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.
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.
Decided on March 19, 2009 the Iler case involved a claimant hurt in Antartica. He sought to add the value of his room and board to the wage calculations by comparing it to his room/board in Colorado. So how do you calculate its value in Antartica? The judge felt he couldn't and the claimant appealed. The next level up in an appeal is called an ICAP decision. The Industrial Claim Appeals Panel decides at this stage. In his case they agreed with the Judge. The next appeal is to the Court of Appeals and here the claimant succeeded in getting his case remanded back down to the Judge to assess a reasonable value and add it to the calculations. Read the Iler case here. It is always in the best interests of a claimant to have a high average weekly wage. This figure is often used in determining the amounts of temporary and permanent benefits you are entitled to receive. The most common increase comes when they forget to add your overtime. Also they should add your health coverage if you are going to lose it through your employer. But also as is the case here an employer provides you with room and board. It may be part of your wage package so it too can be added. The Colorado statutory definition of what is your average weekly wage is as follows at 8-40-201:
(19) (a) "Wages" shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied.
(b) The term "wages" shall include the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.
(c) No per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes.
TOP 10 REASONS 10. Does not know the value of Permanent Partial disability final payment. 9. Harassment from employer while on restricted duty. 8. Has other legal issues (SSD, Short/Long Term, ERISA subrogation, unemployment). 7. Poor Medical Care. 6. Fear of losing job or loses job. 5. Poor Treatment by adjuster/nurse case manager. 4. Total Permanent situation. 3. Temporary Total Benefits not paid timely or in correct amount. 2. Employer ignores Injury and refuses to refer for medical treatment. 1. Changes in the law.
It is rather clear above that "protection" is the biggest single consideration. I would also like to add that an attorney can not only protect but also will seek to maximize your medical and compensation benefits. This can mean doubling, tripling or multiplying by over 10 times what the insurer says they still owe you. It can mean taking a claim when the insurance says you've been treated and released without impairment and obtaining more treatment and benefits. A decent attorney can not only protect but also increase your benefits considerably.
I have just been invited to become a member of Larson's National Workers Compensation Advisory Board. This is maintained by LexisNexis a very large legal publisher. I do appreciate the invitation and accepted. So from time to time I'll provide information to them on Colorado workers comp matters. Larson's Workers Compensation Law is historically the major publication and source of knowledge in this field. With the internet much is now moving onto the web. For example I do my legal research using Westlaw which maintains a searchable database of legal materials. In the old days we had to search through digests and state law books followed by "shepardizing" cases just to verify the decided issue was still good law. Now we can do all this and more in less time.
Decided on March 5, 2009, the Kelly case addressed the legal issue of quasi-course of employment. The Colorado Court of Appeals decided that a claimant returning to Colorado for re-scheduled surgery (for his work injury) who was then injured in Elko Nevada in an auto accident cannot make it part of his workers comp claim. The court decided that injuries while traveling to and from a medical appointment can be covered through workers comp but in the case on appeal it was too much of a deviation. The claimant was on vacation and was told his medical appointment for surgery could be reset so he decided to travel back from Reno and was hurt during the travel. While it was travel for treatment for his work injury it was too much a deviation from the typical home to medical office to say the accident should be covered. Each case should be reviewed on its facts because it now seems a question of how much of a deviation to throw out coverage. While the case makes sense it may lead to more litigation as it's not clear what is a "substantial deviation" but it does seem to be a rule of reason case. That is, if it is unreasonable then it won't be covered.
Workers compensation benefits are not governed by any national law. In Colorado they are established by state legislation. The state has imposed dollar limits or caps on benefits (not on medical benefits) although not on those permanently and totally disabled. Apparently in Kansas they have capped even those benefits. Efforts are being made to change the situation in Kansas. Here is an article on this. Unless changed injured workers in Kansas are limited to $125,000 even if they are unable to work for the rest of their lives! It is well known that nationally until recently workers compensation benefits were reduced but we are seeing some improvement. Hopefully this trend will continue. It is simply unreasonable if not unconscionable to fix benefits and never change them. The result is that those severely disabled are often left to turn to government resources. Sorry but all we do then is turn the problem over to the taxpayers rather then insisting on decent insurance coverage for those injured at work. Roughly a century ago when the workers comp laws were enacted it was society that was upset with laws that a work injury was just a risk of every job. All of us know that without adequate coverage the problem is shifted to government. While I have problems with parts of Colorado law it is not on the subject of permanent total disability where Colorado allows for lifetime benefits. Unfortunately the Colorado definition is tougher then one for Social Security disability but at least benefits for a total case are not capped.
"...this is the cause of my life, new hope that we will break the old gridlock and guarantee that every American -- north, south, east, west, young, old -- will have decent, quality health care as a fundamental right and not a privilege." Ted Kennedy Aug 26, 2008 (Update: June 28, 2012 the US Supreme Court upholds Obamacare)
Do We Pass the Test?
"It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadows of life, the sick, the needy and the handicapped."
I've been living in beautiful Colorado and practicing law for over 35 years. It's been a great place to raise a family. Originally from New York I settled here, married here and raised two daughters, Jenny and Mary. I practiced near downtown Colorado Springs but now consider myself "retired" so I am not taking any more legal matters, clients or cases but I appreciate being able to help as many clients as I could for so many years. Now I especially enjoy my retirement time with family including 4 special ones...a grandson, Max, twin granddaughters, Penny and Cici and last but not least grandson Eliot. You can contact me at my email address which is firstname.lastname@example.org.
In the past we offered free consultations in cases but we are not taking any more legal matters or cases as retirement calls. You can email us at email@example.com. We've been protecting injured workers for many years and truly went the distance for many people. We made a difference for most of them and stood up for right not might. If you need an attorney I suggest you find someone where you live who offers free consultations. Also I urge you to discuss your case with an attorney if at all possible. This field is technical and complex. I would even call it tricky so seek advice from an attorney. If that is not possible call the Colorado Division of Workers Compensation customer service section for helpful information.
The information in this blog is intended to represent my personal views and opinions. It is not intended to be specific or personal legal advice which should only be obtained by a consultation with an experienced attorney. All this blog provides is general information I consider important to me. It may be of interest to others but for any advice or advisory statements consult with an attorney not a blog.
Special Personal News on Cici, our grandaughter (September 2011)
Nearly 3 years ago our grandaughter Cici had a serious medical problem. Her survival was at risk and she was deprived of oxygen because of a tragic choking/swallowing problem. It is known as an anoxic brain injury. The recovery has been challenging and slow but some progress has been made. We are thankful to be part of her recovery. I remain truly grateful for the prayers and touching support provided by so many people to my daughter and the family. We are actively committed to Cici's recovery and to her loved one's for as long as it takes. You can follow this difficult but amazing journey on my daughter's and husband Matt's Blog. Where there is life there is hope. We've had tough times but we have also seen courage and love in action for her and also for others. For examples look below.