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.
The Division has provided everyone with its new maximum rate figures for Colorado workers compensation benefits. Each year it revises the maximum rates and effective July 1,2013 it has new rates. These apply to injuries after that date. It is important to realize that maximum rates are set because rates are not unlimited. With a work injury not everyone receives a fair amount. Workers compensation benefits are limited or capped. Often an injured worker would tell me he's not getting enough compensation when by computation he was getting the correct amount. But the correct amount does not mean your compensation rate is going to be high. It is an insurance benefit and is designed to provide what the state has determined it must provide. The basic concept is to receive two-thirds of your average weekly wage when you are unable to work after your work injury. Thinking it is going to be high or even equivalent to your take home pay is unlikely. Historically benefits have not been taxable so at least that is a plus. And medical benefits are not limited although there can always be a dispute on what is reasonable in treatment. If your doctor prescribes a trip to the Bahamas for your psychological well being it is going to be disputed. But be aware that disputes involving your average weekly wage are common. Claimants often believe the figure provided by the insurer is wrong. Overtime and even health benefits may be part of the figure. When possible do seek out an attorney to represent you as soon as you can. Even a case where the claim is admitted can have much to deal with including what is the correct average weekly wage.
Last week the Court of Appeals decided the Youngs case. The case is as complicated as it is long. It started in 2005. In 2011 the claimant sought to reopen the case. Reopening was sought on two grounds. One ground was fraud and the second was a worsening of the claimants condition. The insurer opposed both allegations. On the fraud assertion that was dismissed by one judge after deciding the claimant could not establish the elements to support the request to reopen. Later a hearing was held on reopening based upon a worsening of the claimants condition. On the evidence another judge decided against reopening. The claimant appealed both orders. The court decided against the claimant. On the fraud dismissal the claimant filed to appeal but it was determined to be premature until the second order was issued and while claimant appealed the second order he did not appeal the fraud dismissal after the second order making it untimely. On the worsening appeal it was decided there was no worsening and no error permitting that decision to be overturned. You are encouraged to read the case for a full review of the courts opinion. The decision on no worsening is straightforward enough to read and understand. Perhaps I might not agree but the burden is on the claimant and a judge has discretion with respect to the evidence. But on the fraud issue we seem to have a decision which says the early appeal by the claimant was too early and he needed to appeal again on that issue and when he did not then he lost his right to appeal. Now for my personal comments: I do question that the first appeal was premature. It seems rather final to dismiss the fraud allegation and a final decision starts the time frame to appeal. The claimant did appeal in a timely way but the court clearly felt otherwise. But next the court seems to impose a requirement that the claimant had to appeal a second time on the fraud issue after the last hearing and order. Perhaps that is the case but it is rather clear the claimant did initially appeal so does that existing filed appeal become timely after the second order? It is not like it was ever ruled upon until much later. Of course I am aware and the reader should be aware that the court had its own reasoning which is the law unless this case is appealed to the Colorado Supreme Court. Even if appealed that court can choose not to address the present decision.
This week the Colorado Court of Appeals issued a decision I call United Airlines and it concerns temporary benefits. The claimant was injured in 2007 and received temporary benefits until the year 2011. Those benefits totaled close to $100000. Then the permanent rating came to 5%. The insurer then pointed to the statutory cap on combined temporary and permanent benefits. It was $75000. Therefore it asserted the claimant was overpaid and owes money back beyond the $75000 figure. The court decided there was nothing due back to the insurer. It made clear that temporary benefits can go beyond the statutory caps. So a claimant can in theory be paid for many years while he is not at a permanency level. Of course if you reach permanency and have exceeded the cap then no permanent benefits will be paid at all in almost all cases. I recall a case I had several years ago where the temporary benefits were quite high after several years of treatment. Any permanent benefits would have been low but the claimant asserted he was totally disabled. There was very real evidence of this so the settlement was quite high. The cap does not apply to those who cannot ever return to work and were totally disabled. So while temporary benefits are potentially long term once you do reach a permanent status you might consider whether you can return to any work. If not then your claim could be for permanent total disability. In this recent case they also asserted it was against public policy and unconstitutional but these arguments were rejected by the court. The losing side might try to get this case before the Colorado Supreme Court but for now it is the law. Of course I agree with the decision and am not in favor of any caps or limits though I understand the law is meant to limit benefits to save money. My view is that insurance should cover your real losses and having a permanent impairment is a real loss for most claimants.
