Friday, September 05, 2008

Sept 4th, 2008 brings two cases against claimants

The Colorado Court of Appeals decided two cases on September 4th against claimants. Both cases have complicated legal arguments but the claimant lost out. In the first case, Feeley, the claimant sought to reopen and have his claim reviewed again after he lost his original appeal. He felt that there was a more recent Colorado Supreme Court decision which should have been abided by in his earlier case but the court decided his earlier case could not be reopened under the doctrine of claim preclusion. In other words his prior appeal was the end of the line despite a later Supreme Court decision that compels Respondents not to close a case without taking the right steps. It really meant that his claim was too late to take advantage of the more recent decision yet its clear the older law was a mistaken intrepretation. The second case, Heinicke, decided that a claimant who returns to an authorized doctor who states his impairment is higher cannot shift the burden to the other side to prove otherwise. The claimant sought to reopen but the decision indicates the claimant still has a high burden to prove his case should be reopened due to worsening. This case is strange because we all know that a higher rating means more damage and logically it must mean a worsening. The court seemed to emphasize the claimant still had to prove it relates to his work injury except you have to say that when an authorized doctor rates higher he must also (implicitly if not explicitly) be saying it's all work related. The case makes it clear that reopening is not easy and the burden is high. I side with the claimant in both cases but that is no surprise as I only represent claimants. I think legal mistakes made should be corrected and not perpetuated. Feeley says too bad. I think evidence from an authorized physician should shift the burden to the other side. Heinicke says no way yet it costs $450 an hour to have a doctor testify. Most injured workers are financially hurting so this seems to perhaps deny relief to those least able to afford it.

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