Two new Prehearing Judges Coming in 2014

We have learned of two new prehearing judges that will be coming on board in early 2014. Barbara Henk will be active as of February 1, 2014 and Patricia Clisham as of March 1, 2014. They are both highly experienced and well respected in the workers compensation community. They have both

been judges at hearings and active at the OAC. Prehearing judges are quite important in the workers compensation system. They handle prehearings on various preliminary matters. They address motions when brought to them. They are also involved in settlement conferences. I recall many a conference where the claimant took the position he was totally and permanently disabled and the other side was certain he was employable. The attorneys can do a lot of talking but the input of the judge was often critical in moving the parties to a reasonable compromise. The judge might educate the claimant to the risks of a hearing and appeals but also educate the other side on the merits of the permanent total claim which could mean a very high monetary risk to the other side. Settlements are often smart resolutions of cases. Hearings may be necessary at times but most cases can be settled with solid effort by the parties and the aid of the prehearing judge at a settlement conference. The new judges should be helpful in this area. They bring a wealth of talent and wisdom from their experiences. So I can only say that they are good additions to the process.

Experienced Workers Compensation Attorneys

If you are able then get yourself an experienced workers comp attorney in your work injury case. Perhaps you know someone or can obtain a referral. If you are unsure and want someplace where you have the names of experienced attorneys then check out the list maintained by the Colorado Bar Association. Now just being on a list does not mean the attorney is right for you. Not every case is winnable or means high benefits but your odds improve with an experienced attorney. Usually an experienced attorney will maximize your benefits and protect your interests. And it is important to obtain an attorney as early as possible in your claim. Things do happen as you go through a claim. There may be issues to resolve and plans to be looked at far sooner then the end of your case. Your case may be contested or your treatment may be disputed or even denied. The math relating to your benefits may need to be reviewed. An experienced attorney will prefer to be involved every step of the way. He or she will advise you and analyze every detail that is deemed important. He or she should be available to you to discuss matters especially when you have worries. The fact you believe you are being treated fine by the insurer or your employer does not alter this. They shall have an attorney to represent them and advise them. Their attorney shall seek to minimize benefits being paid. Often they dispute prolonged treatment and claims of extensive disability. The adjustor is not your friend. They have a job to do and having your own attorney is simply for your own protection. Many claimants have serious disabilities which they will carry with them the rest of their lives. In any event you can see the list of experienced attorneys as a tool to assist you as you search for someone to represent you. The list is updated though not often enough. Still it contains some very good attorneys.

Video Replay of Monthly Reviews of Important Cases

The Division has posted a link to the video replays of case reviews presented once a month to interested attorneys. I would say that posting it as available to the public means you can view the video of the month and even read the cases. While

there is a short delay in posting the materials still it is nice to have it available for your reading and hearing. These are current cases and involve an interesting issue or set of facts. Even a non lawyer may access this material. If you are curious about what's going on in workers compensation or see where a case may be similar to your case then listen to the review by a presenter Administrative Law Judge in what I call the prehearing unit. Judge Eley is excellent in reviewing each case in his monthly Brown Bag seminar. While he selects the cases he deems most interesting I know that he has been doing this for years and years. Years ago as an attorney he published a monthly review. I fondly remember that publication and used the case reviews in my practice. Now he continues his effort to present current cases that are worth learning about. These cases can be presented in another case as supporting a point of view. So they can be useful in two ways. First they show us the current types of cases coming up on appeal and second they can even be used in another case to persuade a judge that you are on the right side. A judge will often rely on an earlier case that is presented to him as relevant to an issue. So these video replays along with all of the actual cases can be quite useful. Many attorneys attend or listen to them to stay updated on the latest issues being decided. In any event the Division on its page sets forth for all to see and hear several months of the video replays of important cases. Often it is fascinating to listen to the review by Judge Eley. Workers compensation can seem like a dull subject but it is filled with interesting people and cases. I like to see what arguments are being presented by Respondents in these cases when they appeal. I enjoy novel arguments no matter who makes them though I consider myself decisively on the claimants side.

