The Latest Brown Bag of cases

On November 19th there was another Brown Bag seminar by Prehearing Judge Eley that covered the recent notable cases. While there are no published cases from the appeals courts there were cases at the lower levels which we call ICAP (Industrial Claim Appeals Panel). These cases are the next level up after a hearing decision. They tell us what cases are being appealed. You are urged to listen to

the online materials for November. Attorneys can obtain continuing legal education credits by listening to these short seminars monthly but anyone can benefit by listening to the case review by Judge Eley. Moreover each month they also post the cases which you can read on your own. Perhaps the case which I found most interesting was the Baran case. It lets us know that the issue of permanent injury should be deferred until the DIME (Division Independent Medical Examination) is performed. There the other side wanted to close out the case but the claimant wanted to pursue a DIME. My experience with the DIME process is that in the vast majority of times it is better to go for it then to ignore your right to it. It does require a judgment call by the attorney or party but if properly done it can often greatly benefit a claimant. The treating physician is seldom independent and often can rate the injury as too low. He can even say treatment is over when another doctor may believe that more treatment can help. The DIME process is a great process to use provided you obtain a good physician for the exam. The selection process requires careful analysis and choice but an experienced attorney usually gains much for the claimant by using the process. In any event you can review the Baran case and other recent cases by reading or listening to this Brown Bag seminar for November 2015.

All About Claims...another newsletter!

In September the Division issued another newsletter. Bravo! I certainly enjoy these newsletters and they provide quite a bit of information.This latest newsletter has a great article about Pat Clisham another judge. It is really nice to

learn about the judges. This particular judge I am aware of from my practice. Even when she was working for the other side I always felt she was fair and reasonable. I am sure she will be a great addition to the workers comp system. There is other information in the newsletter. For example the Division has issued a new article for employees in Spanish. In any event I encourage you to take a look at the newsletter because it helps us humanize the system and it gives us a heads up on some matters. The workers comp system is not as impersonal or impossible to comprehend as you might think. No doubt it is always preferable to hire yourself an attorney but the website maintained at the Division is very informative. In any event why not read this latest newsletter?

Colorado Springs Hearing Offices Have Changed

I have noticed that the Colorado Springs hearing offices have changed to a new location. I no longer practice given I am retired but while checking the website I now see the change of location. The previous offices are not that far from the new location but I always felt the old location was a bit cramped. Finding a place to sit down with a claimant to review before a hearing was sometimes difficult. If there were several witnesses it became quite cumbersome. Hopefully the new location is more convenient and spacious. A number of years ago the workers comp hearings were held at the local courthouse. The courthouse needed that space to expand its services and the state then sought space elsewhere. I recall having hearings behind a library in a schoolroom. The last offices were an improvement but I suspect the new location is even better.

All About Claims newsletter August 2015

The Division has just published a new newsletter for August 2015. Usually these newsletters are very helpful in providing insight into the Division and giving you a heads up on various legal matters. This month the focus is on Prehearing conference Judge Craig Eley. For my cases and myself Judge Eley has been great. He does

more then decide matters. He educates many of us with his Brown Bag monthly lunch seminar on interesting recent cases. He does so often with great humor. He helps settle cases by being the go between in a settlement conference. His story is in the newsletter and it's enjoyable to read about this popular and capable judge. At present he is working part time at the Division. I for one certainly hope he continues on for many years to come. By the way in the story Judge Eley tells us about one hobby he has, that of beekeeping. By day he deals with attorneys but goes home to relax with 60000 venomous insects. Also the newsletter alerts us to other things. There is a link to the latest laws and it provides a link to a guide for adjusters. You never know what these newsletters contain but they are always an interesting and even light hearted read. August 2015 gives us another excellent article and information.

Oil Worker case makes the Denver Post

It is not often that a initial workers comp hearing decision makes the papers but this one did. It is not an appeals court case but the article indicates it will not be appealed. The case involved a deceased oil worker. It appears he was tank gauging or opening a tank to

measure oil levels. He inhaled a toxic mixture of deadly chemicals and died. The case was contested by asserting the workers diabetes, hypertension and coronary artery disease caused his demise. Apparently there have been several deaths doing this work activity and the thought was those deaths were natural from health problems but this is changing. In this case after a two day hearing the judge ruled it was a valid claim for a work injury. The Denver Post picked up on the case and wrote about the decision. You can read their article by clicking here. It reports the widow will receive $530 a week for life. It is clear that the claimants attorney did a very good job. It also sets the stage for others to make claims and it may also lead to increased safety efforts. Bravo!

Beware Social Media!

