What is sedentary or light work?

Whether in workers comp or Social Security disability we often come across the term sedentary or light duty. For example it is common for someone with a back injury to be at light duty levels or have even more restrictions so he is at sedentary levels. The importance (in a legal sense) to this is that it can relate to how employable a person really is and the answer to this can greatly affect his or her benefits. Especially in Social Security cases age and restrictions play a major role in qualifying for benefits. In workers compensation cases they are also significant although it is more complicated since they play a role with temporary and permanent benefits but impairment ratings may also be significant. Strictly from a safety standpoint I've always felt that obtaining restrictions lets you and possible employers know what is the extent of safe phyiscal activity. In any event here is a link to a "disability doc" who sets forth the accepted definitions of sedentary, light, medium and beyond levels of activities:
http://www.disabilitydoc.com/work-descriptions/

The Fera case decided May 3, 2007

This case involved a denial of preauthorization by the insurer. Typically when something like surgery is needed the doctor seeks to have the surgery preauthorized so it will be paid. Here that was sought and the insurer denied it. The claimant sought penalties but the insurer said it had promptly run the need for surgery by a physician and he said it was not needed so they could deny it. The claimant however had other physicians who said it was needed so he felt the denial was unreasonable. The case went against the claimant at the lower levels as it seemed the insurer had acted promptly and had a basis for denial so the effort to seek penalties was struck down. However at the Court of Appeals level it was decided that merely acting promptly and having one physician advise them the surgery was not needed may not be reasonable given all the evidence and it should go to a hearing not be struck down by summary judgement. Here is the link to the decision:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6119&CourtID=1

Disfigurement New Law!

HB 1297 was just signed into law by Gov. Ritter. For many, many years an injured worker with a scar or disfigurement was limited to no more than $2000 for it. You would appear before the Judge or provide a photograph and from that the Judge would sign an order for a sum up to $2000 but no more. I've seen low amounts around $200 and other amounts that were higher awarded by a Judge. But if you had horrendous scars you were still limited to no more than $2000. Despite the passage of many years the top amount awarded stayed at $2000. Colorado legislators failed to consider increasing it and the disfigurement benefit was ignored. Today this was changed by HB 1297. The basic disfigurement benefit was increased to as much as $4000. But also for horrendous scars that deserve more the top dollar could go to $8000. Lastly they added a yearly review so it could even increase each year. Anyway here is the link to the bill:
http://www.leg.state.co.us/CLICS/CLICS2007A/csl.nsf/fsbillcont3/AF150CF1FE93E20E8725726C0065CB1D?Open&file=1297_enr.pdf

Refunds from Pinnacol to businesses

It appears from an article in the Denver Post that Pinnacol (the state's largest workers comp insurer) will be refunding or redistributing money back to employers. Quite a bit of money actually. One possibility is that there are less claims because everyone is safer. Another possibility is more ominous....money is being saved by not paying out enough benefits. I personally suspect the latter because the law and rules make it easier on insurers and harder on claimants. Read the article here:
http://www.denverpost.com/headlines/ci_5735325

All 50 States link to agencies

Here is a link that seems to have info on each state's agencies involved with workers comp. I provide it to make a point that each state has its own way to handle work injuries. While the laws and procedures can seem the same they are in fact different from one state to another. Workers compensation is a creature of statute (created by each state legislature) and the rules, procedures and caselaw vary from one state to another.
http://www.comp.state.nc.us/ncic/pages/all50.htm

State Representative Carroll

Rep. Carroll maintains a blog and this link shows her concern for injured workers. She is in the forefront of efforts to provide fairness in the law. She is pushing HB 1176 mentioned previously in this blog. Bravo !
http://www.repmorgancarroll.com/blog

Her current position is state senator and visit her blog by clicking here.

Social Security Disability Blog

Here is a link to a blog by an attorney in the Atlanta area who handles disability cases in his area. What makes it so good is that he answers specific questions on SSD and SSI claims in a very easygoing manner. Many topics are covered in his blog and it makes an excellent read. Most that he writes about concerning Social Security applies here in Colorado too. I notice that in his region getting a SS hearing can take over 2 years. There are delays here too and this is unfortunate. We tell people to expect a delay of one year or more. In any event since some injured workers may need to consider filing for SS benefits go ahead and explore this blog for some easy to understand information.
http://www.ssdanswers.com/

Colorado House Bill 1176 (UPDATE: signed into law)