Picking an Attorney

Perhaps once a year I discuss workers compensation attorneys. I've said in the past that advertising is out there but not necessarily the way to find an attorney. I'm retired so I have no ax to grind. I believe in advertising as a means for an attorney to get his name out there and for a claimant to know there are attorneys out there. In that sense advertising is a good thing. However attorney advertising is so frequent that it can make you think that the guy is a superman. And some advertising can make it seem simple to make a potful of money and benefits. Just get this guy and your worries are over! Well it's just not realistic to find superman in an ad. I'm not saying that competent attorneys do not advertise or that advertising is wrong...it's not. But when your health, finances and future may be at stake as they can be in workers comp then you should proceed with caution to find your attorney. Nowadays you can search online along with watching TV commercials to find an attorney. You may have friends or relatives who have used someone in the field. Another resource may be at the Division website

. The point is to explore your options as much as you can. You can even make an appointment with more then one attorney. It is your case and your decision so use common sense. And by the way if your attorney is not working out for you then you are not necessarily stuck with him. However being upset with an attorney for telling you the truth is not the best way to switch attorneys. The law is not always favorable. If you are unable to get answers and your calls are ignored that failure to communicate is a sign of a problem. In seeking an attorney be smart about it. While you may need proceed with speed you still have options. If you are interested in someone do more research. Have a sit down and then get a second opinion. There truly are some very capable attorneys out there in this field. Some of them may also handle other matters such as Social Security disability. And best wishes to you!

Court of Appeals case on travel expenses

In a recent case the Colorado Court of Appeals decided in the Winter case to

address mileage and travel expenses. The claimant was from Trinidad but had to travel to Vail for authorized treatment. At first the claimant was advanced the cost of travel, hotel and meals. However after the third visit the insurer advanced only the travel mileage and not hotel or meals. The claimant advised the insurer he could not afford this unless it was advanced. The matter went to a hearing where the judge ruled against the claimant. This was appealed an eventually reached the Court of Appeals. The court affirmed the decision. Prepayment of hotel and meals is not a requirement even where this can lead to a harsh result. The court did note the claimant was able to use a credit card in this case and did get reimbursed within 30 days but suggested the Division of Workers Compensation may wish to address that issue. Usually claimants are treated locally but I have had cases where travel was necessary. Most claimants can use a credit card but some are quite poor. They may not have such a card or other resources so it would be helpful to have the Division address this for those cases as suggested by the court. Many times the benefits provided in a workers compensation case are barely enough to cover living expenses and asking the claimant to pay travel expenses and wait for reimbursement is expecting a lot. Anyway this case reviews all this and the court decision is the current law on the subject.

Recent ALJ Decisions

At the local level Colorado posts perhaps all of the decisions by its administrative judges. The decisions for May 2013 are posted here. I went through these decisions and you can too. What I noticed is that many of them concern either compensability (coverage) or medical issues. Claimants often lost at these hearings. My view is that the claimant in such matters will often need a medical expert or two to help with his or her case. Insurers have ready access to known doctors who tend to support the insurer side of things. In a tough case my experience has been that Respondents will spend thousands to win. Winning means the claimant loses...either he loses it all or he loses on an issue that is quite important like his need for surgery. These experts are very good at justifying their position and at knocking down the medical opinions of others more supportive of the claimant. Did you get hurt at work? Nah it was preexisting. Or it could not have happened with the claimants work activities. Need surgery...well not really. The other sides medical experts are clever and often sway the judge. A claimant may not have the ability to hire his own experts to fight back. If left to the existing medical reports issued by the treating doctors who are often selected by the insurer a claimant may not have a chance. My point is that to have a fair fight a claimant may need expert help. The system does not pay for that or even have a fund to assist claimants. Over the years I've seen this problem increase. In any event reading the decisions makes you aware of the problem. It can also make you aware of the doctors involved in workers compensation cases from treating doctors to experts. For insight I'd encourage you to read the cases. Common sense may tell you that work activities caused or aggravated your condition but the insurer may have evidence that threatens your case. It can come in the form of a doctor or two who are hired to dispute your claim. So be ready because at a hearing you should expect significant opposition.