The Almanza case decided by ICAP several weeks ago reminds us about the awesome power of a jurisdictional situation. It is not freely available on the web but I was provided it in a recent update. It reminds us that anything that is jurisdictional must be carefully handled. In this case there was a DIME examination and report issued. Respondents were concerned about the examination and sought by motion to delay the requirement that they either admit based on the report or contest it with a hearing application. They requested an extension of time to admit or contest the DIME report until depositions were conducted. A prehearing ALJ (administrative law judge) agreed and issued an order of extension. Ultimately this led to a hearing where the claimant's impairment rating was reduced because the DIME report was not a proper DIME report and a new DIME had reduced it. The claimant appealed to ICAP. In this decision ICAP determined the original extension of time was error because it is a jurisdictional matter. The requirement to admit or contest the DIME report is 30 days and no extension granted by the judge was proper. It further ruled the original report was not improper. The DIME physician had a communication with the claimants interpreter which while improper did not invalidate the report as a matter of law. Here the claimants appeal was successful and the original DIME rating was ordered. So where a matter is jurisdictional it is almost etched in stone. Respondents must admit or contest a DIME report within 30 days as provided by law. No extensions are possible although Respondents in this case could have contested it and sought a delay of the hearing date which is not a jurisdictional matter.
Every now and then Colorado puts out a workers comp newsletter. They just recently published this issue in January 2013. It is actually quite nice to read this newsletter as it personalizes the system and
also alerts you to recent developments. The process is not faceless and this issue provides us with some information on Judge Purdie. It introduces you to Judge Lamphere. It discusses new rules and procedures too. I actually would like to see this newsletter published more frequently and have claimant and respondent input too. The newsletter is an informal way of discussing various workers comp matters and meeting those who play a role in the workers comp process. People can be critical of the system and the outcome of cases but I have to admit most of the people who work in it, from judges to attorneys to assistants, work very hard. Many cases are quite complicated and take a long time to resolve. There usually is just a formal side that you may see. The motion, the order, a brief, a form to fill out and medical reports to read can make it all seem very cold. But there really are people involved in the process. A claimant may be the most involved but the adjustor is also financially and actively involved. Newsletters and other publications can help all of us understand how it is going and even some of the players. If at all possible every claimant should obtain an experienced attorney. Going it alone is quite hazardous especially in terms of getting the proper treatment and receiving an adequate award.
Over at LexisNexis they gave us their top ten bizarre workers compensation cases for 2012. Now each state has their own laws and none of these are Colorado cases. But they still are provocative. So for the that reason perhaps they are worthwhile to tell us that strange cases sometimes appear. Bizarre is the word used by the author of the LexisNexis article but these cases are, at least, unusual.
These cases discuss rattlesnake bites and exotic dancers and pigeon droppings but they also discuss how surveillance led to a tort claim. Being claimant oriented I do not approve of the outcome in all these cases and no one should consider them Colorado law. But they are unusual and interesting to read. They remind us that workers compensation is not a simple matter. Many cases can get quite complicated. Some can last for years. It is advisable that whenever possible a claimant should seek out an attorney to assist him. Even where a claimant has been treated nicely in the beginning you usually can use an attorney to set up the final settlement or resolution. Insurers will almost always take the lowest cost way to end cases and imply that is all you get. Historically having an attorney increases your odds for a better settlement. You often just get one shot at this for a problem that you may have for the rest of your life. In my experience settlements have been far higher with an attorney than relying on the insurer to be fair.
