Thursday, March 27, 2008
The typical claimant on workers comp seeks to maximize his benefits. There is no reason to not receive all available benefits. However in this link we have a claimant in Connecticut that went beyond that. Insurers love to use such stories of fraud to justify tightening up on workers comp rules and laws. Such instances of fraud then can hurt the average claimant. By and large most claimants just want to get treated and back to work if at all possible. But at times someone decides to be false and deceptive. Not only can that be criminal it also affects all the other claimants. It can result in insurance adjustors and employers thinking all claims are suspect. By the way the instances of employer wrongdoing are actually more common. Many times employees with legitimate claims are treated poorly by their employer. Claimants are fired or demoted or ostracized. To save a few bucks I've seen employers put claimants back to work reading the phone book just to have them collecting regular pay rather then workers comp. In any event all claimants should know they are not invisible and surveillance is common. Check out the Connecticut story here.
Wednesday, March 26, 2008
Here is a link to another site that makes us aware that Idaho is the fastest in the country in processing Social Security claims. They are weeks faster then the average plus they handle more cases per day then average. So in terms of efficiency they beat the rest. However it does make you wonder if they can be speedier and handle more cases why cannot the other states learn from them to improve their time/efficiency? The delays in any claim for Social Security disability are well known but it is always sad to see deserving people wait. Anyway here is the link.
Monday, March 17, 2008
Many times there is a point where a claimant has 3 choices to choose from in a case. He is faced with a Final Admission after treatment where he is likely rated by the treating doctor as to his impairment. He is given a 30 day deadline to act. His choices are to accept the Final Admission filed by the insurer or to seek a DIME (Division Independent Medical Exam) or to try to settle out without a DIME. He's on a deadline so it can be a tough choice to make. Questions to consider include are you at MMI (maximum medical improvement)? At times treatment ends too soon and more can be done. Another consideration is the rating. Is it too low or high enough to worry that if you go for a DIME will that doctor lower the rating? Yes that can happen when you open the door to a medical review of the treating doctors rating. What about future care such as ongoing medications? Is that allowed for or is it less then expected or desired? What about your restrictions? Can you barely lift a gallon of water yet the doctor said you can lift 20 pounds? Some decisions are easy. If the treating doctor releases you without impairment or anything further and returns you to full duty and you disagree that choice is easy. You go for a DIME (after objecting to the Final Admission which the insurer rushed to you). Each case is different but the statistics seem to show that many try for a DIME. This occurs because the treating doctor who was handpicked by your employer may be less favorable to you. But if the rating is high enough then we have a tougher decision to make. Each of the three choices comes with a negative. If you go for a DIME the new opinion may lower the rating or agree with the treating doctor or alter something else like your maintenance care. If you accept the Final Admission then your case closes based on that Final Admission (read it carefully because it is what is in writing that counts not what the adjustor tells you). You do keep your right to petition to reopen for a while (6 years from date of injury or 2 years from date of last money payable) but that does not mean if you worsen you can reopen the claim easily. It can take a battle. Insurers often question reopening especially when a new job or event has aggravated it. You can just try to settle it all out but that means closure forever in most cases. So you may get extra dollars but don't plan to be able to return for care if you get worse or if it turns out you cannot work at all. Again for most cases the choice is to go for a DIME but each choice has consequences so in some ways it is a choice between evils. We all want open medical benefits and high compensation but seldom is that provided. Lastly each person has personal factors to consider. Some can be ready to work and just want it over with. Others may have lost their trade and need to maximize benefits. Still others really feel they need more treatment. Tough choices and asking others for advice can be tricky. Only your lawyer knows the current state of the law. He also knows the doctors involved whichever way you go. Beyond that you may have to consider if you are permanently and totally disabled and this enters into any review of the choices. The point is that it is never a simple matter and each case is unique so take the time to think it through with your lawyers help. Going it alone is seldom wise as the decision you make you will carry with you the rest of your life.
Saturday, March 15, 2008
Here is a statistic mentioned at a recent seminar I attended. Going back over ten years anyone who appeals a workers comp decision only has a 17% chance of any success. The odds are very much against you although some appeals are easy to decide against the appealing party. If you are untimely in an appeal it gets dismissed. If you missed a deadline that can mean a dismissal. If you simply disagree with the Judge's weighing of the evidence the odds are a fairly clear your appeal will be dismissed. But it is still sad that so many appeals are a waste of time. Of course we are talking about the rate of dismissals at the next level up from the hearing judge. That level is called ICAP which stands for the Industrial Claim Appeals Panel. Beyond that level is the Court of Appeals and then the Colorado Supreme Court for a few cases. You can lose at the hearing, at the first appeal, at the Court of Appeals and then win at the Supreme Court. So odds mean little if you have a good argument with a solid legal basis. The problem is that few losing cases are that solid and most appeals simply result in a dead end. Being upset at the hearing judge is not enough to appeal...it takes a solid legal argument. So if you are convinced you are right and appeal be aware that 83% of the time appeals are lost at the ICAP level.
Friday, March 07, 2008
Thursday, March 06, 2008
We all believe in the right to appeal. It applies to both sides and until we have an infallible local Judge the right to appeal permits us to point out legal errors the Judge made. Appeals, when we do not like the Judge's weighing the evidence are often foolish. The local Judge is the fact finder and higher courts seldom reverse the choices made on the evidence by the Judge. In other words you do not have the right to ask the higher court to try the case all over again. Instead appeals usually involve an assertion the Judge made a legal error that warrants reversal or another hearing. In the case decided today at the Court of Appeals the court pointed out that you cannot appeal a workers comp case when it is not timely. I am posting the decision here as an example of how complicated the workers comp system can be. If you read it you quickly realize that the decision may be proper but it may seem bewildering to the average person. Here the insurer lost the appeal but it also involved a complicated review by the Court of Appeals. It makes you want to say...please make the rules simple and clear so the system moves faster and with less confusion. As lawyers we love to question and challenge and analyze but the parties usually just want to move along matters.
Tuesday, March 04, 2008
When there is a dispute that requires a hearing an Application For Hearing must be filed and you must comply with the appropriate rules to follow through and have the hearing. So when they contest your claim or do not provide benefits or when there is some dispute that can take a Judge to resolve it takes a hearing. We can seek hearings on a variety of matters. Examples include disputes on what is the correct average weekly wage (this is important and can result in higher computed benefits), on medical care, on temporary or permanent benefits and much more. Of course you cannot just seek a hearing anytime you want to do so. It does take a dispute and timely action by you as provided by the rules and law. Respondents too can seek hearings and often do when they have a dispute that should go before a Judge. I cannot provide a detailed list but be aware any side may need a hearing depending on the situation. Hearings at best are scheduled out around 3 months from when you apply (80-100 days). Is there any way to speed this up? There is but it is very limited. There is a 40 day expedited hearing but only on issues of compensability and medical matters from the claimants point of view. Other issues pertain to the affirmative defenses of the other side and trying to get prior authorization for medical treatment. The parties can agree to add issues but that is rare so if you are seeking money it is best to file the regular Application for hearing. Forms are located online. This means almost always we use the regular route to a hearing. Actually whenever there is a dispute it takes time to investigate, gather up the evidence and get ready. 80-100 days may seem long when you have no income or must wait for resolution of the dispute but it is much faster then civil cases at the courthouse. In any event it is all regulated by rule and law so we must abide by it.