Tuesday, December 29, 2009

Are you an employee or independent contractor?

A recent ICAP (Industrial Claim Appeals panel) decision (WC 4-776-542) went into detail on the difference between being an employee and being an independent contractor. As an employee you have workers compensation benefits for a work related injury or disease as set forth by law. As an independent contractor you likely do not have such benefits. Being told you are an independent contractor does not make you one. In Colorado we have a statute that details certain criteria to be considered by a judge in determining if you are an employee and potentially covered by workers comp or not. The statute is at Colorado Revised Statutes 8-40-202(2)(b) and gives us 9 criteria to consider. Essentially the criteria pertain to the extent of control over the worker in certain ways. In the recent case a carpet cleaning company tried to assert that the worker was an independent contractor when he was injured driving in a company truck to a customer. The vehicle rolled over causing traumatic injuries. The employer defense failed and the worker was deemed an employee. The employer appealed to ICAP and the decision was affirmed in a case which went in depth into the caselaw and statute.

Tuesday, December 22, 2009

From Another Blog: Edith There is No Sanity Clause

Here is a story from North Dakota posted on a great blog which shows the limited coverage in that state for a mental impairment. Colorado is somewhat better but does limit pure mental claims to a certain statutory standard. This does not apply to other claims such as brain injury or a mental impairment associated with a physical injury. But if you have mental stress alone that you allege came from work it really has to be unusual as defined by statute.

Sunday, December 20, 2009

Injured Worker Claim Form and Contact Number

If you are injured on the job and must file a claim with the state or just need some basic information please do not be afraid to call the Division of Workers Compensation customer service number at 1-888-390-7936. The claim form can be found here at this form page. It is a big download in pdf format but can be filled out and sent in whenever you are being ignored on your claim and should proceed on it. Sometimes you report your injury and nothing is done by your employer. Colorado lets you file your own employee claim, gives you general information at its website and customer service is a telephone call away. Of course as soon as possible consult with an attorney. Please do not rely on your employer or the insurer to act in your interests.

Tuesday, December 15, 2009

More On the Mental Side of Workers Comp


It appears my last blog posting was picked up by another website and was noted by them along with a couple of comments. It seems that some on the insurance side see the mental part of workers comp as not often legitimate or even some sort of personal lottery benefit for the injured worker. I can accept that the insurance view is to question alleged impairments. It can dispute any psychological impairment or need for treatment. But to this day I am disappointed by some of the cynicism shown on the insurer side. The fact is any injury anywhere that has lasting physical effects may also result in post traumatic stress, depression and anxiety. Forget about whether it happens at work and forget about the claim for monetary benefits. My experience is that any lasting or chronic injury or disease can be devastating to the injured and their families. I'm not going to go into the medical side in this post. In Colorado I provided some links in my last blog post. Instead I can only say that I've observed how it can stress out some claimants. Some have lost spouses, homes and occupations. Some must deal with contests by the insurer and employers looking to end the problem. Others face adjustments they never asked for. Unless totally disabled most receive benefits that are at best one, two or three years income replacement combining all impairments. Windfall? Hardly. Colorado quantifies the amount but how do you quantify pain and suffering? Lastly Colorado caps or limits the psychological benefits. A couple of years ago there was a case that illustrates how stress can affect a vulnerable claimant. He committed suicide when his case was contested. Sadly there was no recovery for it.

Sunday, December 13, 2009

The Mental Side of Workers Compensation

Often missed in the treatment of a workers compensation injury is the stress, the depression and all that goes with it. Perhaps it is not noticed by the authorized treating physician who is usually picked by the employer. Perhaps it is considered just situational and not of any significance in treatment or impairment/disability. But the claimant and claimant's attorney are often well aware of the impact of an injury on the emotional or psychological well being of the claimant. The family also must live with it. If your trade or occupation is in jeopardy the anxiety may escalate to a high level. In many ways it is the hidden side of a work injury. It may affect your treatment, your recovery and your future. We must remember that it is a human being that gets injured not a store dummy with just body damage. Additionally in some cases the fall or injury will impact the brain and cause organic damage. Legally we want the entire injury to be treated and assessed. This is permitted in an injury claim but sometimes you have to assert yourself. Tell the doctor what is bothering you and what you are concerned about. Being silent just keeps it hidden. You are allowed treatment and it can also increase the permanent disability you have unless you fully recover. This can mean additional financial and medical benefits. The Division of Workers Compensation has materials on this for you and your doctors. For example click here for some of what they teach physicians. Also click here for more on the mental side in Colorado.

Saturday, December 05, 2009

Fed Chairman talks about Social Security benefits


I find it amazing that Fed Chairman Bernanke has the temerity to suggest cuts in Social Security benefits. It appears that bankers and financiers have a higher priority in the Bernanke view then SS beneficiaries. Of course that is what I believe is being discussed at this site so click here. Please recall that Social Security is an insurance benefit whether it be retirement or disability. Beneficiaries by working have paid for the coverage just as you and I pay for life insurance. This as opposed to those fragile banks and financial companies that received bailouts simply because it was important to the economy that they not fail even if they made bad investments. What it reveals, in my opinion, is the economic view that the old and the disabled are no longer productive so they should only get what benefits are provided to them. It disregards the fact Social Security is insurance not a giveaway. It seems cold blooded to pick on those truly fragile who have already contributed to their coverage.

Saturday, November 28, 2009

Firefighter cancer on the job case

While there have been no recent court cases involving work injuries in Colorado there is always activity at the ICAP level (Industrial Claim Appeals Panel). Colorado not that long ago passed a law to help firefighters who develop cancer while employed. Trying to prove you contracted cancer from exposure to the toxic substances involved with firefighting had been very difficult. The legislature decided to make it easier on firefighters so they passed a statute that created a presumption that getting certain types of cancer would be considered an occupational disease. In a recent ICAP case the local judge heard the testimony of 3 experts brought in by the insurer and ruled they had overcome the presumption. The firefighter appealed to ICAP and at that level it was decided the insurers' experts were really attacking the premise of the statute itself rather then providing evidence as to how the claimant did not get the disease from his occupational exposure. Not sure if the case will go to the next level but it reminds me of the old arguments made by the tobacco companies to assert that cancer did not come from smoking. There is no link to read the case (ICAP decisions are not published on the web for free) but the statute we are discussing here was mentioned in this prior blog post.

Saturday, November 21, 2009

Mileage as of Jan. 1, 2010


Mileage rates are going down a bit to .52 from .55 a mile as of Jan.1, 2010. The new Rule 18 effective Jan 1st has this buried in its pages which also provide all the rates that providers can bill for services. Mileage is one where the claimant can be reimbursed for those miles for trips to the doctor, therapist and the like. This mileage rate is likely tied to some sort of inflation formula so we all have to live with it but it is still better then it was a few years ago when it was .37 a mile. If you are going to submit your miles you should start tracking them as soon as possible by date, place and miles to and from. It is important to be accurate as often the insurer will doublecheck them from a program such as mapquest. Mapquest is not mandatory but the point is be reasonable in the calculations. As for the rest of Rule 18 it includes testimony fees (that is where you find out that doctor charges for testifying are $450 an hour portal to portal (door to door).

Friday, November 20, 2009

The New Rule 8 on Insurance IME exams


If a claimant is being sent for an IME (Independent Medical Examination) by the insurance selected doctor then there is a new rule, effective November 1, 2009 that is applicable. The hew rule came about because of a new statutory provision which requires that these exams be audio recorded. The new rule is worth reading and allows discovery of the audio and more. The point in my view is to keep the exam honest and relevant so it allows the claimant some recourse to protect him or her from exams which contain irrelevant and confidential information that should be stricken. It will be interesting to see how this plays out over time.
UPDATE December 2010: Received a recent comment that accused a Denver doctor, Dr F. of stopping the audio when she deemed it and specifically when she deemed the patient question as not valid enough. While I cannot post the comment without verification I certainly can say that once the audio starts I would consider any tampering with it as an improper alteration which violates the rule. That could mean striking the report is one option for a judge. I can say that insurance IME's can be very one sided. Claimants may not have the resources to obtain their own IME but insurers often can do so. For many it is not a level playing field although a Division IME set up through the state can be a very important added method of reviewing treatment, rating and more. The insurance IME (not the same as a Division IME) often, but not always, is looked at as a hired gun for the defense. At times I have seen insurance IME's provide a worthwhile opinion but that is the exception rather then the rule. By the way the statute at 8-43-304(2)(a) does say that it should not be construed to prohibit a party from making their own audio recording of the exam.

