New Policy on Agreed Walk In Prehearings

I received a notification that there can be a new approach in some prehearings. It appears to allow some quick prehearings without much paperwork if the parties agree. This will take effect next month. My only concern is that no one wants to be surprised so if you want to know, in advance, the precise issues and likely arguments you do not agree to this abbreviated approach. I do think it would be useful in some circumstances where the parties have attorneys and

are desirious of clarification of a clear issue. This is what was sent out on this new approach: The Prehearing Unit of the Division of Workers’ Compensation is instituting a new procedure, designed to cut down on paperwork and time spent scheduling prehearing conferences. It is called the Walk-In Prehearing Conference. The Walk-In Prehearing requires no notice to the Division, and will be held the 2nd and 4th Wednesday mornings of each month beginning in January, 2013 (January 9 and 23). The guidelines for a Walk-In Prehearing are: 1. All sides must agree to a Walk-In Prehearing Conference. 2. All sides must appear in person. If one is a no-show, there will be no prehearing conference. 3. Walk-In Prehearings are not available for issues involving pro se litigants. 4. The parties must exchange some type of documented notification of the issues to be heard at the Walk-In Prehearing. This can be done by email, fax, etc. A copy should not be sent to the Division, but should be available at the Walk-In Prehearing. 5. No reservation or paperwork is needed. Upon arrival, the parties sign in on a registration log. First come, first served. 6. Walk-In Prehearing Conferences will be for the consideration of any prehearing issue, but will not be used for mediating settlements. 6. Walk-In Prehearing Conferences will be held from 8 to 11:30 a.m. on the 2nd and 4th Wednesdays of each month.

Merry Christmas once again!

Proposed Rule Changes and Hearing

You can take a look at proposed rule changes at this page. It sets forth all recent rule changes. On January 29, 2013 there is to be a hearing on the proposed change to Rule 5-11 and 10. Any claimant or attorney should be aware that any rule changes may be significant. Aside from the workers compensation statutes and caselaw the rules are often critical in a case. There may be deadlines set forth in the rules or just standards that are to be utilized in a case. The Medical Treatment Guidelines are in the rules. Disputes, when they arise, may well be resolved with reference to the rules. In any event there will be a hearing on some new proposed changes as I have said so we move forward into 2013.

Colorado workers comp premiums to rise

It appears employers will have to plan on higher premiums for workers compensation in the coming year. As noted in this article the insurance

rates will be going up. It is asserted that the loss costs which pertain to lost wages and medical payments have been increasing by 5.2 per cent. You can expect many insurers will be raising their premium rates to make up for this. Pinnacol Assurance intends to raise rates by an average of 9.5 per cent as noted in this other article. The Pinnacol claim is that workers compensation has not been profitable since 2006. Colorado employers are still paying Pinnacol 32 per cent less than what they paid in 2006 even with this raise. At least that is the claim. Given the economy it seems difficult to fathom this raise. I have always thought that companies who were not profitable for many years would not be around but Pinnacol seems healthy enough to be doing okay. In any event this is the third year for rate increases in Colorado. Certainly we all know that medical costs still appear to be going up. I do point out that not every state agrees to raise rates and as pointed out here in Massachusetts the state questioned the figures as inflated and unreasonable. The point is that a state should carefully review matters and not assume the facts asserted by the industry are accurate. Seems like common sense to me.

Colorado case on Firefighters and cancer

This week the Court of Appeals issued a decision in the Littleton case. In this case a Littleton firefighter developed brain cancer. He filed a claim in workers compensation which was contested. The firefighter relied on a recent

Colorado statute which provides for a statutory presumption that certain cancers came from on the job exposures for firefighters. The Respondents fought hard and presented several witnesses to assert that his cancer was not from firefighting. The judge at the hearing decided against the claimant firefighter who then appealed. At next level of appeal it was decided in the firefighters favor so the Respondents appealed to the Court of Appeals. This court decision issued this week also determined in favor of the firefighter. The court went about analyzing the statute and concluding the efforts to provide evidence the cancer did not come from firefighting were not enough to overcome the statutory presumption the cancer was work related. It seemed the medical evidence the Respondents presented was really attacking the statute and in order to overcome that presumption you must present evidence as to where the cancer came from other than work activities. At least that is my view but read the case. In that respect the Respondent burden is very high. If fire fighters had to prove their exposure to toxic things caused a cancer it would be quite difficult. Fire fighters do not monitor all the chemicals they are exposed to or the level of that exposure. The other side can often come up with medical experts to provide opinions such exposures are not likely to cause cancer. So when the firefighter can rely on the statute he has a big edge. UPDATE: This case is now at the Colorado Supreme Court as of October 2013. Look for its decision in 2014.

