Dec. 28, 2006 two Court of Appeals cases

These cases are not favorable to claimants. In one case, Sigala, the claimants temporary benefits were "suspended" for missing an appointment with his authorized doctor. The appointment was set by the insurer and sent certified mail to the claimant after he missed an earlier appointment. The rule permits a suspension and in this case the claimant finally went ahead with a later appointment and then wanted the suspended back benefits to be provided. While his temporary benefits were reinstated the back suspended benefits were never provided. In this case several weeks were never paid. The Court of Appeals decided the "suspension" for those several weeks was a forfeiture for those weeks. I disagree with this decision. Despite the Court's view I see no due process and cannot understand how "suspension" can mean "forfeiture" as the statute could have said forfeiture. The next case, Holnam, involved a claimant trying to win on two different theories. First he said he had a work injury to his neck. He lost. Then he said, okay, my neck problem comes from an occupational disease in that work activities caused or aggravated it. The hearing Judge agreed and the insurer/employer appealed. The court decided that you only get one bite of the apple here and the claimant loses on both theories. The concept is what they called claim preclusion. My view is the court was wrong. Workers comp hearings are very specific on issues and evidence and dates. A work injury is date specific and the mechanism of injury is one specific incident. An occupational injury develops over time and was never addressed in the first hearing when one date one incident was the theory. The issues are quite different in the two hearings. If a trauma on one date did not cause the problem then other dates with work activities are ongoing aggravations. It really requires more medical evidence beyond one date one trauma. In any event the court focused on it being a neck claim and you do not get two tries to establish a neck claim. To me this is off base. I hope both cases either go to the Supreme Court or are limited in how they are interpreted.

Merry Blizzard!!!!

Just a note about Christmas as the snow flies here in Colorado. It's not a lot of snow but the wind makes it a blizzard in Colorado Springs though elsewhere in the state there has been significant accumulations of the white stuff. This time of year is almost magical. It is festive and hectic but the spirit of Christmas is in the air. If love could be measured then Xmas would be overflowing the cup, spilling over and over and over. Sure there is the marketing and hawking of "stuff" but the spirit of Christmas exceeds the materialism of the holiday. The joy of a giggling child, the excitement of gift giving/receiving, the songs, the smiles, the warmth of memories of old and memories being made right now...it is a truly blessed time. So deck the halls and have a great time with family and friends. We can all be the Santas and childlike all over again this year. It is an awesome holiday. Have a MERRY CHRISTMAS from snowbound Colorado!

Listen in on an appeal!

You can listen in on the audio of cases set for oral arguments at the Colorado Supreme Court or Court of Appeals. These are real cases where the lawyers argue in front of the appeals judges. As an example I have a link below to several cases heard a few months ago. When you click on the link you should click on the STC case (05CA2340). The case involves apportionment. Insurers love to limit benefits and try to use this legal theory of apportionment to pay for only a portion of benefits. So over the years there have been numerous cases involving apportionment. By way of example insurers may say they only need to pay for half of your surgery if they can establish it should be apportioned. In any event the oral arguments of both sides can be heard in the case noted above. http://www.courts.state.co.us/coa/oraldock/2006/aug2006.htm#7

Special Issue

The Workplace Injury Law and Advocacy Group (wilg.org) is a national group of attorneys interested in protecting injured workers. They have just put out a fascinating issue which has extensive information on the state of workers comp in the country. This is in pdf and will take quite a bit of time to load depending on your internet connection but the issue is simply an excellent read. Here is the link: http://66.6.98.12/data/firstwatch/WFWSpecialIssue.pdf

Max

This may be a blog on workers comp but since I mentioned our grandson it is my perogative as a grandfather to show him off! Max is now almost 10 months old and reminds us all that there is so much more to enjoy in life and be grateful for despite our adversities.

Employee's Guide

Just a quick note to post here the link to the Colorado pamphlet for Employee's. It is in pdf format so it can take some time to load but it contains answers to frequent questions put out by the Colorado Division of Workers Compensation: http://www.coworkforce.com/DWC/PUBS/employees_guide_2005.pdf

Schedule or Whole Person?

There is nothing more frustrating to an injured worker with an hand, arm , shoulder. or leg injury then to find out that Colorado may consider such injuries as worth less in permanent benefits. A construction worker who must live with pain, restrictions and stress because of an arm injury is often going to lose his trade. At a minimum he may need an easier job which also may mean less pay. Yet in Colorado benefits for a permanent arm injury may be small...perhaps a few thousand dollars. Unless the person is totally unable to work to be told benefits are low is simply not good news. This concern is called a scheduled injury and believe me all insurers will attempt to treat such injuries noted above as scheduled. This is quite different from the whole person injury calculations which often result in significantly higher benefits. Let me give you a specific example. Mr. Jones has a shoulder injury and if the schedule is used the calculations for his permanent injury are around $11000.00 but if converted to whole person the figure is over $40000.00. So same injury but if the schedule is used the amount is lower. There is no logic to this at all when you are permanently hurt especially if it affects your wages. But years ago Colorado decided on a mathematical formula for benefits and arms or legs can be paid less then backs and necks. What to do about it: if possible seek out an attorney or if you are on your own try to show that your injury extends beyond the arm or leg. Either anatomically or functionally when your impairment affects more then the extremity a judge may agree and provide you with the higher benefits (whole person benefits are usually higher the scheduled benefits). Most important of all...DO NOT ASSUME THE INSURANCE IS RIGHT ON ANY CALCULATIONS.

