Sunday, December 23, 2007

Merry Christmas to all!


This is a very special time of the year and I am grateful for both the season and for a special delivery here shown with Santa....my twin granddaughters. Hope your holiday is special too.

Tuesday, December 18, 2007

Peak Vista Community Health

There are many people who truly cannot afford a doctor or medical care and seem to have run out of options. Whether injured or infirm or old if you are truly poor there is one great resource to turn to for medical help. They do not take everybody but try over at Peak Vista Community Health. I have always felt they provide quality care so this option is worth a try. My only problem which other attorneys have also commented on to me is that they do not fill out paperwork that can help someone qualify for other benefits like Social Security disability. I suspect this is because they are loaded with basic care cases and believe they have to use their time wisely. I disagree since when someone does get other benefits they may also obtain medicare or similar medical benefits. This benefits everyone. I am sure Peak Vista only can do so much but I admire what they try to do. The local newspaper commented today on this agency and how it too needs help from us.
Peak Vista

Saturday, December 08, 2007

Announcing Twins!!!


Just a special message of a personal nature. Identical twins were born to my daughter and husband recently. Both are doing fine and remind us that birth and life go on so we should enjoy our family and loved one's despite all our concerns about injury and disability. Our children teach us what life is all about.

Monday, December 03, 2007

Delays Cause Poverty in Social Security


Here is a link which again reminds us that delays cause impoverishment. This is especially true in Social Security claims because a claimant believes he can no longer work anywhere and yet must wait months or years for benefits. In workers comp there also are delays but nothing like Social Security cases. What amazes me is that with Social Security disability the benefits are far less then what a worker can earn if he is able to work. A good paycheck and company benefits can be substantially more then disability benefits. Many who apply are not looking for a windfall and yet must wait and wait and wait. The average wait for a hearing is well over a year and further appeals can mean years before benefits are granted to a deserving claimant.

Sunday, December 02, 2007

Here is the latest Division newsletter

From time to time the Colorado Division of Workers Compensation puts out a newsletter which it calls "All About Claims" and the link below is to the latest one just published. Each newsletter covers specific areas of interest so don't expect it to cover everything or "all" about workers comp. This issue covers changing from one designated doctor to another and does try to clarify the topic which comes from a new statute passed this year.
Newsletter

Thursday, November 29, 2007

When is a Final Admission not Final...the Leewaye case

This case is interesting and was just decided by the Colorado Court of Appeals. The facts are that there were two Final Admissions filed by the insurer. A Final Admission requires action by a claimant within 30 days or it appears too late to object or seek relief from what the insurer has stated in the Final Admission. In my field this means we always act within the 30 days or the claimant may be in peril of being unable to disagree with a Final Admission if it was properly sent to the claimant. Here the insurer decided to issue a second Final Admission to correct a minor matter. The claimant missed the first deadline so the insurer argued as to that first Final Admission matters were closed. The Court however decided to indicate that when a second Final Admission is filed within those 30 days set by the first admission then the 30 days runs from the second Final Admission. By that result the claimant was timely. My view is more simplistic in viewing any Final Admission as starting the 30 day deadline regardless of how many are issued. My concern is about objecting to the first one and the insurer deciding to file two or three more with minor changes. Must a claimant object to each? I would but an unrepresented claimant may be fooled by such a tactic. Anyway below is the link to the case issued November 29, 2007. The case does point out how technical and deadline oriented workers comp can be.
Here is the case.

Monday, November 19, 2007

Moore- Workers Comp suicide case(s)


Moore (name of the deceased) is actually two cases. One was decided and unpublished a while ago and the second just decided on Nov. 15, 2007. This involves a sad situation. The claimant who worked at Western Forge had an injury but then received a Notice of Contest which disputes the claim. This led to his suicide along with his lack of income. For more of the facts visit the link below. It appears his estate sought workers comp death benefits and lost the case all the way up to the Colorado Court of Appeals. Then the estate sued the insurer for bad faith and abuse of process leading to the claimants death. I gather the contest was not appropriate but nonetheless the estate lost this case too. The reasoning appears to be that a suicide is just too far removed from the contest to blame the insurer legally. Seems to me that contested cases are common nowadays and certainly stressful so depression should be a realistic consequence to contesting a case. If depression (which is an illness) leads to death then it is a consequence of the contest and also from the injury. Common sense should tell us that it is all related. While suicide is an extreme act of depression it still is what happened and flows from the injury. If we say that the physical damage from a typical injury is all covered no matter how much then so should the mental damage. Nonetheless the decision is there to read.
Read the case here.

Sunday, November 18, 2007

Surveillance Videos


Many times in a workers comp claim the claimant is surveilled and videotaped. It is not usually illegal to videotape someone out in public view. It is then shown to a doctor and even to the Judge. Of course such videotaping never shows the claimant going in to his residence and having to lay down. It never shows someone struggling to get up in the morning. It also can be edited to show activities not in line with what the doctors are saying. In one recent appealed case the claimant was seeking permanent total disability benefits and there were doctors who examined him along with vocational experts on each side to provide opinions on his employability. He lost his case for this in great part I am sure to a videotape that showed him more functional then how he presented to the doctor. When the doctor says 10 pounds lifting and you lift 30 lbs you are out of line with your doctor and setting up to lose or greatly reduce your benefits. I've seen surveillance of claimants in retail stores, outside walking the dogs, gardening, washing the car and lifting and carrying boxes. If you violate what your doctors say are your restrictions then don't complain when it's revealed to all. Saying you had to do it or were medicated at the time does not alter the situation. Saying it was painful and afterwards you laid down is still not very good. Videotaping happens in many cases and can take place at any time or multiple times. Imagine the shock to your doctor or lawyer when this is shown to them. Imagine what goes through the Judge's mind when he sees a claimant gardening but saying he can't work. There really is no good excuse for exceeding your restrictions medically or legally.

Friday, November 16, 2007

VA Disability...another problem!

Here is a link to a story on disabled soldiers. What it brings home to me is that the issue of disability is one of injury that can be followed by disputes and denials of claims. Any sort of disability or injury denial or dispute is often a shock to the injured person. Most of us just want to be treated with fairness and when it does not happen are stressed by a system that can seem cold blooded. When systems for determining disability are too slow and filled with technicalities they do not provide that fairness we all expect. Publicity about this helps by showing how terrible it is and perhaps then change can come.
http://www.cnn.com/2007/HEALTH/11/15/wounded.marine/index.html

Monday, November 12, 2007

Just a note on SS Judges and funding woes

This link just again emphasizes that the lack of funding or perhaps lack of wisdom contributes to the delays in Social Security cases. Here a Judge suggests that adding some Judges to the system but without adequate support staff is not smart. Judges can't handle all the paperwork by themselves they need a sufficient staff.
http://socsecnews.blogspot.com/2007/11/bernoski-letter-quoted-in-baltimore-sun.html

Sunday, November 11, 2007

Veterans Day


THANK YOU TO ALL VETERANS! I am grateful for your sacrifice for this country.

Thursday, November 08, 2007

Social Security Disability....the LONG wait!

Here is another article, this one at the AARP website which comments on the delays in Social Security Disability matters. I also looked at that website at what people are saying about it on the message board or forum on the issue. This is a national problem and part of the blame is with underfunding of the hearing process. Many times in a workers comp case we also look into Social Security disability especially when it may be difficult or impossible to return to any work after an injury. Having to wait so long just for a hearing is astounding.
http://www.aarp.org/bulletin/socialsec/sick_of_waiting.html

Wednesday, November 07, 2007

Who are the Workers Comp Hearing Judges?