Traumatic Brain Injury proposed guideline

On November 15, 2012 the Division of Workers Compensation will have a hearing to address its proposed treatment guideline for Traumatic Brain Injury. For more information on this check out this page. Treatment guidelines are the recommended protocols for all to consider in the treatment of those with a traumatic brain injury. Such an injury, even if seemingly mild, may have long term effects on a claimant to include their employability. Assuming the proposed guidelines go through then it may be important when we are dealing with such injury to refer to these guidelines from time to time. While deviations from the guidelines may be possible the guidelines provide a framework for assessing ongoing treatment. In returning a claimant to work the proposed guidelines note that those with a TBI should not just be released to light or sedentary duty without specific physical or cognitive limitations. Drawing the attention of the treating physician to the guidelines and even specific quotes from those guidelines might be an important thing to act on. In any event these proposed guidelines are coming up for hearing so those with a TBI case should monitor the situation.

Court case on interest and subrogation

A few days ago the Colorado Court of Appeals issued a decision which concerns CIGA (Colorado Insurance Guaranty Association). In this case the Claimant had an industrial injury to his left index finger and it was amputated.

Regretably there were complications which led to a surgery which had its own complications. As a result the claimant sustained an anoxic brain injury and now cannot work at all. He resides in an assisted living facility for brain injured individuals. This claimant is now permanently and totally disabled. The claimant then filed malpractice claims against physicians and a hospital and recovered several million dollars. By statute a workers compensation insurer does have rights (subrogation) to proceeds actually collected. Apparently this subrogation lien was paid but CIGA asserted a right to the interest earned when some of the malpractice proceeds were invested and structured in amounts to be paid out over time. The court decided that the interest was not something the insurer was entitled to assert a subrogation lien against so CIGA lost the appeal. I see this as indicating that the claimants investment of his proceeds does not entitle the insurer to seek any part of the gain or interest from his proceeds. Of course the case goes into more detail and does point out that workers comp insurers are entitled to a subrogation lien on actual proceeds collected by a claimant in other claims which can come out of work injuries.

Rodriguez Court of Appeals case on falls

Just a few days ago the Colorado Court of Appeals decided the Rodriguez workers comp case. In this case the claimant

was injured in a fall descending the stairs to her office. The employer initially admitted liability for disability but then sought to withdraw its admission of liability arguing the injuries did not arise out of the employment. A CT scan found unruptured brain aneurysms but it was determined the fall did not come from the aneurysms but was unexplained. The judge found the claim to be not compensable because the fall was unexplained. The hearing judge recognized that the employer bore the burden in proving non-compensability and it did so when the fall was determined to be unexplained. Claimant appealed and it was affirmed by the panel leading to the Court of Appeals decision when the claimant appealed again to a higher court. The court said the burden being on the employer the fact it was unexplained was a failure of proof. Essentially the burden of proof was on the employer since they had admitted liability and that burden requires more then saying the fall was unexplained. All claimants should be aware that unexplained falls are usually not compensable because normally the burden is on the claimant to show the injury was work related. However here the employer had the burden when it admitted liability. Clearly it appears the court is saying the burden you have is a real one and there must be evidence to carry that burden. A lack of explanation is not good enough. To me falling on stairs is usually work related but it is important to have an explanation of what happened. You might return to the scene of any fall if you are worried. Perhaps the traction is a problem or the angle or the step itself may be a problem. Fortunately in this case the claimant was lucky not to have it contested where the burden would be hers to prove. In many cases the other side disputes or contests the claim. If at all possible a claimant should have an attorney to handle such contested claims because they are often tough cases to win. UPDATE: This case went to the Colorado Supreme Court and while affirming the decision the court went further so see my post of February 4, 2014.

