Friday, September 16, 2011
The Colorado Court of Appeals issued a decision yesterday that concerns ongoing medical benefits. In the Hire Quest case we have a rather technical argument that is addressed by the court. It seems an example of how technical arguments get in workers compensation proceedings. In this case the parties went forward at a first hearing which addressed a safety rule violation, credits for paid temporary benefits and the permanent impairment based on a DIME (Division Independent Medical Examination). Before the hearing the issue of permanency became uncontested because the employer/insurer withdrew the opposition to the DIME doctors impairment rating. So the first hearing addressed permanency, temporary and safety rule violation issues but that judge said issues not expressly decided are reserved for future determination. Well claimant later went forward on the issue of ongoing medical treatment needed and the other side said he could not because he never raised the issue at the first hearing and it was waived. They also asserted that the judge reserving issues was not specific enough so that prior hearing closed out the matter. The court decided that the reservation was good enough to preserve the right to address medical benefits after the first hearing so they found in favor of the claimant. Common sense would tell you that medical benefits could be addressed later but the insurer tried to use a prior court decision to say the claimant was required to add the medical issues at the first hearing or else it was waived. This waiver argument is essentially saying address all issues at once or the insurer saves money by alleging too bad so sad you lose (waive) your potential right to further treatment. Even if the judge reserves matters it is not good enough unless it is a specific reservation of a medical issue according to the insurer's view of an early case they were citing. The court disagreed with that interpretation. My view is that workers comp should handle all treatment that is needed for a work injury and not made into a game of technicalities which passes the buck on treatment to others such as the taxpayers. In this case we did have the DIME doctor saying more treatment was needed and I am not sure why it was not made an issue but it could be that there was no dispute made by the insurer until later. To me you have to wonder if the insurer waived objecting to further treatment but anyway the claimant prevailed.
Friday, September 02, 2011
Just recently effective the Social Security Administration issued SSR 11-1p which affects those appealing a denial after a hearing. The appeal process is an ongoing process and after a hearing you can seek an Appeals Council review and thereafter also can proceed into the federal courts. So you wait for a hearing and if, for some reason, you are denied benefits after a hearing you can pursue further appeals. This takes time but I have seen appeals take several years but finally be successful. But to any claimant this new policy is bad news. For some time if you lost at the hearing and appealed further you often would be told to file another application for benefits with a date after the hearing decision. Then you would have two proceedings going primarily to preserve your right to several months of benefits. The theory is that if you just waited on the appeal and it took 6 months or longer then when you get around to trying all over again you lost those months of waiting. Now the agency has decided not to allow that new application or so it seems on first impression. Imagine having cancer but losing at the hearing on some basis. Then you take a turn for the worst but are told by this policy that any new application has to wait on your appeal or give up your appeal to file a new application. I understand the need not to complicate matters but this policy may result in denials of due process. At least those representing claimants are quite disturbed by it. Here is one view on this and here is another and still another. I would say that this is an area that requires proceeding very carefully. This ruling is new and untested and may well be attacked by those who believe you have a right to file a new application but for now I am just letting you know about it. Time will tell how this is best handled.