Unripe Issue Court of Appeals case

This week the Colorado Court of Appeals decided a case which assessed attorneys fees for bringing up an unripe issue. By statute 8-43-211 Colorado provides that when you file for a hearing on issues which are not ripe for adjudication then you shall be assessed the reasonable attorneys fees and costs of preparing for that hearing. In Youngs the claimant and the claimants attorney filed for a hearing on several issues but one was to reopen a case based upon fraud/mistake. It was determined that the issue to reopen was not ripe and eventually attorneys fees and costs amounting to over $23000 were assessed against the claimants attorney. Here other issues were ripe but the one unripe issue led to an assessment of attorneys fees. In the appeal many matters were raised including that the Colorado workers compensation system was unconstitutional but the reader is encouraged to read the case for themselves. This case may go further up the appellate steps but what is important is to be quite careful whenever an issue is endorsed because any party can be assessed attorney fees and costs.

Changes in Some Treatment Guidelines

The Colorado Division of Workers Compensation has issued revised treatment guidelines effective February 2012 for Chronic Pain and Complex Regional Pain Syndrome/Regional Sympathetic Dystrophy. The latter we used to call RSD and it along with Chronic Pain have seemed to evolve over the years. They are complicated matters and physicians have often disagreed with each other on diagnosis and treatment. Those utilized by insurers tend to be conservative and seldom side with the claimant and those utilized by claimants tend to be liberal and generally side with the claimant. The purpose of the guidelines is to set forth the recommended methodology and these matters are among the most difficult to deal with. The guidelines provide clues as to what to do when handling such matters. Since many claimants have chronic pain and RSD can be extremely disabling the guidelines afford us some idea of treatment. They are long but interesting to read. A claimant may want to be informed so he or she can discuss matters with the treating physicians. While the internet may have good information you can start your research by reading any guidelines posted on the Division website.

Pinnacol spends plenty on privatization effort

Once again Pinnacol Assurance is in the news. The Denver Post is reporting in an article that they have spent $1.6 million since January in efforts to promote its privatization. Lobbying, advertising and public relations are part of this effort. This has raised concerns about what it has been doing and whether it is sensible though Pinnacol has defended by indicating it was due diligence to protect policyholders. The privatization effort remains controversial and many oppose it. You can read the article for more on Pinnacol's efforts. The story has been around for many months. You can expect the story to continue. My view is that Pinnacol is thriving and wants more autonomy. Private entities have less scrutiny and Pinnacol has seemed quite aggressive in its push for privatization.

2011 Workers Comp Exit Survey

Colorado attempts to survey injured workers once the workers comp case is over. Just recently released are the survey results for the year 2011 in which over 28000 were sent surveys and over 4000 responded. The survey is like a customer satisfaction type survey and as a result it may be skewed. When I looked at it I saw that of the some 4000 that answered the survey only about half had disputes. Clearly then only some 2000 of those responding or about seven percent of 28000 claimants had any dispute or battles in their case. Since almost one in four cases are contested the survey seems to be primarily coming from satisfied claimants and less so from those with disputes. More interesting is what is the satisfaction rate when there is a legal dispute. There the rating, on a sliding scale from 5 being most satisfied to 1 being least satisfied, comes out at 2.9. That does not appear to be very good. I interpret it to mean that 58% are satisfied after a dispute. That would not be considered passing in most situations or at best is barely passing. So it appears even with those responding there is an undercurrent of dissatisfaction with how speedily disputes were resolved. I am not surprised. Many cases can take several months to resolve once there is a dispute. The concern I have is with medical benefits and compensation that the process should move along faster. Any dispute which requires a hearing even to obtain benefits can mean a few months to get to the hearing and perhaps longer to obtain an order which could then be appealed. While we all believe in due process it seems to me that the process can be expedited but that is up to our legislators. According to my view of the survey we may have a satisfactory system when there is no dispute but at best a barely passing system when there is a dispute. But what about the over 85% who never even responded to the survey? It would make sense to find a way to get greater participation to see how satisfied people really are but for now this survey is what we have.

