Memorial Day...for our heroes thank you!

So many of us owe so much to those who served and stood up for this country. Today is special as we pause to thank them and celebrate their efforts. From the Revolutionary War where heroes starved and froze at Valley Forge to every war and action since where they dared to go to protect our country we honor them today. They were and still are placed at risk for all of us. To those who served and stayed true to the spirit of this country we cannot forget the effort they made was to be there for every American. One reported story seemed a special one to me of a good man who served his country at war and at peace. Now he rests at Arlington in a simple grave that only shows him as a soldier. May we all be inspired to do what is right not just what is popular.

Workers Comp Penalties are Increased

One statutory change that was signed as law by the governor pertains to penalties. The maximum penalty for a violation of a workers comp law/order is now $1000.00 a day although it can be apportioned or split with half or more to the party and the rest to a fund. Any penalty remains in the discretion of the judge. I would prefer that penalties be imposed more often in workers compensation proceedings where benefits are withheld. I would also prefer that they have some teeth rather then be a minimal amount. If a penalty is meant to punish or teach a lesson it fails to do that if the time and expense of proceeding makes it not wise to proceed. The victim if you will should not be the one punished. That just fails to enforce the intent of the provision. In any event the legislature is increasing the amount that can be imposed as a penalty.

Pinnacol Again in the news...for golf getaway.

The Denver Post is reporting that Pinnacol Board members were at a Pebble Beach golf resort where a round is $500 and the room rate starts at nearly $700 a night. Pinnacol is partly private and partly public. They are the largest workers compensation insurer in Colorado. Looks like the media is investigating the expenses of the trip and Pinnacol is asserting its records are confidential business documents. Pinnacol has been a state agency/political subdivision since 1915 but has been given more autonomy over the years. It has sought even more independence but is also under some scrutiny. This latest news is certainly keeping them in the public eye. Pinnacol can surveil injured workers. Looks like the shoe is on the other foot right now. The comments following the news article are also interesting.
UPDATE: This is an interesting read but mostly focuses on Pinnacol must change its ways.

Brochure Now Required in all Workers Comp cases

A new Colorado statute has addressed a disclosure brochure to be provided to all claimants. It is a very concise disclosure on the subject of workers compensation. Seems like an advisory of the claim process and your rights as a claimant. That claim process is indeed quite complicated and the "brochure" seems designed to provide basic information and is required to be provided to you. No amount of disclosures will ever simplify the process but it does give the claimant a heads up on it. The problem with information is not that it is bad but that it can be incomplete. In workers compensation it is not possible to be completely accurate on all matters at all times. There are simply too many cases, too many rules, too many statutes and much more. For example there are tips for physicians and AMA Guides that are outdated but part of the workers comp process. Then as laws change you may come under old law or the new law or both. As recently as in the Nelson case we can see the clash of the old and new. Looking at the brochure I can say it is also not entirely accurate. One example is that it says an Admission will contain your wage but that is not always accurate. My office received a recently filed Admission without any wage figure. The point is this new Brochure can be helpful but also use your common sense and when possible obtain legal representation.

Update on the Status of Colorado Bills

Here is a link to a summary on the status of the various bills which may impact Colorado workers compensation matters. I'll comment in a later post on some of these but for the time being the link really does a very good job of giving us a heads up on the proposed bills some of which have passed and been signed by the governor. It appears for this year the legislative activity is just about over but it may take a several more days to see what is passed and signed by the governor.

Supreme Court Affirms the Nelson case

The Colorado Supreme Court affirmed the Court of Appeals decision in the Nelson case. In Nelson the claimant had obtained an advance lump sum of future permanent total benefits and years later sought another advance. The problem posed by the case is that the claimant had exhausted the advance amount earlier and only sought the new advance when the law was changed. The original statutory top dollar advance was $26292 and the statute was changed to allow a $60000 advance. Is the insurer liable for this higher advance when it was not the law back when the claimant was injured? The Supreme Court said yes it was. This decision was not unanimous and 3 judges dissented. But the majority controls. Both sides recognized that the law was not to be applied retroactively but the majority indicated that the law change was procedural so it would apply to anyone applying for a lump sum as of today. Procedural laws are not really changing rights or liabilities as compared to laws which are substantive changes in rights or liabilities. A substantive law change cannot be imposed on the parties covered by an older law. For example if the benefits were increased by a statutory change to 100% wage loss it could not be imposed on the parties later on. The higher wage would be a substantive change. So in this case it seems the majority and dissenters disagreed on whether the law change was procedural or substantive. The majority felt the advance was not extra compensation and the dissent seems to view it as giving the claimant a higher benefit because he receives value sooner then spread out over his lifetime. Mathematically when we do present value analysis there is no real difference. Of course people can die young or outlive expectations so either side may have the advantage here and now we come to another point I have not heard recently. The court said that the law should be liberally construed in favor of the injured worker so it did not split hairs here and ruled in favor of the claimant getting another advance. I posted on the Court of Appeals decision earlier.

Notices of Rulemaking

Based on statutory changes and a need to make rules to comply with law changes the Colorado Division of Workers Compensation is moving forward with proposed new rules in certain areas. The Division lets us know ahead of time what is coming up to consider and this can be viewed here. One proposed change which will likely be approved is a new and more current life expectancy table. Such a table is primarily used in the computations for permanent total disability. Those benefits are paid out every other week and when we try to settle them we have to mathematically estimate the present value of those checks allowing for inflation and other factors. It is a bit like a home mortgage in that the cash price for the house is one figure and the monthly mortgage over many years adds up to a much higher number. Life expectancy is plugged into the math calculations to help compute the cash or present value of your biweekly checks. The longer you are figured to live the higher the cash value. The table now in use has not been updated in years. I took a quick look at the new proposed table. In one example the table changes the expectancy from 23.1 to 27 for a 58 year old. The other proposed rules concern surveys of claimants and insurance IME matters.