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.

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.

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.

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.

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.

New Policy on Prehearings

In an email sent to many representatives the word is out on some changes in setting up prehearings in Colorado workers compensation cases. Prehearings are useful in clearing up some disputes. For example if the other side has not provided discovery you might ask for a prehearing to compel the disclosures. Imagine going into a real hearing without disclosures of what the witnesses may say and what evidence will be submitted. A prehearing judge hears what is argued and decides on these preliminary but important matters. An order is issued which you disregard at your peril. A prehearing is not a full scale hearing with evidence and testimony but usually concerns legal arguments where the judge assists in moving the matter forward by issuing an order. In any event we are now told the email for this is dowc-phc@state.co.us. We are also told not to submit more then 10 pages by fax so seemingly they prefer that you email the materials. Should you do so at the last minute call them at 303-866-5508 (the number to set a prehearing)so they can retrieve the email in time for the prehearing. They also want you, when setting a prehearing, to confirm the date and time with the other side and provide email addresses to the prehearing unit. They also request being notified as soon as possible when a party is cancelling a settlement conference. Most of this is just common sense and contact information. No one likes it when someone is a no show or the proceeding is slowed. The prehearing judge does not have unlimited time to wait on faxed materials or emails so the point of this is to speed the process along. I can say that often in the past settlement conferences were cancelled at the last minute by the respondents. Usually it was because the respondent attorney did not have the dollar authority to settle.

Retired Prehearing Judge Ron Jaynes Passes Away

I was just notified today that retired Judge Jaynes passed away this morning after a long illness. There are no further details yet. Judge Jaynes retired in 2009. What most impressed me about him is that he was very down to earth and always polite. In a day and age when we are often having to pierce through a cloud of confusing details you always knew that he would try to keep it simple and understandable. He could do so with a sense of humor too. You can see him in this 2008 newsletter on page 3. Rest in peace.

Update: Services for Ron Jaynes are Friday, February 11, 2011 at 1:00 p.m. at Highline Community Church, 6325 South University Blvd, Denver.

Workers Comp Educational Conference

The Colorado Division of Workers Compensation placed all of the written materials from its first annual educational conference online. You can access it here. The materials are fairly extensive and insightful. Be aware that some of the materials seem to be in outline form because these materials were handed out at an actual conference where the writer also lectured. The materials do presuppose some knowledge of workers compensation but I have to admit they are a valuable resource to anyone in this area. It helps to keep us up to date and to address areas where there may be questions.

Prehearings and Settlement Conferences

In workers compensation cases prehearings and settlement conferences are incredibly important matters. Click here to visit the Division information page . Also click here. What is important about prehearings is that they often simplify and clarify situations. For example when the other side does not supply requested materials that are discoverable a claimant can file a Motion to Compel. A Prehearing Administrative Law Judge (PALJ) can issue an order requiring compliance. Should anyone fail to comply there can be severe sanctions. Settlement conferences are also valuable ways to resolve cases. After all many cases have disputes or issues which can require a hearing. In particular the extent of a claimants permanent disability is often disputed by the parties. If the dispute goes to a hearing then we must wait for the Order which can be appealed and sometimes all this can take many months. A settlement is a compromise between the parties to obtain closure with a certain outcome. Perhaps the insurer has admitted the claimant is permanently impaired but the amount is subject to more then one interpretation or even the claimant feels he is now permanently and totally disabled. Such matters are very contested and settlements afford the parties a chance to resolve matters and move on with their lives. However it does involve compromise from both sides. What is nice about settlement conferences is that a judge is involved as a mediator to try to work out a compromise. This judge never hears the case at a hearing but is there just to help the parties settle if possible. I've had cases where the settlement efforts did not succeed but usually with some effort they can work. It does require that you accept a compromise. If either side cannot do this to settle a case then we take the longer road of a hearing with likely appeals. Sometimes a settlement is not the way to go or the parties are too far apart in the negotiations so the best answer is to proceed with a hearing. The Rule on Prehearings and Settlement Conferences pertains to these proceedings. Also the statutes are here and here.