In Colorado there are only so many hearing Judges. The current Judges are indicated in the provided link. This also reminds me to let you know that hearings when needed must comply with the rules for filing and scheduling. This means that unless resolved in some other way when you need a hearing it means obtaining a date several weeks out (over two months). Expecting a quick hearing is unrealistic and a violation of the procedural rules. Each side has a right to due process.That means fair notice of the hearing and the opportunity to review and prepare for it. When witnesses are involved each side wants to know what is going to be presented to a judge. This means each is provided the time to get ready permitted by the rules and law. There are what are called expedited hearings but these are restricted and uncommon. If a case is contested and we need a hearing it simply takes time to comply with the rules and get ready for the hearing. That can mean tough times for a claimant in some cases. In other cases the time works to the advantage of the claimant so it depends on the issues.
http://www.colorado.gov/dpa/oac/div_judges.htm

Thursday, November 01, 2007

9/11 Cop's death...is he a hero or not?

While not a Colorado matter the recent controversy over the death of a NYC detective who spent over 400 hours at the 9/11 site and died from lung problems points out that injuries or diseases from work exposure may not be simple matters. In this case one side says death came from the 9/11 exposure to dust, fibers etc., and another side says the death was inflicted by injecting ground up drugs which then went to the lungs and killed him. This problem is one where medical experts disagree and that is trouble. It is far more common then most people realize. One very common example is carpal tunnel syndrome or cumulative trauma disorder where the injured worker claims work activities caused hand, arm or wrist pain and the other side says not so. The claimant has to prove it likely came from work or they lose. Well, it takes a courageous authorized treating doctor to go against a medical expert hired by the insurer to question the work relatedness of the injury. Often the doctor is designated by the insurer/employer so they may have to balance between the patient and the insurance (just my opinion dear reader but I believe it is so). Anyway back to the cop story. If the officer worked hundreds of hours at ground zero and developed lung problems and he was then prescribed numerous drugs which may have gone to his lungs isn't it still work related? Do we blame the hero for this? If he was so stressed he also went the wrong way do we say it's all on him? Doesn't it all really flow from his work at ground zero? In this case I believe that he was being taken care of so he likely died from his job activities or treatment for his occupational disease but it's not my call. To me he's absolutely a hero. Read about the dispute here:
http://www.usatoday.com/news/nation/2007-10-25-9-11-death_N.htm

Wednesday, October 31, 2007

Social Security: New Proposed Rules not so good?

Over at a Social Security blog it was indicated that the feds are seeking new rules in the handling of Social Security claims. Will it improve the system? Would you call it an improvement if it saves money? Seems like this may mean less benefits being paid out and more denials of cases according to this writer. Hope he is wrong but he does provide a link to the new proposal and it does show a savings. I just hope it is not at the expense of the disabled. The writer is saying thousands more may be denied benefits. I certainly think the current system needs improving and increased efficiency as delays are terrible. I know that the Social Security system is underfunded and needs more Judges and dollars in their budget so perhaps the savings is more administrative but if not then it is ominous for claimants.
http://socsecnews.blogspot.com/search/label/Procedural%20Rules

Sunday, October 28, 2007

Stats, stats and more stats for the curious


Over at the Colorado Division of Workers Compensation website they post some very interesting information. The entire workers comp statutory law is there. The rules issued by the Division of Workers Compensation are there as are forms, publications and various other things. On one page numerous statistics are provided with links to the source of those stats. For example nearly 25% of all claims are contested at the beginning and stay contested. That forces the claimant to either give up or seek a hearing. Anyway here is the link to peruse that page for stats which were noted by the Division. I am especially intrigued by statistics which make you wonder what is going on. When the population goes up but claims and hearings go down it does make you think about it.
http://www.coworkforce.com/DWC/CuriousAbout.asp

Thursday, October 18, 2007

Final Admissions


In Colorado when a Final Admission of Liability is filed in a workers comp matter this is an extremely important document. In essence the insurance or self-insured party/employer is saying that they wish to close the claim based upon precisely what they state within the Final Admission itself. It may provide for permanent benefits or not. It may provide for further medical care or not. It may say any number of things which you might wish to question. The key thing to realize is that you are on a deadline of 30 days from date of mailing to act as provided by the law or your claim will likely be closed as provided in the Final Admission. Now there can be exceptions where the Final Admission is defective and can be struck down but that is very rare. So anyone receiving a Final Admission should know they must act promptly to question it. And this does not mean just calling up someone at the insurance. The required language on these Final Admissions sets forth how to properly act to object and follow through on the objection. Since this is usually a complicated matter consult with an attorney or at least call the Division of Workers Comp customer service for further information. Their number is 1-888-390-7936. At my office we routinely object to any Final Admission and go further to protect the claimant, such as moving to obtain a Division IME (doctor through the state to examine and provide another opinion). If we do not seek a DIME doctor we still usually then apply for a hearing if appropriate. It is a judgement call we make depending on the circumstances for our clients. However the important thing here is to realize you do not have to accept the insurance company position in the Final Admission but must act fast. Almost always when we object and go forward it is to obtain more benefits. Additional benefits possible include more medical treatment and more compensation but again it is a call we make on a case by case basis. Simply put: beware of any Final Admission!

Wednesday, October 10, 2007

Termination Issues


When you have a Colorado workers comp claim the issue of job termination may come up. Colorado statute indicates that if there is a termination and it is the claimant's responsibility then his claim for temporary benefits is in trouble. Quitting even if you believe it is justified or you are being harassed is very dangerous. If you are terminated for cause it is also a major problem. So if the boss says to check in or imposes more on you after an injury you had better be on your best behavior. In other words try hard not to give them a ground to fire you. You may feel stressed and unfairly treated but being in a legal fight to keep receiving temporary benefits is not a place to be. Once benefits are stopped it can take a hearing to restart them and if the Judge rules against you then you don't get them unless your condition worsens. None of this is pleasant and it can be financially devastating to some claimants especially when you are months away from closing your case. Plus in some of those cases you also may not obtain unemployment benefits so it can really hurt. I disagree with this law and recall what it was like before the law was passed. Back then if you lost your job for any reason you were still usually disabled and trying to find a new job was difficult so in most cases you could keep receiving temporary benefits. I also disagree with it because in my view many terminations are pretextual, that is they target you to find a way to call the termination your fault. Bottom line: cover yourself! If you feel you are being set up be careful and you may wish to document the situation. Better still get a lawyer if at all possible. One last thing usually termination does not affect your permanent claim for benefits in an admitted case but those benefits can be months away.