Thursday, November 19, 2009

New Look for OAC website

It appears the Office of Administrative Courts has a new look. I have not had a chance to go through it all but it does seem more user friendly. The old site had the OAC Rules almost hidden. You had to know precisely where to look. This new look is very clean in appearance. It also has new material so check it out. Of course the staff at law offices often use the site so whether they will approve the new look remains to be seen. I can say it really was time for a change.

Tuesday, November 17, 2009

October 2009 Hearing decisions

I am posting here the latest hearing decisions for October 2009 in workers compensation cases. These decisions were entered as Orders by an Administrative Law Judge (ALJ) at the local level. Many of them may be appealed further. The link is to a pdf document that is many pages long but it contains separate decisions that just all seem to run together. The judge issuing each decision is identified and often doctors too. These cases make fascinating reading and they are quite detailed. Once again they can give us a sense of the workers compensation process.

Tuesday, November 10, 2009

Stats on Attorney Fees in SSD cases


The Social Security website has the statistics on what has been paid out to attorneys as a fee in cases. The stats are posted here. From this it seems fairly straightforward to calculate an average attorney fee in a typical case. It runs around $3500 to $3600. That also means the average back benefits a typical claimant has coming is about $14000. The agency usually just pays the attorney and then the claimant these back amounts. Of course it depends on your earnings record. Some claimants receive $20000 or more and some may not be entitled to any back due amounts but the stats give us the average. Sometimes the attorney succeeds for you but receives little but that is a risk he takes on. By the way no attorney should be charging you any ongoing amount from your current checks. Is an attorney worth it? An experienced attorney gives you the best chance of obtaining benefits in that he is aware of the local practices and what usually works best. An attorney is not a guarantee. Locally it depends on many factors but the attorney usually lines up the evidence that will give you the best chance.

Monday, November 09, 2009

Supreme Court to decide on 2 workers comp issues


Today the Colorado Supreme Court granted certiorari in 3 Court of Appeals cases. That means they have decided to address the issues in those cases. In fact there really are just two primary issues. Two of the cases involve one specific issue. That issue is what is called "time of disablement" and was addressed by the Court of Appeals earlier this year. One of the cases was published and is the Simpson case. What is important is that some claimants want another date to apply in making the average weekly wage calculations for permanent benefits. The lower court said there was date of injury and also what is called date of disablement. In any event it was a big enough issue for the highest Colorado court to want to review further. It should be noted that the Supreme Court did last year in Avalanche also address this so maybe they want to clarify something. Next in Nelson the issue was a claimant seeking a higher lump sum then was the law at the time of his injury. The Court of Appeals decided that the law passed after his injury can be used by the claimant to obtain a bigger lump sum. Its reasoning is that the law was procedural which can be applied at anytime in a case. This as opposed to a substantive law change which you cannot backdate in a case. The claimant had previously collected a lump sum (advance on his benefits) that had a limit of $26292.00 and returned seeking another advance that was increased (to $60000.00)after the date of injury by a later law. No doubt some wonder how can a later law be applied against a party but the law did not change the permanency calculations only that another advance of money to become due could be sought. Neither of these two issues affects very many claimants or respondents but it will be interesting to see the arguments fully addressed and decided. It may be several months before we know but both issues are novel enough for the Colorado Supreme Court to take on.

Thursday, November 05, 2009

Colorado workers comp insurance rates to drop


It appears that companies will be seeing their comp insurance rates drop. This is due to reduced claims as noted in this article. However I do not see this means the workplace is safer. It is possible that is a factor but in my view it is more likely due to unemployment and the loss of manufacturing jobs. Times are tough and it is hard to sustain a work injury if you are not working.

Saturday, October 31, 2009

H.R. 2641 May Help with WCMSA Problems


I have previously addressed WCMSA's or workers compensation medicare set asides. Essentially in this area there are very complex and bureaucratically driven rules. Medicare simply requires that some settlements in workers compensation cases be approved by them and set aside funds for use in treatment so that Medicare does not feel it is having to cover your workers compensation treatment. Now those cases where the injured worker returns to work appear not to be a problem but when someone is on medicare or could be soon on it sometimes they are requiring approval of a set aside amount. That means any such settlement must include Medicare (the agency is CMS or the Centers for Medicare Services) in its resolution of the case.

The problems that have come from this are significant. It delays a settlement by several months. The claimant and insurer may agree on everything but still must hold their breath that Medicare approves the deal. I attended a lunch yesterday where one attorney said he was stumped as Medicare was requiring more then the entire settlement be set aside to protect them. Yet the case was totally disputed on whether it arose from work activities. In other words the claimant could go to hearing and lose it all. Then he would go on Medicare and they'd have to pay 100% of the medical expenses. Still they were rejecting the compromise no matter how reasonable it was done. So a reasonable settlement could be shot down. But then do the parties have any recourse? Both sides want to settle and have negotiated a fair approach yet they are dead in the water forcing litigation which will hurt one side or the other. So in this area claimants and respondents are really on the same side. They seem to have no recourse if some bureaucrat decides without a hearing that the compromised amount is not the full amount needed to protect Medicare's interests. Sounds like a denial of due process doesn't it? Yet this is happening.

H.R. 2641 is a bill introduced in Congress to smooth out some of the problems. You can read about it here and here and here. You can follow its progress here. It takes all of us to try move this bill forward so consider doing something more then just reading about it. Support it and follow its progress. It does seem buried in all the major political things going on right now but when the disabled, the insurers and the attorneys are on the same side you have to say the Medicare policy should be made more reasonable and less bureaucratic. H.R 2641 seems like a step in the right direction if it can move forward.

Friday, October 30, 2009

Prehearings and Settlement Conferences

In workers compensation cases prehearings and settlement conferences are incredibly important matters. Click here to visit the Division information page . Also click here. What is important about prehearings is that they often simplify and clarify situations. For example when the other side does not supply requested materials that are discoverable a claimant can file a Motion to Compel. A Prehearing Administrative Law Judge (PALJ) can issue an order requiring compliance. Should anyone fail to comply there can be severe sanctions. Settlement conferences are also valuable ways to resolve cases. After all many cases have disputes or issues which can require a hearing. In particular the extent of a claimants permanent disability is often disputed by the parties. If the dispute goes to a hearing then we must wait for the Order which can be appealed and sometimes all this can take many months. A settlement is a compromise between the parties to obtain closure with a certain outcome. Perhaps the insurer has admitted the claimant is permanently impaired but the amount is subject to more then one interpretation or even the claimant feels he is now permanently and totally disabled. Such matters are very contested and settlements afford the parties a chance to resolve matters and move on with their lives. However it does involve compromise from both sides. What is nice about settlement conferences is that a judge is involved as a mediator to try to work out a compromise. This judge never hears the case at a hearing but is there just to help the parties settle if possible. I've had cases where the settlement efforts did not succeed but usually with some effort they can work. It does require that you accept a compromise. If either side cannot do this to settle a case then we take the longer road of a hearing with likely appeals. Sometimes a settlement is not the way to go or the parties are too far apart in the negotiations so the best answer is to proceed with a hearing. The Rule on Prehearings and Settlement Conferences pertains to these proceedings. Also the statutes are here and here.

