Tuesday, February 26, 2008
As noted at this link the backlog in SS disability hearings is not hard to figure out. With less funds appropriated then requested the result is more delays. The Social Security Administration has more duties but less Judges and less funds then needed. We all want a fast and fair process to determine SS disability but it requires more funds. When appropriations are inadequate then people suffer delays. More Judges and more dollars are needed to make the system function correctly along with other changes to assist in disability determinations. Until it happens the disabled will be forced to wait.
Thursday, February 21, 2008
Twice a year a full day seminar is held on workers compensation for attorneys. It is also called CLE for Continuing Legal Education. Continuing education is mandatory for all practicing attorneys although you can concentrate in the fields you prefer. My fields of practice are workers comp and Social Security disability. This seminar I plan to attend. Even though I may be up to date it's good to hear from others, gain new perspectives and meet those in my field of practice. Whether representing claimants or insurers/employers we are also human beings not just adversaries against the other. At times that humanity is important and helps both sides to resolve tough problems and cases. In any event here is the latest info on the seminar.
Wednesday, February 20, 2008
Here is a link to the website of the Social Security Disability Coalition. It contains quite a bit of content and interesting comments from the point of view of the injured and disabled. It does seek to change laws and procedures that are not helpful to the disabled. For example did you know that even after you are to get Social Security disability the benefits do not start on the date your total disability began (called date of onset)? At best they start 5 months later as the first 5 months of possible benefits are not counted at all. In any event this website is an interesting read and is by and for the disabled.
Wednesday, February 13, 2008
The Colorado Division of Workers Compensation at its website gives us a list of most of the time limits in the field. Yet others are not posted. For example if you file a motion or the other side files a motion it will have a time limit to respond. In any event here is the link to the time limits posted at the Division site. It is one reason that claimants seeking all they are entitled to should have representation. Another reason is that on average an experienced attorney significantly increases your benefits. Your attorney will take the case on a contingency basis of 20% but will simply deal with all the deadlines and all the legal hassles. He'll also get you ready when that is needed and give you a heads-up on most that is going on. He will negotiate for you and add in to the calculations thousands you might miss. But most of all he is there to protect your interests.
Monday, February 11, 2008
Back on July 27, 2007 I reported on a case where the claimant's rating of permanent impairment was apportioned (reduced) because of a prior work injury. The doctor performing a Division Independent Medical Examination did in fact reduce the rating because of a prior work injury which he also rated in his calculations. The Court of Appeals decided that the apportionment was proper and the claimant sought to appeal it to the Colorado Supreme Court. Why? Apportionment means less compensation is due the claimant on the last injury. Today the court rejected the appeal by denying certiorari to look at it more thoroughly. The Supreme Court does not have to review every case brought before it. It can decide it is not reviewable. That is what the court did in this case. The decision by the Court of Appeals stands as the law. I must admit that the lower court did make it clear that the doctor considered the pre-existing condition as "active" when the last injury occurred. So the case does mean that apportionment is proper if the old impairment was still "active" when someone is hurt again. The only real surprise in the case was that the older impairment was never rated , there were no restrictions and perhaps no ongoing symptoms. Still the DIME doctor has to use his own independent judgement. What I conclude from this is to really get the evidence lined up if you do not like apportionment. It is then up to the hearing judge to weigh the evidence.
Friday, February 08, 2008
This Rochester NY newspaper article once again reveals the incredible delays and denials in disability process. The stories here are sad and show us how some cases are put into a bureaucratic hell. I have no doubt that many who apply for disability are not totally disabled but many others who apply are wrongfully denied and delayed justice. Two points are important to me. First long delays are simply part of an apparently overloaded and underfunded system. That is shameful. Second far too many legitimate claims are denied. The process should be speedy and just. If not we must wait for reform. Here's a link to this excellent newspaper article.
