Wednesday, March 25, 2015

Court case Kilpatrick decided March 12, 2015

A recent court case was issued on March 12, 2015. In Kilpatrick the claimant sought to reopen a closed case based on new evidence. As part of his efforts claimant sought discovery of the insurers financial records of monetary gifts to any
Division or hearing office personnel including judges. This was denied as over-burdensome and became part of the appeal by claimant. The Court of Appeals affirmed the decision yet it concluded that all judges are subject to such disclosures despite the fact that no regulations have been set up on this. It concluded the claimants remedy is with the Division or hearing office not the court in denying claimants assertion of a denial of equal protection of the law. I question this conclusion when the claimant is denied disclosures by administrative inaction. Still unless this is appealed the Kilpatrick case does limit discovery. Every party truly may need discovery to ascertain the issues, the witnesses and the evidence. To me this includes any monetary favors provided to a judge. While bribery is unlikely and most judges are highly ethical I do believe such matters should be fully disclosed. Next, the claimant argued that the doctor rescinded his opinion that the claimant needed no further treatment with a new opinion based on new evidence. However the hearing judge decided that the case should not be reopened. The judge did not accept the doctors change of opinion. The judge believed the change was equivocal and not enough to justify reopening. Certainly a judge can weigh the evidence and absent an abuse of his discretion a judge's determination cannot be set aside. I disagree with this and would assert an outright rescinding should not be considered equivocal. Still you are encouraged to read the case yourself for all the details. There were other concerns but none to permit a favorable decision for the claimant. In this case the claimant lost his appeal unless he can get the Colorado Supreme Court to look at it.

Wednesday, March 11, 2015

What Direction for Workers Compensation?

For the past several years workers compensation has been fairly stable in Colorado. I guess that is a good thing given that over the past 25 years or so I saw a downward spiral for workers benefits and claims. That is my opinion but I think anyone looking into it would conclude the same. Employers saw their cost of insurance go down which was no
surprise given the changes in workers compensation. Benefits went down when they were tied into impairment ratings. The battles seemed to be on medical issues and causality issues which did not address disability. As such I recall trying to move cases I had into the total disability area which generated higher settlements. But I always felt bad for the construction worker who loses his trade because of a hand or foot injury. I felt bad for not assessing overall disability when the focus became impairment. Well this problem was not limited to Colorado. Nationally there has often been efforts to restrict claims. In an article which was provided to me the story is extensively set forth. In The Demolition of Workers's Comp the author reviews this pattern of attack on workers benefits. It is a good read. I realize that business must control its costs in order to stay viable and employ its workers but I also see the injured worker as a cost of doing business which must be adequately protected. If not the cost is passed on to society and that means all of us. My view is that 100 years ago or so workers comp became important when we all realized that injured workers should not be an expense of society but should be an insurable expense for employers. So hopefully in the future direction for workers compensation we should all keep this in mind.

Monday, March 02, 2015

Another Newsletter

Recently the Division of Workers Compensation posted another newsletter. This is for February 2015. As I have said before these newsletters can contain a lot of interesting
material especially for attorneys and adjusters. They can also be useful for the injured worker. The February 2015 newsletter is devoted to medical matters. For example it notes to us that effective April 1, 2015 the injured worker is provided a list of 4 physicians to make a choice for his treatment. There are variations if there are less medical providers within 30 miles of the employers location. Still this is an improvement from years ago when the employer just selected the physician to treat you. That led to criticism of employer favoritism. The new selection process at least affords more choices for the injured worker. Anyone injured at work should carefully review the physician list maintained by the employer. Historically physicians selected by employers come from their insurers who have those they favor. I can assure you that there are physicians who are not dedicated to the injured worker and who try to speedily move along treatment, perhaps to the disadvantage of the claimant. And then there are physicians who are heavily claimant oriented. Attorneys practicing in this area know all about these physicians and those less friendly to claimants. Anyway the newsletter discusses this issue and other medical matters. Those wishing to stay on top of the field should take a look at this newsletter.

Tuesday, February 17, 2015

Customer Service

If you have a work injury then seek out representation through an attorney. Even where you are being treated fairly it remains my belief that you should obtain an attorney. Historically having an attorney often means obtaining more or better benefits. This area is complex and relying on the adjuster or your employer is simply not in your best interests. In my experience medical care is often better when you have an attorney. Also your compensation benefits are often far higher with an attorney. I've seen cases where benefits appear to be low become much higher with an attorney on your side. In any event there may be cases where you do not have an attorney or cases where it is early on and you need some help or assistance. In such situations perhaps the next best thing is to call the Division's customer service number. While they are not going to represent you they can provide some help and guidance. This can be a very technical field and it's better to contact customer service then go completely on your own. At least that is my opinion although having representation is usually your best bet under just about all circumstances. In any event feel free to contact customer service for helpful information and some assistance. The current phone number for customer service at the Division is 303-318-8700.

Monday, January 26, 2015

All About Claims newsletter of December 2014

In December the division posted another newsletter. Realistically it is not all about claims. That is just the name they gave the newsletter. They publish the newsletter every so often and its purpose is to provide information to claims practitioners. Actually it has some good reading in it for many of
those involved with a claim. The December 2014 newsletter has an excellent story about prehearing judge Tom McBride. What I like about it is that it humanizes the judge. We can get all wrapped up about a claim and the issues that we forget that those that decide any issues or assist us with settlement are quite human even if very experienced. The newsletter also touches on other subjects such as the new streamlined electronic settlement approval process and the new reporting requirements of OSHA. you can read about it and other resources in this latest newsletter. While the topics may not be relevant to any ongoing cases they do explore areas of interest to many in the field. Certainly anyone practicing should take a look at these newsletters as they come out but it also gives all of us another form of communication from the division to those involved with workers compensation in Colorado.