Monday, October 26, 2009

LexisNexis Top 25 Blogs for Workers' Compensation

We have again received an honor from LexisNexis for 2009. Last year we received the honor for being a top workers comp blog. Now again we have a similar honor for 2009. Here is what they said about this blog:

"The Colorado Workers’ Comp Blog’s winning formula is “less is more”. The blog packs a lot of information into short write ups, while making it easy to understand, whether or not you’re an attorney."

If you would like to see all of the honorees click here. It is an interesting mix of blogs and you can gain quite a bit of insight on workers compensation in general from those blogs. Of course be aware that workers compensation is a creature of state statute, rules and caselaw. Colorado law is what pertains to each injured workers claim although what is happening around the country lets us know of the trends in the field.

Tuesday, October 20, 2009

Pinnacol Critical of State Committee

Pinnacol Assurance is the state's largest insurer in the workers compensation field. It is also a hybrid company originally created by the state of Colorado. Over the years it seems to have done very well for itself. A few months ago it was in the news because state officials were interested in tapping its reserves to use in the state budget. Lately a legislative committee also focused on it with testimony from injured workers. In any event Pinnacol is clearly upset with the committee and it posted its criticism on its website noted here. Using words like clear bias, not balanced, partisan and that "some" call it a witch hunt in its criticism won't help the situation. Legislators are simply reacting to events and calls for reform.

Monday, October 19, 2009

Workers Comp seminar


There are two primary workers comp seminars a year in Colorado. Also there can be others but the two I most enjoy (because of excellent topics, updates and great speakers) are held in the spring and fall. The next one is this month and again covers a lot of ground as noted by what is posted here. Even though those who practice in this area are usually experienced and resourceful so much happens each year that it is both vital and useful to attend or view the seminars. I admit there can be times that the topic is one I know very well but having the insight provided by the speakers and questions from the audience is invaluable. The seminar is considered continuing legal education and whenever possible I prefer to attend in person rather then listen to tapes. With any luck I'll make this seminar and though it means a full day away from the office it is time well spent.

Monday, October 12, 2009

Interim Committee Report on Pinnacol

If you want to see some interesting materials on Pinnacol Assurance then click here.
This is the Interim Committee of some Colorado legislators that are concerned about the quasi-private/public company called Pinnacol Assurance. Pinnacol handles more then 50% of Colorado work injury claims and has been in the news quite a bit. I've always felt that Pinnacol is by no means the only insurer that can be criticized. It is however the one insurer that the state probably feels can be controlled more then others. Personally much of the criticism is really about the advantages that insurers have in a workers comp case perhaps because of a system that makes it easier to contest or deny benefits. We should speed up the system, look at those denials and low benefits that are simply unreasonable and change the law. Until then all insurers have some areas where they have an unfair advantage. What I would also like to draw attention to however are a few of the written letters to the committee that tell us we need to do better for injured workers. Here is one example worth reading.

Sunday, October 11, 2009

Colorado Employment Law information

We receive many calls from people asking for help with an employment law issue. I guess perhaps they misunderstand that workers compensation is not the same as other employment related matters. Someone who is wrongfully terminated or discriminated against or asking about vacations or unemployment or medical leave may turn to us since we represent injured workers. But we do not handle these areas although sometimes they can affect workers compensation benefits. But first there must be an actual injury or occupational disease. We only practice in the areas of work injuries and disabilities. Even there we only take a limited number of cases. However the state has posted what it calls advisory bulletins in a number of these areas. To view them click here. Perhaps they do not answer all questions but the materials do try to provide some guidance in some of these areas. For example did you know that there is no required vacation policy in Colorado? At least none for private employers but that just means it is not state mandated. You may still have rights as may be part of your particular employment contract. Want to know about tips or overtime? It's there.

Saturday, October 10, 2009

Social Security Stats for August 2009


From the Social Security website you can see how many people are drawing SS retirement, disability, SSI and the like. It also includes the monthly financial figures in each area. Interestingly it also includes what the average SSI recepient receives (around $500 a month) and what the average Social Security disability benefit is monthly (around $1100). Anyone eligible to receive benefits only receives what is calculated for his situation. Many of those we represent only receive $700 or $800 a month in SSDI (disability based on your earnings) and that may be because some of those who are injured may be working in lower paying jobs. So anyone thinking that Social Security gives you big bucks is mistaken. If you want to look at the stats click here.

Sunday, September 27, 2009

WCMSA'S


Whenever a claimant has a workers comp claim and also perhaps a right to Social Security disability/retirement/medicare then you have to consider offsets and something called an WCMSA. Offsets are required by statute if you are receiving Social Security disability or retirement benefits. Essentially the insurer has a right to a partial credit if you are receiving or should be receiving such benefits. In the real world this means you can receive a full SS check and a partially reduced WC check at least in Colorado. That information is set forth in the statutes on offsets. In addition a potential settlement may also have to consider a workers compensation medicare set aside (WCMSA). By federal law medicare may have a very big interest in your settlement. It does not want to be solely responsible for your future medical care through Medicare when some of it may be due to your work injury claim. It may mean that the parties have to consider Medicare's rights in a settlement and even set aside funds in a way that is approved by Medicare (the agency is CMS or the Centers for Medicare Services). Usually a review is made and drafted to submit to CMS and then made part of the settlement. Any MSA will almost always mean funds are set aside that can be used and accountable to medicare. If this is not done medicare may hold anyone involved with the claim responsible. A claimant does not want to hear that medicare is seeking reimbursement directly from you or your Social Security benefits. A judge recently told me they were seeking $70000 from one claimant! So what do you do? Well in this sample you can see how complicated it gets but the basics are simple to explain: show medicare what future care is to be attributed to the work injury and figure an amount to set aside. Then hope CMS approves it and doesn't change its mind.

Friday, September 25, 2009

SS Judge Does Some Blogging


I came across a blog that has as its author a SS Administrative Law Judge. While he is not in the Colorado Springs area I found his posts to be quite interesting. In some posts the judge discusses what he deals with at hearings. Sometimes the decision is favorable and sometimes not but the judge gives us some insight into decisionmaking. It does give us a less formal more human look into what it is like to be a SS Judge. You can click here to view the SS Judge's Blog.

Monday, September 21, 2009

Legislative Review of Pinnacol leads to Proposals


Pinnacol Assurance has been under legislative review. Testimony was taken from many who complained about some of the Pinnacol practices. In the past I've tried to say that this is not just a Pinnacol situation but relates to many insurers who simply take advantage of the laws and procedures available to them to promote the insurers interest over the claimant. Pinnacol was the focus because it is a hybrid agency that is part public and part private in its operations. But the problems with workers comp are not restricted to Pinnacol. Most claimants should realize that there is an inherent conflict between an insurers interests and the claimants interests. It is unavoidable that an insurer will seek to save on the expenses of a claim. The claimant is not interested in saving at what he may feel is unfair to his interest. His viewpoint is on maximizing his claim. The laws and rules in place along with some practical considerations can often work to the advantage of insurers. The fact the workers compensation is quite complex and sometimes expensive works to the advantage of insurers especially when a claimant does not have an attorney. In this article in the Denver Business Journal on proposals from the Pinnacol review you can see that lawmakers are aware of problems in the system.

Saturday, September 19, 2009

"What's New Page" at the Division of Workers Comp

When the Colorado Division of Workers Compensation makes changes to its website they note it on a "What's New" page. Whenever I check the website I almost always go to this page first to see what changes have been posted. By following along with the changes as they get posted it gives me a better idea of what is happening in my field. There is so much at the Division website that it can be overwhelming when you first start looking at it. But after a while it seems like it is well organized and quite handy to use. If you do not know where to start to get an overview I suggest if you are an employee to read the Employees Guide at the site. If you need more help and do not have a lawyer then contact the Division's customer service unit.

