Colorado versus Kansas workers comp

Workers compensation benefits are not governed by any national law. In Colorado they are established by state legislation. The state has imposed dollar limits or caps on benefits (not on medical benefits) although not on those permanently and totally disabled. Apparently in Kansas they have capped even those benefits. Efforts are being made to change the situation in Kansas. Here is an article on this. Unless changed injured workers in Kansas are limited to $125,000 even if they are unable to work for the rest of their lives! It is well known that nationally until recently workers compensation benefits were reduced but we are seeing some improvement. Hopefully this trend will continue. It is simply unreasonable if not unconscionable to fix benefits and never change them. The result is that those severely disabled are often left to turn to government resources. Sorry but all we do then is turn the problem over to the taxpayers rather then insisting on decent insurance coverage for those injured at work. Roughly a century ago when the workers comp laws were enacted it was society that was upset with laws that a work injury was just a risk of every job. All of us know that without adequate coverage the problem is shifted to government. While I have problems with parts of Colorado law it is not on the subject of permanent total disability where Colorado allows for lifetime benefits. Unfortunately the Colorado definition is tougher then one for Social Security disability but at least benefits for a total case are not capped.

Recent WC cases for January 2009

Here is a link to recent decided cases/orders in workers compensation proceedings in January 2009. These are hearings held at the local level on a variety of issues. This link is to over 300 pages of decisions and some are quite complicated. It is not exactly easy reading but makes you aware how difficult these proceedings can get. The format for these are that first the judge issues findings of fact based on the testimony and reports/exhibits provided at the hearing. Then the judge makes conclusions and enters an order. You can see that many times the claimant loses. Hearings certainly place each side at risk as these cases show.

The Ortega case or 20 days means 20 days!

Just decided by the Colorado Court of Appeals on Feb. 19, 2009 the Ortega case involved a request for a continuance made during a hearing. It seems the Claimant received a medical report less then 20 days before the hearing and wanted to submit it although the law (Colorado statute 8-43-210) says it must be submitted to the other side no later the 20 days before the hearing. The report was from a family doctor who said the injury was related to work activities when this was hotly disputed. The other side also had late medical reports. They also had a medical witness at the hearing. The judge denied all the late reports. He then denied the request of the Claimant for a continuance. The hearing led to a decision denying benefits to the Claimant. The Claimant appealed and finally the case went to the Court of Appeals. Essentially the court said that 20 days is the law and there was no reason to say the local Judge committed any legal error which would justify reversing the decision. I will say the Claimant had a chance to submit his late report if the other side's reports also came in but that is really not well detailed. Apparently the Claimant's lawyer felt he had a solid reason to be excused from the 20 day law since the doctor did not even get it out timely. I cannot see what the reason was for the other side to be late. In any event a continuance was denied in part because the other side had a medical witness they had to pay. The court commented on the law but here is what is strange to me...the law does permit the Judge to order the case be continued but lets the Judge go forward with part of the hearing. Strict compliance with the law is not always necessary. It is hard to second guess the local Judge's decision but on the facts presented I question the decision to deny a continuance. The Court also seemed to suggest that the Claimant's lawyer should have acted sooner since there was an earlier report by the same doctor on the issue. I am just not sure why, in a search for the truth, when the medical report was really late that we say it's the lawyer's problem to anticipate the doctor sending a late report. Given part of the hearing could have gone forward and also continued for more evidence why insist on the 20 day law? Anyway read the Ortega case here. Hearings are administrative proceedings and many times they start one day and finish a month later.

Local Social Security Judge passes away

A southern Colorado Social Security Judge passed away recently. I have posted a link to the Gazette obituary here. Rest in peace Judge Keohane.

Pain Control Policies

When you represent people with disabilities and work injuries you come across misunderstandings about the use of certain strong medications to treat pain. Surprisingly even some physicians do not seem to understand the policy of the Colorado Medical Board or avoid dealing with it if at all possible. On February 10, 2009 another policy was issued by two national medical groups. It also tells us that strong medication or controlled substances like opioids can be helpful for pain management. If people can be more functional and their pain is reduced isn't that good or are we so fearful of abuse that we choose to let them stay hurting? That said Colorado does allow for controlled substances like opioids to be used although other efforts should be made when possible. Here is a link to the Colorado guideline on chronic pain in workers compensation.

Is This a Noteworthy Blog? Seems Like it...

Well aside from the LexisNexis award we received it looks like another blog called us noteworthy. It is always nice to receive a compliment. It's funny but we started this blog as a way just to post my comments and provide news of interest to others. It has been fun and sometimes challenging to do so and it does appear that it is educating its readers. I realize it is written from the perspective of the disabled or injured worker. I have found many to be exceptional people placed in difficult circumstances and often treated as no longer worthy. They can be terminated, contested, disputed and mistreated. They are often hurting physically, emotionally and financially. They are stuck in what can seem to be a nightmare but most truly just want to be fairly treated. They are often portrayed as fakers and money grubbers when all they seek are what they may be legally entitled to receive. Are there some that are out of line...of course and the same applies to the other side. There are always bad apples out there in anything.

