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.

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.

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.

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.

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.

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.

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.

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.