Recent WC cases for January 2009

Here is a link to recent decided cases/orders in workers compensation proceedings in January 2009. These are hearings held at the local level on a variety of issues. This link is to over 300 pages of decisions and some are quite complicated. It is not exactly easy reading but makes you aware how difficult these proceedings can get. The format for these are that first the judge issues findings of fact based on the testimony and reports/exhibits provided at the hearing. Then the judge makes conclusions and enters an order. You can see that many times the claimant loses. Hearings certainly place each side at risk as these cases show.

The Ortega case or 20 days means 20 days!

Just decided by the Colorado Court of Appeals on Feb. 19, 2009 the Ortega case involved a request for a continuance made during a hearing. It seems the Claimant received a medical report less then 20 days before the hearing and wanted to submit it although the law (Colorado statute 8-43-210) says it must be submitted to the other side no later the 20 days before the hearing. The report was from a family doctor who said the injury was related to work activities when this was hotly disputed. The other side also had late medical reports. They also had a medical witness at the hearing. The judge denied all the late reports. He then denied the request of the Claimant for a continuance. The hearing led to a decision denying benefits to the Claimant. The Claimant appealed and finally the case went to the Court of Appeals. Essentially the court said that 20 days is the law and there was no reason to say the local Judge committed any legal error which would justify reversing the decision. I will say the Claimant had a chance to submit his late report if the other side's reports also came in but that is really not well detailed. Apparently the Claimant's lawyer felt he had a solid reason to be excused from the 20 day law since the doctor did not even get it out timely. I cannot see what the reason was for the other side to be late. In any event a continuance was denied in part because the other side had a medical witness they had to pay. The court commented on the law but here is what is strange to me...the law does permit the Judge to order the case be continued but lets the Judge go forward with part of the hearing. Strict compliance with the law is not always necessary. It is hard to second guess the local Judge's decision but on the facts presented I question the decision to deny a continuance. The Court also seemed to suggest that the Claimant's lawyer should have acted sooner since there was an earlier report by the same doctor on the issue. I am just not sure why, in a search for the truth, when the medical report was really late that we say it's the lawyer's problem to anticipate the doctor sending a late report. Given part of the hearing could have gone forward and also continued for more evidence why insist on the 20 day law? Anyway read the Ortega case here. Hearings are administrative proceedings and many times they start one day and finish a month later.

Local Social Security Judge passes away

A southern Colorado Social Security Judge passed away recently. I have posted a link to the Gazette obituary here. Rest in peace Judge Keohane.

Pain Control Policies

When you represent people with disabilities and work injuries you come across misunderstandings about the use of certain strong medications to treat pain. Surprisingly even some physicians do not seem to understand the policy of the Colorado Medical Board or avoid dealing with it if at all possible. On February 10, 2009 another policy was issued by two national medical groups. It also tells us that strong medication or controlled substances like opioids can be helpful for pain management. If people can be more functional and their pain is reduced isn't that good or are we so fearful of abuse that we choose to let them stay hurting? That said Colorado does allow for controlled substances like opioids to be used although other efforts should be made when possible. Here is a link to the Colorado guideline on chronic pain in workers compensation.

Is This a Noteworthy Blog? Seems Like it...

Well aside from the LexisNexis award we received it looks like another blog called us noteworthy. It is always nice to receive a compliment. It's funny but we started this blog as a way just to post my comments and provide news of interest to others. It has been fun and sometimes challenging to do so and it does appear that it is educating its readers. I realize it is written from the perspective of the disabled or injured worker. I have found many to be exceptional people placed in difficult circumstances and often treated as no longer worthy. They can be terminated, contested, disputed and mistreated. They are often hurting physically, emotionally and financially. They are stuck in what can seem to be a nightmare but most truly just want to be fairly treated. They are often portrayed as fakers and money grubbers when all they seek are what they may be legally entitled to receive. Are there some that are out of line...of course and the same applies to the other side. There are always bad apples out there in anything.

