Adjuster's Guide in Workers Compensation

If you are interested in what the Division of Workers Compensation says is its guidance for adjuster's handling workers comp claims then click here for the guide. It may provide some insight for all of us. It gives us a basic understanding of the duties of the insurer. Many subjects are discussed and can help explain why a form has been filed and what are some of the deadlines. If the insurer or adjuster is taking some action or filing something you might want to check here for a better understanding of what and why it is taking place. Of course there is also a guide for employees which is also extremely useful in understanding the workers compensation claim process.

A Very Special Story

I debated posting about this because it does not concern workers compensation or Social Security disability. But it does concern disability and how we all can learn how to deal with it. This story concerns how a little boy responded to a disabled child. It just so happens this disabled child is my granddaughter. Her name is Cici and she just turned 18 months old. Several months ago she choked on food and despite heroic efforts it resulted in oxygen deprivation. She came close to dying but after many weeks returned home needing constant care. In an instant lives were changed but through it all hope has remained and progress has been steady. All sorts of problems have to be dealt with and yet against all odds the child and her family have been survivors. What makes it more special is that a little boy named Max and his parents found out about Cici's story. In this link to my daughters blog you can see what Max then did. A disability can happen to any of us at any time. It can happen to those we care about. The effects of a disability are widespread and often very tough to deal with. Yet despite it all there are special people out there, like in Max's story and in Cici's story that inspire us. They are beacons of hope who remind us that how you approach disability is with honesty, compassion and dedication to do all that we can.

The Nelson case allowing a second lump sum

Decided today by the Colorado Court of Appeals is the Nelson case. This is a case where the claimant was permanently and totally disabled. The law allows a claimant to obtain a lump sum. She did in the amount of $26292.00 which was the amount allowed to be lump summed back when the claimant was originally injured. Since that time the statute was changed to allow for up to $60000.00. So later the claimant sought the $60000 less the $26292 she had already received. She lost on this with the reasoning being she was bound by the law in effect when she was injured. The Court however let the claimant obtain more by deciding the lump sum law was procedural. As such it was not impermissively retroactive or trying to wrongly impose a new law on an old case. The decision makes sense. There was no change in the fact that a permanently and totally disabled person was entitled to lump sum or obtain an advance of the biweekly benefits. It just allowed the claimant to obtain a bigger advance. This is simply a math matter that does not really give a claimant more then he or she is due but just allows for a bigger advance of future money that is owing.

Sotomayor Social Security decision

Here is a recent case decided by Supreme Court nominee Sotomayor. It involved a claimant who appealed an unfavorable decision in a mental disability case. The decision was in favor of the claimant and that meant a remand for further development of the case. From what I've read her written decision seems quite logical and sensible.

Memorial Day 2009

Remember all those who died or became disabled for this country. Their sacrifice was real. We are here today free to live and even make our own mistakes because they were there for us.

Pinnacol Assurance to Refund $120 Million

Pinnacol Assurance who is the largest workers comp insurer in the state has determined to provide a sizable refund to its business policyholders. A while ago the state legislators were seeking to use some of the excess funds that Pinnacol had for the state budget. Pinnacol opposed that and now plans to provide refunds of some of that to its policyholders. If you read the article linked here you'll see the story and Pinnacol denies it is doing this to further deter the state from seeking its funds. As I have said before Pinnacol is a hybrid of public-private interests so I would expect the state to stay interested in it. Needless to say the primary reason for this refund is really that Pinnacol is paying out less to claimants in benefits. In effect it is doing quite well which cannot be said for many claimants.

May 14, 2009 The Ruff case on conflict of interest

Just decided today is the Ruff case. Back on July 25, 2008 I posted an earlier Court of Appeals case we'll call Benuishis. It appears that this latest case totally disagrees with the earlier division of the same Court. The Colorado Court of Appeals has over 20 judges and more then one division to handle the many cases that are appealed. Both cases involved a Division Independent Medical Examination. It is quite obvious there is now a conflict in divisions of the court which usually means the Supreme Court will have to resolve matters. In the meantime here is the situation: If a DIME physician may have a conflict of interest because he or she receives much income from a party (like Pinnacol Assurance which uses some doctors quite a bit) then the administrative law judge at the hearing may have to consider if there is a sufficient appearance of a conflict of interest to remove the doctor as a DIME. What is not clear is what is the appearance of a conflict. Benuishis says receiving a lot of income from a party like Pinnacol is not by itself the appearance of a conflict and Ruff says it can be. Personally I agree with Ruff. I just do not like close financial relationships with insurers to be disregarded. If anything frequent use of a doctor or paying that doctor many times over may well taint that doctor or make his use as a DIME questionable. As medical professionals they may not see it that way but we're talking about an appearance of a conflict. Sometimes it is not an actual conflict of interest but the appearance of one that is so disturbing. The Colorado workers compensation system set up the DIME process with the intention of really trying to make it totally independent. We honor that intent by excluding all who might make it appear suspicious. That's why Caesar divorced his wife.