A Caution on Workers Compensation

Every so often I get a comment from someone who wonders if the Colorado material posted here applies to other states. It is important to loudly say...no! While there are similarities between many states a workers compensation system is unique to each state. Colorado's system is a creature of state statutes and case law. It does not apply in any other state. Perhaps each state learns from the others or case law from one state may be an influence in a case in a different state. But the law in Colorado really depends on Colorado statutes and cases. The exception would be in federal cases involving federal employees. For those cases there is federal law. So if Colorado law applies to you then this blog and its references may be helpful in understanding things. But if you are in another state and its law applies then looking here may be of little benefit. Every state has its own laws in this field so for advice consult an attorney in your area. This blog makes for interesting reading but I must say it pertains only to Colorado. It also represents my views and my slant on the field. Legal advice should come from your attorney.

Firefighter Court of Appeals Case Zukowski

On July 3, 2013 the Colorado Court of Appeals issued a decision I call Zukowski. It is a case that concerns the statutory presumption that certain diseases arise from firefighting duties. The statute shifts the burden to Respondents to overcome the presumption or else the disease will be considered covered under workers compensation. The problem for firefighters is that they do not keep track of all their exposures to toxic chemicals or factors that can cause job related diseases. To improve that situation the statute was passed. However since then there have been efforts to defend against such a presumption. This blog has previously noted this (see the Littleton case entry in this blog for November 3, 2012). In the Zukowski case the firefighter had a melanoma which led to a claim. Respondents lost the hearing and the appeal to the next level but appealed further and the court reversed the prior rulings. In other words the firefighter lost the case barring further appeal. At the hearing the Respondents produced evidence through two physicians. Essentially they concluded that there were greater risk factors for the development of the melanoma from non work factors. The court ruled that the evidence was enough to overcome the statutory presumption and that the hearing judge interpreted the statute too heavily against the Respondents. It was error to require that the statutory presumption can only be overcome by proving the disease was caused by something else unrelated to the job. The court viewed such a standard as akin to saying strict liability applies against the Respondents. My concern is that the evidence was really indicating that non work factors were the greater risk factors then the job exposure to the development of the melanoma. I would say that this defense could well impair the statute's intent. Respondents can use this approach forcing the firefighter to again try to show his melanoma came from work and that could be difficult. My concern is that risk factors or the increased risk do not show what caused the disease and the statute sought to indicate it would presume the cause came from work activities and exposures. In any event the case is required reading in any firefighter case.

All About Claims Newsletter June 2013

The Division has just issued a new newsletter. It reviews the latest legislation on Colorado workers compensation law. The changes in the DIME

(Division Independent Medical Examination) process is also set forth. DIMEs are heavily used in cases. Every attorney and anyone interested should know the process and requirements. So this newsletter is educational in providing some insight. The newsletter even provides a flow chart of the process on its last page. In my experience DIMEs are extremely important in many cases. I have found that the treating physician seldom provides a fair assessment. Some do but most do not. They may place the claimant at MMI (maximum medical improvement) and they then rate or assess permanency at a low level. They may even exclude from the assessment conditions they believe are not from the work injury. When properly selected a DIME can often correct this. They may say that MMI has not be reached so more treatment is needed and they may rate or assess a higher level of permanent injury. Taking issue with the treating doctors conclusions which are then often deemed correct by the insurance is perhaps the most important part of many cases. Frequently a claimant may need additional treatment and usually the extent of permanent injury is greater then what is stated by the treating doctor. A DIME is often the great equalizer and in my experience has often resulted in substantially more benefits for claimants. There can be circumstances where a DIME is needed by the other side too. In every single case an effort should be made to obtain a fair assessment. So a DIME and the DIME process should be important concerns in most cases. An attorney experienced in this area will usually know what to do and how to go about selecting a DIME doctor. It is not a simple process and where possible every claimant should be represented.