Court of Appeals Rules in Snook case Feb 5, 2009

Snook was an independent contractor and sole proprietor who was hired by a subcontractor working on residential homes for Joyce Homes in the Highlands Ranch area of Denver. He was hurt on some scaffolding and sued Joyce Homes for negligence. Snook was supposed to have workers compensation insurance but did not. Joyce Home said it was a statutory employer under the workers comp act and as such its exposure was limited to $15000.00 The appellate court agreed that the point of this statutory employer law is to encourage you to obtain workers compensation insurance when you are a independent contractor. Thus when you don't have it you are limited to $15000.00. Snook tried all the arguments such as it is too low a figure to be stuck with and that it is a denial of due process and more. All the arguments failed. The lesson here is to always have workers comp insurance even if you are a small business if you want to be safe. If not your claim for injury, no matter how valid, may be limited no matter how serious your injury. The workers comp law is designed to protect employees and not independent contractors who really should have insurance because liability is limited to $15000.00. Unfortunately some small businesses in construction try to get by and save money on workers comp insurance. Often they are one man operations and in many ways are like employees but this is the way construction works. The plaintiff may seek to appeal this to the Colorado Supreme Court. Of all his arguments the one that strikes me as sad is that any claim he has is limited to $15000.00. That amount was placed in the law over 20 years ago and you have to wonder if it is so outdated and low that it is now unacceptable. In any event the case is here. One additional point...the Treasury Department is concerned about misclassifying workers as independent contractors to save money as noted here.

Attorneys Fees in Social Security a new cap figure

Historically attorneys fees in Social Security cases are 25% of back due benefits but most attorneys also agree to cap or limit the figure by using an approved form when submitting the fee agreement to the Social Security agency. Then the agency just disburses to the attorney and the client based on the fee agreement. Thereafter the claimant receives a full Social Security disability check or direct deposit as the attorney has been paid for obtaining or helping to obtain the benefits. Since most claimants also receive or are soon eligible to receive medicare or medicaid and no fee is due for that the contingency fee is an excellent way for those who do desire legal help to get that help without concern for paying for legal services until and unless they receive benefits. Of course no one must hire a lawyer and you can do it yourself to save that fee but it's not that easy. The new cap figure effective later this year is $6000.00 which means the fee is 25% but no more then $6000.00 and it will be less if your back benefits are under $24000.00. Back benefits due depends on the date your disability benefits should have begun and your wage record. If, for example, your back benefits total $10000.00 then the attorneys fee will be $2500.00. The agency computes the figures based on what I've noted above. Given that over your lifetime you can receive substantial dollar benefits and medical benefits the cap figure is a very small amount of those potentially lifetime benefits. Some complain about the contingency fee arrangement in these types of cases but it is the only way most people obtain high quality legal help at no charge unless they are successful. Try that with a surgeon or car mechanic!

Settlements New Rule 7-2

Effective February 1, 2009 all workers compensation settlements are to use a standardized document. This is set forth in Rule 7-2 noted here. This means that every settlement agreement will use the same language although there are differences depending on whether you are represented by an attorney or are representing yourself (called "pro se"). Also the Division has also provided a new Routing sheet which has to be provided as a cover sheet for the documents to be sent to a Judge for his or her signature and the issuance of an order. If you have an attorney he will take care of all this along with the insurance company and its attorney. If you do not have an attorney you will be provided all this by the insurance company and/or its attorney and you will need to have a Pre-Hearing Judge approve it but only after a proceeding is held where you are advised by the Judge. The standardized documents make it easier to speed the settlement process. In the past each insurer or insurer attorney had its own forms and some were more complicated then others. Now it is all uniform except for certain situations which are allowed for by the standard forms.

Community Resources

The link I am providing is to a directory of some 39 pages of resources available in the community. While developed for families it has a great listing of numerous community resources in the El Paso County area for anyone. It is in adobe or pdf format so it can be printed out but it may load slowly. My point in doing this is to provide a list with phone numbers for those who are financially stressed or needing assistance but have no idea where to turn. Look it over by clicking here.