Monday, October 08, 2007

Social Security News Blog

Here is link to a blog with only Social Security news by an author of a legal publication for lawyers. It is a bit detailed but gives you an idea or overview of the things which interest some of us about what is going on with Social Security these days.
http://socsecnews.blogspot.com/

Thursday, October 04, 2007

Colorado Medical Fee Schedule


I am providing a link below to the medical fee rule but must tell you that it is a long pdf (Adobe Acrobat) document. As of January 1. 2008 these will be the new fees chargable by physicians and other providers. From my perspective I watch the charges for meetings with doctors and testimony at a hearing. The current rate is that a doctor called to testify in a workers comp proceeding in Colorado can charge $400.00 an hour portal to portal. That means from the time he leaves his office until he returns so it includes travel and waiting around time. The new rate will be $450.00 an hour. So when an injured worker has to call a doctor to testify the expense will usually exceed $1200 and often reaches $2000.00 but it all depends on the time involved. Come January it will be a 12% higher expense. This expense is charged to the person calling the doctor. So you pay it if you call the doctor. Fortunately in many cases we can set aside some extra funds to help cover this but in the end it all is charged to the client. It is something to avoid if possible but at times it is necessary. If the attorney just meets with a doctor it is billed at $300 an hour. I realize the doctor has to charge. My concern is that I feel all this is caused by the insurer disputing something and burdening the claimant. It really should be part of the covered costs and paid by the insurer. This can raise insurance rates but it could equalize the legal fight since insurers often spend quite a bit to fight on medical issues. Especially with an unrepresented claimant they can overwhelm his resources to fairly fight. To have the insurer bring one or two doctors to a hearing and the claimant have nobody can mean an unfair advantage. I expect insurance people would strongly disagree with me as many seem to think an injured worker is costly enough but to me due process is important and I believe in a fair fight when there is a dispute. Justice should not be based on the size of your wallet. One last item mileage reimbursement for medical related travel by the claimant is going to .40 a mile.
http://www.coworkforce.com/DWC/Rules/Rules%202007/Adopted%20Rule%2018.pdf

Wednesday, October 03, 2007

Medical Care in Workers Comp and Social Security


Unless you qualify for medicare or medicaid or other state assistance a claimant seeking Social Security disability gets no medical care except any he can obtain on his own. Often in my town an impoverished person can try for Peak Vista which is a community facility manned by hard working dedicated people. Once you obtain SSDI (the typical Social Security disability) then medicare is possible (it kicks in after you've received 2 years of benefits but this could be soon if you were entitled to back amounts). What I do mean to point out is that you have no right to medicare until it kicks in but sometimes the agency will send you for an examination on your case. It is not treatment. In workers comp the process is different. Even in a contested case you may be able to obtain medical care though it is not always extensive until the claim is admitted or ordered to be covered. My problem is that in workers comp even in an admitted case there can be controversy over the extent of care. Insurers love to question causality by suggesting maybe the problem is not work related. Insurers love to second guess even the dedicated doctors by saying the surgery or expensive treatment requested may not be reasonable or necessary. I recall one time where my spouse using her health coverage had a knee operation many months before my workers comp client had his knee surgery. Delays seem to cause more expense and even medical complications. Of course in workers comp a covered treatment is paid 100% but nothing by the claimant. Also in workers comp long term care can be covered for life at zero expense to the claimant if it is appropriate. But for me I keep thinking that we should all have a national health plan and then all we would quibble about in workers comp is the extent of disability not wait while we dispute the treatment. Some physicians have a website calling for this at :

Monday, September 24, 2007

The Failure of Workers Compensation

Over at the website for the Center for Justice and Democracy they take on the current workers comp system. By and large they speak accurately in pointing out the flaws in the system. Here is a link to the summarized version of their criticism:
http://centerjd.org/MB_2007workerscomp.htm

Saturday, September 22, 2007

Cost of Living Increases


Colorado workers comp benefits do not have a cost of living benefit. Someone left a comment and I thought it deserved a post by itself. There was a brief period when there was a cost of living benefit but that ended with claims which arose by 1994. In Social Security there are cost of living adjustments made yearly. Such is life and the only way to change it is to change the law.
It is regretable if not shameful that we limit benefits to those injured at work. It seems as if the old and disabled are pushed to the side by society despite being there and shouldering the load for us. Then we so limit benefits that we impoverish many of them. Taking care to honor and protect them is not part of our system. The recent VA problems at a VA Hospital indicate it even pertains to our soldiers. Sorry but that is simply wrong. The workers, the soldiers and the old did so much for us that they should be honored and made as comfortable as possible. When I handle a case I know I try to maximize benefits but I also know that it is often not enough. They deserve our respect and laws which provide significant benefits.

Thursday, September 20, 2007

Other Types of Claims from work injuries

While we only handle work injuries and disability claims if you have a workers comp claim it does not mean that you are limited to just that claim. Sometimes from a work injury there may be other types of claims. One easy and common example is when someone is severely hurt at work and obtains workers compensation benefits. That person may also have a claim for Social Security disability benefits (SSDI). If so the workers comp insurance company gets a credit of a portion of your SSDI benefits (this may also apply to some other types of Social Security benefits too so check with a lawyer). Still you may get both benefits if you are totally disabled even if one of the benefits is somewhat reduced. It is always better to get two checks then just one. Of course when and if you should apply for SSDI is a matter to discuss with your lawyer so don't just go for it without checking further. There are many situations where it is a big mistake to apply too soon for Social Security benefits. Now aside from SSDI or even other Social Security programs can there be other claims? Yes. For example if you are delivering for your job and hurt in an auto accident you may also have a personal injury claim. Again do not handle this on your own because it does affect other benefits. Or, let's say the equipment which injured you is defective....again this can lead to another claim on top of the work injury or disability claim. In that this is quite complex you will need a lawyer. Don't do it yourself. An injured worker may even be able to file for unemployment benefits especially if workers comp benefits are delayed or disputed. Also if you are totally destitute there may be other social programs to assist you. Colorado has aid to the needy disabled. If you are fired it may lead to a wrongful termination claim or claim for discrimination. So don't think you can only have one claim when you are hurt at work. Other claims or benefits are possible though each type of claim or benefit may also affect your workers comp benefits. Your attorney may have to concentrate on what his area of expertise is but he can make suggestions in the other areas so discuss this with him. In my practice we maximize the workers comp benefits and then also pursue Social Security disability benefits for those severely disabled. If other claims are discussed or known to us we suggest other attorneys who can help in those areas.

Wednesday, September 05, 2007

Initial Denials in Social Security cases


Colorado has one of the highest denial rates for those first applying for SSD or SSI benefits. In Colorado almost 70% are denied. Where is the best state to apply for benefits? DC also known as the District of Columbia is the lowest but Hawaii is the best place to live and apply as it grants more then half who initially apply. Tennessee denies 77% so it gets the worst place award. California? It denies 56.6% of those who first apply. Of course after any denial a claimant should consider appealing the denial. It is important to realize that the burden is always on the claimant to show he or she is unable to work and satisfy the requirements to obtain benefits. When you go down to apply on your own there are many forms to fill out but key factors are all your doctors and all the places you've worked in the past 15 years or so. Records are sought by the agency but be aware that it really is your burden to make sure all the important records are submitted to the agency. Sometimes doctors forget to submit records or there are recent records for recent treatment. Make sure all this is given to the agency and if you are not sure go get the records yourself and submit them. Expecting others to care about you and take care of you and be diligent to protect your rights is true if you've retained a lawyer but don't expect the agency to do so.

