Social Security Stats for August 2009

From the Social Security website you can see how many people are drawing SS retirement, disability, SSI and the like. It also includes the monthly financial figures in each area. Interestingly it also includes what the average SSI recepient receives (around $500 a month) and what the average Social Security disability benefit is monthly (around $1100). Anyone eligible to receive benefits only receives what is calculated for his situation. Many of those we represent only receive $700 or $800 a month in SSDI (disability based on your earnings) and that may be because some of those who are injured may be working in lower paying jobs. So anyone thinking that Social Security gives you big bucks is mistaken. If you want to look at the stats click here.

WCMSA'S

Whenever a claimant has a workers comp claim and also perhaps a right to Social Security disability/retirement/medicare then you have to consider offsets and something called an WCMSA. Offsets are required by statute if you are receiving Social Security disability or retirement benefits. Essentially the insurer has a right to a partial credit if you are receiving or should be receiving such benefits. In the real world this means you can receive a full SS check and a partially reduced WC check at least in Colorado. That information is set forth in the statutes on offsets. In addition a potential settlement may also have to consider a workers compensation medicare set aside (WCMSA). By federal law medicare may have a very big interest in your settlement. It does not want to be solely responsible for your future medical care through Medicare when some of it may be due to your work injury claim. It may mean that the parties have to consider Medicare's rights in a settlement and even set aside funds in a way that is approved by Medicare (the agency is CMS or the Centers for Medicare Services). Usually a review is made and drafted to submit to CMS and then made part of the settlement. Any MSA will almost always mean funds are set aside that can be used and accountable to medicare. If this is not done medicare may hold anyone involved with the claim responsible. A claimant does not want to hear that medicare is seeking reimbursement directly from you or your Social Security benefits. A judge recently told me they were seeking $70000 from one claimant! So what do you do? Well in this sample you can see how complicated it gets but the basics are simple to explain: show medicare what future care is to be attributed to the work injury and figure an amount to set aside. Then hope CMS approves it and doesn't change its mind.

SS Judge Does Some Blogging

I came across a blog that has as its author a SS Administrative Law Judge. While he is not in the Colorado Springs area I found his posts to be quite interesting. In some posts the judge discusses what he deals with at hearings. Sometimes the decision is favorable and sometimes not but the judge gives us some insight into decisionmaking. It does give us a less formal more human look into what it is like to be a SS Judge. You can click here to view the SS Judge's Blog.

Legislative Review of Pinnacol leads to Proposals

Pinnacol Assurance has been under legislative review. Testimony was taken from many who complained about some of the Pinnacol practices. In the past I've tried to say that this is not just a Pinnacol situation but relates to many insurers who simply take advantage of the laws and procedures available to them to promote the insurers interest over the claimant. Pinnacol was the focus because it is a hybrid agency that is part public and part private in its operations. But the problems with workers comp are not restricted to Pinnacol. Most claimants should realize that there is an inherent conflict between an insurers interests and the claimants interests. It is unavoidable that an insurer will seek to save on the expenses of a claim. The claimant is not interested in saving at what he may feel is unfair to his interest. His viewpoint is on maximizing his claim. The laws and rules in place along with some practical considerations can often work to the advantage of insurers. The fact the workers compensation is quite complex and sometimes expensive works to the advantage of insurers especially when a claimant does not have an attorney. In this article in the Denver Business Journal on proposals from the Pinnacol review you can see that lawmakers are aware of problems in the system.

"What's New Page" at the Division of Workers Comp

When the Colorado Division of Workers Compensation makes changes to its website they note it on a "What's New" page. Whenever I check the website I almost always go to this page first to see what changes have been posted. By following along with the changes as they get posted it gives me a better idea of what is happening in my field. There is so much at the Division website that it can be overwhelming when you first start looking at it. But after a while it seems like it is well organized and quite handy to use. If you do not know where to start to get an overview I suggest if you are an employee to read the Employees Guide at the site. If you need more help and do not have a lawyer then contact the Division's customer service unit.

Backlogs Increase at SSA in Colorado

Delays are common in Social Security disability cases. In the last few years one delay that affects all of us is in the area of setting the hearing before the judge. When you appeal a denial in Colorado it goes to a hearing. It seems to take about a year from applying to obtain a hearing. This is not a hard and fast rule as it can be faster but it can take longer too. Also sometimes a judge will review and decide no hearing is needed as benefits should be granted. But with most cases you expect a year of waiting and after a hearing several weeks more to obtain the decision. What is new here is that the delays may be increasing. If you click here you'll see what another attorney noted and the chart you can then view makes Colorado look to be one of the problem areas. There seems to be a backlog that is growing and if so may lead to more delays in obtaining a hearing.

