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.
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.
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.
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.
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.
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.
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.
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.
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.
My experience is that these selected doctors are not always loyal to their patient the claimant. I've seen cozy relationships with many of them with the insurance. I've seen lack of interest in the welfare of the claimant. Of course there have been other doctors who have been on the claimants side too. But by and large I've wondered why the claimant cannot pick his own doctor. In any event this is one area of interest by labor which may mean an effort to give the claimant more choice. In another area it's been my experience that most injured workers with a serious injury do not stay with their employer. Perhaps they do with a minor injury but anything significant almost always led to some form of job termination. I can understand where this can happen aside from the obvious cases where the employer wants to get rid of the injured worker. Often the claimant is left with restrictions and disability which cannot be accommodated. Others are truly totally disabled. But in some cases the employee wants to work but can no longer do his existing job. Receiving a modest benefit is not enough. Again in this area there is labor interest in reform. Lastly there is interest in changing the penalty portion of the law which permits a 50 per cent reduction in benefits for safety rule violations. I've often wondered how they can say workers comp is no fault and then introduce fault into it as a way to reduce worker benefits. While I am on the side of the injured worker I can see the other side has some points too. Businesses want healthy workers and smart ones too. Injuries or rule violations are an expense they want to minimize. Hopefully there is room to compromise here. For the present the news is that there appears to be an effort in 2014, by labor, to help the injured worker by reforming parts of existing law.
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 both
been judges at hearings and active at the OAC. 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.
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.
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
there is a short delay in posting the materials still it is nice to have it available for your reading and hearing. These are current cases and involve an interesting issue or set of facts. Even a non lawyer may access this material. If you are curious about what's going on in workers compensation or see where a case may be similar to your case then listen to the review by a presenter Administrative Law Judge in what I call the prehearing unit. Judge Eley is excellent in reviewing each case in his monthly Brown Bag seminar. While he selects the cases he deems most interesting I know that he has been doing this for years and years. Years ago as an attorney he published a monthly review. I fondly remember that publication and used the case reviews in my practice. Now he continues his effort to present current cases that are worth learning about. These cases can be presented in another case as supporting a point of view. So they can be useful in two ways. First they show us the current types of cases coming up on appeal and second they can even be used in another case to persuade a judge that you are on the right side. A judge will often rely on an earlier case that is presented to him as relevant to an issue. So these 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.
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!
In a recent case the Colorado Court of Appeals decided in the Winter case to
address mileage and travel expenses. The claimant was from Trinidad but had to travel to Vail for authorized treatment. At first the claimant was advanced the cost of travel, hotel and meals. However after the third visit the insurer advanced only the travel mileage and not hotel or meals. The claimant advised the insurer he could not afford this unless it was advanced. The matter went to a hearing where the judge ruled against the claimant. This was appealed an eventually reached the Court of Appeals. The court affirmed the decision. Prepayment of hotel and meals is not a requirement even where this can lead to a harsh result. The court did note the claimant was able to use a credit card in this case and did get reimbursed within 30 days but suggested the Division of Workers Compensation may wish to address that issue. Usually claimants are treated locally but I have had cases where travel was necessary. Most claimants can use a credit card but some are quite poor. They may not have such a card or other resources so it would be helpful to have the Division address this for those cases as suggested by the court. Many times the benefits provided in a workers compensation case are barely enough to cover living expenses and asking the claimant to pay travel expenses and wait for reimbursement is expecting a lot. Anyway this case reviews all this and the court decision is the current law on the subject.
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.
"...this is the cause of my life, new hope that we will break the old gridlock and guarantee that every American -- north, south, east, west, young, old -- will have decent, quality health care as a fundamental right and not a privilege." Ted Kennedy Aug 26, 2008 (Update: June 28, 2012 the US Supreme Court upholds Obamacare)
Do We Pass the Test?
"It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadows of life, the sick, the needy and the handicapped."
I've been living in beautiful Colorado and practicing law for over 35 years. It's been a great place to raise a family. Originally from New York I settled here, married here and raised two daughters, Jenny and Mary. I practiced near downtown Colorado Springs but now consider myself "retired" so I am not taking any more legal matters, clients or cases but I appreciate being able to help as many clients as I could for so many years. Now I especially enjoy my retirement time with family including 4 special ones...a grandson, Max, twin granddaughters, Penny and Cici and last but not least grandson Eliot. You can contact me at my email address which is firstname.lastname@example.org.
In the past we offered free consultations in cases but we are not taking any more legal matters or cases as retirement calls. You can email us at email@example.com. We've been protecting injured workers for many years and truly went the distance for many people. We made a difference for most of them and stood up for right not might. If you need an attorney I suggest you find someone where you live who offers free consultations. Also I urge you to discuss your case with an attorney if at all possible. This field is technical and complex. I would even call it tricky so seek advice from an attorney. If that is not possible call the Colorado Division of Workers Compensation customer service section for helpful information.
The information in this blog is intended to represent my personal views and opinions. It is not intended to be specific or personal legal advice which should only be obtained by a consultation with an experienced attorney. All this blog provides is general information I consider important to me. It may be of interest to others but for any advice or advisory statements consult with an attorney not a blog.
Special Personal News on Cici, our grandaughter (September 2011)
Nearly 3 years ago our grandaughter Cici had a serious medical problem. Her survival was at risk and she was deprived of oxygen because of a tragic choking/swallowing problem. It is known as an anoxic brain injury. The recovery has been challenging and slow but some progress has been made. We are thankful to be part of her recovery. I remain truly grateful for the prayers and touching support provided by so many people to my daughter and the family. We are actively committed to Cici's recovery and to her loved one's for as long as it takes. You can follow this difficult but amazing journey on my daughter's and husband Matt's Blog. Where there is life there is hope. We've had tough times but we have also seen courage and love in action for her and also for others. For examples look below.