The President and Healthcare Reform

If you click on this link you will be taken to an official site maintained by President Obama supporters that gives you a chance to push for healthcare reform. The current healthcare system is simply terrible. It is not because we lack quality healthcare. Instead we have a system where too many are uninsured or underinsured. We have a system where healthcare costs are rising too fast. We have a system where life and death decisions are made yet we are all mired in a complex maze of paperwork, rules and confusion. One of my clients once said that in her country you are taken care of from cradle to grave. Not here. Change will be difficult. It will require compromise but we must start before we lose control over it. If you are injured at work you usually have one form of insurance coverage. If you get sick at home another. If you are poor there is still another form of coverage. If you are in an auto accident perhaps still another. If on medicare still another. And on and on. Claims may be promptly resolved or take years to resolve. The effort to reform this requires the support of many of us. Please take the time to check into this. This is an issue that will not go away and doing nothing is not a solution.

IME's and the doctor patient relationship

An IME or Independent Medical Examination is not a simple concept in Colorado. First, there is the Division Independent Medical Examination that is a very special exam permitted by workers compensation statute. Unless otherwise agreed the Division provides three doctors and the list is narrowed down to one who performs an exam and issues a report as required by the statute. It can often be very independent and may help provide more treatment or a higher permanent injury rating for the claimant then that provided by the doctor/clinic designated by the employer. In other words it often is a very effective tool to use to obtain more benefits for a claimant. There is an expense but it is almost always worth it provided it is set up properly. Second, there is the insurance IME where the insurance handpicks a doctor to examine the claimant and issue a report. That is far less likely to benefit the claimant and may even harm his interests. Such an IME may have no duty to the claimant as a doctor and even his report goes to the insurer. Some might call him a "hired gun" who helps the insurer. That may not be so but it does depend on who the doctor is and his history or repute in this area. Attorneys in the field do usually know that history or repute. Normally an insurer IME is to be viewed with suspicion but I do admit that some are quite decent. Also there are the claimant IME's where the claimant's counsel also wants the claimant examined by a doctor he trusts.
Aside from the different types of IME's I can say that in Colorado the insurer IME will seldom have any liability to a claimant. He may devastate the claimant's claim with his views but his duty is primarily to the insurer not the claimant. He may say the claimant doesn't need the surgery or has no case and he may even testify at a hearing to this effect in a contested case. One Colorado case on this is Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). But a recent Arizona case I received makes a point of saying, that at least in Arizona, there can be liability. That case involved a workers comp claimant that delayed his surgery in part because of an insurer IME and that was the wrong thing to do. I then looked into Colorado caselaw and I don't see Colorado always giving 100% immunity to the insurer IME. Anyone looking into this may not only want to review Colorado caselaw but perhaps also look elsewhere for insight. The Arizona case gives us a clue that perhaps the insurer IME is not as safe from a malpractice claim as has been thought.

Social Security Administration number of employees

Over the past ten years the Social Security Administration really has not grown. In fact it has less employees now then in 1998. Given that there are more claims and more people retiring or disabled now then ten years ago you have to wonder how they can stay ahead of the situation. Well...they cannot. Delays are routine in the processing of claims/hearings and benefits but with less employees now it is difficult to catch up. Even after a hearing it can take weeks for the decision and still more weeks for the first check to be sent.

Change of Physician stats

The Division of Workers Comp issued some stats in two areas recently. These stats suggest that few people request a change of physicians in a workers comp case. However as with any statistics they can be read in different ways. First, a formal change of physician can take place in many different ways and these stats only deal with two of the ways. You can change a physician by agreement, by order, by abandonment of care, by a 20 day letter using a provision of 8-43-404 and by acting within the first 90 days by another provision of 8-43-404. My experience with 20 day letters is that they are usually denied by the insurer. Second, the stats seem to imply that injured workers are content with treatment so they do not want a change of doctors. Again, my impression is quite different. Having said that the way to understand this is to start with the fact that the employer designates the doctor to treat the injured worker. With minor injuries perhaps that is fine and speedy treatment deals with the injury so the worker can quickly return to work. But with more serious injuries a hand picked doctor in a clinic situation may not be the best choice. Often an injured worker is not very happy with his treatment but tries to make it work. So any effort to change comes too late and at some point an effort is made to close the case. Injured workers that are well treated and recover seldom seek attorneys. My opinion is that the number one reason many people come to see me is that they feel their medical treatment was inadequate and the injury was minimized by the doctor and the insurer.