Social Security Disability Update

There is a new rule on Fibromyalgia. SSR 12-2p pertains to evaluating the disease. The policy on this is to make sure there is solid medical evidence of fibromyalgia. Merely having a diagnosis of fibromyalgia is not enough. They will review the physicians notes to see if they document the condition over time. The point is that when seeking disability that there be decent medical evidence of the condition including strength and functional abilities. Read what it says so that the treating physician can be alerted when providing a report. Getting your ducks lined up is important in obtaining disability benefits. Often relying on a diagnosis alone is dangerous. You may know your situation but the details are important in any case. Many times I have seen doctors say you have problems but that is only part of the story. The big part is how it affects you and has it been established in the records. Moreover as part of this update it is important to know that they are tightening up on issuing favorable decisions. One attorney posted on his blog about this with links to other commentators. With approval rates down you can expect that attorneys will be careful on taking a case. In turn a claimant should check with other attorneys if your first choice declines to take your case. Many times I was surprised that an attorney had declined a case which I thought with good effort was winnable. It is all a matter of experience and personal style with an attorney so if you truly believe you are not employable keep trying to obtain an attorney to work with and follow his suggestions. You can help with your own case not so much by knowing the law as by following through on your attorneys suggestions. He will want to line up your claim and any way you can help will improve your chances. For example in many cases I have used questionnaires for a doctor to fill out. They help document your condition and your functional abilities. The claimant being a patient of the doctor may be asked to bring this to his doctor and ask for his help. If your doctor is really supportive then he will do it at low or no charge. You help your own case by following along with the plan of your attorney. At present if disability approvals are going down that is all the more reason to follow your attorney's plan.

Psychological Trauma Case Kieckhafer

This week the Colorado Court of Appeals decided a case involving mental injury. In Kieckhafer

the claimant asserted a claim for work related emotional distress. She did not succeed and the appeal followed. In Colorado stress cases are difficult to handle. All work has some measure of stress and claims would be immense if the standards for recovery were loose so Colorado has tightened up on them. In this case the claimant lost the appeal because the court determined that you need evidence from a physician or psychologist to establish the claim. The claimant only used a licensed social worker and a physicians assistant. That is simply not enough. The claimant alleged that the law makes it impossible to prove the claim because you have to prove a permanent disability before you can get benefits so it forces you to pay for your own treatment. Once you reach MMI then you are permanent so the law prevents coverage until you reach MMI (maximum medical improvement). The court disagreed with that view but a claimant still has to provide proper evidence. In any event a full reading of the case is wise because it is a bit complicated and involved. Anyone with a pure stress case has a tough road to obtain benefits so obtain an attorney if you can.

Two cases on bad faith, subrogation and offsets

While not applicable in most work injury cases these two cases remind us that a work injury can lead to additional claims and that offsets are still a complicated matter. Decided on April 26,2012 the Zerba case involves offsets. That is, what can be deducted from your workers comp benefits. Social security benefits can be an offset to permanent total disability benefits and the case goes into the subject of offsets. Military retirement benefits are not typical offsets for Colorado employers as is noted in the case. The claimant also did assert constitutional matters so we shall see if an effort is made to take the case to the Colorado Supreme Court. In the Schuessler case

the decision addressed claims that came from a work injury claim. The claimant sued a doctor for malpractice and the workers comp insurer for bad faith. The insurer raised many issues to include subrogation or its right to seek reimbursement. The case addresses many matters but this was not a workers comp appeal. It more involved matters which came from the underlying workers comp case.

All About Claims newsletter June 2012

Recently posted for June at the Division website is another issue of its newsletter called All About Claims . The newsletter format makes for a more informal approach. This issue is worth checking out. It has information on the maximum rates, on prehearings (now possible are trailing dockets) and various other tips. If you want to stay on top of things then reading these newsletters are quite important. For instance this issue tells us of the upcoming workers compensation educational conference in July. Finally this issue addresses 2012 legislation and while this is of minimal interest to claimants this year it does set forth what those law changes are and certainly will be of interest to attorneys.

Maximum Benefit Rates for 2012

Colorado recently posted the 2012 maximum benefit rates

for workers compensation. These rates are adjusted yearly. The maximum rates remind us that workers compensation benefits are limited and capped. While for most claimants these highest rates do not apply there are some to whom the rates do apply. If you are a high wage earner be aware that the top dollar for temporary benefits which is normally two thirds of your wage is capped at $848.82 so if you are earning over $1273.23 a week then you do not receive any further temporary benefits except the cap amount. There also are top total dollar amounts for all compensation except permanent total benefits which can go indefinitely (though they have offsets that can reduce the figure). Be aware that if you have been drawing temporary benefits a long time it can affect your permanent benefits. Insurers are well aware of the caps and there have been cases where there were no permanent benefits due because the claimant hit the caps. Again this is uncommon so those with a prolonged severe disability should pay attention to the maximum rates. If you are concerned then review matters with your attorney. The purpose of putting limits on comp benefits is to provide reasonable but not unlimited benefits although if you are affected you may be quite upset by those limits. We all feel we should receive exactly what we lost with a work injury but it is insurance and insurance seldom pays out 100% of the loss. The state wants you to be protected but up to a point. Historically workers comp benefits have not been taxable so benefits approximated your take home pay but there is no doubt that you earn more working and a work injury is not a bonanza. The state limits your benefits so this yearly adjustment reminds us of that.