The Colorado legislature seems to be moving to pass a law which involves an injured workers right to have a choice and change doctors. The current law says your employer has the first right to pick your treating doctor when you report your injury and need medical treatment. This usually results in being sent to a facility hand picked by your employer/insurer. Trying to change doctors is not easy and my experience has been that such hand picked doctors often will treat and release claimants too early. The proposed law gives claimants a bit more protection. As of Jan.1, 2008 it requires they be given two choices and also lets them switch more easily within the first 90 days. It really is not as good as having a choice of any doctor you wish but it is more then being stuck with one doctor. Still it has been opposed and it is alleged the current system works just fine and few workers request any change of physician. Most of us in this field know perfectly well that changing doctors is seldom easy and if it requires going to a hearing can take many weeks with an uncertain outcome. If we truly care about recovery then this law gives a bit more help to the worker if he feels his employer picked doctor is not helping him. Hopefully this bill will pass and be signed into law by the governor. Here is the current version of the proposed bill:
http://www.leg.state.co.us/Clics/Clics2007A/csl.nsf/fsbillcont3/E3C7D5EE3B482E3E87257251007A4308?Open&file=1176_ren.pdf

A Few Interesting Stats

It appears there were over 10000 hearing applications in 2004 in Colorado. The actual hearings held were around 1500. There were however some 7000 settlements. So the general rule with injuries at work is that most result in settlements. But getting to a settlement or a hearing is often a complicated matter. For example there also were some 8000 motions filed in cases in 2004. Disputes are common in work injury cases and often the injured worker is truly mystified by it all. It seems as if they go from productive worker to problem employee overnight even if they've worked for the same employer for years. Medical, legal and financial worries can all be part of the stress on an injured worker. Employers and insurers suddenly can treat you like an adversary but even if they are trying to be decent about it the stress of needing to recover and move on with your life can be high. Even a minor injury can have long term consequences on your life so you should keep informed and if possible obtain good legal advice with your case. You can call us at 719-596-8900. If you cannot obtain an attorney or need further questions answered contact the Division customer service people at 1-888-390-7936 (toll free).

House Bill 1008 (UPDATE: signed into law)

This proposed legislation tries to offer presumptive coverage for firemen who develop certain types of cancer. Firemen are exposed to many dangerous or toxic substances... and the bill attempts to shift the burden to insurers to fight a workers comp claim. A major difficulty for injured workers and a major defense for insurers is to assert the burden is on the worker to establish his health problem is related to work activities. Thus with a fall where your back is hurt insurers may allege you had a pre-existing back problem so whatever you have is not their problem. Or if you are exposed to toxic chemicals and develop a disease they say it is up to the claimant to prove it is work related. Then they obtain medical opinions it is unrelated to work or of unknown causality. The expense of fighting for benefits can be high (you may need your own expert at your cost). The bill simply cuts this insurance defense off and forces them to carry the burden where it concerns certain cancers with firefighters. Bravo! Ever since this was proposed it appears the insurers have been fighting it by screaming it is unfair. They assert this even though they can pick your treating doctor and then another doctor to defend themselves. This choice they have prevents fairness and often overburdens the claimant. After all how many company selected doctors will say your cancer came from the company work? Anyway here is a link to the dispute:
http://colorado.mediamatters.org/items/200703270002

New Court Decision Today...on Average Weekly Wage

The Colorado Court of Appeals issued a decision today favorable to claimants. The Avalanche case involved calculating average weekly wage. Such a wage can often lead to increased temporary and permanent benefits. Traditionally such a wage is calculated as your pay rate at the time of injury. But this can be reassessed by the Administrative Law Judge. Here the person had a claim with one employer and it was closed out based on her wage at the time of injury. Then later on she sought to reopen the case because her condition had worsened. It was reopened and also the judge calculated her benefits on reopening at a higher wage calculation including adding for health insurance. In effect 5 years after the injury her wage calculations were made higher. In fact they were based on her pay rate with another employer and with the other employers health insurance. However unusual the principle is simple...a judge can determine your average weekly wage in any way that fairly compensates you. The employer asserted this was extremely unfair to them to be saddled with some new calculation years later but what we are really involved with is insurance and with claimants who could be trapped into low calculations despite the passage of many years or other valid considerations. After all we must remember that workers compensation should be keyed around fair compensation for injured workers. Someone not injured who kept working would have pay increases over the years...should the injured worker be stuck at low levels of pay? The court said there are situations where a judge has the discretion to adjust this. I applaud this decision for far too often benefits are limited and never consider the passage of time on pay rates. Yet in a job you are often paid higher wages over time. You can read the decision here:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6056&CourtID=1

UPDATE (August 2007) : This decision will be reviewed by the Colorado Supreme Court so any final outcome is pending. You can figure a decision will issue next year on this.