Crowell Court Case notes Ongoing Penalties

The Colorado Court of Appeals issued a ruling today in a case I call Crowell. In this case a claimant had a workers comp injury to a breast implant. Later it required replacement because of gradual distortion and discomfort. The ATP (authorized treating physician) recommended the surgery and sent a request to the insurer. The insurer denied the surgery in essence considering it elective and not medically required. The insurer did promptly deny within the time required by Rule 16-9 and 16-10 but never really sought out a medical review as indicated by Rule 16-10(B). This then triggered a hearing request by the claimant. At hearing the judge concluded the respondents were responsible for the surgery and also imposed a $500 penalty for violating the rule by simply denying the preauthorization request for surgery without seeking a medical review. The issue before the court is whether the penalty part of the original decision should be for a one day violation or whether it was an ongoing violation subject to an continuing penalty. The court decided that some violations are ongoing in nature and that was the situation in this case so it remanded the matter back to decide what should be an ongoing or continuing penalty. It clearly ruled the penalty should be imposed on a daily basis since the violation could have been cured by obtaining a medical review as required by the rule. Many times physicians seek preauthorization because a surgery is expensive and they want to know they will be paid. The rule does indicate a failure to properly act within the rule can mean the surgery is authorized but what doctor will act here with a denial staring him in the face? Here the insurer was questioning and contesting the surgery and never sought out a medical review despite knowing it was going to a hearing to address the issue. To me thinking it was just a one day violation because thereafter the surgery was authorized is not much of a solution and could encourage denials in many cases. As noted in the rule unreasonable delay or denial as determined by the Director or a judge may subject you to penalties as happened here so a claimant is not limited to assuming a surgery is authorized; he or she can also pursue continuing penalties in some cases. The real failure and delay here was leaving the claimant and the doctor hanging by just denying the surgery with a letter without some medical review to back up the denial even when it is thought the surgery was elective.

Pinnacol Privatization Again in the News

The Denver Post is reporting that business groups and others are upset with Pinnacol's ads touting the benefits of privatizing Pinnacol Assurance. It is asserted the ads violated an agreement not to lobby on the issue while the matter is under review by a task force. What the article points out is that Pinnacol is the state's insurer of last resort for high risk businesses. That is why Pinnacol was originally set up by the state of Colorado and then has grown to be the largest insurer in Colorado of workers compensation claims. This effort to privatize is not surprising. Pinnacol is large, apparently thriving, with ample funds available that in the past the state was interested in obtaining. My experience tells me that when a nonprofit becomes quite successful the entity wants to move out on its own. I saw that with Blue Cross Blue Shield when it became Anthem. There can be interest in expansion beyond the state borders and Pinnacol executives can operate unfettered by state oversight. In theory the state gets an investment apparently worth $340 million and a dividend every year. Of course Pinnacol's offers seem to vary which is, I suspect, just part of the negotiating. The real question I have is whether privatization might impair the very purpose for the state's interest which was to insure high risk ventures. The construction trades have many injuries and are costly to insure. Without state involvement might this endanger state businesses? Private insurers certainly have more freedom to operate than an entity with state oversight. Of course my other concern is valuation but that is negotiable.