Unripe Issue Court of Appeals case

This week the Colorado Court of Appeals decided a case which assessed attorneys fees for bringing up an unripe issue. By statute 8-43-211 Colorado provides that when you file for a hearing on issues which are not ripe for adjudication then you shall be assessed the reasonable attorneys fees and costs of preparing for that hearing. In Youngs the claimant and the claimants attorney filed for a hearing on several issues but one was to reopen a case based upon fraud/mistake. It was determined that the issue to reopen was not ripe and eventually attorneys fees and costs amounting to over $23000 were assessed against the claimants attorney. Here other issues were ripe but the one unripe issue led to an assessment of attorneys fees. In the appeal many matters were raised including that the Colorado workers compensation system was unconstitutional but the reader is encouraged to read the case for themselves. This case may go further up the appellate steps but what is important is to be quite careful whenever an issue is endorsed because any party can be assessed attorney fees and costs.

Changes in Some Treatment Guidelines

The Colorado Division of Workers Compensation has issued revised treatment guidelines effective February 2012 for Chronic Pain and Complex Regional Pain Syndrome/Regional Sympathetic Dystrophy. The latter we used to call RSD and it along with Chronic Pain have seemed to evolve over the years. They are complicated matters and physicians have often disagreed with each other on diagnosis and treatment. Those utilized by insurers tend to be conservative and seldom side with the claimant and those utilized by claimants tend to be liberal and generally side with the claimant. The purpose of the guidelines is to set forth the recommended methodology and these matters are among the most difficult to deal with. The guidelines provide clues as to what to do when handling such matters. Since many claimants have chronic pain and RSD can be extremely disabling the guidelines afford us some idea of treatment. They are long but interesting to read. A claimant may want to be informed so he or she can discuss matters with the treating physicians. While the internet may have good information you can start your research by reading any guidelines posted on the Division website.

Pinnacol spends plenty on privatization effort

Once again Pinnacol Assurance is in the news. The Denver Post is reporting in an article that they have spent $1.6 million since January in efforts to promote its privatization. Lobbying, advertising and public relations are part of this effort. This has raised concerns about what it has been doing and whether it is sensible though Pinnacol has defended by indicating it was due diligence to protect policyholders. The privatization effort remains controversial and many oppose it. You can read the article for more on Pinnacol's efforts. The story has been around for many months. You can expect the story to continue. My view is that Pinnacol is thriving and wants more autonomy. Private entities have less scrutiny and Pinnacol has seemed quite aggressive in its push for privatization.

2011 Workers Comp Exit Survey

Colorado attempts to survey injured workers once the workers comp case is over. Just recently released are the survey results for the year 2011 in which over 28000 were sent surveys and over 4000 responded. The survey is like a customer satisfaction type survey and as a result it may be skewed. When I looked at it I saw that of the some 4000 that answered the survey only about half had disputes. Clearly then only some 2000 of those responding or about seven percent of 28000 claimants had any dispute or battles in their case. Since almost one in four cases are contested the survey seems to be primarily coming from satisfied claimants and less so from those with disputes. More interesting is what is the satisfaction rate when there is a legal dispute. There the rating, on a sliding scale from 5 being most satisfied to 1 being least satisfied, comes out at 2.9. That does not appear to be very good. I interpret it to mean that 58% are satisfied after a dispute. That would not be considered passing in most situations or at best is barely passing. So it appears even with those responding there is an undercurrent of dissatisfaction with how speedily disputes were resolved. I am not surprised. Many cases can take several months to resolve once there is a dispute. The concern I have is with medical benefits and compensation that the process should move along faster. Any dispute which requires a hearing even to obtain benefits can mean a few months to get to the hearing and perhaps longer to obtain an order which could then be appealed. While we all believe in due process it seems to me that the process can be expedited but that is up to our legislators. According to my view of the survey we may have a satisfactory system when there is no dispute but at best a barely passing system when there is a dispute. But what about the over 85% who never even responded to the survey? It would make sense to find a way to get greater participation to see how satisfied people really are but for now this survey is what we have.