Wednesday, August 29, 2007

Delays in Workers Comp cases


Previously I've mentioned about the delays to obtain a hearing in Social Security cases. But that situation is simply a matter of waiting for a hearing date and sprucing up the case for the hearing. In workers compensation the delays are varied depending on the case. Cases seldom proceed in a straight line or so it seems to me. One delay is when the claim is contested. This alone can take a hearing. Another delay can be with medical treatment. Sometimes the treatment is not thorough and yet unless there is a change of doctors (which also can lead to delay) the claimant has to go to a separate examination (called a DIME and mentioned previously). This also can take more then two months to arrange and even more time to wait for the results and still more time to await the insurers response. Sometimes further medical treatment is deemed needed and this is delayed until sometime after the DIME evaluation. Surgery adds still more months to the process and that is assuming it all goes smoothly. If the insurer disputes the need for surgery or other treatment it can take another hearing. Many cases often seem to take two years or more to wrap up if you are intent on protecting the rights of the claimant. I can say that most delays are based on medical issues or treatment. With medical care there is no certain timeline for recovery. Asking your lawyer when all this will be finished is often met with vague answers but the reason is simple: the legal matters cannot be finished until all appropriate medical treatment and conclusions are provided. If you wish to get it all over with sooner then you also must waive all further rights and benefits for a cash settlement. Such a settlement is seldom wise and often impossible to fairly analyze. While cases can be settled it is rare to try to do so until all the steps have been taken both medically and legally. Again this means delay. Imagine deciding you have to settle your case and move on with your life. You do so for quick cash and give up all your rights. Then you seek to return to work but find out you can no longer do your trade. You also find out that your back injury acts up on you but no one will pay for further treatment. By then you figure you made a mistake but its too late. By settling too soon there is no do over...its just done. So workers comp delays are terrible because your life is on hold but better to protect yourself before you are cut loose without anything further. In fact in some cases you are never finished. Your injury or complications from it can mean there is a need for lifetime medical care. From the time I take a case to the end of it usually takes from one to two years. There are exceptions where it is just a few months on the short side to well over two years on the long side.

Monday, August 27, 2007

Maximum permanent partial disability rate

Unless you are permanently and totally disabled the most you will be paid for having a permanent injury is based on specific state calculations and the medical rating (degree of impairment by either the authorized doctor, a Division IME doctor or by order). Your wage is often a factor in the calculations as is your age. But what I'd like to point out in this note is that the payment is biweekly until the amount is exhausted. A claimant can get an advance or even a lump sum but otherwise the amount is paid out every two weeks at a set rate. The highest rate for these biweekly checks changes each year but at present it is $413.95 a week. It can be less as it must be computed for each person. What this can mean is that you've been receiving temporary benefits of two-thirds your average wage which can drop down to the rate set for permanent benefits. The theory is that when permanency is determined you can return to work or find new work and receive the biweekly permanency checks anyway unlike temporary money where earnings are deducted. You or your attorney can get an advance if properly done so you might look into it. All this pertains to whole person impairments only. Scheduled extremity amounts are paid out differently. Here is the link for the maximum calculation:
http://www.coworkforce.com/DWC/FormsDeskAids/DESKAIDS/PDFDeskaids/Desk_Aid_4_Max_Rates.pdf

Friday, August 17, 2007

The Social Security Listings


Whether hurt at work or if your health is disabling there may come a point when you apply for Social Security disability. Even if the system is slow it still is an important safety net for those truly unable to sustain work. The listings are severe health problems that have made the list so that if you meet a listing it can mean you are truly disabled enough to deserve disability benefits. However this still requires that you meet other legal requirements but it is a big step to obtaining benefits. For example if you cannot ambulate effectively it may meet one of the listings. The Social Security Administration has very specific details on the listings and I have provided a link to them below.
http://www.ssa.gov/disability/professionals/bluebook/listing-impairments.htm

Monday, August 06, 2007

Can you return to work or are you totally disabled?


Often a person may not be able to return to his usual trade or occupation. This can occur because of restrictions or complications from the work injury as set forth by a doctor. Sometimes a person may have worked for many years and really enjoyed his trade but now is not sure what he can do. If you are only permanently and partially disabled or restricted you may receive compensation but not anything else. What then? Does the insurer have to retrain or put you into voc rehab? Not usually and you may wish to contact the state Vocational Rehabilitation office. There is an earlier blog post on this which I posted. But then if you think it is unfair and seek permanent total benefits (which can be substantial) it is your burden to prove it. Your attorney can apply for a hearing and line up his witnesses and evidence. He may also discuss a settlement. However if it goes to a hearing what will the other side say when you try to show you cannot work at all? Well, the other side can seek to show through its witnesses or evidence that you can work, even if just part time. Believe it or not if they show this and the Judge accepts it then you cannot get further benefits beyond what is allowed by an admission or the Judge. Just thinking it is unfair and no Judge would do this is a mistake. You must be ready to prove your viewpoint if it goes to a hearing. It is a true legal battle with high stakes. Here is a sample of some of the jobs that may be asserted through evidence you can do part time: "The claimant can work as a ticket seller, hotel desk clerk, restaurant host, pizza deliverer, customer service clerk, cashier, automobile salesperson, and sales clerk." This list does not end here...it can go on and on to include working at home! Decent pay comparable to your trade is not a legal consideration. This means it can be difficult to establish you can no longer work. Hard as it may seem it is quite possible to show this but it requires a solid effort. In this area your attorney may do the most good for you. There is caselaw to consider. There is vocational evidence to obtain. There may be further medical evidence to develop. Much can be done here so blindly accepting the insurance viewpoint is not wise.

Medical Transparency

Effective Jan. 1, 2008 a new law now requires more disclosure regarding doctors in the state of Colorado. This law has been signed and will apply after Jan 1st. It impacts workers comp in the sense that soon now you will be able to check further on any doctor to ascertain discipline or other adverse matters. In other words it will be harder to hide behind the traditional cloak of secrecy or nondisclosure that has been the case with the medical community in the past. Here is the link to the new law:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Bills.View&session=07&mode=0&sortby=3&filter=b&srch=transparency&page=1&billnum=HB07-1331

Tuesday, July 31, 2007

Social Security Average Wait 17 Months!

Here is a link to a USA Today article that points out the average wait time for a hearing to appeal a Social Security disability denial is now 17 months. Staffing is down and claims are up so this makes for problems. Please realize this can be solved by Congress and the President providing more funds for the Social Security Administration. The fact is that it is not happening, at least not yet. Political change and a social willingness to deal with this...making it a priority is needed. To know we are a great and free country but cannot take care of our old, disabled or injured is unfortunate. So pay attention to those seeking your vote...what plan do they have to solve this?
http://www.usatoday.com/news/washington/2007-07-29-disabled_N.htm?csp=34

Friday, July 27, 2007

New Court Case on Apportionment


In Colorado apportionment relates to reducing a permanent impairment calculation or reducing benefits because of previous impairment(s). The law has changed by caselaw and statute over the years. The issue remains a complicated one. In this case the claimant had multiple back problems but returned to work until his latest injury. His treating doctor did not apportion but the DIME doctor did. A DIME is a Division Independent Medical Examination and has special value and weight in a workers comp case. Here the DIME doctor reduced the impairment rating because of what he considered some prior impairment that allowed apportionment. The claimant appealed and in this Court of Appeals case tried to assert this was wrong and there should be no apportionment. The case is troubling in that there was no actual previous impairment issued in his prior injuries. Also he was working without further treatment or symptoms from those prior injuries. The claimant argued how can it now count against him? Nonetheless the Court ruled that apportionment was proper and that it is more a matter of there is not enough evidence to overturn the DIME opinion to apportion. I do understand that this is a complex matter but I have to question the speculative nature of a DIME doctor finding prior impairment when there was no documented or objective evidence of prior impairment. In any event here is a link to the court decision just issued on July 26, 2007:

Wednesday, July 25, 2007

Medical Ops....UPDATE!

Yesterday a Denver station Channel 7 noted that Medical Ops Management is now out of business. Here is a link to the full article:
http://www.thedenverchannel.com/news/13747301/detail.html

This pertains to doctor examinations going through the above noted company. It has been alleged that doctor reports were altered or changed without approval by the doctor. Since this can affect the treatment and outcome of cases it was a very serious matter as reported by this station.

