Wednesday, November 26, 2008
As we approach the Thanksgiving holidays I do wish you all a great day and if you are with family a peaceful, fun time. Despite all the troubles out there it is a
time to be grateful for what we do have. As the song says...live like you were dying.
Life is precious and friends/family are what counts. Today is also the one year
birthday of my twin granddaughters and that makes it extra special!
Saturday, November 22, 2008
The state Division of Workers Compensation has statistics up through the year 2004. You can go to the Division website for this. For 2004 the average settlement was about $12000 for those not represented by an attorney. For those represented the average was about $32000. Click here for the 2004 stats and table 32 there sets forth the stats I am mentioning here. Now these are just averages. In my experience an attorney also helps on the medical side and on the receipt of temporary benefits. In many cases even before any settlement there are problems an attorney can assist with. Sometimes the treating doctor just discharges the claimant and that is wrong. This can result in the loss of medical care and loss of temporary benefits. Doing nothing is usually a mistake and an attorney can seek further care and benefits. The biggest factor can be where the insurer provides some permanent benefits but the claimant is no longer employable. This can mean much more in a settlement if it is pursued. Here the amount can far more then doubling or tripling the dollars. Lastly with those needing ongoing care this can be a lifetime situation though often the insurer does not see it that way. An attorney helps here too. I could write extensively on this but you get the idea. If you can then get an attorney...it usually means substantially more benefits.
Sunday, November 16, 2008
In my last post I noted two cases decided on November 13th by the Colorado Court of Appeals. Actually one more case decision was issued. In Montoya, the authorized treating physician rated the claimant at 19% impaired. The insurer decided to dispute the rating and started up the process to seek a Division IME. That is the only way either side can dispute the rating so provided. Then the same doctor altered his opinion to reduce it because of a prior injury. The number went down to 15%. Of course now the insurer decided it could accept the rating so it cancelled the Division IME and filed a Final Admission in the case to close it but accept the amended rating. The claimant said the insurer could not do that but the court said the insurer could just that. The claimants reasoning was that the insurer was bound to go forward with the Division IME or be bound by the original rating. The court however had no problem with the insurer accepting the amended rating. While I understand the decision you have to ask what if the claimant had received a low rating and sought a DIME but then the doctor increased the rating. Could the claimant cancel the DIME and count on the insurer filing something to respond to that higher rating? Anyway read the Montoya case here.
Thursday, November 13, 2008
Today, the Colorado Court of Appeals issued two workers compensation decisions. Kilwein is an old case where the claimant was permanently and totally disabled with the right to ongoing medical care for the injury. Years later her authorized treating physician underwent utilization review to be replaced as the treating doctor. However though a change of physician was ordered the law allowed the claimant to continue treating with the doctor while he appealed the order. The problem was that the insurance had to keep paying but the risk to the claimant was if the doctor lost his appeal then all medical expenses could be recovered by the insurance. The court decided that the claimant who kept treating with the doctor who was no longer to be authorized did so at her own risk. In this claim the claimant kept treating and also went to referral treatment but all of it was ordered to be repaid to the insurance. This case is a rare situation but points out that if you choose to continue with a deauthorized physician it is at your own risk.
The second case, Cabela, also relates to authorization of a physician and also concerns the insurance saying the injury was not work related. The court quickly disposed of the insurers claim it was not work related by saying the Judge decided that issue on the facts and they would not reverse the judge. More interesting is what happened when the claimant was told by the original authorized physician that her injury was not work related. That doctor decided to send the claimant to her personal doctor. The personal doctor decided it was work related and referred her for treatment by an orthopedic doctor. The appeals court decided that the personal doctor became authorized to treat when the original doctor backed out but sent her to that personal doctor. The mere fact the claim was disputed did not change the fact this was a referral and referrals by authorized doctors are also authorized even if the case is disputed. There is more to the case but it is a good case for claimants. Unlike the Kilwein case there are many disputed cases where the doctor picked to treat you decides it is not work related and then simply closes the matter by saying go to your own doctor.
The Kilwein case.
The Cabela case.
Tuesday, November 04, 2008
On Monday, the Colorado Supreme Court issued a case which addressed the privacy of materials on a party's laptop. While not a workers comp case it does involve issues of how much must be disclosed to the other side. It seems as if the Supreme Court is trying to balance the interests of requiring disclosure of pertinent information with the right of privacy. Since almost every case involves required disclosures it is an interesting case to read. In workers comp for example the other side always seeks as much of your past medical records as they can get their hands on. Sometimes however the disclosure is simply not relevant to the claim. For example should a female claimant be required to disclose or sign a release to disclose her ob/gyn records when the injury is to a wrist or back? Any disclosure just allows the other side to have more information. In the latest case the defendant was driving and it was alleged he was looking at his laptop when the traffic accident happened and someone was injured. The trial court ordered inspection of the laptop but in doing so left the defendant without protection from other matters on his laptop. The Supreme Court decided that the lower court must take steps to protect the privacy of the laptop contents except to show if it was being used at the time of the accident. View the case here.