Maximum Benefit Rates

The calculations for top dollar benefits can vary in Colorado depending on your date of injury and the allowable maximum rate on your date of work injury. Let's say you lose an arm or leg but are not totally disabled. What is the highest permanent benefit you can receive? For injuries after July 1, 2011 the max is $54,202.72 but if you were hurt before July 1, 2010 it might be only $53,067.04 or even less. Be aware this is strictly for the loss of an arm or leg without more. Always review with an attorney all the injuries you sustained at work but also your past medical history. At times a rather minor injury may nonetheless be significant enough to make you totally disabled. The rating or per cent of your medical impairment is not always the end of the story. Impairment is not the same as disability in many cases. In this area, more then anywhere, a workers comp attorney can be invaluable in analyzing the situation. Getting back to discussing the maximum rates, effective for injuries after July 1, 2011 the highest scar benefit can be as much as $8,792.00. Next, the most you can collect when you combine temporary and permanent benefits is $153,210.00 although this cap does not apply to those totally disabled. Be aware that these amounts are not the minimum you can collect so benefits can be less or even zero if your claim is not compensable(many claims are disputed). There are many factors that go into assessing impairment and disability but the caps do remain a top dollar limit on benefits in most cases. Those totally disabled or with a need for long term medical care may still have higher benefits. By way of example a few years ago I had a case where the claimant had a high rating but had collected all but a few thousand more before reaching the cap for combined temporary and permanent benefits. The case settled for much much more because of a concern he was totally disabled. However for those able to return to work the caps must be a consideration. Credit goes to Judge Eley for calculating the above figures for us.

Merry Christmas 2011!

Walmart and Concentra to Pay $8,000,000 Settlement

In the Gianzero federal case Wal-Mart and Concentra were sued in a class action lawsuit alleging various violations including of the Colorado Workers Compensation Act, bad faith, RICO, and much more. The basics of the case was the assertion that Wal-Mart and its insurer conspired to dictate, withhold, delay, deny or interfere with the medical care of injured workers. The case made a big impression and received commentary elsewhere. The allegations involved setting forth protocols for treatment and referrals which violated the Workers Comp Act and which restricted or denied or dictated care. As alleged, Concentra then implemented "flowsheets" which were then imposed on its doctors which preempted the exercise of independent medical judgment. In my view the adjuster could control treatment which I see as the inherent conflict in most health insurance situations. He who has the money can be expected to try to set the rules! Naturally all of this was hotly contested but in the proposed settlement Wal-Mart, Concentra and their insurers have recently agreed to pay $8,000,000 to settle the case without formally admitting they were out of line. Class members would receive up to $520 each if they were treated at a Concentra facility between 2001 and November 1, 2011. The detailed proposal sets forth the proposed settlement and more is available at this website including the original complaint and the notice of the proposed settlement to potential class members. If you were injured working at Wal-Mart you may be eligible for a check should it all be approved. Added expenses are also sought by the attorneys for fees and costs. Moreover as part of the settlement they are to cease the disputed activity for 4 years and have educational training for adjusters and certain staff of Concentra regarding the prohibition on dictation of care provisions of the Workers Compensation Act. In my view this is a significant victory for doctors and claimants who deserve to have medical treatment handled as a medical matter and not unduly influenced by non-medical personnel who work for the employer or its insurer.

Social Security seeks to review the disability process

Over at the Wall Street Journal they are reporting that the Social Security Administration is obtaining an "independent" review of the disability hearing process. The article appears to emphasize that too many judges are approving cases at the hearing stage. It asserts that some judges approve 99% of claimants that have sought a hearing after a denial. Of course it also notes some judges approve very little like the judge who approves just 13% of the claims at the hearing stage. They indicate funds will run out by 2017 at the current rate but this statistic is open to dispute. Depending on your political persuasion Social Security is in such bad shape that we should phase it out or it is fine and with tweaks can last indefintely. I am closer to the latter then the former but that is a long story. I do know that judges have their own stats on granting/denying benefits. But concentrating on judges who grant benefits is not the right approach. Being concerned about too many favorable decisions but not those judges who deny excessively is too one sided. I am all for saving money but not at the expense of the truly disabled which I consider ghoulish. There should be some accountability for all judges. The article also points out that the federal courts seem to be overturning denials 51% of the time as if the federal judge is off base. My experience is just the reverse. Most federal judges who overturn a decision are quite right. Even the government attorneys often stipulate the SS judge made a mistake. SS judges do make mistakes and at times the denial of benefits seems off base. Implying the federal judge is interpreting the rules improperly is absurd. Most decisions are far better reasoned then the decision denying benefits. However to be fair many of these overturned decisions are just being sent back to the original SS judge for more workup on a remand. My experience with claimants is that the vast majority are truly disabled and unemployable so we should be focusing on speeding up the process (for time to a hearing click here)and quit trying to label Social Security as the problem. Instead we should be fixing it for all future generations.