About Your Spine

Here is a very good overview on backs...anyone with a neck or back injury can gain some insight by reading the info posted at this website: http://www.spineuniversity.com/public/spinesub.asp?id=32

Two Colorado cases announced today: Williams and Stefanski

The Colorado Supreme Court just issued opinions in two related cases today. These cases arise from the procedure used in Colorado to review an authorized treating doctors opinion on MMI (maximum medical improvement) and permanent impairment. Usually the claimant pays $675.00 for that review because the claimant questions the opinion of the treating doctor (often selected and approved by the employer/insurance). My experience has been that often an independent exam reveals a person needs more treatment or has a greater impairment then allowed by the treating doctor. These independent exams are important because they help to protect the claimant from a premature discharge from treatment or they add to the permanent impairment award. Colorado courts were divided on the problem of what happens if the independent doctor says you at not at MMI and after further treatment the treating doctor again says you are done. Who pays for the next visit to the independent doctor? Claimants seldom have the money to pay again. The decisions today determined that the insurer must pay not the claimant. My view has always been that when you seek this independent exam to address MMI, permanency and other items that you pay for it once not over and over again. In any event here is the link: http://www.cobar.org/opinions/opinion.cfm?OpinionID=5858

Non-lawyer's Guide to Procedures/Hearings

While the best advice is to obtain an attorney to assist you with your work injury claim there are many cases where you either don't want or can't find an attorney to take your case. Sadly some claims have become small claims and lawyers are hard to find to handle it. If the state of Colorado told us they would pay all legal expenses then everyone would likely be represented even in the smaller cases. But some claims nowadays have had benefits so reduced or limited that a claimant may have to represent himself or herself because lawyers are not available. I do like the customer service unit at the Colorado Division of Worker's Compensation for trying to help out here but when you need a hearing you may find this guide provided by Colorado helpful (but please consult with an attorney if at all possible especially when you have a serious injury) : http://www.colorado.gov/dpa/oac/Non-Lawyer_WC.htm Also it is available in English or Spanish!

Colorado Division of Workers Comp

While claims and benefits for a work injury can be a less then pleasant experience (more on this at a later time) I do consider the website maintained by Colorado to be quite decent in providing information online. Workers comp is a very complex field but efforts to help educate you are free for the asking. If you will click on this link or copy and paste it you will be directed to the many publications and free online info available to the public: http://www.coworkforce.com/DWC/PUBS/pubs.asp

Recent case on health benefits...Ray

On October 23rd the Colorado Supreme Court issued a decision favorable to claimants. You can access the decision yourself by going to cobar.org and clicking on the court opinions. I won't give the full name of the case but "Ray" is what I call it. If an injured worker had health benefits provided or contributed to by his employer and that insurance is terminated after his injury the cost to continue it is added to the wage calculations. This will often increase benefits by a fair amount but it is up to the worker or his attorney to make sure it gets done. This was a hotly contested matter in Colorado. The lower courts appeared to split on the issue so the Supreme Court set the record straight. The claimants side argued it should be added immediately and the other side argued it doesn't get added unless the claimant actually paid to continue coverage. Well, few claimants who are injured and also losing their job can afford to pay and seek reimbursement. My personal view has always been that if it's part of your wage package then it should be immediately counted as the employer certainly counts it on his books.

It's a Blizzard here today!

Our area received around one foot of snow so that is worthy of a post today. It was nice and temperate yesterday...over 60 degrees. In Colorado however the weather can change on a dime and sure enough we were hit with a blizzard. The interstate closed for a while and tree limbs snapped but most of us stayed home and watched it all on television.

Author

Thought it might be nice to post a photo just like authors have on the back of their book. Of course I don't have a book yet so this will have to do. At least now you know I'm not just words on paper...uhh make that words on the internet.

I'm New At This

I'm new at blogging but felt this is a good place to post comments and new happenings in Colorado workers compensation. I apologize in advance for any typos or grammatical errors of any kind. This is not a place for legal advice on any claim. While I practice in the Colorado Springs area and do take some appointments the point of this blog is to provide my views in the area of workers compensation. Consider my postings more as an editorial. For example I handle cases from the claimants viewpoint so you can expect my perspective will be towards the injured workers and not the insurer/employer. Nonetheless I will try to be objective and welcome any comments by others. I will try to keep up you up to date with changes in the field and with matters I consider important but please realize this is a blog not a legal publication. I'd rather be freewheeling and personal in my comments not legalistic. Lastly when I post it may include non-legal matters but again I apologize. If I'm boring pass me by; if I'm annoying pass me by; if I'm saying something you agree with or disagree with then let me know about it!