WCMSA'S

Whenever a claimant has a workers comp claim and also perhaps a right to Social Security disability/retirement/medicare then you have to consider offsets and something called an WCMSA. Offsets are required by statute if you are receiving Social Security disability or retirement benefits. Essentially the insurer has a right to a partial credit if you are receiving or should be receiving such benefits. In the real world this means you can receive a full SS check and a partially reduced WC check at least in Colorado. That information is set forth in the statutes on offsets. In addition a potential settlement may also have to consider a workers compensation medicare set aside (WCMSA). By federal law medicare may have a very big interest in your settlement. It does not want to be solely responsible for your future medical care through Medicare when some of it may be due to your work injury claim. It may mean that the parties have to consider Medicare's rights in a settlement and even set aside funds in a way that is approved by Medicare (the agency is CMS or the Centers for Medicare Services). Usually a review is made and drafted to submit to CMS and then made part of the settlement. Any MSA will almost always mean funds are set aside that can be used and accountable to medicare. If this is not done medicare may hold anyone involved with the claim responsible. A claimant does not want to hear that medicare is seeking reimbursement directly from you or your Social Security benefits. A judge recently told me they were seeking $70000 from one claimant! So what do you do? Well in this sample you can see how complicated it gets but the basics are simple to explain: show medicare what future care is to be attributed to the work injury and figure an amount to set aside. Then hope CMS approves it and doesn't change its mind.

SS Judge Does Some Blogging

I came across a blog that has as its author a SS Administrative Law Judge. While he is not in the Colorado Springs area I found his posts to be quite interesting. In some posts the judge discusses what he deals with at hearings. Sometimes the decision is favorable and sometimes not but the judge gives us some insight into decisionmaking. It does give us a less formal more human look into what it is like to be a SS Judge. You can click here to view the SS Judge's Blog.

Legislative Review of Pinnacol leads to Proposals

Pinnacol Assurance has been under legislative review. Testimony was taken from many who complained about some of the Pinnacol practices. In the past I've tried to say that this is not just a Pinnacol situation but relates to many insurers who simply take advantage of the laws and procedures available to them to promote the insurers interest over the claimant. Pinnacol was the focus because it is a hybrid agency that is part public and part private in its operations. But the problems with workers comp are not restricted to Pinnacol. Most claimants should realize that there is an inherent conflict between an insurers interests and the claimants interests. It is unavoidable that an insurer will seek to save on the expenses of a claim. The claimant is not interested in saving at what he may feel is unfair to his interest. His viewpoint is on maximizing his claim. The laws and rules in place along with some practical considerations can often work to the advantage of insurers. The fact the workers compensation is quite complex and sometimes expensive works to the advantage of insurers especially when a claimant does not have an attorney. In this article in the Denver Business Journal on proposals from the Pinnacol review you can see that lawmakers are aware of problems in the system.

"What's New Page" at the Division of Workers Comp

When the Colorado Division of Workers Compensation makes changes to its website they note it on a "What's New" page. Whenever I check the website I almost always go to this page first to see what changes have been posted. By following along with the changes as they get posted it gives me a better idea of what is happening in my field. There is so much at the Division website that it can be overwhelming when you first start looking at it. But after a while it seems like it is well organized and quite handy to use. If you do not know where to start to get an overview I suggest if you are an employee to read the Employees Guide at the site. If you need more help and do not have a lawyer then contact the Division's customer service unit.

Backlogs Increase at SSA in Colorado

Delays are common in Social Security disability cases. In the last few years one delay that affects all of us is in the area of setting the hearing before the judge. When you appeal a denial in Colorado it goes to a hearing. It seems to take about a year from applying to obtain a hearing. This is not a hard and fast rule as it can be faster but it can take longer too. Also sometimes a judge will review and decide no hearing is needed as benefits should be granted. But with most cases you expect a year of waiting and after a hearing several weeks more to obtain the decision. What is new here is that the delays may be increasing. If you click here you'll see what another attorney noted and the chart you can then view makes Colorado look to be one of the problem areas. There seems to be a backlog that is growing and if so may lead to more delays in obtaining a hearing.

Court of Appeals decides the Eller case today

This is a case where the claimant lost on compensability (coverage) after a hearing. She appealed but lost at the Court of Appeals level. Eller asserted that, while there was no admission of liability, the Respondents provided medical care and the authorized treating provider determined she was at MMI(maximum medical improvement) and also rated her with an impairment. She then said that this determination was never attacked by the Respondents so by statute (section 8-42-107.2(2)(b), C.R.S. 2008) they are bound by it. Her view was that it was required by statute that Respondents seek a DIME(Division Independent Medical Evaluation)so because they did not the doctors opinion was binding even on the Administrative Law Judge. This even should have included compensability or causality. The Court disagreed and affirmed the loss by claimant. Respondents contested the claim so they had a right to contest the question of compensability at the hearing which is a threshold issue not a medical opinion. Here the lower judge decided the claimant was not very credible and the specific injury was not caused at work. The claimant then argued that the way the case was handled deprived him of a right to seek a DIME which could have led to a presumption the DIME opinion addressed causality. This was shot down. The one point that is unclear to me is whether the authorized doctor addressed the mechanism of injury such that it could be said to be a binding finding or determination as noted in the statute. The Court said the statute should mean that the doctor addressing MMI or impairment is not a finding on the question whether the injury was caused at work. But even if you say the doctor cannot address whether it happened at work he may have addressed the way the claimant was injured. Here the impairment perhaps was attributed to falling out of a chair at work by her doctor who provided the rating. Seems to me that Respondents medical witness was not an eyewitness. Yet Respondent's doctor concluded the claimant's injury was not caused by falling out of a chair. Not sure why this opinion was allowed over the authorized doctor but the facts are not fully set forth on that point. However the case says that when Respondents contest your claim they can take it to a hearing and win even if the authorized doctor is on your side. The case is an interesting read so for more complete details and the Court's reasoning click here.

Testimony on Pinnacol at State Level

As this article from the Denver Post notes there has been testimony from injured workers on their treatment by Pinnacol Assurance, the state's largest workers compensation insurance carrier. Not all is negative but the key point could be that over the past several years Pinnacol had amassed quite a financial surplus. One view is that it did so by denials and reductions of benefits to those injured on the job. Of course another factor is the law changes that took place over the years. Many law changes tightened up on providing benefits. For example, despite the many denials of Social Security disability claims it can accept that you are totally disabled if based on your age, education, work experience/skills and restrictions you are not employable in a substantial gainful way. In Colorado it is tougher to establish permanent total disability. So law changes have played a role in reducing benefits over the past few years. Certainly this rewards all insurers not just Pinnacol. However Pinnacol is the largest so you can expect further proceedings on all this. The fact is insurers have many legal ways to keep benefits low for injured workers. Injured workers with hand, arm or leg injuries are often poorly paid permanent benefits, especially if they lose their trade/occupation. I can provide numerous examples of legal ways that are used to deny, delay and reduce benefits so hopefully all this will be reviewed as well.