Colorado Legislative Update 2013

Colorado posted an update for recent workers comp legislation at the Division website. With respect to the specific statutory legislation that was also posted by the Division. You are encouraged to read the updates. I shall not discuss all of them but one is significant regarding a DIME (Division Independent Medical Examination). It used to be the insurer had 30 days from the mailing of the DIME report to accept it and admit based on it or to apply for a hearing. The time frame is reduced to 20 days but it is from when the Division issues a Notice of Receipt of the report. Another new provision provides that the insurer must pay for reasonable and necessary medical expenses when the claim is later found compensable. I'd say that means they will pay if they contest the claim but it goes against them. Perhaps that will help when you seek treatment on a contested case if you later have it determined to be compensable. Previously if you sought treatment even if you won at hearing they'd say they did not owe for any treatment up to then because it was unauthorized. Also another new law requires they recalculate your benefits within 15 days from the date a fringe benefit like health coverage is terminated by notice. Another key provision concerns what we used to call an 18 month DIME. That now is 24 months and if MMI is determined that doctor can rate the impairment like a regular DIME. There is more but these are significant enough to draw to your attention. UPDATE: The Division issued an alert for adjusters on the new requirements which affect all DIMEs. Check it out here.

The Meza case on 18 month DIME opinions

On May 9, 2013 the Colorado Court of Appeals issued the Meza case. The case has been in the system for years. Originally the claimant hurt his right foot in an admitted on the job injury. He was treated an eventually released back to work without restrictions or impairment. Four years later after ongoing pain the claim was reopened and he received additional treatment. Because the claimant was still being treated by the authorized physician and 18 months had gone by the employer sought a DIME (division sponsored independent medical examination). This is permitted by statute. This 18 month DIME found the claimant to be at MMI (maximum medical improvement) and rated his permanent impairment at 20 per cent (part for the spine and part for CRPS a nerve disease). All related to the original injury. Respondents filed a Final Admission and the claimant argued the 18 month DIME only can address MMI so he needed to be returned to his authorized physician for a rating. A judge agreed and his authorized doctor rated him at 27 per cent impaired. Respondents then sought a regular DIME which resulted in a rating of 4 per cent. The second DIME removed from the rating that portion for the CRPS and spine because it was unrelated to the work injury. Read the case for more details on the history. In any event the claimant at a hearing sought to overcome the second DIME and also assert that the 18 month DIME opinion was binding on the second DIME in addressing that the spine and CRPS was causally related to the work injury. The claimant lost and eventually the case got to the Court of Appeals. There the claimant lost again. This case really discusses an 18 month DIME and what effect it has on a later DIME. The court determined the 18 month DIME only can address MMI. Even causality can be addressed in a rating by a regular DIME. It is clear the court limited an 18 month DIME to a narrow issue so a later DIME is not bound by the rating or causal opinion of an 18 month DIME. I had thought that causality is part of every DIME opinion but it appears the court made a distinction between an 18 month DIME and a regular DIME. UPDATE: See my blog post for June 10, 2013 where statutory changes were made altering future use of this case as precedent.

