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.