Friday, September 11, 2009

Backlogs Increase at SSA in Colorado

Delays are common in Social Security disability cases. In the last few years one delay that affects all of us is in the area of setting the hearing before the judge. When you appeal a denial in Colorado it goes to a hearing. It seems to take about a year from applying to obtain a hearing. This is not a hard and fast rule as it can be faster but it can take longer too. Also sometimes a judge will review and decide no hearing is needed as benefits should be granted. But with most cases you expect a year of waiting and after a hearing several weeks more to obtain the decision. What is new here is that the delays may be increasing. If you click here you'll see what another attorney noted and the chart you can then view makes Colorado look to be one of the problem areas. There seems to be a backlog that is growing and if so may lead to more delays in obtaining a hearing.

Thursday, September 03, 2009

Court of Appeals decides the Eller case today


This is a case where the claimant lost on compensability (coverage) after a hearing. She appealed but lost at the Court of Appeals level. Eller asserted that, while there was no admission of liability, the Respondents provided medical care and the authorized treating provider determined she was at MMI(maximum medical improvement) and also rated her with an impairment. She then said that this determination was never attacked by the Respondents so by statute (section 8-42-107.2(2)(b), C.R.S. 2008) they are bound by it. Her view was that it was required by statute that Respondents seek a DIME(Division Independent Medical Evaluation)so because they did not the doctors opinion was binding even on the Administrative Law Judge. This even should have included compensability or causality. The Court disagreed and affirmed the loss by claimant. Respondents contested the claim so they had a right to contest the question of compensability at the hearing which is a threshold issue not a medical opinion. Here the lower judge decided the claimant was not very credible and the specific injury was not caused at work. The claimant then argued that the way the case was handled deprived him of a right to seek a DIME which could have led to a presumption the DIME opinion addressed causality. This was shot down. The one point that is unclear to me is whether the authorized doctor addressed the mechanism of injury such that it could be said to be a binding finding or determination as noted in the statute. The Court said the statute should mean that the doctor addressing MMI or impairment is not a finding on the question whether the injury was caused at work. But even if you say the doctor cannot address whether it happened at work he may have addressed the way the claimant was injured. Here the impairment perhaps was attributed to falling out of a chair at work by her doctor who provided the rating. Seems to me that Respondents medical witness was not an eyewitness. Yet Respondent's doctor concluded the claimant's injury was not caused by falling out of a chair. Not sure why this opinion was allowed over the authorized doctor but the facts are not fully set forth on that point. However the case says that when Respondents contest your claim they can take it to a hearing and win even if the authorized doctor is on your side. The case is an interesting read so for more complete details and the Court's reasoning click here.

Tuesday, September 01, 2009

Testimony on Pinnacol at State Level


As this article from the Denver Post notes there has been testimony from injured workers on their treatment by Pinnacol Assurance, the state's largest workers compensation insurance carrier. Not all is negative but the key point could be that over the past several years Pinnacol had amassed quite a financial surplus. One view is that it did so by denials and reductions of benefits to those injured on the job. Of course another factor is the law changes that took place over the years. Many law changes tightened up on providing benefits. For example, despite the many denials of Social Security disability claims it can accept that you are totally disabled if based on your age, education, work experience/skills and restrictions you are not employable in a substantial gainful way. In Colorado it is tougher to establish permanent total disability. So law changes have played a role in reducing benefits over the past few years. Certainly this rewards all insurers not just Pinnacol. However Pinnacol is the largest so you can expect further proceedings on all this. The fact is insurers have many legal ways to keep benefits low for injured workers. Injured workers with hand, arm or leg injuries are often poorly paid permanent benefits, especially if they lose their trade/occupation. I can provide numerous examples of legal ways that are used to deny, delay and reduce benefits so hopefully all this will be reviewed as well.

Saturday, August 22, 2009

Here are 302 pages of workers comp local decisions

The Office of Administrative Courts holds local level decisions in various locations around the state. They are placing these decisions on the OAC website each month. So for the month of July you can peruse through 302 pages of decisions. Please be aware that these are local level decisions and many of them are appealed. Still you can get the flavor of the cases being heard each month by reviewing these decisions. Cases involving permanent total disability, job termination, medical benefits, partial impairment, efforts to overturn the DIME opinion and much more are set forth. The names of the parties are not going to be revealed but the names of doctors as well as the deciding administrative law judge are noted. The breakdown for most of these cases is to list the facts being found, the legal conclusions being made and lastly the order itself.

Friday, August 14, 2009

Social Security Disability...getting started.


If you can no longer work because of all of your health problems then applying for Social Security Disability may be something to consider. Anyone hurt on the job who may be unable to work anymore should also consider applying but check with your attorney on the timing as it is a factor in your workers comp benefits including even your medical benefits. Those that truly are not employable in a substantial way often can make a claim for disability by heading down to the local Social Security office or online. Here is a link to a starter kit at the Social Security website. Since most people have many questions about it I usually advise applying in person if you can do so. Of course going online is another way but please do not just get started without reviewing the online information at the Social Security website. Some common misconceptions about SSD are that you can qualify if you can no longer work in your occupation. Sorry it's not so although age is a very important factor in the agency deciding if you are employable. Another misconception is that you can get it before you stop working. Sorry but most people should not be working to apply for disability. Another misconception is to say my friend got it for his back problems and I have back problems so I also should get it. Sorry but every case is decided on an individual basis where age, other health concerns, education, past jobs and more are considered. Finally you do need to supply some information about jobs and physicians. Click here for that.

Thursday, August 06, 2009

Court of Appeals decides a DIME is not a medical benefit


In a short case decided on August 6, 2009 the Colorado Court of Appeals decided that a Division IME is not a medical benefit. In Jones the court was presented with an effort to reopen the comp claim for more medical benefits. The problem for the claimant was that she was injured in 1998 so there were time limitations to deal with in trying to reopen the claim. The court said that the only way the claimant still had time to try reopen her claim is if the DIME was deemed a medical benefit. This would mean her 2004 DIME examination let her have until 2006 to try reopen if the court agreed. The court did not and determined a DIME is not a medical benefit. A DIME is a medical examination but because it involves no treatment or healing it is not a "medical benefit" according to this decision. While I understand the reasoning (the case is very brief) I do have to question it. Believe it or not there is no statutory definition of what is a "medical benefit". There is no question the DIME physician does not render treatment but the opinion he renders may address further treatment. For more information on a DIME click the subject on our blog. For example your authorized doctor may have said you need medications for another 6 months but the DIME doctor may say you need psychological care or long term medications. In a sense the DIME can trigger more treatment but at a minimum even if nothing further is recommended he does address medical issues. This includes your need for further treatment as of the date of his exam. If we think of medical benefits as treatment then clearly a DIME is not a medical benefit. If we think of medical benefits to include any medical exam to assess the need for more treatment then it is a medical benefit. If we ask was it a medical matter I think it was. If we ask if its a benefit then again it is one created by statute. So then putting the two words together and using their plain meaning you do have to question the decision. However for now the Jones case tells us a DIME is not a medical benefit.

Saturday, August 01, 2009

Emergency Rule 8 on Recordings

The Division has issued what it calls an emergency rule, effective for claims after August 5, 2009. The new provisions are Rule 8-8 to 8-13 and address when an insurer or employer sends the claimant to its own Independent Medical Examination. Most of us in this field know that when the insurer does this it is seldom an independent objective examination. Insurers tend to pick doctors who favor the insurance side of things. What the rule does is provide details on how this examination must be recorded, how to get a copy and what remedy you have if the recording has confidential information the claimant feels is not to be revealed. All this is because of a new statutory provision just passed by the Colorado legislature. Apparently enough questions have surfaced about insurance oriented doctors asserting what happened during their examination which some feel is untrue. The new law and rule are designed to audio record the examination. Read the new Emergency Rule 8 here. This new rule is a bit complicated so you do need to read it carefully. Clearly after the examination a claimant can receive the first copy even before the insurer. Whoever first requests it must pay for it ($20) but if the insurer wants it they must pay $20 for the first copy for the claimant.