Court of Appeals Rules in Snook case Feb 5, 2009

Snook was an independent contractor and sole proprietor who was hired by a subcontractor working on residential homes for Joyce Homes in the Highlands Ranch area of Denver. He was hurt on some scaffolding and sued Joyce Homes for negligence. Snook was supposed to have workers compensation insurance but did not. Joyce Home said it was a statutory employer under the workers comp act and as such its exposure was limited to $15000.00 The appellate court agreed that the point of this statutory employer law is to encourage you to obtain workers compensation insurance when you are a independent contractor. Thus when you don't have it you are limited to $15000.00. Snook tried all the arguments such as it is too low a figure to be stuck with and that it is a denial of due process and more. All the arguments failed. The lesson here is to always have workers comp insurance even if you are a small business if you want to be safe. If not your claim for injury, no matter how valid, may be limited no matter how serious your injury. The workers comp law is designed to protect employees and not independent contractors who really should have insurance because liability is limited to $15000.00. Unfortunately some small businesses in construction try to get by and save money on workers comp insurance. Often they are one man operations and in many ways are like employees but this is the way construction works. The plaintiff may seek to appeal this to the Colorado Supreme Court. Of all his arguments the one that strikes me as sad is that any claim he has is limited to $15000.00. That amount was placed in the law over 20 years ago and you have to wonder if it is so outdated and low that it is now unacceptable. In any event the case is here. One additional point...the Treasury Department is concerned about misclassifying workers as independent contractors to save money as noted here.

Attorneys Fees in Social Security a new cap figure

Historically attorneys fees in Social Security cases are 25% of back due benefits but most attorneys also agree to cap or limit the figure by using an approved form when submitting the fee agreement to the Social Security agency. Then the agency just disburses to the attorney and the client based on the fee agreement. Thereafter the claimant receives a full Social Security disability check or direct deposit as the attorney has been paid for obtaining or helping to obtain the benefits. Since most claimants also receive or are soon eligible to receive medicare or medicaid and no fee is due for that the contingency fee is an excellent way for those who do desire legal help to get that help without concern for paying for legal services until and unless they receive benefits. Of course no one must hire a lawyer and you can do it yourself to save that fee but it's not that easy. The new cap figure effective later this year is $6000.00 which means the fee is 25% but no more then $6000.00 and it will be less if your back benefits are under $24000.00. Back benefits due depends on the date your disability benefits should have begun and your wage record. If, for example, your back benefits total $10000.00 then the attorneys fee will be $2500.00. The agency computes the figures based on what I've noted above. Given that over your lifetime you can receive substantial dollar benefits and medical benefits the cap figure is a very small amount of those potentially lifetime benefits. Some complain about the contingency fee arrangement in these types of cases but it is the only way most people obtain high quality legal help at no charge unless they are successful. Try that with a surgeon or car mechanic!

Settlements New Rule 7-2

Effective February 1, 2009 all workers compensation settlements are to use a standardized document. This is set forth in Rule 7-2 noted here. This means that every settlement agreement will use the same language although there are differences depending on whether you are represented by an attorney or are representing yourself (called "pro se"). Also the Division has also provided a new Routing sheet which has to be provided as a cover sheet for the documents to be sent to a Judge for his or her signature and the issuance of an order. If you have an attorney he will take care of all this along with the insurance company and its attorney. If you do not have an attorney you will be provided all this by the insurance company and/or its attorney and you will need to have a Pre-Hearing Judge approve it but only after a proceeding is held where you are advised by the Judge. The standardized documents make it easier to speed the settlement process. In the past each insurer or insurer attorney had its own forms and some were more complicated then others. Now it is all uniform except for certain situations which are allowed for by the standard forms.

Community Resources

The link I am providing is to a directory of some 39 pages of resources available in the community. While developed for families it has a great listing of numerous community resources in the El Paso County area for anyone. It is in adobe or pdf format so it can be printed out but it may load slowly. My point in doing this is to provide a list with phone numbers for those who are financially stressed or needing assistance but have no idea where to turn. Look it over by clicking here.

Scheduled Injuries the latest way to figure benefits

Anyone who hurts their arm, leg, hand, foot at work is often shocked to learn that in Colorado there is a separate way to figure their permanent impairment benefits. So unless it can be considered a whole person injury by a judge or it results in a possible claim for permanent total disability Colorado law says it is paid by using the "schedule" for the injury. The problem is that these injuries are treated as not as important so they are paid lower benefits. At least that is how Colorado law makes it out. It is ironic but some people lose their trade and have a horrific drop in earning ability but insurers pay following the schedule. Roughly for every one percent of your arm or leg that you are permanently impaired means $500 for you. So ten percent of your arm is about $5000.00. You can figure this out yourself by looking at the chart here. You multiply the doctors rating by the number of weeks in the chart by the amount shown based on your date of injury. I assure you if your entire arm were to be amputated or useless the permanent benefit would be under $52000.00. Again there are exceptions. Also much more can be considered in a settlement but insurers relish the low payouts. I've said this before...Colorado should abolish this terrible way of calculating a permanent injury. Imagine a carpenter who can no longer grasp a hammer and do his job. His earnings loss over his lifetime could be enormous even if he goes to work in another field. Or, consider the fellow who plays a musical instrument and makes good money but loses his trade because of the work injury. The problem with the schedule is that it completely disregards your pre-injury earnings and pays a flat amount even when you lose your trade/occupation. I can say if the injury affects both arms or hands or both legs we do seek to make it a bigger case whenever possible. There are variables where even a small injury can mean a major claim but this is not true for everyone. In contrast if you hurt your back it can mean much higher benefits because the permanent figures do use your wage rate and your age. These variables often make the calculation much higher.

