law requires they recalculate your benefits within 15 days from the date a fringe benefit like health coverage is terminated by notice. Another key provision concerns what we used to call an 18 month DIME. That now is 24 months and if MMI is determined that doctor can rate the impairment like a regular DIME. There is more but these are significant enough to draw to your attention. UPDATE: The Division issued an alert for adjusters on the new requirements which affect all DIMEs. Check it out here.
Thursday, May 16, 2013
On May 9, 2013 the Colorado Court of Appeals issued the Meza case. The case has been in the system for years. Originally the claimant hurt his right foot in an admitted on the job injury. He was treated an eventually released back to work without restrictions or impairment. Four years later after ongoing pain the claim was reopened and he received additional treatment. Because the claimant was still being treated by the authorized physician and 18 months had gone by the employer sought a DIME (division sponsored independent medical examination). This is permitted by statute. This 18 month DIME found the claimant to be at MMI (maximum medical improvement) and rated his permanent impairment at 20 per cent (part for the spine and part for CRPS a nerve disease). All related to the original injury. Respondents filed a Final Admission and the claimant argued the 18 month DIME only can address MMI so he needed to be returned to his authorized physician for a rating. A judge agreed and his authorized doctor rated him at 27 per cent impaired. Respondents then sought a regular DIME which resulted in a rating of 4 per cent. The second DIME removed from the rating that portion for the CRPS and spine because it was unrelated to the work injury. Read the case for more details on the history. In any event the claimant at a hearing sought to overcome the second DIME and also assert that the 18 month DIME opinion was binding on the second DIME in addressing that the spine and CRPS was causally related to the work injury. The claimant lost and eventually the case got to the Court of Appeals. There the claimant lost again. This case really discusses an 18 month DIME and what effect it has on a later DIME. The court determined the 18 month DIME only can address MMI. Even causality can be addressed in a rating by a regular DIME. It is clear the court limited an 18 month DIME to a narrow issue so a later DIME is not bound by the rating or causal opinion of an 18 month DIME. I had thought that causality is part of every DIME opinion but it appears the court made a distinction between an 18 month DIME and a regular DIME. UPDATE: See my blog post for June 10, 2013 where statutory changes were made altering future use of this case as precedent.