Tuesday, July 24, 2007

Attorneys do make a difference!

One statistic kept by the state of Colorado shows that having an attorney does make a difference in the amount of your benefits. On average a decent attorney can increase your compensation by around 150% when compared to not having an attorney. In some cases this is much much higher. Insurance companies rarely admit someone is totally disabled and here the difference can be huge. One recent case resulted in $180,000.00 additional dollars or 4 times more then first offered. In other cases the workers comp doctor may say the person is released without impairment only to be proven wrong. This can lead to both medical and dollar benefits. The injured worker is led to think the doctor said he is without impairment so the case seems worth little. Turns out more treatment is needed and likely far more dollar benefits then zero! You'd be surprised how many people seek out an attorney when they are denied further care and simply want to get well. So while there are no guarantees attorneys frequently do make a big difference in most cases. In any event here is the stat on attorneys as of the year 2004...click here.

Monday, July 16, 2007

National Health Care?


Health coverage under workers comp is variable. One plus is that for covered and reasonable care the benefit is 100% coverage as long as necessary. The problem is that insurers often deny coverage for one reason or another and this can slow down or eliminate needed medical care. Also you go to one doctor for your injury, another for your overall health and must deal with varying coverages. VA, Medicare, Medicaid, perhaps even coverage under auto policies and a great array of insurance companies all with their own set of rules and payment plans make our current health care system terribly inefficient. To limit benefits is to ration them so the cry that we have the best health care system is questionable. Lately I've come around to accept that drastic change is called for and so have others. Even physicians have a website that promotes a national plan. While I strongly believe in free enterprise I realize the current hodgepodge is not working. One recent proposed law to allow Medicare to negotiate drug prices like the VA does failed and so lower drug prices for medicare beneficiaries was denied. To me that is not free enterprise it is favorable treatment for the drug companies. In any event here is the link to the Physicians website with various articles on healthcare:
http://www.pnhp.org/news/articles_of_interest.php

Tuesday, July 10, 2007

Less Hearings and Applications for Hearing


According to the Division (Workers Comp) website it appears very clear that over less then ten years there has been a dramatic decrease in hearings and even hearing applications. There may well be many factors to explain this but the stats speak for themselves:

1997 : 12840 hearing applications were filed; actual hearings held were 1987

2006 : 9595 hearing applications were filed; actual hearings held were 1166
By the way the population of Colorado increased ten percent in the last ten years.

Thursday, June 28, 2007

Here are the latest Treatment Guidelines


A link is provided so you can see what the latest treatment guidelines are for Colorado physicians to treat in areas like chronic pain, lumbar, cervical, cumulative trauma and the like. These Guidelines are made part of the workers comp rules so they are important. Certainly the treating doctor should be able to treat as needed but the Guidelines are relevant to any treatment.

Monday, June 25, 2007

Injured Worker Comments, Suggestions or Questions?

I've set it up so that anyone can comment or leave questions for me. Just click on the comments and leave your question or suggestion...but do so either anonymously or by first name only please. While I cannot guarantee an answer or reply I promise to look at any such comment/suggestion/question. Sometimes we just need to vent or provide our own personal views so if you feel the need then you are free to post your comment on our blog. For example I personally feel the workers comp system in Colorado can be improved upon with better laws. Change can come when we stand up and voice our concerns. Silence only validates the status quo. But if you need professional or individual advice and do not have a lawyer...call my office at 719-596-8900 or email me at workcomp@usa.net.

Tuesday, June 19, 2007

Workers Comp does not cover all losses


It is important to emphasize that coverage is limited in work injury cases. Workers comp is a creature of statute which sets forth what is covered and what is not. The biggest problem is when someone has a loss of his or her trade or occupation because of a permanent injury and permanent restrictions. Usually some permanent benefits are paid and an effort can be made to maximize these but nothing is paid for the loss of a trade or occupation unless you are permanently and totally disabled. Vocational rehab is seldom offered by the insurer so if this is your situation contact the State Department of Vocational Rehabilitation. This area remains an area of concern and on my wishlist for legislative change. I would strongly urge those who may be in this situation to consult with an experienced workers comp attorney. Never assume the insurers position on your entitlement to benefits is accurate. Moreover if the company designated doctor has released you without impairment or restrictions do not assume that is correct either. You do have recourse here. On numerous occasions such doctors have said no permanent injury and been flat wrong.

Friday, June 08, 2007

Social Security Backlogged


Both nationally and locally the process to obtain Social Security disability benefits is backlogged especially at the hearing level. If denied benefits a claimant can, if he timely acts, appeal for a hearing. It is taking over a year or longer to obtain that hearing in Colorado. Elsewhere the wait can even be longer. It does appear that justice delayed is justice denied. Hopefully over time this backlog can be cleaned up. At my last hearing the hearing Judge was in Tucson and we had the hearing by way of television. Documents are now being scanned in to make a CD so that they are easily handled. All of this provides some hope but it will take some time to speed up the process. Sometimes though it seems like one step forward and two steps back.

Saturday, June 02, 2007

May 31, 2007 Court case on prosthetics


If your artificial hip is injured on the job is it covered to receive benefits? Yes said the Court of Appeals in this case. The insurer tried to rely on an old Colorado case that said if your wooden leg was hurt it was not a personal injury just injury to property which was not covered by workers comp. The court said the statutes now do cover injury to prosthetic devices so that old case no longer applies. But can you imagine in that old case being told it's your problem not a workers comp problem since only live legs are covered? At least now its covered though the statute does define what is covered and what is not. In any event here is a link to the case:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6163&CourtID=1

Thursday, May 31, 2007

SB07-258 signed today by Colorado Governor


This bill pertains to many different workers comp matters which needed adjusting. For example for many years the most you could "lump sum" was $37500 but this is increased to $60000. Let's say the insurer admits for your permanent impairment that it owes you $70000 (with a serious back injury and decent pay rate this can happen). Under the old law you could take an advance of $37500 and the rest was paid out biweekly till exhausted. Now you can lump sum up to $60000 of the awarded benefits. Another provision spruces up some procedural matters and requires for example that all relevant medical and expert records be exchanged with the other side at least 20 days prior to the hearing date. I saw 10 or more law changes in this just passed bill but most make sense to me. One I do question is that a hearing can be postponed or extended but some may only be for 20 days and I doubt this is workable in my locale but guess we'll see how it goes. The bill has too many details to review here but here is a link to it:
http://www.leg.state.co.us/clics/clics2007a/csl.nsf/fsbillcont3/25F0E8DAEE0A8C3D872572C30052A494?Open&file=258_enr.pdf

Tuesday, May 29, 2007

Updates on Holnam and Sigala cases


Back on Dec 28, 2006 I commented on two cases decided at the Colorado Court of Appeals. The first was Sigala and involved a decision that if your temporary benefits are suspended for not making a doctors appointment sent to you by certified mail (by special rule) that suspended means terminated even if later you do see the doctor. So if you were foolish and missed a specially arranged medical appointment and later make it up you still lost some of your temporary benefits. This issue has been granted review today by the Colorado Supreme Court. The court wants to hear from each side on what the word "suspension" is supposed to mean. The second case, Holnam involved trying to have two hearings on compensability using two different theories to obtain coverage for a claimant (one theory was accident and the second was occupational disease). On Holnam further review was denied by the Supreme Court and the claimant lost his case to show it was an on the job injury. As is clear from these two examples caselaw in workers compensation matters is happening on a regular basis. Nothing simple about this field as often the arguments pertain to highly technical matters.