Court of Appeals decides the Eller case today

This is a case where the claimant lost on compensability (coverage) after a hearing. She appealed but lost at the Court of Appeals level. Eller asserted that, while there was no admission of liability, the Respondents provided medical care and the authorized treating provider determined she was at MMI(maximum medical improvement) and also rated her with an impairment. She then said that this determination was never attacked by the Respondents so by statute (section 8-42-107.2(2)(b), C.R.S. 2008) they are bound by it. Her view was that it was required by statute that Respondents seek a DIME(Division Independent Medical Evaluation)so because they did not the doctors opinion was binding even on the Administrative Law Judge. This even should have included compensability or causality. The Court disagreed and affirmed the loss by claimant. Respondents contested the claim so they had a right to contest the question of compensability at the hearing which is a threshold issue not a medical opinion. Here the lower judge decided the claimant was not very credible and the specific injury was not caused at work. The claimant then argued that the way the case was handled deprived him of a right to seek a DIME which could have led to a presumption the DIME opinion addressed causality. This was shot down. The one point that is unclear to me is whether the authorized doctor addressed the mechanism of injury such that it could be said to be a binding finding or determination as noted in the statute. The Court said the statute should mean that the doctor addressing MMI or impairment is not a finding on the question whether the injury was caused at work. But even if you say the doctor cannot address whether it happened at work he may have addressed the way the claimant was injured. Here the impairment perhaps was attributed to falling out of a chair at work by her doctor who provided the rating. Seems to me that Respondents medical witness was not an eyewitness. Yet Respondent's doctor concluded the claimant's injury was not caused by falling out of a chair. Not sure why this opinion was allowed over the authorized doctor but the facts are not fully set forth on that point. However the case says that when Respondents contest your claim they can take it to a hearing and win even if the authorized doctor is on your side. The case is an interesting read so for more complete details and the Court's reasoning click here.

Testimony on Pinnacol at State Level

As this article from the Denver Post notes there has been testimony from injured workers on their treatment by Pinnacol Assurance, the state's largest workers compensation insurance carrier. Not all is negative but the key point could be that over the past several years Pinnacol had amassed quite a financial surplus. One view is that it did so by denials and reductions of benefits to those injured on the job. Of course another factor is the law changes that took place over the years. Many law changes tightened up on providing benefits. For example, despite the many denials of Social Security disability claims it can accept that you are totally disabled if based on your age, education, work experience/skills and restrictions you are not employable in a substantial gainful way. In Colorado it is tougher to establish permanent total disability. So law changes have played a role in reducing benefits over the past few years. Certainly this rewards all insurers not just Pinnacol. However Pinnacol is the largest so you can expect further proceedings on all this. The fact is insurers have many legal ways to keep benefits low for injured workers. Injured workers with hand, arm or leg injuries are often poorly paid permanent benefits, especially if they lose their trade/occupation. I can provide numerous examples of legal ways that are used to deny, delay and reduce benefits so hopefully all this will be reviewed as well.

Here are 302 pages of workers comp local decisions

The Office of Administrative Courts holds local level decisions in various locations around the state. They are placing these decisions on the OAC website each month. So for the month of July you can peruse through 302 pages of decisions. Please be aware that these are local level decisions and many of them are appealed. Still you can get the flavor of the cases being heard each month by reviewing these decisions. Cases involving permanent total disability, job termination, medical benefits, partial impairment, efforts to overturn the DIME opinion and much more are set forth. The names of the parties are not going to be revealed but the names of doctors as well as the deciding administrative law judge are noted. The breakdown for most of these cases is to list the facts being found, the legal conclusions being made and lastly the order itself.

Social Security Disability...getting started.

If you can no longer work because of all of your health problems then applying for Social Security Disability may be something to consider. Anyone hurt on the job who may be unable to work anymore should also consider applying but check with your attorney on the timing as it is a factor in your workers comp benefits including even your medical benefits. Those that truly are not employable in a substantial way often can make a claim for disability by heading down to the local Social Security office or online. Here is a link to a starter kit at the Social Security website. Since most people have many questions about it I usually advise applying in person if you can do so. Of course going online is another way but please do not just get started without reviewing the online information at the Social Security website. Some common misconceptions about SSD are that you can qualify if you can no longer work in your occupation. Sorry it's not so although age is a very important factor in the agency deciding if you are employable. Another misconception is that you can get it before you stop working. Sorry but most people should not be working to apply for disability. Another misconception is to say my friend got it for his back problems and I have back problems so I also should get it. Sorry but every case is decided on an individual basis where age, other health concerns, education, past jobs and more are considered. Finally you do need to supply some information about jobs and physicians. Click here for that.

