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

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.

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/

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.

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.

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.