By the way as always my comments are simply my opinions and for simplicity sake I do tend to abbreviate the details. Otherwise you'd have boring and long winded materials on this blog. For the most accurate details you can read the actual case, statute or rule or review further with your attorney.

Sunday, May 27, 2007

Medical Ops Investigation Considered

As reported by Channel 7 Denver someone in the company called Medical Ops Management may be investigated after allegations that he was altering reports and pressuring doctors to issue Independent Medical Examinations favorable to the insurance. In Colorado workers comp this company has been frequently used by insurers who wish to have the claimant examined for a medical opinion. It is also reported to be used in Social Security cases. In other words the doctor may have dictated but not signed off on the report and it was then altered. Many claimants were sent to a doctor going through Medical Ops Management...and this raises many questions about the accuracy of many medical reports. Since this can affect medical and even money compensation it is a disturbing story. Here is the most recent link:

http://www.thedenverchannel.com/news/13369088/detail.html

Here is the earlier story which is quite disturbing in its allegations:
http://www.thedenverchannel.com/7newsinvestigates/13326461/detail.html

Sunday, May 13, 2007

What is sedentary or light work?


Whether in workers comp or Social Security disability we often come across the term sedentary or light duty. For example it is common for someone with a back injury to be at light duty levels or have even more restrictions so he is at sedentary levels. The importance (in a legal sense) to this is that it can relate to how employable a person really is and the answer to this can greatly affect his or her benefits. Especially in Social Security cases age and restrictions play a major role in qualifying for benefits. In workers compensation cases they are also significant although it is more complicated since they play a role with temporary and permanent benefits but impairment ratings may also be significant. Strictly from a safety standpoint I've always felt that obtaining restrictions lets you and possible employers know what is the extent of safe phyiscal activity. In any event here is a link to a "disability doc" who sets forth the accepted definitions of sedentary, light, medium and beyond levels of activities:
http://www.disabilitydoc.com/work-descriptions/

Monday, May 07, 2007

The Fera case decided May 3, 2007


This case involved a denial of preauthorization by the insurer. Typically when something like surgery is needed the doctor seeks to have the surgery preauthorized so it will be paid. Here that was sought and the insurer denied it. The claimant sought penalties but the insurer said it had promptly run the need for surgery by a physician and he said it was not needed so they could deny it. The claimant however had other physicians who said it was needed so he felt the denial was unreasonable. The case went against the claimant at the lower levels as it seemed the insurer had acted promptly and had a basis for denial so the effort to seek penalties was struck down. However at the Court of Appeals level it was decided that merely acting promptly and having one physician advise them the surgery was not needed may not be reasonable given all the evidence and it should go to a hearing not be struck down by summary judgement. Here is the link to the decision:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6119&CourtID=1

Friday, April 27, 2007

Disfigurement New Law!

HB 1297 was just signed into law by Gov. Ritter. For many, many years an injured worker with a scar or disfigurement was limited to no more than $2000 for it. You would appear before the Judge or provide a photograph and from that the Judge would sign an order for a sum up to $2000 but no more. I've seen low amounts around $200 and other amounts that were higher awarded by a Judge. But if you had horrendous scars you were still limited to no more than $2000. Despite the passage of many years the top amount awarded stayed at $2000. Colorado legislators failed to consider increasing it and the disfigurement benefit was ignored. Today this was changed by HB 1297. The basic disfigurement benefit was increased to as much as $4000. But also for horrendous scars that deserve more the top dollar could go to $8000. Lastly they added a yearly review so it could even increase each year. Anyway here is the link to the bill:
http://www.leg.state.co.us/CLICS/CLICS2007A/csl.nsf/fsbillcont3/AF150CF1FE93E20E8725726C0065CB1D?Open&file=1297_enr.pdf

Wednesday, April 25, 2007

Refunds from Pinnacol to businesses

It appears from an article in the Denver Post that Pinnacol (the state's largest workers comp insurer) will be refunding or redistributing money back to employers. Quite a bit of money actually. One possibility is that there are less claims because everyone is safer. Another possibility is more ominous....money is being saved by not paying out enough benefits. I personally suspect the latter because the law and rules make it easier on insurers and harder on claimants. Read the article here:
http://www.denverpost.com/headlines/ci_5735325

Monday, April 23, 2007

All 50 States link to agencies


Here is a link that seems to have info on each state's agencies involved with workers comp. I provide it to make a point that each state has its own way to handle work injuries. While the laws and procedures can seem the same they are in fact different from one state to another. Workers compensation is a creature of statute (created by each state legislature) and the rules, procedures and caselaw vary from one state to another.
http://www.comp.state.nc.us/ncic/pages/all50.htm

Sunday, April 15, 2007

State Representative Carroll


Rep. Carroll maintains a blog and this link shows her concern for injured workers. She is in the forefront of efforts to provide fairness in the law. She is pushing HB 1176 mentioned previously in this blog. Bravo !
http://www.repmorgancarroll.com/blog


Her current position is state senator and visit her blog by clicking here.

Saturday, April 14, 2007

Social Security Disability Blog

Here is a link to a blog by an attorney in the Atlanta area who handles disability cases in his area. What makes it so good is that he answers specific questions on SSD and SSI claims in a very easygoing manner. Many topics are covered in his blog and it makes an excellent read. Most that he writes about concerning Social Security applies here in Colorado too. I notice that in his region getting a SS hearing can take over 2 years. There are delays here too and this is unfortunate. We tell people to expect a delay of one year or more. In any event since some injured workers may need to consider filing for SS benefits go ahead and explore this blog for some easy to understand information.
http://www.ssdanswers.com/

Tuesday, April 10, 2007

Colorado House Bill 1176 (UPDATE: signed into law)

The Colorado legislature seems to be moving to pass a law which involves an injured workers right to have a choice and change doctors. The current law says your employer has the first right to pick your treating doctor when you report your injury and need medical treatment. This usually results in being sent to a facility hand picked by your employer/insurer. Trying to change doctors is not easy and my experience has been that such hand picked doctors often will treat and release claimants too early. The proposed law gives claimants a bit more protection. As of Jan.1, 2008 it requires they be given two choices and also lets them switch more easily within the first 90 days. It really is not as good as having a choice of any doctor you wish but it is more then being stuck with one doctor. Still it has been opposed and it is alleged the current system works just fine and few workers request any change of physician. Most of us in this field know perfectly well that changing doctors is seldom easy and if it requires going to a hearing can take many weeks with an uncertain outcome. If we truly care about recovery then this law gives a bit more help to the worker if he feels his employer picked doctor is not helping him. Hopefully this bill will pass and be signed into law by the governor. Here is the current version of the proposed bill:
http://www.leg.state.co.us/Clics/Clics2007A/csl.nsf/fsbillcont3/E3C7D5EE3B482E3E87257251007A4308?Open&file=1176_ren.pdf

Thursday, April 05, 2007

A Few Interesting Stats


It appears there were over 10000 hearing applications in 2004 in Colorado. The actual hearings held were around 1500. There were however some 7000 settlements. So the general rule with injuries at work is that most result in settlements. But getting to a settlement or a hearing is often a complicated matter. For example there also were some 8000 motions filed in cases in 2004. Disputes are common in work injury cases and often the injured worker is truly mystified by it all. It seems as if they go from productive worker to problem employee overnight even if they've worked for the same employer for years. Medical, legal and financial worries can all be part of the stress on an injured worker. Employers and insurers suddenly can treat you like an adversary but even if they are trying to be decent about it the stress of needing to recover and move on with your life can be high. Even a minor injury can have long term consequences on your life so you should keep informed and if possible obtain good legal advice with your case. You can call us at 719-596-8900. If you cannot obtain an attorney or need further questions answered contact the Division customer service people at 1-888-390-7936 (toll free).