Court of Appeals decides a DIME is not a medical benefit

In a short case decided on August 6, 2009 the Colorado Court of Appeals decided that a Division IME is not a medical benefit. In Jones the court was presented with an effort to reopen the comp claim for more medical benefits. The problem for the claimant was that she was injured in 1998 so there were time limitations to deal with in trying to reopen the claim. The court said that the only way the claimant still had time to try reopen her claim is if the DIME was deemed a medical benefit. This would mean her 2004 DIME examination let her have until 2006 to try reopen if the court agreed. The court did not and determined a DIME is not a medical benefit. A DIME is a medical examination but because it involves no treatment or healing it is not a "medical benefit" according to this decision. While I understand the reasoning (the case is very brief) I do have to question it. Believe it or not there is no statutory definition of what is a "medical benefit". There is no question the DIME physician does not render treatment but the opinion he renders may address further treatment. For more information on a DIME click the subject on our blog. For example your authorized doctor may have said you need medications for another 6 months but the DIME doctor may say you need psychological care or long term medications. In a sense the DIME can trigger more treatment but at a minimum even if nothing further is recommended he does address medical issues. This includes your need for further treatment as of the date of his exam. If we think of medical benefits as treatment then clearly a DIME is not a medical benefit. If we think of medical benefits to include any medical exam to assess the need for more treatment then it is a medical benefit. If we ask was it a medical matter I think it was. If we ask if its a benefit then again it is one created by statute. So then putting the two words together and using their plain meaning you do have to question the decision. However for now the Jones case tells us a DIME is not a medical benefit.

Emergency Rule 8 on Recordings

The Division has issued what it calls an emergency rule, effective for claims after August 5, 2009. The new provisions are Rule 8-8 to 8-13 and address when an insurer or employer sends the claimant to its own Independent Medical Examination. Most of us in this field know that when the insurer does this it is seldom an independent objective examination. Insurers tend to pick doctors who favor the insurance side of things. What the rule does is provide details on how this examination must be recorded, how to get a copy and what remedy you have if the recording has confidential information the claimant feels is not to be revealed. All this is because of a new statutory provision just passed by the Colorado legislature. Apparently enough questions have surfaced about insurance oriented doctors asserting what happened during their examination which some feel is untrue. The new law and rule are designed to audio record the examination. Read the new Emergency Rule 8 here. This new rule is a bit complicated so you do need to read it carefully. Clearly after the examination a claimant can receive the first copy even before the insurer. Whoever first requests it must pay for it ($20) but if the insurer wants it they must pay $20 for the first copy for the claimant.

Who Has A Gripe about Pinnacol Assurance?

A while ago Pinnacol Assurance was involved in a controversy about its extra revenues. The state of Colorado wanted some of that revenue to help with the budget shortfall. Pinnacol said it should be treated as a private entity so it opposed the effort. The state put off a confrontation but is now flexing its muscle to rein in Pinnacol. By the way Pinnacol is the largest insurer of workers compensation claims in Colorado. Its history is long but let me say it is neither fully private nor fully a public company. So now the legislators are hot on the tail of Pinnacol and Pinnacol is on the defense. A state audit is also underway. Clearly when Pinnacol seems to be thriving and the state is not then you can expect questions to be asked and more funds to go to the state and policyholders. Anyway now they are inviting those with cases or stories involving Pinnacol to come forth and tell a legislative committee all about Pinnacol. You can do this by email so for more on this click here. I am not sure that Pinnacol is the problem. What has happened in workers compensation is that benefits have been reduced and insurers have procedural and financial ways permitted by law to defend themselves and thereby increase profits. Example? If you hurt your arm but can still work in a low wage job you'll get at most a few thousand dollars for a permanent problem if the insurer has its way. So what if you lose your trade. Another example? When someone has a permanent problem with very real pain and medical needs many treating doctors designated by the employer will say you need 6 months or a year or two of medications. So permanent problem but temporary pain relief which allows them to limit future medical benefits. Another way is to close the case out as fast as you can so money is saved. All they are doing is using the law to their advantage. The old concept of liberally construing the law to favor claims was changed. It became a game where there is more to gain by contesting and limiting claims. Without a good lawyer the claimant often doesn't have a chance or may not even know he's getting less then what he might receive. But Senator Carroll is trying to get people to talk about Pinnacol and anyone can do so. Perhaps it will help change the workers comp system to level the playing field for all claimants.

Workers Comp Hearings...Rules To Use

When we deal with workers compensation claims we may need to refer to two different sets of rules. Over at the Division of Workers Compensation (DOWC) they have rules for the processing of claims. Those rules can be accessed by clicking here. But also whenever we apply for a hearing or when the other side does there are other rules which also apply. These are provided by the Office of Administrative Courts (OAC). Those rules are cited as OACRP (Office of Administrative Courts Rule Procedure) and you can read them by clicking here. So when an agency says WCRP it is the Division saying workers compensation rule of procedure such and such. When another agency cites OACRP it refers to its rules. While sometimes confusing both sets of rules are available for anyone to read on the internet.

Be Careful What You Post Online

Anyone with a workers compensation or Social Security disability claim would be wise to remember that what you post online may be accessed by others. So your profile on Facebook or elsewhere may come back to haunt you. We all know that many with claims are investigated and even videotaped but what you post online may also be subject to review. Here is an interesting article that makes the point very well. If you post about yourself and all your interests then that can raise a question about the severity of your disability. So a word to the wise...do not imagine you are invisible and won't be checked out. From digital cameras to Facebook or even other postings elsewhere you had best assume they will discover all this. In this digital age your life could be an open book so with any injury or disability I suggest you cease...that means STOP all such postings for the duration of your claim or at least be extremely careful what you post.
Postscript: August 23, 2009 Dollar Tree uses claimant's MySpace to bust his case.