Thursday, July 30, 2009

Who Has A Gripe about Pinnacol Assurance?

A while ago Pinnacol Assurance was involved in a controversy about its extra revenues. The state of Colorado wanted some of that revenue to help with the budget shortfall. Pinnacol said it should be treated as a private entity so it opposed the effort. The state put off a confrontation but is now flexing its muscle to rein in Pinnacol. By the way Pinnacol is the largest insurer of workers compensation claims in Colorado. Its history is long but let me say it is neither fully private nor fully a public company. So now the legislators are hot on the tail of Pinnacol and Pinnacol is on the defense. A state audit is also underway. Clearly when Pinnacol seems to be thriving and the state is not then you can expect questions to be asked and more funds to go to the state and policyholders. Anyway now they are inviting those with cases or stories involving Pinnacol to come forth and tell a legislative committee all about Pinnacol. You can do this by email so for more on this click here. I am not sure that Pinnacol is the problem. What has happened in workers compensation is that benefits have been reduced and insurers have procedural and financial ways permitted by law to defend themselves and thereby increase profits. Example? If you hurt your arm but can still work in a low wage job you'll get at most a few thousand dollars for a permanent problem if the insurer has its way. So what if you lose your trade. Another example? When someone has a permanent problem with very real pain and medical needs many treating doctors designated by the employer will say you need 6 months or a year or two of medications. So permanent problem but temporary pain relief which allows them to limit future medical benefits. Another way is to close the case out as fast as you can so money is saved. All they are doing is using the law to their advantage. The old concept of liberally construing the law to favor claims was changed. It became a game where there is more to gain by contesting and limiting claims. Without a good lawyer the claimant often doesn't have a chance or may not even know he's getting less then what he might receive. But Senator Carroll is trying to get people to talk about Pinnacol and anyone can do so. Perhaps it will help change the workers comp system to level the playing field for all claimants.

Friday, July 24, 2009

Workers Comp Hearings...Rules To Use

When we deal with workers compensation claims we may need to refer to two different sets of rules. Over at the Division of Workers Compensation (DOWC) they have rules for the processing of claims. Those rules can be accessed by clicking here. But also whenever we apply for a hearing or when the other side does there are other rules which also apply. These are provided by the Office of Administrative Courts (OAC). Those rules are cited as OACRP (Office of Administrative Courts Rule Procedure) and you can read them by clicking here. So when an agency says WCRP it is the Division saying workers compensation rule of procedure such and such. When another agency cites OACRP it refers to its rules. While sometimes confusing both sets of rules are available for anyone to read on the internet.

Tuesday, July 14, 2009

Be Careful What You Post Online


Anyone with a workers compensation or Social Security disability claim would be wise to remember that what you post online may be accessed by others. So your profile on Facebook or elsewhere may come back to haunt you. We all know that many with claims are investigated and even videotaped but what you post online may also be subject to review. Here is an interesting article that makes the point very well. If you post about yourself and all your interests then that can raise a question about the severity of your disability. So a word to the wise...do not imagine you are invisible and won't be checked out. From digital cameras to Facebook or even other postings elsewhere you had best assume they will discover all this. In this digital age your life could be an open book so with any injury or disability I suggest you cease...that means STOP all such postings for the duration of your claim or at least be extremely careful what you post.
Postscript: August 23, 2009 Dollar Tree uses claimant's MySpace to bust his case.

Monday, July 13, 2009

Time Lines or How Fast Does It Go?

We always seem to get this question from most of our workers compensation clients. First, any time frame may still depend on the doctors. Only after you reach maximum medical improvement(MMI) and also obtain an impairment rating do we then try to guess on the time line. It is truly just an educated guess because so much depends on factors not within our control. The other side can take one day or 30 days to decide what to do. We then must review what they have done and determine if the doctors are correct. More often then not we decide to question what your authorized physician concluded on MMI/rating. This process can take several months and involves legal actions and another medical examination. Even then each side has to act again. The other side has to decide to accept or dispute matters and we also have to review and decide how to proceed. Should you not be at MMI then more treatment can take place and we then wait for that to conclude. The point is that it's like a chess game where one move you make means the other side has time to also make a move. So when we say it can take several months just when you think it's all coming to an end it is because of this back and forth legal/medical process. Many people are quite anxious to resolve matters but this process simply takes time. Having said all this I can indicate that once the treating doctor says you are at MMI (and that is really the case) it can easily take 6 months to either settle or go to the hearing in a typical case. I've had cases which settle faster but then I've had cases which took longer. From the very beginning of your case to the end can take just a few months or much much longer even without any appeal. A key point is that most of the time is devoted to your treatment and medical examinations.

Thursday, July 09, 2009

Social Security disability-the Listings

The Social Security disability process is quite different from workers compensation. In Colorado if you are hurt on the job it means you may have a claim for workers compensation benefits which may include temporary benefits, medical benefits, a disfigurement award and permanent benefits (which can be partial or total). In Social Security disability your overall health is important so they do not just look at job injuries. Also the benefit is a monthly check which often can go for the rest of your life (the agency does review from time to time). There are no "temporary" benefits while they medically treat you to help you recover as is often done in workers compensation cases. Instead only if you are obtaining monthly checks do you have Medicare benefits and even then it kicks in two years from the start of your monthly checks or when you should have had your checks start (it can be backdated). In any event one of the things the Social Security process can involve is trying to see if you qualify based on what they call "The Listings" which are health problems so severe that you are approved if you meet one of those listings. Otherwise you have to show that your restrictions and other factors make you unemployable in a full time job. Most people do not meet a listing but that does not mean you cannot obtain benefits. You then must show that you can no longer work based on your overall functional abilities and that is a very personalized matter which factors in your age, education, past work and overall functioning. It is more complex then I can say here but that's the essence of it.

Sunday, June 28, 2009

What is Your Impairment worth?


I received a comment on this from someone and I thought it deserved a posting on this Blog. First any impairment rating may or may not be correct. Any of the parties may be able to dispute the rating or number and this often happens for the claimant. Do not take the first impairment rating as the end of the story. It is often wrong and even a medical opinion you are at maximum medical improvement can be wrong. When you receive a rating consider questioning it (legally this is an involved process and best done by your attorney). In any event let's say that the rating you receive is a high one. Let's also assume you are not permanently and totally disabled (if you might think you are get with an attorney right away). Lastly let's assume it is truly a whole person rating as certain injuries are not. Even then if you receive say a valid 20% whole person impairment rating what is it worth? Believe it or not there are other variables to consider. There is an age variable. There is a variable for your wage. The lower your age the higher the worth of the impairment. The higher your wage the higher the worth of the impairment. These variables make it essential that the calculation be performed on a case by case basis. One person may get $1000 for every one percent whole person and another $4000 for each percent or even more. Colorado also puts limits or caps on how much you can get so there simply is no easy answer here. Finally if the insurer agrees with the rating they will file a Final Admission often seeking to close the case. Please realize you must also consider your future medical needs. Insurers will try to limit all benefits so take any Final Admission as an effort to end your claim or at least greatly restrict it. This means any Final Admission requires a very careful analysis to protect your interests. Do not accept it at face value without doing so. We almost always object to Final Admissions and take timely and appropriate legal action to advance the cause of the claimant.

Thursday, June 25, 2009

Burden of Proof on modification

I previously posted on some statutory changes but overlooked one which on a second look seems pretty significant. This is stated effective for claims filed on or after August 5, 2009. SB 09-168 amends Colorado Revised Statutes 8-43-201 on hearings to say that the party seeking to modify an admission or order has the burden of proof when it wants to modify it. The best example of this is that under current law the Respondents can come in at a hearing and assert compensability (that is question coverage even after they admitted the claim). Common sense says fine but it should be their burden to prove it after they admitted the original injury was on the job. Well under the current law it was always the claimants burden when the other side raised this issue. Having the burden could mean that in a close call situation the claimant months later could lose his entire case. You can bet Respondents knew this and used it to their advantage at times. Now the law is that it becomes a Respondent burden. A Judge can now be permitted to question the other side's reasons so claimants have a bit more law on their side now. Click here to see the law changes.