Maximum Benefit Rates effective July 2013

The Division has provided everyone with its new maximum rate figures for Colorado workers compensation benefits. Each year it revises the maximum rates and effective July 1,2013 it has new rates. These apply to injuries after that date. It is important to realize that maximum rates are set because rates are not unlimited. With a work injury not everyone receives a fair amount. Workers compensation benefits are limited or capped. Often an injured worker would tell me he's not getting enough compensation when by computation he was getting the correct amount. But the correct amount does not mean your compensation rate is going to be high. It is an insurance benefit and is designed to provide what the state has determined it must provide. The basic concept is to receive two-thirds of your average weekly wage when you are unable to work after your work injury. Thinking it is going to be high or even equivalent to your take home pay is unlikely. Historically benefits have not been taxable so at least that is a plus. And medical benefits are not limited although there can always be a dispute on what is reasonable in treatment. If your doctor prescribes a trip to the Bahamas for your psychological well being it is going to be disputed. But be aware that disputes involving your average weekly wage are common. Claimants often believe the figure provided by the insurer is wrong. Overtime and even health benefits may be part of the figure. When possible do seek out an attorney to represent you as soon as you can. Even a case where the claim is admitted can have much to deal with including what is the correct average weekly wage.

Colorado Court of Appeals: The Youngs case

Last week the Court of Appeals decided the Youngs case. The case is as complicated as it is long. It started in 2005. In 2011 the claimant sought to reopen the case. Reopening was sought on two grounds. One ground was fraud and the second was a worsening of the claimants condition. The insurer opposed both allegations. On the fraud assertion that was dismissed by one judge after deciding the claimant could not establish the elements to support the request to reopen. Later a hearing was held on reopening based upon a worsening of the claimants condition. On the evidence another judge decided against reopening. The claimant appealed both orders. The court decided against the claimant. On the fraud dismissal the claimant filed to appeal but it was determined to be premature until the second order was issued and while claimant appealed the second order he did not appeal the fraud dismissal after the second order making it untimely. On the worsening appeal it was decided there was no worsening and no error permitting that decision to be overturned. You are encouraged to read the case for a full review of the courts opinion. The decision on no worsening is straightforward enough to read and understand. Perhaps I might not agree but the burden is on the claimant and a judge has discretion with respect to the evidence. But on the fraud issue we seem to have a decision which says the early appeal by the claimant was too early and he needed to appeal again on that issue and when he did not then he lost his right to appeal. Now for my personal comments: I do question that the first appeal was premature. It seems rather final to dismiss the fraud allegation and a final decision starts the time frame to appeal. The claimant did appeal in a timely way but the court clearly felt otherwise. But next the court seems to impose a requirement that the claimant had to appeal a second time on the fraud issue after the last hearing and order. Perhaps that is the case but it is rather clear the claimant did initially appeal so does that existing filed appeal become timely after the second order? It is not like it was ever ruled upon until much later. Of course I am aware and the reader should be aware that the court had its own reasoning which is the law unless this case is appealed to the Colorado Supreme Court. Even if appealed that court can choose not to address the present decision.

Court Case on No Limits on Temporary Benefits

This week the Colorado Court of Appeals issued a decision I call United Airlines and it concerns temporary benefits. The claimant was injured in 2007 and received temporary benefits until the year 2011. Those benefits totaled close to $100000. Then the permanent rating came to 5%. The insurer then pointed to the statutory cap on combined temporary and permanent benefits. It was $75000. Therefore it asserted the claimant was overpaid and owes money back beyond the $75000 figure. The court decided there was nothing due back to the insurer. It made clear that temporary benefits can go beyond the statutory caps. So a claimant can in theory be paid for many years while he is not at a permanency level. Of course if you reach permanency and have exceeded the cap then no permanent benefits will be paid at all in almost all cases. I recall a case I had several years ago where the temporary benefits were quite high after several years of treatment. Any permanent benefits would have been low but the claimant asserted he was totally disabled. There was very real evidence of this so the settlement was quite high. The cap does not apply to those who cannot ever return to work and were totally disabled. So while temporary benefits are potentially long term once you do reach a permanent status you might consider whether you can return to any work. If not then your claim could be for permanent total disability. In this recent case they also asserted it was against public policy and unconstitutional but these arguments were rejected by the court. The losing side might try to get this case before the Colorado Supreme Court but for now it is the law. Of course I agree with the decision and am not in favor of any caps or limits though I understand the law is meant to limit benefits to save money. My view is that insurance should cover your real losses and having a permanent impairment is a real loss for most claimants.

