The uproar over possible cuts in Social Security and Medicare continues. At this polling website they show us the Colorado polls and they assert we should strengthen Social Security not cut it. However the so called voucher system touted by some politicians appears to push more of a burden on seniors to fund their medical care at the very time their income is reduced. No doubt there is much to criticize with any government program but turning matters over to private insurance is like turning over all our finances to the bankers. While free enterprise is great it can also lead to abuses based on financial power. "He who has the gold makes the rules" can be very harmful to a society. As a society we need certain basic matters covered and others regulated. It is a price you pay for being in the society and yet also it is a value to all of us to have some benefits. Moreover, historically we have tried as a society to protect the old, the young and the disabled and hopefully that will continue. Clearly most Americans feel the same. It will be interesting to follow this debate as it strikes me as an effort to begin eliminating programs that only need tweaking while not really addressing jobs and the budget. By the way watch out for those who are using the word "reform" to discuss Social Security/Medicare. Most of us in Colorado went through the "reform" of workers compensation. It was a euphemism for cuts in benefits to the harm of claimants.
While this senate bill 11-199 is awaiting the governor's signature I expect it to become law. There are 4 provisions in the bill worth noting. First, it requires that the insurer pay costs in advance, if requested by the claimant, for an insurer IME or vocational evaluation. This means the cost for the claimant to travel, food and even a hotel must be paid or the claimant can refuse to attend. If they pay and claimant does not attend they can get an offset from future compensation due the claimant. Next, a Final Admission must admit for future recommended treatment by the authorized doctor unless there is a record of a contrary medical opinion. This prevents the insurer from disregarding physician maintenance treatment once the claimant reaches MMI. At times insurers never admit for further treatment even though its need is undisputed. A claimant may think or even be told by the doctor he can get further treatment only to be denied by the insurer and the bill seeks to avoid such a practice. Third,procedurally it corrects a discovery matter by not requiring those represented by an attorney to first ask permission before starting discovery. That extra step (documenting you asked permission) seemed just a waste of time and paper. Last, the bill makes it clear that any lump sum request regardless of the date of injury is not a waiver of the right to seek permanent total benefits. For those readers not familiar with the last issue the history of it is a claimant would receive an admission for permanent partial benefits of a certain amount, let us say $30000.00, and yet feel he was much more disabled so he'd seek permanent total disability benefits. Since by law the admission had to be paid out every other week the claimant sought it in a lump sum. That was deemed a waiver of his claim for permanent total benefits. The poor claimant was stopped in his tracks by accepting the lump sum perhaps just to pay bills and other expenses. You had to be careful to avoid this but the law has been changed. A total disability claim is no longer waived by accepting a lump sum.
If you have had a work injury or disability you or other family members may need health insurance for any future problems. Perhaps you qualify for medicare once you are disabled or retire but what about your spouse? Perhaps you are running out of any continuation health coverage. For those of us in Colorado here are a couple of websites that provide information you may find useful. The first site is for those who are not insured. Is coverage possible? Yes so click here for this website. Anyone with a preexisting condition (and that means most of us) should not be unable to obtain insurance coverage. While many politicos preach about this way or that the fact is that times have been tough for the uninsured and those with preexisting conditions. Group coverage is fine until you lose your job. At this website if you have had coverage within the last 6 months you may be able to use the information to obtain further coverage. After all COBRA coverage does not last forever so this site may help you out. Last I did want to include a link to Andrew Mersereau of Premier Insurance. He has been quite helpful on a personal basis on health coverage. Don't be afraid to call an agent for help when you cannot do it yourself.
The Court of Appeals decided yesterday to reverse ICAP and the hearing judge on an issue concerning seeking a DIME. The claimant requested a DIME to review the treating doctors opinion. A DIME is a Division Independent Medical Examination which involves a process to select a doctor to conduct the examination on various medical matters such as MMI and impairment. In Munoz the claimant sought a DIME and requested a specific type of doctor. However that was not provided so he applied for a hearing to address the selection. In the meantime he did not schedule the appointment with the physician in question then set to do the DIME. Instead he filed a second application seeking penalties against the state agency for not staying the matter pending resolution of his hearing issue A hearing judge and ICAP decided he had not stayed the process by filing an application for hearing so he lost by waiver his right to seek the DIME. The claimant argued the application for hearing was sufficient to stay the DIME process. The judge and ICAP decided any stay had to be by law a motion and an application did not do it. They concluded he waived his right by not filing the motion. The appellate court reversed ICAP and determined an application for hearing was good enough to preserve the claimants right to have his DIME concerns addressed before proceeding. This appeal was more complicated then what I have indicated as it was argued the claimant did not even preserve his right to appeal and also the claimant wanted to penalize the state Division of Workers Compensation for not staying the process when he sought a hearing. Usually appeals are not simplistic but the key part of the decision involved a claimants right to stay a DIME process to address his concerns on the selection process. You can read the case here.
In a recent ICAP case the claimant Lane was 74 years old and admittedly totally disabled. However he was denied permanent total disability benefits after a hearing and this was affirmed by ICAP. The claimant was injured in September 2008 and eventually received an impairment of 13% of an upper extremity which equaled a 8% whole person rating. There was some dispute on his restrictions but both vocational experts provided credible opinions the man was not likely employable. The claimant did have multiple non-work related conditions such as hip pain, hearing loss, balance problems and an abdominal aortic aneurysm. So what happened? The ALJ determined the claimant had failed to show that the industrial injury was a significant causative factor in his inability to earn wages. In the case there was evidence presented that the claimant had no restrictions from his work injury and also evidence he had restrictions. The claimant was working for the employer after maximum medical improvement (MMI see glossary) but was let go for an alleged failure to do something and this was given weight by the hearing judge. So being no longer employable at the conclusion of a workers compensation case does not mean permanent total benefits are awarded. The key is whether the work injury is a significant causative factor. In this case the medical evidence of post injury restrictions was not present so claimants should always focus on obtaining medical restrictions and establishing the work injury was a significant factor in being unemployable. Often with older workers they do have many health problems and actually those problems plus a significant work injury can make for a good case of permanent total disability but it is not an automatic award as the Lane case points out.
"...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.