Tuesday, June 16, 2009

Effective July 1, 2009 Maximum Rates

Just posted over at the Division of Workers Compensation website is a chart that sets forth the top dollars paid out on benefits. For example, the most you can receive in weekly temporary benefits is $807.24 and that only happens if you were making $1210.86 a week in wages or more. Few injured workers ever will be paid at that rate and if not they can be paid 2/3rds of what is determined to be their average weekly wage. Historically you do not pay taxes on the standard workers comp benefits so 2/3rds is close to your take home pay when you cannot return to work. Of course to obtain any benefits they must admit you were hurt on the job and are entitled to temporary total benefits. If your case is contested then as long as it is you are not paid such benefits. Moreover even if you are entitled to temporary benefits they will adjust them if they have you working part time. There are rules on all this but this post just lets you see what the top dollar figures can be. The rates are set each year and made effective every July 1st.

Friday, June 12, 2009

Statutory Law Changes for 2009


Here, from the Division of Workers Compensation website is an overview of recent Colorado legislation that affects injured workers, doctors, insurers and even Pinnacol Assurance (the largest quasi-public/private insurer in workers comp in Colorado. Also if you click here you can read the actual legislative changes. I notice that some of these legislative changes are because of cases that went against claimants. For example there is a change to allow psych impairments so as to get over the first statutory cap (yes there are caps limiting benefits). Another avoids the Division IME being attacked for not contacting the authorized treating physician so long as he has resolved certain differences with other doctors. These items have been ways for claimants not to receive adequate benefits. They allowed the other side to attack the claimants Division IME rating by saying the doctor did not contact some other doctor so his opinion could be overcome as not following the procedure in the AMA Guides. In another case the rating was kept under 25% and did not go higher because a psych rating was not added to make the rating higher. The difference can be many thousands of dollars. In any event the legislative changes are, by and large, helpful to claimants. Also Pinnacol has been in the news recently when it disputed the state effort to use some of its excess reserves towards the state budget. As I noted earlier Pinnacol is a hybrid mix of public and private elements. The state is going to seek more control over Pinnacol and some of this recent legislation seems to be setting up to do that. Lastly one change does seem unusual. An insurer IME must now be audio recorded which suggests that some of these IME's were misrepresenting what the claimant was saying during the examination. Regretably such matters often were so hostile that it led to making it mandatory to record the exam. These law changes are effective on different dates as indicated in the overview.

Tuesday, June 09, 2009

Adjuster's Guide in Workers Compensation

If you are interested in what the Division of Workers Compensation says is its guidance for adjuster's handling workers comp claims then click here for the guide. It may provide some insight for all of us. It gives us a basic understanding of the duties of the insurer. Many subjects are discussed and can help explain why a form has been filed and what are some of the deadlines. If the insurer or adjuster is taking some action or filing something you might want to check here for a better understanding of what and why it is taking place. Of course there is also a guide for employees which is also extremely useful in understanding the workers compensation claim process.

Friday, May 29, 2009

A Very Special Story

I debated posting about this because it does not concern workers compensation or Social Security disability. But it does concern disability and how we all can learn how to deal with it. This story concerns how a little boy responded to a disabled child. It just so happens this disabled child is my granddaughter. Her name is Cici and she just turned 18 months old. Several months ago she choked on food and despite heroic efforts it resulted in oxygen deprivation. She came close to dying but after many weeks returned home needing constant care. In an instant lives were changed but through it all hope has remained and progress has been steady. All sorts of problems have to be dealt with and yet against all odds the child and her family have been survivors. What makes it more special is that a little boy named Max and his parents found out about Cici's story. In this link to my daughters blog you can see what Max then did. A disability can happen to any of us at any time. It can happen to those we care about. The effects of a disability are widespread and often very tough to deal with. Yet despite it all there are special people out there, like in Max's story and in Cici's story that inspire us. They are beacons of hope who remind us that how you approach disability is with honesty, compassion and dedication to do all that we can.

Thursday, May 28, 2009

The Nelson case allowing a second lump sum


Decided today by the Colorado Court of Appeals is the Nelson case. This is a case where the claimant was permanently and totally disabled. The law allows a claimant to obtain a lump sum. She did in the amount of $26292.00 which was the amount allowed to be lump summed back when the claimant was originally injured. Since that time the statute was changed to allow for up to $60000.00. So later the claimant sought the $60000 less the $26292 she had already received. She lost on this with the reasoning being she was bound by the law in effect when she was injured. The Court however let the claimant obtain more by deciding the lump sum law was procedural. As such it was not impermissively retroactive or trying to wrongly impose a new law on an old case. The decision makes sense. There was no change in the fact that a permanently and totally disabled person was entitled to lump sum or obtain an advance of the biweekly benefits. It just allowed the claimant to obtain a bigger advance. This is simply a math matter that does not really give a claimant more then he or she is due but just allows for a bigger advance of future money that is owing.

Wednesday, May 27, 2009

Sotomayor Social Security decision


Here is a recent case decided by Supreme Court nominee Sotomayor. It involved a claimant who appealed an unfavorable decision in a mental disability case. The decision was in favor of the claimant and that meant a remand for further development of the case. From what I've read her written decision seems quite logical and sensible.

Monday, May 25, 2009

Memorial Day 2009


Remember all those who died or became disabled for this country. Their sacrifice was real. We are here today free to live and even make our own mistakes because they were there for us.

Wednesday, May 20, 2009

Pinnacol Assurance to Refund $120 Million

Pinnacol Assurance who is the largest workers comp insurer in the state has determined to provide a sizable refund to its business policyholders. A while ago the state legislators were seeking to use some of the excess funds that Pinnacol had for the state budget. Pinnacol opposed that and now plans to provide refunds of some of that to its policyholders. If you read the article linked here you'll see the story and Pinnacol denies it is doing this to further deter the state from seeking its funds. As I have said before Pinnacol is a hybrid of public-private interests so I would expect the state to stay interested in it. Needless to say the primary reason for this refund is really that Pinnacol is paying out less to claimants in benefits. In effect it is doing quite well which cannot be said for many claimants.

Thursday, May 14, 2009

May 14, 2009 The Ruff case on conflict of interest


Just decided today is the Ruff case. Back on July 25, 2008 I posted an earlier Court of Appeals case we'll call Benuishis. It appears that this latest case totally disagrees with the earlier division of the same Court. The Colorado Court of Appeals has over 20 judges and more then one division to handle the many cases that are appealed. Both cases involved a Division Independent Medical Examination. It is quite obvious there is now a conflict in divisions of the court which usually means the Supreme Court will have to resolve matters. In the meantime here is the situation: If a DIME physician may have a conflict of interest because he or she receives much income from a party (like Pinnacol Assurance which uses some doctors quite a bit) then the administrative law judge at the hearing may have to consider if there is a sufficient appearance of a conflict of interest to remove the doctor as a DIME. What is not clear is what is the appearance of a conflict. Benuishis says receiving a lot of income from a party like Pinnacol is not by itself the appearance of a conflict and Ruff says it can be. Personally I agree with Ruff. I just do not like close financial relationships with insurers to be disregarded. If anything frequent use of a doctor or paying that doctor many times over may well taint that doctor or make his use as a DIME questionable. As medical professionals they may not see it that way but we're talking about an appearance of a conflict. Sometimes it is not an actual conflict of interest but the appearance of one that is so disturbing. The Colorado workers compensation system set up the DIME process with the intention of really trying to make it totally independent. We honor that intent by excluding all who might make it appear suspicious. That's why Caesar divorced his wife.