Workers Memorial Day April 28th

According to information posted at the AFL-CIO website there were 4.2 million work injuries in 2005 and also 5072 deaths from work injuries. They have designated April 28th as a memorial day for those injured and killed on the job. The link below will take you to the AFL-CIO website with its references to this day. Also at the site there is quite a bit of other information. This of course is a pro-labor website but I've always been concerned that few groups or organizations are out there trying to protect workers, especially injured workers.
http://www.aflcio.org/issues/safety/memorial/

What is a DIME in workers comp?

Often this is an absolute must do in many cases. A DIME is a Division Independent Medical Examination. It is critical in many cases that a claimant seek a DIME. The cost for this is now $675.00 all to be paid to a doctor for a second opinion but it is necessary in many cases. A claimant is usually treated by a doctor picked by the employer. Many though not all of these doctors seem to treat and release people with low ratings for permanent injury and little to no further treatment. In case after case many claimant attorneys see this happen and it really is distressing. If properly set up and planned for a DIME will almost always help a claimant although there are no guarantees. If more treatment is needed it comes out in the examination. For example many claimants have psychological difficulty that comes from the work injury. However the treating doctor misses it or ignores it. This can be addressed in a DIME. Also additional medical care may be needed. Or, if all has been done the DIME may reveal a much higher rating which can result in far greater compensation. There are even cases where the treating doctor released a claimant with no impairment and no restrictions and this was incorrect. Insurers love this and file to close out cases fast so if this happens be aware you are usually on a deadline to seek a DIME. Selecting a DIME doctor is a delicate matter and there are rules to abide by in setting it all up. A DIME is a doctor selected by a special process through the Colorado Division of Workers Compensation to truly evaluate your injury and comment on certain critical matters. It is often invaluable in obtaining more care and better benefits for people to pursue a DIME. However it is not an automatic thing to do so it's not for everybody and if you are indigent there is a process to have the insurer advance the cost.

What is your comp rate?

The maximum temporary compensation rate in Colorado varies from year to year and is usually adjusted around July 1st. So if you are hurt on the job and are wondering what is the rate you will be paid (assuming they are not contesting it or asserting some sort of reduction or loss of benefits) it is two-thirds of your gross or total pay before deductions up to a top rate of $719.74 (for anyone earning $1079.01 or more). So if you make $600 a week then $400 a week (paid biweekly) would be your rate for temporary benefits if you cannot work or are unable to be accomodated with the restrictions imposed by the authorized treating physician. If you are earning $450 a week then $300 a week is the comp rate so it all depends on your gross pay. These benefits are not taxable. Seems simple enough right? Well what if the employer terminated you after your injury and says its your fault. It can take a hearing to see if you are entitled to benefits. Or, if the employer claims you violated a safety rule...if true it can reduce your benefits in half! If you are receiving Social Security disability or retirement benefits this also may reduce your workers comp benefits. However if you were working two jobs that may increase your benefits. Another factor is if you are under 21 years of age...it is quite possible your rate may be treated at the highest rate possible even if you were working part time. Colorado seemed to realize that if a minor is hurt and perhaps has an injury that lasts long term there should be a special way to calculate his benefits. If you are injured on the job your average weekly wage is usually what is used to calculate any compensation but what is your average pay rate? Many times the insurance and employer calculate it one way when it could be higher. It is best to review this carefully as it can result in a difference of several thousand dollars more due a person which if not pursued is a true loss. For example, your employer may turn in your pay as being your base rate and forget to add for overtime. That is wrong but often happens and affects not only your temporary benefits but also your permanent benefits. So verifying your pay rate is an important task. Moreover even if the initial figure is correct it can be adjusted later on for any loss of your health benefits paid or partially paid by your employer. So there is nothing simple about this area...it requires a careful assessment.

Continuing Legal Education...workers comp

I'll be spending one day in the week coming up at a legal seminar on workers compensation. There are a few seminars in this field a year and it seems that I always attend two of them. The two seminars that are well attended by those of us in the field are full day seminars. So much is happening in this field that two days a year are needed to stay on top of it. I enjoy them because I also get to meet others in this field from judges to attorneys to others like those handling the proceedings at the Division. Often the topics are so many that I have to pick between two different topics in any one hour. All this is called Continuing Legal Education and it is also incredibly valuable to be updated on a regular basis. CLE or Continuing Legal Education is a requirement imposed on practicing attorneys. In Colorado you are required to have 45 hours every three years. The workers comp seminars alone exceed this and I have to admit they are enjoyable to attend. I wish some of our legislators would attend too. They would gain some valuable insight into how the system is working and where it is stumbling.