Crowell Court Case notes Ongoing Penalties

The Colorado Court of Appeals issued a ruling today in a case I call Crowell. In this case a claimant had a workers comp injury to a breast implant. Later it required replacement because of gradual distortion and discomfort. The ATP (authorized treating physician) recommended the surgery and sent a request to the insurer. The insurer denied the surgery in essence considering it elective and not medically required. The insurer did promptly deny within the time required by Rule 16-9 and 16-10 but never really sought out a medical review as indicated by Rule 16-10(B). This then triggered a hearing request by the claimant. At hearing the judge concluded the respondents were responsible for the surgery and also imposed a $500 penalty for violating the rule by simply denying the preauthorization request for surgery without seeking a medical review. The issue before the court is whether the penalty part of the original decision should be for a one day violation or whether it was an ongoing violation subject to an continuing penalty. The court decided that some violations are ongoing in nature and that was the situation in this case so it remanded the matter back to decide what should be an ongoing or continuing penalty. It clearly ruled the penalty should be imposed on a daily basis since the violation could have been cured by obtaining a medical review as required by the rule. Many times physicians seek preauthorization because a surgery is expensive and they want to know they will be paid. The rule does indicate a failure to properly act within the rule can mean the surgery is authorized but what doctor will act here with a denial staring him in the face? Here the insurer was questioning and contesting the surgery and never sought out a medical review despite knowing it was going to a hearing to address the issue. To me thinking it was just a one day violation because thereafter the surgery was authorized is not much of a solution and could encourage denials in many cases. As noted in the rule unreasonable delay or denial as determined by the Director or a judge may subject you to penalties as happened here so a claimant is not limited to assuming a surgery is authorized; he or she can also pursue continuing penalties in some cases. The real failure and delay here was leaving the claimant and the doctor hanging by just denying the surgery with a letter without some medical review to back up the denial even when it is thought the surgery was elective.

Pinnacol Privatization Again in the News

The Denver Post is reporting that business groups and others are upset with Pinnacol's ads touting the benefits of privatizing Pinnacol Assurance. It is asserted the ads violated an agreement not to lobby on the issue while the matter is under review by a task force. What the article points out is that Pinnacol is the state's insurer of last resort for high risk businesses. That is why Pinnacol was originally set up by the state of Colorado and then has grown to be the largest insurer in Colorado of workers compensation claims. This effort to privatize is not surprising. Pinnacol is large, apparently thriving, with ample funds available that in the past the state was interested in obtaining. My experience tells me that when a nonprofit becomes quite successful the entity wants to move out on its own. I saw that with Blue Cross Blue Shield when it became Anthem. There can be interest in expansion beyond the state borders and Pinnacol executives can operate unfettered by state oversight. In theory the state gets an investment apparently worth $340 million and a dividend every year. Of course Pinnacol's offers seem to vary which is, I suspect, just part of the negotiating. The real question I have is whether privatization might impair the very purpose for the state's interest which was to insure high risk ventures. The construction trades have many injuries and are costly to insure. Without state involvement might this endanger state businesses? Private insurers certainly have more freedom to operate than an entity with state oversight. Of course my other concern is valuation but that is negotiable.

Maximum Benefit Rates

The calculations for top dollar benefits can vary in Colorado depending on your date of injury and the allowable maximum rate on your date of work injury. Let's say you lose an arm or leg but are not totally disabled. What is the highest permanent benefit you can receive? For injuries after July 1, 2011 the max is $54,202.72 but if you were hurt before July 1, 2010 it might be only $53,067.04 or even less. Be aware this is strictly for the loss of an arm or leg without more. Always review with an attorney all the injuries you sustained at work but also your past medical history. At times a rather minor injury may nonetheless be significant enough to make you totally disabled. The rating or per cent of your medical impairment is not always the end of the story. Impairment is not the same as disability in many cases. In this area, more then anywhere, a workers comp attorney can be invaluable in analyzing the situation. Getting back to discussing the maximum rates, effective for injuries after July 1, 2011 the highest scar benefit can be as much as $8,792.00. Next, the most you can collect when you combine temporary and permanent benefits is $153,210.00 although this cap does not apply to those totally disabled. Be aware that these amounts are not the minimum you can collect so benefits can be less or even zero if your claim is not compensable(many claims are disputed). There are many factors that go into assessing impairment and disability but the caps do remain a top dollar limit on benefits in most cases. Those totally disabled or with a need for long term medical care may still have higher benefits. By way of example a few years ago I had a case where the claimant had a high rating but had collected all but a few thousand more before reaching the cap for combined temporary and permanent benefits. The case settled for much much more because of a concern he was totally disabled. However for those able to return to work the caps must be a consideration. Credit goes to Judge Eley for calculating the above figures for us.