ICAP Almanza case on DIME jurisdictional requirement

The Almanza case decided by ICAP several weeks ago reminds us about the awesome power of a jurisdictional situation. It is not freely available on the web but I was provided it in a recent update. It reminds us that anything that is jurisdictional must be carefully handled. In this case there was a DIME examination and report issued. Respondents were concerned about the examination and sought by motion to delay the requirement that they either admit based on the report or contest it with a hearing application. They requested an extension of time to admit or contest the DIME report until depositions were conducted. A prehearing ALJ (administrative law judge) agreed and issued an order of extension. Ultimately this led to a hearing where the claimant's impairment rating was reduced because the DIME report was not a proper DIME report and a new DIME had reduced it. The claimant appealed to ICAP. In this decision ICAP determined the original extension of time was error because it is a jurisdictional matter. The requirement to admit or contest the DIME report is 30 days and no extension granted by the judge was proper. It further ruled the original report was not improper. The DIME physician had a communication with the claimants interpreter which while improper did not invalidate the report as a matter of law. Here the claimants appeal was successful and the original DIME rating was ordered. So where a matter is jurisdictional it is almost etched in stone. Respondents must admit or contest a DIME report within 30 days as provided by law. No extensions are possible although Respondents in this case could have contested it and sought a delay of the hearing date which is not a jurisdictional matter.

January 2013 Colorado All About Claims Newsletter

Every now and then Colorado puts out a workers comp newsletter. They just recently published this issue in January 2013. It is actually quite nice to read this newsletter as it personalizes the system and

also alerts you to recent developments. The process is not faceless and this issue provides us with some information on Judge Purdie. It introduces you to Judge Lamphere. It discusses new rules and procedures too. I actually would like to see this newsletter published more frequently and have claimant and respondent input too. The newsletter is an informal way of discussing various workers comp matters and meeting those who play a role in the workers comp process. People can be critical of the system and the outcome of cases but I have to admit most of the people who work in it, from judges to attorneys to assistants, work very hard. Many cases are quite complicated and take a long time to resolve. There usually is just a formal side that you may see. The motion, the order, a brief, a form to fill out and medical reports to read can make it all seem very cold. But there really are people involved in the process. A claimant may be the most involved but the adjustor is also financially and actively involved. Newsletters and other publications can help all of us understand how it is going and even some of the players. If at all possible every claimant should obtain an experienced attorney. Going it alone is quite hazardous especially in terms of getting the proper treatment and receiving an adequate award.

The Top 10 Bizarre Cases for 2012

Over at LexisNexis they gave us their top ten bizarre workers compensation cases for 2012. Now each state has their own laws and none of these are Colorado cases. But they still are provocative. So for the that reason perhaps they are worthwhile to tell us that strange cases sometimes appear. Bizarre is the word used by the author of the LexisNexis article but these cases are, at least, unusual.

These cases discuss rattlesnake bites and exotic dancers and pigeon droppings but they also discuss how surveillance led to a tort claim. Being claimant oriented I do not approve of the outcome in all these cases and no one should consider them Colorado law. But they are unusual and interesting to read. They remind us that workers compensation is not a simple matter. Many cases can get quite complicated. Some can last for years. It is advisable that whenever possible a claimant should seek out an attorney to assist him. Even where a claimant has been treated nicely in the beginning you usually can use an attorney to set up the final settlement or resolution. Insurers will almost always take the lowest cost way to end cases and imply that is all you get. Historically having an attorney increases your odds for a better settlement. You often just get one shot at this for a problem that you may have for the rest of your life. In my experience settlements have been far higher with an attorney than relying on the insurer to be fair.