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.
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).
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.
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.
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.
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.
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.
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.
"...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.