Nothing Much

Not very much happening in my field. We still have the monthly Brown Bag seminar which is posted online for anyone to watch and read the cases. But then I have posted about this excellent source of updated cases for quite a while. And you can access what is posted in Colorado workers comp at this website. I thought it best to just remind you of this as the website contains a great deal of information. However there have been no newly published decisions in the area lately so this blog has been quiet for a while. Still there are cases which the Brown Bag does address to keep you apprised of issues coming up in the field. At the website you can also see what is the latest legislation and treatment guidelines and much much more. Anyway I did want you to know that the system keeps rolling along. Sometimes that means good things happen and sometimes bad things. Since this will probably be the last post for 2016 let me wish all of you the very best in the new year.

All About Claims Issue 44

From time to time the Division issues a newsletter. The latest newsletter is issue number 44 and once again it seeks to bring us up to date. It alerts us to a new prehearing judge, John Steninger. It also discusses certain medical fees

and generally provides other information such as a link to a new adjusters guide. For those with claims or those in this field you should always read these newsletters. They are informal but still insightful on topics of interest to many of us. At the Division website they even have archives of such newsletters for your perusal. It is quite nice to give us a heads up about matters of importance to many of us.

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?

So Long 2014 and Happy New Year 2015!

Well in Colorado we are approaching the new year. The year 2014 was "okay" for workers compensation in the sense that nothing horrific happened to reduce rights or benefits for claimants. The Division did post a new website appearance and there were some changes which can be seen in the prior postings on this blog and on the Division website. I am sure that 2015 will produce new cases and changes in rules or guidelines. From my perspective 2014 was fairly tame in Colorado workers compensation. Of course those claimants that had adverse decisions were not happy but nothing dramatic happened to greatly alter the state of affairs in this field. I still have concerns in some areas which I have commented on in the past but at least the field has been reasonably stable. Hopefully in 2015 every claimant will have experienced representation and fair treatment by the system. I WISH ALL CLAIMANTS THE VERY BEST IN THE NEW YEAR!

Video Presentations of Recent Cases

I really like that the Division has a page devoted to video presentations which discuss recent cases. This has been done monthly for quite a while. Many attorneys enjoy the monthly live presentation but these cases are then posted on a web page so anyone can read and listen to a review about the cases. Not every case is reviewed just those deemed significant but I have found this process to be very educational. In any event to gain some insight about what issues are being heard anyone can access this page and listen to the monthly presentation. Often these cases contain cutting edge issues in the workers comp field in Colorado. After all a case may be quite complex and listening to a review or analysis gives you a good sense or perspective about the case.

All About Claims Newsletter, Issue 37

The Colorado Division of Workers Compensation has issued a new newsletter, issue number 37. A newsletter is an informal way of providing insight as to what is happening at the Division. This latest newsletter contains an interview with Chief Administrative Law Judge Goldstein. It provides his history and experiences. In addition the newsletter gives us other news such as the addresses for prehearings and the Office of Administrative Courts. It also discusses some changes in the Division IME (DIME) law. I enjoy the newsletters and expect that many others do too. Reading about the people involved with workers compensation and getting insight on changes as they come along are both informative and enjoyable. I would love to see these newsletters issued with regularity.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Issues to Think About for 2012

Around this time of the year I look back at the year and ahead too. Someone asked me about national issues in the field of workers comp but really not much has changed over the last year in Colorado. By that I do not mean that there were no changes or interesting developments but that it was a year of slow or minimal changes in the law. Still there were some developments. For the statutory developments just click here for an overview. For what is new at the Division of Workers Compensation you can click here. For caselaw we cover this in our blog. But as for the national or evolving issues in this field I guess the overriding issue is the economy. Still that is not unique to workers comp. What I have noticed over the years is there are increasingly technical or more precisely medical issues in workers comp. They usually trigger a battle of experts. What you then see are many cases that have become medical battlegrounds. The battling experts are the doctors. In such battles the advantage is often with the insurer. First, the treating doctor is usually selected by the insurer or the employer. Not exactly a good deal for the employee especially when there is a controversy. Next they cultivate those doctors who issue reports and testify to the benefit of the insurer position. It's expensive for a claimant to use his or her own doctors. Testimony expenses are billed at $450 an hour in most cases and includes commuting and wait time too. It is easy to spend over $2000 for one such expert. Advantage? Insurer (I have had insurance defense attorneys tell me they can pay $5000 or even $10000 for their experts). This can cripple a claimant's case. It strikes me that this is impairing a fair fight or what I would call access to the system. In civil matters there is a growing awareness of a need to simplify proceedings because when matters are complex or highly technical it works to the advantage of those with the money. In Colorado there is a interesting new seminar on this as relates to civil proceedings other then workers comp but it strikes me that improving access in workers comp is extremely important. By permitting many experts we skyrocket the costs of a hearing. It may be wise to limit this. Perhaps for a fair fight we should let the claimant have his expert as a covered benefit but that is not the current law. In my opinion any effort that speeds the process, makes it a fair fight and reduces something that is complicated to what the computer crowd would call user friendly is to be lauded. The workers compensation system was not intended to be unfriendly to injured workers. It was intended to be an efficient way to deal with work injuries and hopefully protect the worker while he recovers from his injury. In my view that is not happening and perhaps we need address this so we get back to the original purpose of the workers comp laws...to assist injured workers even if benefits are limited by statute. Otherwise the problem is shifted to all of us.

RIP Curt Kriksciun

Former prehearing Administrative Law Judge and Industrial Claims Appeal Panel member Curt Kriksciun passed away on October 4, 2011. While I may not have always agreed with his views he was truly a gentleman. As a prehearing judge especially in handling settlement conferences he was usually seeking compromise whenever possible. To do so he would chat and provide comments from his experience. This usually would have a calming effect with my clients who were often stressed by the process. My impression is that he always sought to be neutral and objective...even if it was difficult. But by being friendly and relaxed in his approach he would lower the stress level. I am sure he had this effect with many people that had matters before him. He then became a decision maker or member of the panel reviewing cases appealed after the initial decision. He performed well in this last position and I daresay the quality of those decisions improved with his involvement.
Services will be Tuesday October 11th.

Rule 16 and 18 Proposed Changes

The Division lets us know about proposed rule changes and this change concerns Rules 16 and 18. These are medical matters which are changed just about every year because medical costs keep rising. Rule 18 involves medical billing and Rule 16 utilization review. The proposed rules are posted and then adopted after comments are received and reviewed. Most of this is not very exciting information except for doctors and other providers although at times a claimant or claimant's attorney does have to look at the rules. What a doctor can charge for legal things like testimony, consultations, reports and the like are important to know. Such matters are often the responsibility of the claimant if he or she asks for any of them. So wanting to have the doctor come to the hearing is fine but it is also at a cost to the claimant. So while these rules seem complicated to read and perhaps not that important to claimants most of the time there are situations where a claimant needs to check on what the rule says. For example, in the past there has been litigation on the subject of what is called prior authorization. This area involves a provider getting advance approval for something and when approval is not forthcoming the doctor and perhaps the claimants attorney may wish to dispute it and even seek penalties. What is addressed in Rule 16 on the subject becomes quite important in such a situation.