It should come as no surprise that a claimant has to be concerned about social media. An injured worker will usually have restrictions and limitations. The other side will often conduct an investigation. They may follow you and video your activities. It is most common to follow you when you shop or go meet your friends. Then their vocational expert or

medical doctor may testify against you. So clearly a claimant must be careful. It does not matter you were taking pain killers or that you did something one time. A video can be devastating to your claim. Yet there is another matter to consider. It seems like everyone is involved in social media. Facebook, twitter, dating sites, forums, photo sites and other sites are there for you to post about yourself. Insurance adjustors or attorneys are seeking out what they can to limit your claim. So what you post may come back to harm your claim. It may seem innocent enough but a post that you worked in your garden or changed a tire or even just went on a hike may be not good for your case. Any sort of sports activities posted by you may hurt your case. Even trips you take might be used against you. My best view of all this is to completely stop your posts and photos or at least limit them because whatever you post may be used against you. Be careful! By having a claim you are fair game for being followed, snooped on and watched in whatever you do.

The Coats case or when is medical pot legal and illegal

Yesterday the Colorado Supreme Court ruled in the Coats case. In that case a disabled employee for the Dish Network was terminated under its no tolerance drug policy. The worker was productive but required medically prescribed marijuana.

He used it in off duty time but of course the mere presence of it in his system was enough that the company felt compelled to terminate him. Now in Colorado medical marijuana is legally allowed by state law so the employee sued because of this termination. He lost because it was determined that medical marijuana is illegal under federal law and its not enough to be legal under state law. Eventually the case reached the Colorado Supreme Court and they also affirmed the dismissal of the lawsuit. Essentially they also ruled that because medical marijuana is illegal under federal law the termination of the employee was proper despite it being legal in Colorado. Now we all know that the federal law is not being enforced in Colorado so does this play any role? Could you assert that the federal law application has been waived or even that the Colorado law has been in effect approved as proper by the feds? It appears in Colorado the answer is that medical pot is legal and illegal and that is the way it is. In terms of workers compensation the potential benefit of medical marijuana is going to complicate matters if it is prescribed to an employee who works for a company that terminates for such use. In Colorado it is now legal and illegal to take any amount of marijuana. That is a tough place to be if it stays this way. For now Coats is the law.

Memorial Day 2015

Once again there is another Memorial Day. With each year it seems to gain importance from my perspective and that of many others. On this day we honor those who have served no matter what the year or by what measure. We truly

live in a special land and the home of the brave. Without that service and sacrifice this country would not be here as it is. That service saved this country and its people. Our country remains a beacon of freedom in a world that needs that beacon. I went shopping today and saw a veteran seeking donations. Though I did donate I also made it a point to thank him for his service. There are those I cannot thank for they gave all but on this day we remember them with gratitude. In our country all those who served deserve our gratitude. And with it comes our need to commemorate on this special day. Imagine a world if the Nazis and Japan had won World War 2. Imagine a world if we as a nation had not stood up for our belief in freedom and justice. The enormity of their sacrifice cannot be minimized. So to all veterans, living and dead, thank you so much for your service. So we honor you for it and pledge to continue that great experiment in democracy called the USA.

New case on Volunteer Fireman Decided April, 23, 2015

Once again a volunteer fireman case reached the Court of Appeals. In the Smith case a volunteer fireman was injured on the way to a fire chiefs meeting. His claim was upheld but contested by Teller County and this led to an appeal. The contest was based on a number of

factors so there were several defenses. Teller County asserted the claimant was not an employee and was not attending a sanctioned activity. They also asserted that there was improper fact finding by the appeals panel and they felt the claim should be barred under the going and coming rule which can exclude a claim if it was coming from or going to work. The court disagreed with Teller County on all of their defenses and affirmed the benefits for the volunteer fireman. I am amazed at how often volunteers are considered important until they file a claim. Then they are not covered and that was the position of Teller County in this appeal. Fortunately the law protected this volunteer and the case is a good read on overcoming the arguments made by an employer. This is one where the good guys win.

Court case Kilpatrick decided March 12, 2015

A recent court case was issued on March 12, 2015. In Kilpatrick the claimant sought to reopen a closed case based on new evidence. As part of his efforts claimant sought discovery of the insurers financial records of monetary gifts to any

Division or hearing office personnel including judges. This was denied as over-burdensome and became part of the appeal by claimant. The Court of Appeals affirmed the decision yet it concluded that all judges are subject to such disclosures despite the fact that no regulations have been set up on this. It concluded the claimants remedy is with the Division or hearing office not the court in denying claimants assertion of a denial of equal protection of the law. I question this conclusion when the claimant is denied disclosures by administrative inaction. Still unless this is appealed the Kilpatrick case does limit discovery. Every party truly may need discovery to ascertain the issues, the witnesses and the evidence. To me this includes any monetary favors provided to a judge. While bribery is unlikely and most judges are highly ethical I do believe such matters should be fully disclosed. Next, the claimant argued that the doctor rescinded his opinion that the claimant needed no further treatment with a new opinion based on new evidence. However the hearing judge decided that the case should not be reopened. The judge did not accept the doctors change of opinion. The judge believed the change was equivocal and not enough to justify reopening. Certainly a judge can weigh the evidence and absent an abuse of his discretion a judge's determination cannot be set aside. I disagree with this and would assert an outright rescinding should not be considered equivocal. Still you are encouraged to read the case yourself for all the details. There were other concerns but none to permit a favorable decision for the claimant. In this case the claimant lost his appeal unless he can get the Colorado Supreme Court to look at it.