Social Security Administrative Law Judge History

Each judge in the Social Security disability system has a track record. These records are maintained by the Social Security Administration but were only recently opened to public viewing. The link right here is to the site that deserves much credit for forcing the records to be open for anyone. If you know the name of your judge you can type it in and find out his decision making percentages for the last 3 years. Of course these are but statistics but I have researched a few of the local Judges. Judge Ball issues favorable decisions at the hearing stage 62% of the time, Judge Maddigan 68%, Judge Musseman 48% and Judge Shaffer 70%. What it does suggest is that seeking a hearing after you have been denied can give you a decent chance for a fair decision. These Judges do not just approve the denials so many receive.

Reduced Aid to Needy Disabled

I guess I am always surprised when the disabled are treated as worth so little. They are often helpless physically and financially but to hit on them to save money seems way out of line. As reported in the Coloradoan the benefit called Aid to the Needy Disabled in Colorado has been reduced effective January 1st to no more then $200 a month. This is not Social Security Disability but is some assistance for the disabled while they perhaps wait for Social Security disability benefits. I researched this a bit and it seems about ten years ago the benefit went from $229 to $239 a month. To roll back benefits in this area seems incredible to me. Surely in these economic times there are other places to save then cut benefits for those most vulnerable.

Impairment vs. Disability in Workers Comp

A number of years ago Colorado joined most of the other states in changing permanent disability to permanent impairment. With respect to permanent disability unless you are totally disabled your benefits are limited to what is called impairment. You receive a "rating" from an authorized doctor or a Division IME doctor and unless overturned your benefits are based on this impairment rating. This amounts to the medical people deciding on your legal benefits by determining your impairment. While the judge can decide which rating is correct it is still a function of anatomical damage in almost all cases. The older historical basis of determining your loss of earning capacity was discarded. So let's say you are hurt and lose your trade and it means a true loss of future earnings over your life. The amount you'd receive is still based on the rating although for whole person injuries the formula does include an age factor and a wage factor. Still it is not an individual assessment of your loss of a job or trade. What Colorado and most other states did was say that physicians must use the American Medical Association Guides that are published to perform the rating. In Colorado we use the AMA Guides 3rd edition revised. This is old. They are now publishing the AMA Guides 6th edition. Is this edition better for injured workers? Nope...it's worse. Any edition of the Guides will say that it is not trying to determine disability only damage to the body or psyche. In the real world it is used to determine benefits in what used to be a legal question of disability. Also in my opinion the editorial board assembling the Guides are largely composed of doctors who are not really claimant oriented. The 6th edition seems to now be diagnostic based rather then measurement based on your individual range of motion. Claimant lawyers are highly critical of this and also well aware that the ratings coming out from this are often much lower then the 5th edition. Colorado has stayed with the 3rd edition revised but my concern is that all such impairments are artificial ways of paying benefits. The whole concept of paying for your disability has been hijacked by this impairment rating process. No one seems to care if you lose your trade. All these "reforms" did was to remove permanent disability issues and replace them with artificial ways of calculating benefits. I do understand that insurers wanted to save money but for that we have caps or limits in total benefits. What they did to the purpose of workers comp has always bothered my sense of fairness in compensating injured workers. The only exception is when you are totally disabled. Then the rating is less important and consideration is given to your age, education and lack of employability. I am including an excellent link to an audio discussion that interviews the prime proponent of the 6th edition and also a claimant's attorney. It is long but quite a listen. That link is here. Additionally a crtical review was written and put at the LexisNexis website here.

Wondering About Social Security Entitlement?

I came across a simple website run by the government that lets you answer some
multiple choice questions to see what, if any, Social Security entitlements you might be eligible for. It's pretty basic but it is very simple to use and may give you some insight as to what programs may be there for you. You do not post any personal identifying information. It is just a tool to see what pertains to you. If you want to talk with a representative at your local SS office (rather then use online resources) you should call them at (719) 574-9279 to see if you need an appointment. Often the office visit can take a while. Should you wish to apply much information is needed such as the names/addresses of your doctors and employers for many years. Also be aware that when you describe the jobs you've done do not be incomplete or inaccurate. Realize that disability in its simplest sense means that you are no longer employable. So if you can physically/mentally do one or more of the jobs you've done in the past 15 years on a sustained basis then you're not disabled. If you've done very easy work then they can wonder why you cannot do it again. Needless to say an attorney is often needed since denials are common. Also in this area your doctor can be very important to itemizing your problems and restrictions. Anyway click here for the eligibility tool.