A recent ICAP (Industrial Claim Appeals panel) decision (WC 4-776-542) went into detail on the difference between being an employee and being an independent contractor. As an employee you have workers compensation benefits for a work related injury or disease as set forth by law. As an independent contractor you likely do not have such benefits. Being told you are an independent contractor does not make you one. In Colorado we have a statute that details certain criteria to be considered by a judge in determining if you are an employee and potentially covered by workers comp or not. The statute is at Colorado Revised Statutes 8-40-202(2)(b) and gives us 9 criteria to consider. Essentially the criteria pertain to the extent of control over the worker in certain ways. In the recent case a carpet cleaning company tried to assert that the worker was an independent contractor when he was injured driving in a company truck to a customer. The vehicle rolled over causing traumatic injuries. The employer defense failed and the worker was deemed an employee. The employer appealed to ICAP and the decision was affirmed in a case which went in depth into the caselaw and statute.
Here is a story from North Dakota posted on a great blog which shows the limited coverage in that state for a mental impairment. Colorado is somewhat better but does limit pure mental claims to a certain statutory standard. This does not apply to other claims such as brain injury or a mental impairment associated with a physical injury. But if you have mental stress alone that you allege came from work it really has to be unusual as defined by statute.
If you are injured on the job and must file a claim with the state or just need some basic information please do not be afraid to call the Division of Workers Compensation customer service number at 1-888-390-7936. The claim form can be found here at this form page. It is a big download in pdf format but can be filled out and sent in whenever you are being ignored on your claim and should proceed on it. Sometimes you report your injury and nothing is done by your employer. Colorado lets you file your own employee claim, gives you general information at its website and customer service is a telephone call away. Of course as soon as possible consult with an attorney. Please do not rely on your employer or the insurer to act in your interests.
It appears my last blog posting was picked up by another website and was noted by them along with a couple of comments. It seems that some on the insurance side see the mental part of workers comp as not often legitimate or even some sort of personal lottery benefit for the injured worker. I can accept that the insurance view is to question alleged impairments. It can dispute any psychological impairment or need for treatment. But to this day I am disappointed by some of the cynicism shown on the insurer side. The fact is any injury anywhere that has lasting physical effects may also result in post traumatic stress, depression and anxiety. Forget about whether it happens at work and forget about the claim for monetary benefits. My experience is that any lasting or chronic injury or disease can be devastating to the injured and their families. I'm not going to go into the medical side in this post. In Colorado I provided some links in my last blog post. Instead I can only say that I've observed how it can stress out some claimants. Some have lost spouses, homes and occupations. Some must deal with contests by the insurer and employers looking to end the problem. Others face adjustments they never asked for. Unless totally disabled most receive benefits that are at best one, two or three years income replacement combining all impairments. Windfall? Hardly. Colorado quantifies the amount but how do you quantify pain and suffering? Lastly Colorado caps or limits the psychological benefits. A couple of years ago there was a case that illustrates how stress can affect a vulnerable claimant. He committed suicide when his case was contested. Sadly there was no recovery for it.
Often missed in the treatment of a workers compensation injury is the stress, the depression and all that goes with it. Perhaps it is not noticed by the authorized treating physician who is usually picked by the employer. Perhaps it is considered just situational and not of any significance in treatment or impairment/disability. But the claimant and claimant's attorney are often well aware of the impact of an injury on the emotional or psychological well being of the claimant. The family also must live with it. If your trade or occupation is in jeopardy the anxiety may escalate to a high level. In many ways it is the hidden side of a work injury. It may affect your treatment, your recovery and your future. We must remember that it is a human being that gets injured not a store dummy with just body damage. Additionally in some cases the fall or injury will impact the brain and cause organic damage. Legally we want the entire injury to be treated and assessed. This is permitted in an injury claim but sometimes you have to assert yourself. Tell the doctor what is bothering you and what you are concerned about. Being silent just keeps it hidden. You are allowed treatment and it can also increase the permanent disability you have unless you fully recover. This can mean additional financial and medical benefits. The Division of Workers Compensation has materials on this for you and your doctors. For example click here for some of what they teach physicians. Also click here for more on the mental side in Colorado.
I find it amazing that Fed Chairman Bernanke has the temerity to suggest cuts in Social Security benefits. It appears that bankers and financiers have a higher priority in the Bernanke view then SS beneficiaries. Of course that is what I believe is being discussed at this site so click here. Please recall that Social Security is an insurance benefit whether it be retirement or disability. Beneficiaries by working have paid for the coverage just as you and I pay for life insurance. This as opposed to those fragile banks and financial companies that received bailouts simply because it was important to the economy that they not fail even if they made bad investments. What it reveals, in my opinion, is the economic view that the old and the disabled are no longer productive so they should only get what benefits are provided to them. It disregards the fact Social Security is insurance not a giveaway. It seems cold blooded to pick on those truly fragile who have already contributed to their coverage.
"...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.