Tuesday, May 12, 2009

The President and Healthcare Reform

If you click on this link you will be taken to an official site maintained by President Obama supporters that gives you a chance to push for healthcare reform. The current healthcare system is simply terrible. It is not because we lack quality healthcare. Instead we have a system where too many are uninsured or underinsured. We have a system where healthcare costs are rising too fast. We have a system where life and death decisions are made yet we are all mired in a complex maze of paperwork, rules and confusion. One of my clients once said that in her country you are taken care of from cradle to grave. Not here. Change will be difficult. It will require compromise but we must start before we lose control over it. If you are injured at work you usually have one form of insurance coverage. If you get sick at home another. If you are poor there is still another form of coverage. If you are in an auto accident perhaps still another. If on medicare still another. And on and on. Claims may be promptly resolved or take years to resolve. The effort to reform this requires the support of many of us. Please take the time to check into this. This is an issue that will not go away and doing nothing is not a solution.

Monday, May 04, 2009

IME's and the doctor patient relationship


An IME or Independent Medical Examination is not a simple concept in Colorado. First, there is the Division Independent Medical Examination that is a very special exam permitted by workers compensation statute. Unless otherwise agreed the Division provides three doctors and the list is narrowed down to one who performs an exam and issues a report as required by the statute. It can often be very independent and may help provide more treatment or a higher permanent injury rating for the claimant then that provided by the doctor/clinic designated by the employer. In other words it often is a very effective tool to use to obtain more benefits for a claimant. There is an expense but it is almost always worth it provided it is set up properly. Second, there is the insurance IME where the insurance handpicks a doctor to examine the claimant and issue a report. That is far less likely to benefit the claimant and may even harm his interests. Such an IME may have no duty to the claimant as a doctor and even his report goes to the insurer. Some might call him a "hired gun" who helps the insurer. That may not be so but it does depend on who the doctor is and his history or repute in this area. Attorneys in the field do usually know that history or repute. Normally an insurer IME is to be viewed with suspicion but I do admit that some are quite decent. Also there are the claimant IME's where the claimant's counsel also wants the claimant examined by a doctor he trusts.
Aside from the different types of IME's I can say that in Colorado the insurer IME will seldom have any liability to a claimant. He may devastate the claimant's claim with his views but his duty is primarily to the insurer not the claimant. He may say the claimant doesn't need the surgery or has no case and he may even testify at a hearing to this effect in a contested case. One Colorado case on this is Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). But a recent Arizona case I received makes a point of saying, that at least in Arizona, there can be liability. That case involved a workers comp claimant that delayed his surgery in part because of an insurer IME and that was the wrong thing to do. I then looked into Colorado caselaw and I don't see Colorado always giving 100% immunity to the insurer IME. Anyone looking into this may not only want to review Colorado caselaw but perhaps also look elsewhere for insight. The Arizona case gives us a clue that perhaps the insurer IME is not as safe from a malpractice claim as has been thought.

Wednesday, April 29, 2009

Social Security Administration number of employees

Over the past ten years the Social Security Administration really has not grown. In fact it has less employees now then in 1998. Given that there are more claims and more people retiring or disabled now then ten years ago you have to wonder how they can stay ahead of the situation. Well...they cannot. Delays are routine in the processing of claims/hearings and benefits but with less employees now it is difficult to catch up. Even after a hearing it can take weeks for the decision and still more weeks for the first check to be sent.

Monday, April 27, 2009

Change of Physician stats


The Division of Workers Comp issued some stats in two areas recently. These stats suggest that few people request a change of physicians in a workers comp case. However as with any statistics they can be read in different ways. First, a formal change of physician can take place in many different ways and these stats only deal with two of the ways. You can change a physician by agreement, by order, by abandonment of care, by a 20 day letter using a provision of 8-43-404 and by acting within the first 90 days by another provision of 8-43-404. My experience with 20 day letters is that they are usually denied by the insurer. Second, the stats seem to imply that injured workers are content with treatment so they do not want a change of doctors. Again, my impression is quite different. Having said that the way to understand this is to start with the fact that the employer designates the doctor to treat the injured worker. With minor injuries perhaps that is fine and speedy treatment deals with the injury so the worker can quickly return to work. But with more serious injuries a hand picked doctor in a clinic situation may not be the best choice. Often an injured worker is not very happy with his treatment but tries to make it work. So any effort to change comes too late and at some point an effort is made to close the case. Injured workers that are well treated and recover seldom seek attorneys. My opinion is that the number one reason many people come to see me is that they feel their medical treatment was inadequate and the injury was minimized by the doctor and the insurer.

Saturday, April 18, 2009

March 2009 Administrative Law Judge decisions


Over at the website for the Office of Administrative Courts they have posted decisions made by various judges in the month of March. Click here for 319 pages of decisions. What you can see from all these decisions is how complicated they can get. You also can see how medically involved they often are with combating medical opinions. The typical format involves findings of fact, followed by conclusions of law and the actual order itself. The names have been removed except for the judges themselves. It should be noted that these are decisions at what we call the local level. If there is an appeal it then can go to the Industrial Claim Appeals Office. Only a few of those cases make it to the appellate courts.

Friday, April 17, 2009

3 Court of Appeals cases decided April 16, 2009


The Colorado Court of Appeals decided 3 workers comp cases yesterday. In Simpson there was an assertion of overpayment to the claimant. Alleging all sorts of arguments the claimant was not successful in preventing the overpayment effort. The case is an interesting read but has one twist that may be significant just by itself. The claimant also sought to recalculate higher his permanent total benefits. Citing a recent case, Avalanche, his argument was that the calculations be based on his date of disablement not just the original date of injury. On this the court remanded it back to the lower judge for more fact finding. In Landeros the claimant alleged his jail time tolled the statutory time limits to seek to reopen. He lost. In the last case, Aviado, the claimant also asserted many arguments when he lost his permanent total claim at the hearing. It is also an interesting read and alleges that the claimant should have a right to proceed civilly apart from the workers comp system. It even asserts the Act itself is unconstitutional. He lost on all his arguments. My brief comments here do not do justice to these cases and I urge anyone interested to click on the links and read them for themselves.
UPDATE: Aviado noted above was denied cert by the Supreme Court on Apr. 5, 2010 so it means that court will not review further the decision of the Court of Appeals.
UPDATE: June 1, 2010, the Supreme Court reverses Simpson and a related case and overrules itself on date of disablement but AWW can be by determined by statute or by the discretion of the judge. Date of disablement is not to be used and does seem to be unnecessary anyway.

Wednesday, April 15, 2009

Pinnacol Part 3 The Legislature Slows Down

The effort to assess $500 million against Pinnacol Assurance this year is over. The politicians decided that they would not likely obtain any funds from Pinnacol this year to help with the state shortfall. Pinnacol made it quite clear they would litigate and we all know litigation can take time so the money would not be available to help with the budget. However it is clear they intend to try reassert state control over Pinnacol. Read the latest here. As I noted in earlier blog posts Pinnacol is a hybrid company that is part public part private in how it operates. As I said workers comp claimants would not benefit either way from all this but I still maintain that employers and employees lost here. Employers paid more then was needed and injured employees received less in benefits such that Pinnacol accumulated a ton of funds. Yet Colorado itself, including the hearings office have had to make cuts to operate. I am sure Colorado will push for reform in this area but it will take time to fashion a solution that is going to work.

Monday, April 13, 2009

Pinnacol Part 2...Why the Politics?