Thursday, February 07, 2008
A claimant who goes to hearing and loses still has a right to appeal when benefits are denied or lost. In this state there are many deadlines to act in workers compensation proceedings. Miss them and it can be big trouble. One such deadline is to appeal and in the Speier case (decided Feb 7, 2008) the claimant was late to appeal, tried to say he had an excuse or could seek relief from the deadline. He lost at hearing and lost his appeal because he was untimely. How much time did he have to appeal? 20 days and it starts on the date the order is mailed to you, not when you receive it or it gets to your lawyers desk. On the 21st day you are late and an appeal can be dismissed no matter how wrong the result. In any event you can read the case here.
Wednesday, February 06, 2008
I am amazed at the TV ads by some attorneys. The viewer is left with the impression it is all so easy and also fast. Perhaps this is part of our culture to look for the magic pill or the quick fix or instant results. I recall someone telling me they went to one such attorney and their case was settled for $5000. Fair? Who knows but it was fast. Just today someone said they've been calling and calling but no one returns their calls. I can only shake my head because when so much advertising is done it is bound to lead to many many cases but also overload is possible. I suspect it also can mean a push to settle cases to feed the expenses of operating and marketing such an office. Be aware that many cases can take quite a while to resolve and are not simple and easy. If you have a small claim perhaps that is simple and easy but not a case where you require extensive medical treatment and have a serious health problem from your injury or disability. The last thing you want is to be pushed out of the system with less rather than more. Going for the quick buck may get you the quick buck but not top dollar. An injury can well mean chronic pain and permanent limitation. Do not cash it out and give up your rights without getting the maximum care and value. That simply takes time but it is usually well worth it.
Tuesday, February 05, 2008
That is a question I am asked over and over but usually too early. I like to tell people that the legal determination is like the tail of the dog...and the dog itself is the medical treatment. It is usually too soon to be guessing about any settlement or amount due before the medical care has finished. Trying to figure it out before a person reaches MMI (maximum medical improvement) is nearly impossible. If someone is in a hurry then any settlement is going to be based on very unclear facts. After all if the doctor can improve your condition then finish the treatment. If you do not then do not expect the insurer to give you big bucks. They too have a right to say give it a chance. Don't say you are in horrible shape and deserve a lot of money when you don't finish the treatment. If you do then seek to settle the figure will often be much lower. My preference is to finish out with your treatment and then see what is the best way to resolve the case. If you are permanently and partially disabled we pay attention to the rating and the future medical care. The rating or damage estimate is also called impairment and more then one doctor can be involved in the rating. The treating doctor would rate and then we usually ask for a second opinion through the state. The second opinion is called a DIME for Division Independent Medical Exam. That opinion can address your rating and much more including your treatment. I've seen treating doctors say zero and a DIME come back much much higher. Further a treating doctor may say you are finished but the DIME says more can be done. It almost always benefits the claimant to go with a DIME. However it is a judgement call (it can also hurt your claim) so attorney advice is often essential. All of this enters into a possible settlement but never expect the insurer to roll over or guide you on this. Regretably extremity injuries such as to a hand or leg usually receive low permanent benefits but there are exceptions. As for losing your trade or occupation...Colorado gives nothing for this unless you can allege you are permanently and totally disabled which can lead to very high settlements. Trying to do this on your own is not just complicated it almost guarantees a battle. Still total disability does not mean you are flat in bed all the time. It is more a matter of how employable you are in the real world. Insurers like to say if you can work anywhere even part time you are employable but it is more complicated then that. Often we have to use vocational experts to help out with this. In any event the right time to discuss settlement is after treatment and a rating. At that time it must be carefully reviewed. Finally we also have to consider Medicare in some cases. Here is an example....your cash calculation amounts to $100000 but also the insurer arranges a medicare fund of $60000. The numbers can be higher or lower but requires much thought. What is a medicare fund? Medicare may require money be set aside in a fund to help with your future medical needs where you are going to also be getting medicare benefits. So to the question...what is a fair final settlement? It can be as big as legally allowable but like snowflakes each case is different. I really recommend that anyone wanting to settle or contacted by the adjuster to settle use an attorney. They can do two things. First, they can protect you and help you to max out your benefits. Second, they can calculate and negotiate a settlement that usually is quite a bit higher then what has been offered.