Monday, March 26, 2007

House Bill 1008 (UPDATE: signed into law)


This proposed legislation tries to offer presumptive coverage for firemen who develop certain types of cancer. Firemen are exposed to many dangerous or toxic substances... and the bill attempts to shift the burden to insurers to fight a workers comp claim. A major difficulty for injured workers and a major defense for insurers is to assert the burden is on the worker to establish his health problem is related to work activities. Thus with a fall where your back is hurt insurers may allege you had a pre-existing back problem so whatever you have is not their problem. Or if you are exposed to toxic chemicals and develop a disease they say it is up to the claimant to prove it is work related. Then they obtain medical opinions it is unrelated to work or of unknown causality. The expense of fighting for benefits can be high (you may need your own expert at your cost). The bill simply cuts this insurance defense off and forces them to carry the burden where it concerns certain cancers with firefighters. Bravo! Ever since this was proposed it appears the insurers have been fighting it by screaming it is unfair. They assert this even though they can pick your treating doctor and then another doctor to defend themselves. This choice they have prevents fairness and often overburdens the claimant. After all how many company selected doctors will say your cancer came from the company work? Anyway here is a link to the dispute:
http://colorado.mediamatters.org/items/200703270002

Thursday, March 22, 2007

New Court Decision Today...on Average Weekly Wage


The Colorado Court of Appeals issued a decision today favorable to claimants. The Avalanche case involved calculating average weekly wage. Such a wage can often lead to increased temporary and permanent benefits. Traditionally such a wage is calculated as your pay rate at the time of injury. But this can be reassessed by the Administrative Law Judge. Here the person had a claim with one employer and it was closed out based on her wage at the time of injury. Then later on she sought to reopen the case because her condition had worsened. It was reopened and also the judge calculated her benefits on reopening at a higher wage calculation including adding for health insurance. In effect 5 years after the injury her wage calculations were made higher. In fact they were based on her pay rate with another employer and with the other employers health insurance. However unusual the principle is simple...a judge can determine your average weekly wage in any way that fairly compensates you. The employer asserted this was extremely unfair to them to be saddled with some new calculation years later but what we are really involved with is insurance and with claimants who could be trapped into low calculations despite the passage of many years or other valid considerations. After all we must remember that workers compensation should be keyed around fair compensation for injured workers. Someone not injured who kept working would have pay increases over the years...should the injured worker be stuck at low levels of pay? The court said there are situations where a judge has the discretion to adjust this. I applaud this decision for far too often benefits are limited and never consider the passage of time on pay rates. Yet in a job you are often paid higher wages over time. You can read the decision here:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6056&CourtID=1
UPDATE (August 2007) : This decision will be reviewed by the Colorado Supreme Court so any final outcome is pending. You can figure a decision will issue next year on this.

Wednesday, March 21, 2007

Workers Memorial Day April 28th


According to information posted at the AFL-CIO website there were 4.2 million work injuries in 2005 and also 5072 deaths from work injuries. They have designated April 28th as a memorial day for those injured and killed on the job. The link below will take you to the AFL-CIO website with its references to this day. Also at the site there is quite a bit of other information. This of course is a pro-labor website but I've always been concerned that few groups or organizations are out there trying to protect workers, especially injured workers.
http://www.aflcio.org/issues/safety/memorial/

Tuesday, March 20, 2007

What is a DIME in workers comp?


Often this is an absolute must do in many cases. A DIME is a Division Independent Medical Examination. It is critical in many cases that a claimant seek a DIME. The cost for this is now $675.00 all to be paid to a doctor for a second opinion but it is necessary in many cases. A claimant is usually treated by a doctor picked by the employer. Many though not all of these doctors seem to treat and release people with low ratings for permanent injury and little to no further treatment. In case after case many claimant attorneys see this happen and it really is distressing. If properly set up and planned for a DIME will almost always help a claimant although there are no guarantees. If more treatment is needed it comes out in the examination. For example many claimants have psychological difficulty that comes from the work injury. However the treating doctor misses it or ignores it. This can be addressed in a DIME. Also additional medical care may be needed. Or, if all has been done the DIME may reveal a much higher rating which can result in far greater compensation. There are even cases where the treating doctor released a claimant with no impairment and no restrictions and this was incorrect. Insurers love this and file to close out cases fast so if this happens be aware you are usually on a deadline to seek a DIME. Selecting a DIME doctor is a delicate matter and there are rules to abide by in setting it all up. A DIME is a doctor selected by a special process through the Colorado Division of Workers Compensation to truly evaluate your injury and comment on certain critical matters. It is often invaluable in obtaining more care and better benefits for people to pursue a DIME. However it is not an automatic thing to do so it's not for everybody and if you are indigent there is a process to have the insurer advance the cost.

Tuesday, March 13, 2007

What is your comp rate?


The maximum temporary compensation rate in Colorado varies from year to year and is usually adjusted around July 1st. So if you are hurt on the job and are wondering what is the rate you will be paid (assuming they are not contesting it or asserting some sort of reduction or loss of benefits) it is two-thirds of your gross or total pay before deductions up to a top rate of $719.74 (for anyone earning $1079.01 or more). So if you make $600 a week then $400 a week (paid biweekly) would be your rate for temporary benefits if you cannot work or are unable to be accomodated with the restrictions imposed by the authorized treating physician. If you are earning $450 a week then $300 a week is the comp rate so it all depends on your gross pay. These benefits are not taxable. Seems simple enough right? Well what if the employer terminated you after your injury and says its your fault. It can take a hearing to see if you are entitled to benefits. Or, if the employer claims you violated a safety rule...if true it can reduce your benefits in half! If you are receiving Social Security disability or retirement benefits this also may reduce your workers comp benefits. However if you were working two jobs that may increase your benefits. Another factor is if you are under 21 years of age...it is quite possible your rate may be treated at the highest rate possible even if you were working part time. Colorado seemed to realize that if a minor is hurt and perhaps has an injury that lasts long term there should be a special way to calculate his benefits. If you are injured on the job your average weekly wage is usually what is used to calculate any compensation but what is your average pay rate? Many times the insurance and employer calculate it one way when it could be higher. It is best to review this carefully as it can result in a difference of several thousand dollars more due a person which if not pursued is a true loss. For example, your employer may turn in your pay as being your base rate and forget to add for overtime. That is wrong but often happens and affects not only your temporary benefits but also your permanent benefits. So verifying your pay rate is an important task. Moreover even if the initial figure is correct it can be adjusted later on for any loss of your health benefits paid or partially paid by your employer. So there is nothing simple about this area...it requires a careful assessment.

Sunday, March 04, 2007

Continuing Legal Education...workers comp


I'll be spending one day in the week coming up at a legal seminar on workers compensation. There are a few seminars in this field a year and it seems that I always attend two of them. The two seminars that are well attended by those of us in the field are full day seminars. So much is happening in this field that two days a year are needed to stay on top of it. I enjoy them because I also get to meet others in this field from judges to attorneys to others like those handling the proceedings at the Division. Often the topics are so many that I have to pick between two different topics in any one hour. All this is called Continuing Legal Education and it is also incredibly valuable to be updated on a regular basis. CLE or Continuing Legal Education is a requirement imposed on practicing attorneys. In Colorado you are required to have 45 hours every three years. The workers comp seminars alone exceed this and I have to admit they are enjoyable to attend. I wish some of our legislators would attend too. They would gain some valuable insight into how the system is working and where it is stumbling.