Colorado legislators are seeking some $500,000,000.00 from Pinnacol (the state's largest workers comp insurer which is also a political subdivision of the state) to help the state with education and perhaps other worthy matters at a time when the state is economically hurting. This has triggered much political debate and cries of foul from Pinnacol. Given the amount involved it seems clear that it is becoming a major battle. Money talks so they say. I must admit that Pinnacol has rallied much support that its excess funds are not up for the taking. This is well organized. Look at the Denver Post article with a photo of Pinnacol supporters. From what I have researched it appears that Pinnacol has $2 billion in reserves much of which came from insurance premiums and reduced benefit payouts. Of this amount some 700 million is excess or essentially slush money. The legislators seek 500 million and Pinnacol says that is wrong. What is certain here is that Pinnacol is far from being a private company. It was set up by the state, has a board appointed by the governor, does not pay taxes and has accumulated a huge surplus. Here is a quote from State Senator Carroll:

"Pinnacol is now trying to claim that they are like a private company, even though the statute says they are a “political subdivision”. This solution is not easy and not popular either.

"Pinnacol has managed to mobilize the business community in its defense. The business community should be pondering how much they have been overcharged in premiums for the company to have $700 million in surpluses above and beyond the $1.3 billion they have in reserves for known and anticipated claims."

It also appears that another bill was introduced to force Pinnacol to disburse back 5% to its policyholders (businesses) who also seem to have contributed to this huge growth. Clearly Pinnacol has made huge "profits" so does that state have a right to control some of that for the well being of its residents? The important thing to realize here is that Pinnacol is a hybrid that operates as a public and private business. But once it made huge sums it was bound to be considered as a source for state budget money. It was just as likely that big money makes Pinnacol want to remain big and private.

For injured workers I doubt this will have much impact. This seems more like an argument as to who gets the extra money. But what does seem a big concern is why was there so much extra money that accumulated? Could it be that businesses were charged too much or injured workers received too little? Makes you wonder....but this political issue is all about money and who controls it.

Thursday, April 09, 2009

Pinnacol Assurance is it private or public?

In the last few days a big dispute arose over a proposal to take what might be considered excess funds from Pinnacol to help the state in the present economic downturn. Pinnacol handles a great many workers comp claims and that means more then any other insurer. In any event Pinnacol has attacked this as a "raid" and outrageous. At the Pinnacol website here is their view. A former Colorado governor chimed in for Pinnacol here. But the Pinnacol story is not quite that simple. Pinnacol has a long story in Colorado. When you look at its history you can see why there is a controversy over the right of the state to take from Pinnacol. Under several names Pinnacol has evolved over time but it originally was set up and funded by the state of Colorado. It was intended to protect workers and employers from other insurers. Truly private companies don't like high risk businesses (construction is one high risk business) so Colorado just sought to ensure that such businesses could obtain coverage at a fair price. Over time Pinnacol has become more private then public but to this day it has some of each. It has a separate statutory section and its board is appointed by the governor. Clearly over time it has evolved away from being a public agency but it is not truly private yet. I am not saying that the effort to get some of Pinnacol's fund is appropriate but arguments that imply it is immune from legislative control are inaccurate. Want to see the statute itself that says Pinnacol is a political subdivision of the state but not a state agency? Go to 8-45-101 from this link.

Tuesday, April 07, 2009

Hyperbaric Oxygen Therapy


If you read up on hyperbaric oxygen therapy you will find that it has been useful in some types of treatment. I am writing this to encourage its use in injury and disability treatment where appropriate. We have all sorts of therapies in workers comp. Often these therapies are temporary in nature. However in my opinion I think hyperbaric treatment has the potential in some cases to actually improve the situation. I have seen videos of its use in brain injury, with wounds and burns, with improving athletes and in a host of disabilities from autism to cerebal palsy and much more. The treatment of the injured and disabled should not simply proceed along current approved standards. The trouble with standards is that they can inhibit or stall progress. Medicine is a science that should be forward looking. It should not be limited by laws and rules that sometimes restrict progress. Colorado has treatment guidelines. Sometimes these guidelines are useful but sometimes they seem too rigid. The problem is that medical providers seem to believe they are held to these guidelines yet medical science blows right by them as it progresses forward. Insurers need to realize that if the goal is improve the claimant that hyperbaric (HBOT) can be a win win situation. I am arguing for its increased use in workers comp and even with those totally disabled who may be made more functional with hyperbaric treatments. By the way think of hyperbaric treatment as the use of a decompression like chamber to assist with oxygen absorption into the muscles, tissues and organs of the body to promote healing. It is actually quite simple to do. You enter a small chamber where you spend about an hour a session getting the treatment. Sounds a bit strange until you research it and find out that it is associated with improvement after numerous treatments. Think of it as another form of physical therapy. If you truly research it you may be surprise at how many areas it may be able to improve functionality. A lawyers job is made easier if the doctors and insurers look at the goal of recovery at a reasonable cost. The legal area will only litigate this which causes more expense that could go towards giving hyperbaric a trial run in cases where a doctor suggests it is worth a trial. I must say that many times a client tells me that all they really want is to receive reasonable medical treatment. Many times they tell me that but for the denial of treatment or poor treatment they'd never even use an attorney. The point is that we need encourage whatever works to improve the injured and disabled. HBOT is one more tool to use to improve and increase the chance for recovery in certain types of areas. I would certainly go to bat to obtain approval for its use in workers' compensation.

Tuesday, March 31, 2009

Which do you prefer Colorado or NY workers comp?

The Hew York Times has a long article on the terrible state of comp in New York. It gave me the shivers to read. In Colorado much can be done to improve our state's workers comp system. I still believe that arm and leg injuries deserve more benefits especially when the person loses his trade or occupation. But there are parts of our system that have worked well especially the DIME or Division Independent Medical Exam process. No doubt there are many cases where things do not go well but overall it seems at least better then NY State. Anyway read about the horrible state of workers comp in NY here. Those of us in this field know that most of our judges do try to apply the law. They also know that many doctors are not just hired guns by the insurers or second rate. Those that are can often be overridden by the DIME process. Our system is not perfect and many times employees are treated like old newspapers but there are some safeguards and rules which can be used to equalize the case. At least with solid legal effort you can increase benefits but the NY article makes it seem like NY is out of control. I am not sure on that but the article is an interesting read.

Thursday, March 26, 2009

Social Security Disability delays frustrate lawmakers

As noted in The Oregonian there are still heartbreaking stories about the delays in obtaining benefits. Apparently despite good intentions the delays can cause extreme hardship. In our area it is common to take a few months for the initial decision and then if denied over a year to obtain a hearing. After the hearing it can take many months to actually collect all the back benefits due, assuming you win. If you are receiving assistance and eligible for SSDI and SSI benefits it can take a great deal of time as the finance people at the agency compute the amounts. They must compute any deduction from your back benefits so you don't obtain more then you are entitled. We all know this should go much faster but historically delays seem ingrained in the system. The agency, according to the news article, has over 63000 employees and is trying to make itself more efficient. Nonetheless, imagine going down to your bank and being told it will take even a month to get your money. I really believe the math should not take that long. However it does take many months to obtain a hearing. Even if the Judge tells you the decision will be favorable at the hearing (which usually does not happen) it can take several weeks for him to issue the formal decision. I always tell those I represent to expect at least 6 weeks. Recently one case took 3 months to receive the favorable decision. Compare this to a workers comp decision which seldom takes very long. I suspect this is a case of inadequate funding to deal with the crush of cases that Social Security must handle. Can anything be done about this? More funding would help but also I think there should be other changes. The longest delays are waiting for a hearing. I'd require another legal review of all cases with claimants over 50 years old to see if perhaps the situation can be clarified so they obtain benefits. Many of these cases involve long term workers with severe enough health concerns that they can no longer work and should more easily qualify for benefits. Too often I've seen claimants denied who have enough health concerns to merit a more careful analysis. Such workers often have worked many years with decent earnings. For them seeking benefits is actually a come down. I also would give more credibility to pain complaints that are consistent with the medical evidence. Pain alone can be disabling and lately it seems that pain is discounted too much. I also think the treating doctor is discounted more then is fair since he likely knows far more about the claimant. There are many ways to improve the system with appropriate safeguards to prevent abuse but it takes an honest appraisal. It would take a dedicated effort to study the existing system. This study could include judges, attorneys, claimants and even doctors.