March 2009 Administrative Law Judge decisions

Over at the website for the Office of Administrative Courts they have posted decisions made by various judges in the month of March. Click here for 319 pages of decisions. What you can see from all these decisions is how complicated they can get. You also can see how medically involved they often are with combating medical opinions. The typical format involves findings of fact, followed by conclusions of law and the actual order itself. The names have been removed except for the judges themselves. It should be noted that these are decisions at what we call the local level. If there is an appeal it then can go to the Industrial Claim Appeals Office. Only a few of those cases make it to the appellate courts.

3 Court of Appeals cases decided April 16, 2009

The Colorado Court of Appeals decided 3 workers comp cases yesterday. In Simpson there was an assertion of overpayment to the claimant. Alleging all sorts of arguments the claimant was not successful in preventing the overpayment effort. The case is an interesting read but has one twist that may be significant just by itself. The claimant also sought to recalculate higher his permanent total benefits. Citing a recent case, Avalanche, his argument was that the calculations be based on his date of disablement not just the original date of injury. On this the court remanded it back to the lower judge for more fact finding. In Landeros the claimant alleged his jail time tolled the statutory time limits to seek to reopen. He lost. In the last case, Aviado, the claimant also asserted many arguments when he lost his permanent total claim at the hearing. It is also an interesting read and alleges that the claimant should have a right to proceed civilly apart from the workers comp system. It even asserts the Act itself is unconstitutional. He lost on all his arguments. My brief comments here do not do justice to these cases and I urge anyone interested to click on the links and read them for themselves.
UPDATE: Aviado noted above was denied cert by the Supreme Court on Apr. 5, 2010 so it means that court will not review further the decision of the Court of Appeals.
UPDATE: June 1, 2010, the Supreme Court reverses Simpson and a related case and overrules itself on date of disablement but AWW can be by determined by statute or by the discretion of the judge. Date of disablement is not to be used and does seem to be unnecessary anyway.

Pinnacol Part 3 The Legislature Slows Down

The effort to assess $500 million against Pinnacol Assurance this year is over. The politicians decided that they would not likely obtain any funds from Pinnacol this year to help with the state shortfall. Pinnacol made it quite clear they would litigate and we all know litigation can take time so the money would not be available to help with the budget. However it is clear they intend to try reassert state control over Pinnacol. Read the latest here. As I noted in earlier blog posts Pinnacol is a hybrid company that is part public part private in how it operates. As I said workers comp claimants would not benefit either way from all this but I still maintain that employers and employees lost here. Employers paid more then was needed and injured employees received less in benefits such that Pinnacol accumulated a ton of funds. Yet Colorado itself, including the hearings office have had to make cuts to operate. I am sure Colorado will push for reform in this area but it will take time to fashion a solution that is going to work.

Pinnacol Part 2...Why the Politics?

Colorado legislators are seeking some $500,000,000.00 from Pinnacol (the state's largest workers comp insurer which is also a political subdivision of the state) to help the state with education and perhaps other worthy matters at a time when the state is economically hurting. This has triggered much political debate and cries of foul from Pinnacol. Given the amount involved it seems clear that it is becoming a major battle. Money talks so they say. I must admit that Pinnacol has rallied much support that its excess funds are not up for the taking. This is well organized. Look at the Denver Post article with a photo of Pinnacol supporters. From what I have researched it appears that Pinnacol has $2 billion in reserves much of which came from insurance premiums and reduced benefit payouts. Of this amount some 700 million is excess or essentially slush money. The legislators seek 500 million and Pinnacol says that is wrong. What is certain here is that Pinnacol is far from being a private company. It was set up by the state, has a board appointed by the governor, does not pay taxes and has accumulated a huge surplus. Here is a quote from State Senator Carroll:

"Pinnacol is now trying to claim that they are like a private company, even though the statute says they are a “political subdivision”. This solution is not easy and not popular either.

"Pinnacol has managed to mobilize the business community in its defense. The business community should be pondering how much they have been overcharged in premiums for the company to have $700 million in surpluses above and beyond the $1.3 billion they have in reserves for known and anticipated claims."

It also appears that another bill was introduced to force Pinnacol to disburse back 5% to its policyholders (businesses) who also seem to have contributed to this huge growth. Clearly Pinnacol has made huge "profits" so does that state have a right to control some of that for the well being of its residents? The important thing to realize here is that Pinnacol is a hybrid that operates as a public and private business. But once it made huge sums it was bound to be considered as a source for state budget money. It was just as likely that big money makes Pinnacol want to remain big and private.

For injured workers I doubt this will have much impact. This seems more like an argument as to who gets the extra money. But what does seem a big concern is why was there so much extra money that accumulated? Could it be that businesses were charged too much or injured workers received too little? Makes you wonder....but this political issue is all about money and who controls it.