Wednesday, February 21, 2007

Social Security Info

Sometimes an injured worker or even someone with health problems may believe he or she can no longer work. It is often the case that a person may have a workers comp claim and also a claim for Social Security disability. In fact insurers usually insist that some claimants file for Social Security benefits. Of course the insurer does this because Colorado law usually gives them a reduction in comp benefits if you qualify for Social Security. Nonetheless, if you are injured and will likely not be able to return to any work or even if there was no work injury but your overall health is so bad you cannot work anymore do look into filing at your local Social Security office. If you have an attorney first review this with him before doing so as his advice should be followed. In any event the federal government has a website for looking into all types of Social Security matters. It is at www.ssa.gov but while it is thorough it is also confusing since it includes information on all sorts of benefits such as retirement, widows claims and much more. So if you go there be patient as it does have a great deal of information. By the way it can take a lot of time to be awarded Social Security disability benefits once you apply as most claims are initially denied. You can appeal but many months go by before a hearing date is scheduled. The agency seems to go at a snails pace for many claimants. If you are looking for some basic information on disability I suggest checking at this site and do consult an attorney:
http://www.disabilitysecrets.com/

Tuesday, February 20, 2007

Is Your Doctor Accredited?


In Colorado an accredited provider is important. For medical doctors if they are accredited in Level 2 they can issue impairment ratings. Such ratings are used to assess the damage sustained by an injured worker. A full accreditation allows the doctor to address physical and psychological damage. A limited accreditation limits the providers assessment. For example many orthopedic doctors are limited not fully accredited. This has nothing to do with their capabilities. Colorado simply requires that you take more courses if you want full accreditation and some doctors just prefer to limit their opinion to what their specialty is so they don't seek full accreditation. In any event if you want to check out a specific doctor you can do so at the website noted below. If the doctor's name is not on the list he may not be accredited though you may ask further through the Division.
http://www.coworkforce.com/dwc/physicians/default.asp

Wednesday, January 31, 2007

Television advertising by attorneys UGH!


It may be that some advertising is useful but as of today I am turned off by many of the TV ads by attorneys. The fact is workers comp cases are not easy and there are no automatic recoveries with big dollar figures. Moreover in Social Security disability hearings at the local level the statistics suggest that many people lose! The statistics I've been given vary depending on the local Judge but one Judge issues favorable decisions less than half the time. So advertising that leaves you with the impression the lawyer is invincible or a cash king is hogwash. There are two things to address here. First, some of these ads are being run so many times on several stations that it seems like half the ads on TV are attorney ads. I admit that is only my impression but the repetition is excessive! Of course I have a DVR so I skip most of them but I am astounded at the number of lawyer ads on television. Second, this much advertising can result in a huge caseload. So unless you are careful even the best lawyer can be overwhelmed with work. There can be pressure to settle or resolve cases to feed the costs of operating and advertising such a practice. My experience has been to limit the number of cases we handle because each case we do take will almost always involve a great deal of time and energy. Anyone with a work injury or disability has physical, emotional and financial problems plus legal problems added to the mix. This means every case is unique and deserves individualized efforts to get through it with minimal problems. Often a seriously injured case takes over a year to resolve. If so...that is the way it is and should be and rushing to settle is not wise. Excessive advertising expenses and a huge caseload can complicate or even harm this process. Today my main issue with the ads is that they are flooding the airwaves and are unrealistic. So I say UGH! Anything that sounds too good to be true is often not good and not true. By the way some TV ads are professionally done and helpful. I just dislike ads that seem over the line.

Last Friday's Lunch Meeting

Once a month or every so often a few local attorneys meet for lunch and to discuss workers comp and Social Security disability concerns. It is informal but it is useful for all of us to be able to "talk shop" in an area that is as complex as workers compensation and disability. It's also enjoyable and most importantly it helps us all to talk things out. Last Friday a doctor showed up and we had a discussion on pain medicine and therapies. We also discussed other topics such as the Waddell signs. Dr. Waddell (a noted orthopedic surgeon in Great Britain) several years ago presented that certain non-physical matters might affect a person. This seems to have been misinterpreted so that some providers suggest that exaggeration or faking is present if several of the Waddell's signs are present. The fact is Dr. Waddell disavowed that interpretation. In any event we discussed this and I brought with me the latest copy of Dr. Waddell's more recent book. It was a most enjoyable and educational lunch and thanks to the doctor for his attendance!

Tuesday, January 30, 2007

Update on the Holnam case noted earlier

As I mentioned earlier in Holnam the claimant was unable to seek coverage for an alleged occupational disease based on the legal theory called claim preclusion. The case is a bit complicated but essentially having lost on a traumatic claim the effort was made to allege the condition was caused by occupational activities. The Court said you cannot come back and do this at another hearing. I believe this is not sound reasoning and by way of an update I understand this case is being sent to the Colorado Supreme Court. Of course it is up to the court as to whether it will rule on it but I remain hopeful. I should note further that appeals take a lot of time. It is sad but speedy outcomes are not part of workers compensation when there are appeals. In my view this works to the advantage of the insurers since they can wait it out as compared to claimants.

Thursday, January 18, 2007

Vocational Rehabilitation


If you've been injured on the job or even if you simply have health problems which restrict work activities and you're worried about what work or job you can now do check out the Colorado Division of Vocational Rehabilitation. It is unlikely you will receive any vocational rehab through a workers comp insurer. Workers comp used to have a more active vocational rehab effort but that has changed so seldom will you be offered voc rehab by the insurance carrier. My experience has been that they simply pay you a settlement or by Final Admission and you are then on your own. This can be especially difficult when you feel you've lost your trade or occupation. If you are permanently and totally disabled from returning to any work then you may also seek Social Security disability benefits or other disability benefits if available. Moreover any resolution of your workers comp case can mean a substantial recovery if it is properly handled by your attorney. But if you simply cannot continue in your line of work yet believe you can work then consider contacting the Colorado Division linked here: http://www.cdhs.state.co.us/dvr/

Friday, January 05, 2007

Can You Do It Yourself?

Workers comp is so complicated that it has its own rules, its own separate caselaw and statutes, medical guidelines, and even comes under two Colorado agencies (the Division of Workers Compensation and the Office of Administative Courts). Deadlines and forms are also quite complicated and even those with experience must stay on top of them in every claim they handle. Some claimants believe they can try to handle their own claim. Others feel they will be treated fairly especially if they are receiving some benefits. While there are cases where you can receive decent medical care and benefits it is rare that any claim will go smoothly all the way to the end. Certainly the Division has a customer service section which does provide some basic help and it is possible to handle your claim pro se (without an attorney). I suspect many claimants want to avoid using an attorney and think they can come out ahead by saving on the legal fees. All I can say is this....if you can retain an experienced workers comp attorney then do so as he or she will usually maximize your benefits. Too many times the medical care is incomplete. Too many times the amounts due you are very low and you are told it is all you are entitled to receive. Many times an attorney can obtain substantially more benefits for you and far more then the legal contingency fee which is 20% in Colorado. So try to obtain a lawyer to help you with your claim. Do it yourself only as a last resort when a lawyer cannot be found to take your claim. Moreover here is one more tip: whenever possible obtain an attorney early on in your case. The sooner the better given the contingency fee is the same anyway.