Issues to Think About for 2012

Around this time of the year I look back at the year and ahead too. Someone asked me about national issues in the field of workers comp but really not much has changed over the last year in Colorado. By that I do not mean that there were no changes or interesting developments but that it was a year of slow or minimal changes in the law. Still there were some developments. For the statutory developments just click here for an overview. For what is new at the Division of Workers Compensation you can click here. For caselaw we cover this in our blog. But as for the national or evolving issues in this field I guess the overriding issue is the economy. Still that is not unique to workers comp. What I have noticed over the years is there are increasingly technical or more precisely medical issues in workers comp. They usually trigger a battle of experts. What you then see are many cases that have become medical battlegrounds. The battling experts are the doctors. In such battles the advantage is often with the insurer. First, the treating doctor is usually selected by the insurer or the employer. Not exactly a good deal for the employee especially when there is a controversy. Next they cultivate those doctors who issue reports and testify to the benefit of the insurer position. It's expensive for a claimant to use his or her own doctors. Testimony expenses are billed at $450 an hour in most cases and includes commuting and wait time too. It is easy to spend over $2000 for one such expert. Advantage? Insurer (I have had insurance defense attorneys tell me they can pay $5000 or even $10000 for their experts). This can cripple a claimant's case. It strikes me that this is impairing a fair fight or what I would call access to the system. In civil matters there is a growing awareness of a need to simplify proceedings because when matters are complex or highly technical it works to the advantage of those with the money. In Colorado there is a interesting new seminar on this as relates to civil proceedings other then workers comp but it strikes me that improving access in workers comp is extremely important. By permitting many experts we skyrocket the costs of a hearing. It may be wise to limit this. Perhaps for a fair fight we should let the claimant have his expert as a covered benefit but that is not the current law. In my opinion any effort that speeds the process, makes it a fair fight and reduces something that is complicated to what the computer crowd would call user friendly is to be lauded. The workers compensation system was not intended to be unfriendly to injured workers. It was intended to be an efficient way to deal with work injuries and hopefully protect the worker while he recovers from his injury. In my view that is not happening and perhaps we need address this so we get back to the original purpose of the workers comp laws...to assist injured workers even if benefits are limited by statute. Otherwise the problem is shifted to all of us.

Pinnacol again seeks privatization

The Denver Post is reporting how once again there is an effort to privatize Pinnacol Assurance, the state's quasi public/private workers comp insurer. Pinnacol is also the largest insurer in Colorado in this area. Now they are reviewing the proposal that the state gets a 40% stake worth $340 million dollars in return for greater autonomy for Pinnacol. What sticks with me is that the state saw big cash amounts held by Pinnacol and wanted a piece of that to help with the state budget. Pinnacol then sought to get away from state influence and control. This is a story that reminds me of the old serial thrillers. This version is still controversial as I suspect some may question the wisdom of the state agreeing to this. Colorado created Pinnacol to make it easier for businesses, especially high risk businesses to obtain workers compensation insurance for a fair price. I remember getting claimant benefit checks from the state accounts but that was years ago. The point is that it has thrived and been effective in Colorado with state backing and now that it is doing well wants more autonomy. Control and money issues are involved so of course with such issues comes controversy.