I received a notification that there can be a new approach in some prehearings. It appears to allow some quick prehearings without much paperwork if the parties agree. This will take effect next month. My only concern is that no one wants to be surprised so if you want to know, in advance, the precise issues and likely arguments you do not agree to this abbreviated approach. I do think it would be useful in some circumstances where the parties have attorneys and
are desirious of clarification of a clear issue. This is what was sent out on this new approach:
The Prehearing Unit of the Division of Workers’ Compensation is instituting a new procedure, designed to cut down on paperwork and time spent scheduling prehearing conferences. It is called the Walk-In Prehearing Conference.
The Walk-In Prehearing requires no notice to the Division, and will be held the 2nd and 4th Wednesday mornings of each month beginning in January, 2013 (January 9 and 23).
The guidelines for a Walk-In Prehearing are:
1. All sides must agree to a Walk-In Prehearing Conference.
2. All sides must appear in person. If one is a no-show, there will be no prehearing conference.
3. Walk-In Prehearings are not available for issues involving pro se litigants.
4. The parties must exchange some type of documented notification of the issues to be heard at the Walk-In Prehearing. This can be done by email, fax, etc. A copy should not be sent to the Division, but should be available at the Walk-In Prehearing.
5. No reservation or paperwork is needed. Upon arrival, the parties sign in on a registration log. First come, first served.
6. Walk-In Prehearing Conferences will be for the consideration of any prehearing issue, but will not be used for mediating settlements.
6. Walk-In Prehearing Conferences will be held from 8 to 11:30 a.m. on the 2nd and 4th Wednesdays of each month.
You can take a look at proposed rule changes at this page. It sets forth all recent rule changes. On January 29, 2013 there is to be a hearing on the proposed change to Rule 5-11 and 10. Any claimant or attorney should be aware that any rule changes may be significant. Aside from the workers compensation statutes and caselaw the rules are often critical in a case. There may be deadlines set forth in the rules or just standards that are to be utilized in a case. The Medical Treatment Guidelines are in the rules. Disputes, when they arise, may well be resolved with reference to the rules. In any event there will be a hearing on some new proposed changes as I have said so we move forward into 2013.
It appears employers will have to plan on higher premiums for workers compensation in the coming year. As noted in this article the insurance
rates will be going up. It is asserted that the loss costs which pertain to lost wages and medical payments have been increasing by 5.2 per cent. You can expect many insurers will be raising their premium rates to make up for this. Pinnacol Assurance intends to raise rates by an average of 9.5 per cent as noted in this other article. The Pinnacol claim is that workers compensation has not been profitable since 2006. Colorado employers are still paying Pinnacol 32 per cent less than what they paid in 2006 even with this raise. At least that is the claim. Given the economy it seems difficult to fathom this raise. I have always thought that companies who were not profitable for many years would not be around but Pinnacol seems healthy enough to be doing okay. In any event this is the third year for rate increases in Colorado. Certainly we all know that medical costs still appear to be going up. I do point out that not every state agrees to raise rates and as pointed out here in Massachusetts the state questioned the figures as inflated and unreasonable. The point is that a state should carefully review matters and not assume the facts asserted by the industry are accurate. Seems like common sense to me.
This week the Court of Appeals issued a decision in the Littleton case. In this case a Littleton firefighter developed brain cancer. He filed a claim in workers compensation which was contested. The firefighter relied on a recent
Colorado statute which provides for a statutory presumption that certain cancers came from on the job exposures for firefighters. The Respondents fought hard and presented several witnesses to assert that his cancer was not from firefighting. The judge at the hearing decided against the claimant firefighter who then appealed. At next level of appeal it was decided in the firefighters favor so the Respondents appealed to the Court of Appeals. This court decision issued this week also determined in favor of the firefighter. The court went about analyzing the statute and concluding the efforts to provide evidence the cancer did not come from firefighting were not enough to overcome the statutory presumption the cancer was work related. It seemed the medical evidence the Respondents presented was really attacking the statute and in order to overcome that presumption you must present evidence as to where the cancer came from other than work activities. At least that is my view but read the case. In that respect the Respondent burden is very high. If fire fighters had to prove their exposure to toxic things caused a cancer it would be quite difficult. Fire fighters do not monitor all the chemicals they are exposed to or the level of that exposure. The other side can often come up with medical experts to provide opinions such exposures are not likely to cause cancer. So when the firefighter can rely on the statute he has a big edge.
