Sunday, October 05, 2008

Amendment 57 Injured Worker Remedies (Withdrawn)


The upcoming election has on the ballot Amendment 57. Well that was the story but this has been withdrawn even though its on the ballot. Amendments 53,55,56 and 57 were withdrawn by the Dems. I will not bother to discuss all these but Amendment 57 was an effort to help injured workers by adding another claim that could be filed. However it is beyond workers compensation coverage. In the past workers compensation has been considered the exclusive remedy for a work injury. You could not sue your employer for an unsafe workplace. You could not recover for pain and suffering or punitive damages. Your remedy was limited to those benefits allowed by Colorado workers comp law. If this law passes it opens the door to new civil claims with a jury trial for unsafe workplaces that cause damages to workers. However it only applies to employers with ten or more employees and it prevents a double recovery for the same losses for which you received workers compensation benefits. I prefer that we increase benefits within the workers compensation system but this proposed law does offer a new approach. Sadly some workers comp cases really do not fairly compensate injured workers. I am especially concerned about cases where you lose your trade but receive an amount set by law which is simply inadequate. This law, if it passes (but realize it is now withdrawn from the voters), opens the door to further civil claims and frankly injured workers deserve more. Insurers can contest claims and use the law to limit benefits without regard to the inhumanity of it. Pain is poorly compensated. Often the injured worker loses his job and his health and is expected to just move along with low benefits. This proposed law lets you present it to a jury who may understand the true losses that are experienced. What does seem clear to me is that the true losses from a work injury must be compensated whether by this withdrawn effort or others that loosen up the tough laws that hurt injured workers over the last 15 years or so.

4 comments:

Anonymous said...

Work comp is a failure. It doesn’t matter that I am constantly in a great deal of pain. I grit my teeth through physical therapy (which improved my flexibility but didn’t get rid of my pain) The day came for my impairment rating,….and again grit my teeth as my flexibility is checked….Come to find out I am 12% impaired…..my impairment rating is based on how flexible my back is. It is ridiculous. If my 18 year old son had to go through an impairment rating he would be more impaired than I am because he is not very flexible. Funny thing is there is nothing wrong with him. I have to take pain pills, nerve blockers that mess with my head.., been through a failed surgery …..It is all very upsetting. I can't go back to the work I was doing...I can't drive due to the meds...I can't sit still for long periods of time...I have no idea what I will be able to do for work. besides who would want to hire me. I can't preform up to "normal" expectations. There has to be a better way! I was hoping this initiative would pave the way to change. :(

attorneyfalcone said...

Being impaired is not the same as disabled. Colorado adopted a mechanical way of calculating impairment by using the AMA Guides 3rd edition revised. But anyone with a low number (perhaps 12% is low) and also anyone with severe disability has two more options. He or she can seek a DIME to reassess impairment and also if not very employable can seek far more benefits. I encourage anyone with a back problem to get an attorney and review further options. I will post more on the options people have in this blog. Please anonymous...try to consult further with an attorney.

Terence O'Riain said...

Being able to sue for damages in personal injury claims is the fairest way to compensate people. However if an insurer is already paying you benefits then that insurer should be indemnified or credited for payments already made even if there is a third party involved. In fact restricting peoples' rights to fair compensation in Australia meant that our federal social security & medical insurer, motor accident authorities and workers compensation insurers are deprived of recovery for what they paid out. The tax payer subsidises the insurers' profits.

Re anonymous' comment re impairment assessment being unfair. That is so right although the test can be made fairer by having an alternative narrative test, that is making it ok to sue if your injury while less than 10% WPI (or whatever threshold or minimum) impacts adversely on your lifestyle or work capacity. Not as good as normal common law damages but tougher where there is none.

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