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.
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.
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.
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.
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.
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.
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.
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.
"...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 email@example.com.
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 firstname.lastname@example.org. 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.