What Direction for Workers Compensation?

For the past several years workers compensation has been fairly stable in Colorado. I guess that is a good thing given that over the past 25 years or so I saw a downward spiral for workers benefits and claims. That is my opinion but I think anyone looking into it would conclude the same. Employers saw their cost of insurance go down which was no

surprise given the changes in workers compensation. Benefits went down when they were tied into impairment ratings. The battles seemed to be on medical issues and causality issues which did not address disability. As such I recall trying to move cases I had into the total disability area which generated higher settlements. But I always felt bad for the construction worker who loses his trade because of a hand or foot injury. I felt bad for not assessing overall disability when the focus became impairment. Well this problem was not limited to Colorado. Nationally there has often been efforts to restrict claims. In an article which was provided to me the story is extensively set forth. In The Demolition of Workers's Comp the author reviews this pattern of attack on workers benefits. It is a good read. I realize that business must control its costs in order to stay viable and employ its workers but I also see the injured worker as a cost of doing business which must be adequately protected. If not the cost is passed on to society and that means all of us. My view is that 100 years ago or so workers comp became important when we all realized that injured workers should not be an expense of society but should be an insurable expense for employers. So hopefully in the future direction for workers compensation we should all keep this in mind.

Another Newsletter

Recently the Division of Workers Compensation posted another newsletter. This is for February 2015. As I have said before these newsletters can contain a lot of interesting

material especially for attorneys and adjusters. They can also be useful for the injured worker. The February 2015 newsletter is devoted to medical matters. For example it notes to us that effective April 1, 2015 the injured worker is provided a list of 4 physicians to make a choice for his treatment. There are variations if there are less medical providers within 30 miles of the employers location. Still this is an improvement from years ago when the employer just selected the physician to treat you. That led to criticism of employer favoritism. The new selection process at least affords more choices for the injured worker. Anyone injured at work should carefully review the physician list maintained by the employer. Historically physicians selected by employers come from their insurers who have those they favor. I can assure you that there are physicians who are not dedicated to the injured worker and who try to speedily move along treatment, perhaps to the disadvantage of the claimant. And then there are physicians who are heavily claimant oriented. Attorneys practicing in this area know all about these physicians and those less friendly to claimants. Anyway the newsletter discusses this issue and other medical matters. Those wishing to stay on top of the field should take a look at this newsletter.

Customer Service

If you have a work injury then seek out representation through an attorney. Even where you are being treated fairly it remains my belief that you should obtain an attorney. Historically having an attorney often means obtaining more or better benefits. This area is complex and relying on the adjuster or your employer is simply not in your best interests. In my experience medical care is often better when you have an attorney. Also your compensation benefits are often far higher with an attorney. I've seen cases where benefits appear to be low become much higher with an attorney on your side. In any event there may be cases where you do not have an attorney or cases where it is early on and you need some help or assistance. In such situations perhaps the next best thing is to call the Division's customer service number. While they are not going to represent you they can provide some help and guidance. This can be a very technical field and it's better to contact customer service then go completely on your own. At least that is my opinion although having representation is usually your best bet under just about all circumstances. In any event feel free to contact customer service for helpful information and some assistance. The current phone number for customer service at the Division is 303-318-8700.

All About Claims newsletter of December 2014

In December the division posted another newsletter. Realistically it is not all about claims. That is just the name they gave the newsletter. They publish the newsletter every so often and its purpose is to provide information to claims practitioners. Actually it has some good reading in it for many of

those involved with a claim. The December 2014 newsletter has an excellent story about prehearing judge Tom McBride. What I like about it is that it humanizes the judge. We can get all wrapped up about a claim and the issues that we forget that those that decide any issues or assist us with settlement are quite human even if very experienced. The newsletter also touches on other subjects such as the new streamlined electronic settlement approval process and the new reporting requirements of OSHA. you can read about it and other resources in this latest newsletter. While the topics may not be relevant to any ongoing cases they do explore areas of interest to many in the field. Certainly anyone practicing should take a look at these newsletters as they come out but it also gives all of us another form of communication from the division to those involved with workers compensation in Colorado.