On November 15, 2012 the Division of Workers Compensation will have a hearing to address its proposed treatment guideline for Traumatic Brain Injury. For more information on this check out this page. Treatment guidelines are the recommended protocols for all to consider in the treatment of those with a traumatic brain injury. Such an injury, even if seemingly mild, may have long term effects on a claimant to include their employability. Assuming the proposed guidelines go through then it may be important when we are dealing with such injury to refer to these guidelines from time to time. While deviations from the guidelines may be possible the guidelines provide a framework for assessing ongoing treatment. In returning a claimant to work the proposed guidelines note that those with a TBI should not just be released to light or sedentary duty without specific physical or cognitive limitations. Drawing the attention of the treating physician to the guidelines and even specific quotes from those guidelines might be an important thing to act on. In any event these proposed guidelines are coming up for hearing so those with a TBI case should monitor the situation.
A few days ago the Colorado Court of Appeals issued a decision which concerns CIGA (Colorado Insurance Guaranty Association). In this case the Claimant had an industrial injury to his left index finger and it was amputated.
Regretably there were complications which led to a surgery which had its own complications. As a result the claimant sustained an anoxic brain injury and now cannot work at all. He resides in an assisted living facility for brain injured individuals. This claimant is now permanently and totally disabled. The claimant then filed malpractice claims against physicians and a hospital and recovered several million dollars. By statute a workers compensation insurer does have rights (subrogation) to proceeds actually collected. Apparently this subrogation lien was paid but CIGA asserted a right to the interest earned when some of the malpractice proceeds were invested and structured in amounts to be paid out over time. The court decided that the interest was not something the insurer was entitled to assert a subrogation lien against so CIGA lost the appeal. I see this as indicating that the claimants investment of his proceeds does not entitle the insurer to seek any part of the gain or interest from his proceeds. Of course the case goes into more detail and does point out that workers comp insurers are entitled to a subrogation lien on actual proceeds collected by a claimant in other claims which can come out of work injuries.
Just a few days ago the Colorado Court of Appeals decided the Rodriguez workers comp case. In this case the claimant
was injured in a fall descending the stairs to her office. The employer initially admitted liability for disability but then sought to withdraw its admission of liability arguing the injuries did not arise out of the employment. A CT scan found unruptured brain aneurysms but it was determined the fall did not come from the aneurysms but was unexplained. The judge found the claim to be not compensable because the fall was unexplained. The hearing judge recognized that the employer bore the burden in proving non-compensability and it did so when the fall was determined to be unexplained. Claimant appealed and it was affirmed by the panel leading to the Court of Appeals decision when the claimant appealed again to a higher court. The court said the burden being on the employer the fact it was unexplained was a failure of proof. Essentially the burden of proof was on the employer since they had admitted liability and that burden requires more then saying the fall was unexplained. All claimants should be aware that unexplained falls are usually not compensable because normally the burden is on the claimant to show the injury was work related. However here the employer had the burden when it admitted liability. Clearly it appears the court is saying the burden you have is a real one and there must be evidence to carry that burden. A lack of explanation is not good enough. To me falling on stairs is usually work related but it is important to have an explanation of what happened. You might return to the scene of any fall if you are worried. Perhaps the traction is a problem or the angle or the step itself may be a problem. Fortunately in this case the claimant was lucky not to have it contested where the burden would be hers to prove. In many cases the other side disputes or contests the claim. If at all possible a claimant should have an attorney to handle such contested claims because they are often tough cases to win.
"...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 email@example.com.
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 firstname.lastname@example.org. We've been protecting injured workers for many years and even originated our original website well over ten years ago. 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.