Wednesday, December 31, 2014

So Long 2014 and Happy New Year 2015!

Well in Colorado we are approaching the new year. The year 2014 was "okay" for workers compensation in the sense that nothing horrific happened to reduce rights or benefits for claimants. The Division did post a new website appearance and there were some changes which can be seen in the prior postings on this blog and on the Division website. I am sure that 2015 will produce new cases and changes in rules or guidelines. From my perspective 2014 was fairly tame in Colorado workers compensation. Of course those claimants that had adverse decisions were not happy but nothing dramatic happened to greatly alter the state of affairs in this field. I still have concerns in some areas which I have commented on in the past but at least the field has been reasonably stable. Hopefully in 2015 every claimant will have experienced representation and fair treatment by the system. I WISH ALL CLAIMANTS THE VERY BEST IN THE NEW YEAR!

Wednesday, October 22, 2014

Court of Appeals case decided October 9, 2014

Just recently decided the Hoff case concerned workers compensation insurance coverage and the assertion by a party of promissory estoppel. In this case the claimant sustained serious work
related injuries. Hoff owned a rental property which had hail damage. She hired a contractor to deal with the insurance and then to repair roof damage. That contractor subcontracted the work to another contractor. The original contractor sought to make sure the roofing contractor had workers comp coverage. This was provided but when the injury happened the workers comp insurer denied coverage due to nonpayment of premium (cancellation of coverage). Hoff asserted they had no notice of the cancellation and relied on the promise of coverage that was initially provided. The hearing judge and ICAP decided that Hoff had no standing to question the cancellation and this appeal followed. The court concluded there was a basis to assert promissory estoppel and Hoff had standing. While this case is a dispute between various contractors it is always good that a claimant brings in enough parties that may have insurance coverage. Lack of coverage can harm the claimants ability to be compensated and have his medical bills paid. In any event read the case for the details.

Tuesday, September 30, 2014

The Coats case Oral Arguments

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

The Latest ICAP cases

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 them
a selection is made to review. At least this provides us with some of the more interesting cases. Fortunately, these cases are posted at the Division website for anyone to read. The latest such review is shown here. 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

Marijuana and employment...the Coats case

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 was
terminated under the no tolerance policy of his employer when he tested positive for marijuana despite it being medicinal marijuana. The employee was a quadriplegic and did not use marijuana on his employers premises and his work was not affected. He sued and asserted the termination was wrongful. The court of appeals decided a dismissal of his case was proper despite medicinal marijuana use being lawful and permitted in Colorado based on its view it was unlawful by federal law. Imagine workers with various ailments taking medicinal marijuana after work hours being terminated based on a no tolerance policy. Imagine an injured worker being prescribed medicinal marijuana by his physician as part of his treatment. Can his employer validly terminate him? What will the Supreme Court say on this? That is to be determined. Meanwhile LexisNexis published an article on this case so you can read it here. 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

Newsletter Issue 38

The Division of Workers Compensation issued a new newsletter, Issue 38. This issue is quite unique. It really provides a
review of the recent legislation. New laws that apply to cases are summarized in the issue and it has the actual statutory amendments as well. For example nowadays the injured worker needs to be provided with a list of four doctors from which he can choose to treat him for the injury. The law in this area has evolved over the years. The employer usually can select the doctor to send injured workers to for evaluation or treatment. Employees have been seeking more input in this process. Historically the employer selected doctor might be less on the side of the claimant and most of us expect the doctor to be for you not in the pocket of the employer or insurer. Even if not so the claimant could feel a let down. My experience has been that employer selected doctors tend to be quicker to release the claimant from treatment and to rate impairment lower then desired. So the latest law requires the employer to provide you with 4 names not just one doctors name. Personally I prefer that the employee choose his own doctor but at least this new law provides some choice. In any event this issue details out the recent law changes. Let me once again suggest that anyone with a work injury seek out an attorney to represent them if possible. This field is quite complex and doing it yourself is not advisable. Common sense is not enough.

Monday, May 12, 2014

Court of Appeals case on Firefighter coverage

On May 8th, 2014 the Colorado Court of Appeals issued a decision involving a firefighter
case. The claimant developed leukemia with an onset in November 2009. There is a statutory presumption that certain cancers arising within 5 years of firefighting service are covered or compensable. The city (Denver) defended by asserting it was not within 5 years of service by alleging they hired him in February 2005. The court affirmed the decision in favor of the firefighter by indicating that there was sufficient time as a firefighter. He had over 5 years of service (adding time as a volunteer and probationary fireman). However the city asserted it should only count the actual time firefighting. The court reasoned that few people would qualify for the coverage under that view. A firefighters entire time of service should be counted. Additionally Denver tried to assert it had a right to define "firefighter" as it sees fit. The court reasoned that firefighter coverage under the statute is a matter of statewide concern and not subject to any local city definition. Please refer to the actual case itself which you can read here.

Monday, April 07, 2014

Colorado Bar Association List of Attorneys

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

Apex Court of Appeals case on worsening

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

Video Presentations of Recent Cases

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.