Top Workers Compensation Blogs for 2011

This blog has again been honored by its 2011 selection into the top 25 worker's comp blogs in the country by LexisNexis. This is our fourth year in a row. But I really liked what they said about this blog because it brings home the point that good writing about this tough area need not be boring at all and perhaps even worthwhile to our readers. Here from the LexisNexis website is what was said:

" Who says workers' comp writing has to be boring? Colorado Workers' Comp Blog, offered by Colorado Springs Attorney Richard Falcone, is an excellent example of an attorney who writes with depth and clarity, all the while sprinkled with flair and even humor. Falcone, who writes from the perspective of the injured and disabled worker, continues to provide readers with commentary and analysis. Falcone's September 16, 2011 post, entitled "New Court Case on Medical Benefits," and his May 13, 2011 article, "Munoz Court Case on DIME waiver," sift through complex medical issues with relative ease. He also enjoys the hypothetical-his February 4, 2011, "Does Charlie Sheen Have a Workers' Comp Claim," reacts to a whimsical question posted on a satirical blog, "the Spoof," regarding the antics of the former star of television's Two and a Half Men."

Administrative Law Judge Orders for September 2011

I have indicated in the past that the Office of Administrative Courts will post just about all the orders issued in the state of Colorado following hearings in workers compensation cases. In September they posted the orders and it covers some 470 pages. I skimmed through all of them and many are quite interesting reads. A great many of them involve medical legal issues so they have opinions by numerous doctors. In one early case I counted 8 doctors. Often such cases involve causality questions pertaining to whether or not a claim is work related or questions regarding treatment. I should remind claimants to discuss all your complaints at every visit with the doctor. In my experience some of the doctors do not document as we would expect them to do. As such you can provide the doctor with your history in writing if need be. By history I mean a dated statement of your current problems which you bring to your doctor each visit. Always make a copy for your records. This can prevent any misunderstandings later on. In at least one of these cases it appears the claimant asserted he was telling and telling the doctor at every visit something which never was noted by the doctor. Of course the decision went against the claimant on that point. I have had clients take a written history into their doctor every time just to keep all the details accurate. A failure to complain can be assumed to mean an absence of pain or limitation. Anyway these cases tell us what sorts of issues are going to hearing in Colorado.

Colorado workers comp insurance rates to go up

The Denver Post is reporting that businesses can expect a rate increase on their workers compensation insurance coverage. This after a few years of declines. Why? The number of claims is not going up. The explanation appears to be in the continuous and unrelenting increase in medical costs. Here is the Colorado statement on all this. This rise in medical costs when the economy is not inflating remains ominous for all of us. The failure of society to address this is rather sad. We all talk about it but it takes a concerted effort and in our politically charged country we are less interested in problem solving and more in ideology. Wouldn't it be nice if they set up a task force to address such costs in a sensible way? I mean an across the board analytical review. If medications are a big factor find ways to lower that expense. If we need more nurses or practitioners find ways to increase the numbers with educational incentives. If caution leads to the running of multiple and usually unneeded tests find ways to prioritize those tests rather then run all of them at a time. If malpractice rates are too high find ways to make providers accountable without increasing those rates. I mean weed out the bad apples especially in workers compensation. Simplify the paperwork too! While I do like the medical treatment guidelines I saw recently what appears to be making it more complicated to obtain prior authorization. In workers compensation there are many disputes in what I see as primarily medical legal issues. When we go to a hearing and it seems to be a legal issue on compensability in reality many such cases involve medical causality. So some of these rising costs involve insurers hiring experts to question causality and treatment. As an example an attorney related to me that he had obtained a DIME opinion that the claimant is not at MMI. In the past this just led to more treatment and a reassessment. Overcoming a DIME historically has not been easy but the pattern is now to question everything. There are doctors out there that will nearly always assert an injury is not work related or that the DIME doctor made a mistake. A DIME would cost $675 but they spend $5000 or more fighting it. The point is not all the rising costs in workers compensation are based on purely medical matters. Some come from the insurer disputing matters. It also drags out the proceedings which I do not really see as helping the claimant needing treatment and it is costly. In any event businesses can expect higher workers comp premiums next year.